FEDERAL COURT OF AUSTRALIA

Nunez v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted an extension of time to appeal.

2.    The appeal be allowed.

3.    Orders 1 and 2 made by the primary judge on 14 August 2025 be set aside, and in lieu, orders made that:

(a)    The decision of the Administrative Appeals Tribunal dated 22 April 2024 be quashed; and

(b)    The matter be remitted to the second respondent for determination according to law.

4.    The first respondent pay the appellant’s costs of the appeal and the matter before the primary judge as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH AND LENEHAN JJ:

1    This is an application for an extension of time to appeal a decision of a judge of this court in Nunez v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 964 (PJ). In that case, the primary judge dismissed an application by the appellant for judicial review of a decision of the second respondent, the then Administrative Appeals Tribunal, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to revoke the cancellation of the appellant’s visa.

2    The appellant is Mr Jorge Francisco Murillo Nunez. Mr Nunez’s visa had been cancelled by an earlier decision of a delegate of the Minister dated 4 August 2023, which was premised, amongst other things, on the delegate being satisfied that the appellant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act 1958 (Cth).

3    The present appeal proceedings were not commenced within the required 28 days: see r 36.06 of the Federal Court Rules 2011 (Cth). The appellant therefore required an extension of time in which to bring an appeal. For the reasons that follow, we would grant the application for an extension of time to appeal. Further, the substance of one of the proposed grounds of appeal was not raised in the appellant’s written submissions dated 11 February 2026, nor in the Court below. That proposed ground related to whether the Tribunal failed to afford procedural fairness by advising the appellant that it had to accept the findings of the District Court of New South Wales and thereby misled the appellant as to how it could use evidence he may choose to give in relation to the circumstances or evidence of offences other than that offence upon which the cancellation of the appellant’s visa was based. The appellant therefore also required leave to appeal upon a basis not relied upon before the primary judge. That application was dismissed during the hearing on 11 March 2026.

Application for an Extension of Time

4    The principles which govern an application for extension of time to appeal are well established and are conveniently summarised in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan and O'Bryan JJ) at [33]:

Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

1.    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

2.    There must be some acceptable explanation for the delay.

3.    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

4.    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

5.    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to ‘assess the merits in a fairly rough and ready way’: Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].

6.    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

5    For the reasons given below, at least two of the grounds of appeal sought to be agitated plainly have real merit.

6    The orders of the primary judge were made on 14 August 2025. The period for commencing an appeal expired 28 days later: r 36.03(a) of the Rules. This proceeding was commenced on 25 September 2025, 14 days late. The affidavit of Marial Lewis (Mr Nunez’s solicitor) affirmed on 17 September 2025 offered the following explanation for that (relatively short) delay.

7    On 8 September 2025, Mr Nunez received prospects advice from counsel (that is, three days before the end of the appeal period). Mr Nunez then applied for Legal Aid, which was approved on the following day (two days before the end of the appeal period). However, the application for an extension of time and the accompanying affidavit were not filed until 16 September 2025, being six days outside the appeal period. It appears that those documents were rejected for filing on that date for failing to comply with the Rules, before being accepted seven days later on 24 September 2025.

8    Having regard to the factors which guide the exercise of discretion, we accept that the delay does not appear to have been caused by Mr Nunez personally, that the delay is only 14 days, and that any delay caused by the process of seeking Legal Aid should not weigh against Mr Nunez. However, the Court notes that there has been no explanation as to why the documents were not successfully lodged for an additional seven days after they were initially rejected. Thus the delay is partially, but not wholly, explained.

9    The Minister accepts that he will not suffer any specific prejudice in this case by the grant of an extension, although the absence of prejudice is not, in itself, a reason to grant the extension sought: BQQ15 at [33].

10    Having regard to that absence of prejudice, the relatively short delay, the merits of certain of the proposed grounds and the fact that the delay was at least partially explained, the interests of justice plainly favour the grant of an extension of time.

Background Facts

11    Mr Nunez is a Nicaraguan national. He came to Australia on 24 September 1990 on a Temporary Subclass 663 visa and was subsequently granted a Class AO Subclass 806 Family Visa on 26 November 1998.

12    Between 1992 and 2023, Mr Nunez was convicted of multiple offences.

13    The primary judge helpfully summarised Mr Nunez’s criminal offending as follows:

[4]     On 26 August 1992, Mr Nunez was convicted of the offences of failing to stop after an accident, driving whilst unlicensed, and driving under the influence of alcohol. He was fined and disqualified from driving for 2 years.

[5]     Between 1996 and 2001, Mr Nunez was convicted of multiple offences, including: being an unaccompanied learner driver; driving whilst disqualified; driving an unregistered vehicle; and driving under the influence of alcohol. The penalties imposed in respect of those convictions included: fines; licence disqualifications; community service orders; and various sentences of imprisonment, including periodic detention orders, a sentence of three-months’ imprisonment and a suspended sentence of two years’ imprisonment.

[6]     Most significantly for the purposes of this application, on 20 February 2002, Mr Nunez was convicted of the following offences which were committed on 24 December 2001:

•    Driving while disqualified from holding a licence, for which he was sentenced to 16-months’ imprisonment;

•    Possessing goods suspected of being stolen, for which he was sentenced to six-months’ imprisonment;

•    Driving a conveyance taken without the consent of the owner, for which he was sentenced to 12-months’ imprisonment;

•    Negligent driving (not occasioning death or grievous bodily harm), for which he was fined; and

•    Not giving particulars to the other driver [involved in an accident], for which he was fined.

[7]     It will be necessary in due course to provide some further detail in respect of these convictions and the facts upon which they were based given the nature of Mr Nunez’s arguments on this application. It suffices at this point to note that, while it is not entirely clear, it would appear that Mr Nunez pleaded guilty to each of the offences and a police “Facts Sheet” was tendered during the sentencing hearing.

[8]     On 21 March 2002, Mr Nunez was convicted of failing to comply with the good behaviour bond which was imposed as a condition of the suspension of the two-year sentence of imprisonment referred to earlier. He was sentenced to 16-months’ imprisonment.

[9]     Mr Nunez lodged an appeal against the severity of the sentences imposed on him on 20 February 2002 and 21 March 2002. His appeal was partially successful. The sentence for the offence of driving while disqualified was varied to 12-months’ imprisonment, the sentence for the offence of driving a conveyance without the consent of the owner was varied to four months’ imprisonment, and the sentence imposed in respect of his failure to comply with the good behaviour bond was varied to four-months’ imprisonment.

[10]     In 2009, 2010, 2015 and 2018, Mr Nunez was convicted of multiple offences including negligent driving, driving whilst disqualified, driving whilst under the influence of illicit drugs, and stalking or intimidating with the intention of causing fear of physical or mental harm. On 2 December 2009, he was convicted of contravening an Apprehended Domestic Violence Order (AVO).

[11]     On 3 September 2021, Mr Nunez was convicted of two charges of common assault for which he was fined, sentenced to a 12-month community corrections order, and directed to attend domestic violence and mental health related counselling.

[12]     On 13 December 2021, Mr Nunez was convicted and fined for possessing a prohibited drug.

[13]     On 10 March 2022, Mr Nunez was convicted of: two counts of stalking or intimidating with the intention of causing fear of physical or mental harm; one count of contravening an AVO; and one count of common assault (domestic violence). He was sentenced to imprisonment for an aggregate term of eight-months. The sentence imposed on Mr Nunez in respect of those offences was later confirmed by the District Court on appeal.

[14]     On 7 March 2023, Mr Nunez was convicted of stalking or intimidating with the intention of causing fear of physical or mental harm, contravening an AVO and destroying or damaging property (domestic violence). He was sentenced to an 18-month community corrections order.

[15]     On 18 May 2023, Mr Nunez was convicted of using a carriage service to menace, harass or offend and was sentenced to two-months’ imprisonment. He was also found to have breached his community corrections order and as a result resentenced to an aggregate term of imprisonment of seven-months. On appeal to the District Court, that sentence was set aside and in lieu thereof Mr Nunez was sentenced to an aggregate term of six-months’ imprisonment to be served by way of an intensive corrections order.

Visa cancellation and decision of the Tribunal

14    On 4 August 2023, a delegate of the Minister mandatorily cancelled Mr Nunez’s visa on character grounds, pursuant to s 501(3A) of the Migration Act (cancellation decision), which provides that:

(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.

15    That decision reflected the delegate’s satisfaction that Mr Nunez did not pass the character test by virtue of s 501(6)(a) of the Migration Act. Section 501(6)(a) of the Migration Act relevantly provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) provides that a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.

16    As outlined above, Mr Nunez was sentenced to 12 months’ imprisonment for the driving while disqualified conviction (disqualification conviction), and at the time of the cancellation decision, he was serving a sentence of imprisonment on a full-time basis for the family violence offences of which he was convicted in May 2023.

17    On 9 August 2023, Mr Nunez made representations to the Minister about the revocation of the cancellation decision. On 29 January 2024, the Minister decided not to revoke the cancellation decision pursuant to s 501CA(4) of the Migration Act (non-revocation decision).

18    On 6 February 2024, Mr Nunez sought review of the non-revocation decision in the Tribunal pursuant to s 500(1)(ba) of the Migration Act.

19    The hearing before the Tribunal took place on 8 and 9 April 2024. Mr Nunez was not represented. During the course of the hearing, Mr Nunez was cross-examined by the Minister’s legal counsel and gave evidence relating to his criminal convictions. In relation to the offence of driving a conveyance without the consent of the owner (conveyance conviction), Mr Nunez deposed that he did not “know that it was a stolen vehicle” and that he has “never stolen a vehicle”. We will return to that evidence in more detail below.

20    During his cross-examination on the first day of the hearing, Mr Nunez left the hearing. When he returned for the second day of the hearing, he refused to give any further evidence and be subjected to cross-examination. Again, we will return to those circumstances in more detail below.

21    The Tribunal subsequently affirmed the non-revocation decision on 22 April 2024: Nunez v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 809 (T). It is unnecessary to provide a detailed account of the Tribunal’s reasons. However, for the purposes of this appeal, and as identified by the primary judge, there are three aspects of the reasons which bear repeating.

22    First, the Tribunal observed that “it is not in dispute that [Mr Nunez] does not meet the character test” as a matter of law: T [22]. The Tribunal also noted that Mr Nunez’s visa was mandatorily cancelled because he did not pass the character test “as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions, and at the time of the cancellation, he was serving a sentence of imprisonment on a full-time basis for the 2023 violence offences”: T [22].

23    Second, the Tribunal was satisfied that the nature and seriousness of Mr Nunez’s criminal offending weighed heavily against revocation: T [46]. The Tribunal’s reasoning highlighted that Mr Nunez’s offending involved “violent crimes against female members of his family, including his now former partner, his child and his elderly mother”: T [42]. It noted further that his “violent offences against his family have become increasingly serious despite the imposition of AVOs and other Court-imposed measures”, and that he had “caused fear to the victims”: PJ [31]; T [42]-[43]. The Tribunal also pointed out that Mr Nunez had been “convicted of significant driving offences, demonstrating disregard for road rules and traffic laws”, and it placed “significant weight to the Court’s imposition of a custodial sentence” for some of those traffic matters: PJ [31]; T [44]-[45].

24    What is precisely meant by that last aspect of that reasoning was the subject of significant argument before us, to which we will return below.

25    Third, the Tribunal noted that Mr Nunez had “challenged some aspects of the Facts Sheet” concerning the 20 February 2002 convictions, “such as that he did not know that the car was stolen”: PJ [32]; T [31]. The Tribunal then referred to Bromberg J’s decision in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP First Instance), which it understood to establish the following principles (T [32]):

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

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

26    The Tribunal further noted that, in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus (citing HZCP First Instance [2018] FCA 1803 at [78]): T [33]. We will return, in more detail, to aspects of the Tribunal’s reasoning which are important to the disposition of ground 2 of the appeal.

27    The Tribunal concluded that while there were aspects in favour of revocation, the aspects against it outweighed those in favour. In particular, the Tribunal weighed the following factors (at T [122]-[123]):

The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community (moderated), weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of his minor child, impact on victims, and the extent of impediments if removed, are to a varying degree, in the Applicant’s favour. However, the cumulative weight of these considerations does not outweigh the significant cumulative weight of the considerations weighing against revocation.

The Applicant has repeatedly committed violence against female members of his family, including his vulnerable mother and child. The evidence before the Tribunal demonstrates that the Applicant has a longstanding and serious drug and alcohol abuse problem, as well as mental health issues which have been associated with his violent behaviour. For the stated reasons, the Tribunal has found that there is a risk of re-offending, which is unacceptable given its seriousness.

28    The Tribunal was therefore satisfied that the correct and preferable decision was to affirm the non-revocation decision.

Proceedings in this Court

29    Mr Nunez subsequently sought judicial review of the Tribunal’s decision. In his originating application filed 31 May 2024, he alleged that the tribunal engaged in two forms of jurisdictional error:

(1)    The Tribunal misunderstood the basis for the mandatory cancellation of Mr Nunez’s visa pursuant to s 501(3A) of the Migration Act as it considered that the basis of the cancellation included the offence of “drive conveyance taken w/o consent of owner” [sic] whereas the mandatory cancellation was in fact solely based upon the 12-month term of imprisonment imposed on the appellant for the offence of “drive while disqualified from holding a licence” (Ground 1).

(2)    The Tribunal acted on a misunderstanding of the law by precluding itself from considering the evidence Mr Nunez gave concerning the circumstances of the offence of “drive conveyance taken w/o consent of owner” because of its belief that that offence was a basis for the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act, and therefore, applied the wrong principle derived from HZCP (Ground 2).

30    Mr Nunez submitted that those jurisdictional errors were material because, had the Tribunal not effectively disregarded his evidence that he was unaware the car was stolen, it might have reached a different conclusion regarding the nature and seriousness of his offending. That, in turn, could have shifted the overall weighing exercise in favour of revocation.

31    On 14 August 2025, the primary judge dismissed Mr Nunez’s application for judicial review of the Tribunal’s decision.

32    Because the submissions of the parties on the appeal were similar to those before the primary judge, it is convenient to consider the primary judge’s reasoning together with the corresponding proposed ground of appeal.

Reasoning of the primary judge on ground 1

33    In relation to the first ground, the primary judge was not persuaded that the Tribunal misunderstood the applicable law: PJ [41]. His Honour concluded:

The Tribunal’s employment of the shorthand expression “the 2002 driving convictions” at [22] of its Reasons to describe the several offences for which Mr Nunez was convicted on 20 February 2002 was somewhat unfortunate and productive of some confusion. When the Reasons are read fairly and as a whole, however, it is tolerably clear that the Tribunal proceeded on the correct basis that Mr Nunez did not pass the character test because he had been sentenced to imprisonment for 12-months in respect of his conviction for the offence of driving while disqualified. The Tribunal did not, as contended by Mr Nunez, proceed on the basis that his failure to meet the character test was a result of all of the convictions that were entered against him on 20 February 2002, including for the offence of driving a conveyance taken without the consent of the owner.

34    The primary judge noted several textual and contextual indications that pointed to the fact that the Tribunal correctly understood the basis upon which Mr Nunez failed to meet the character test.

35    First, the primary judge observed that the Tribunal correctly identified the relevant statutory provisions upon which the cancellation decision was based: PJ [43]. Second, the primary judge considered that the Tribunal correctly stated, and was clearly aware, that the only offence in respect of which Mr Nunez was convicted and sentenced to 12 months’ imprisonment was the disqualification conviction: PJ [44]. Third, of greater consequence to the primary judge’s consideration was that the Tribunal used the definite article (“the”) and singular form (“sentence”) when identifying the basis upon which Mr Nunez failed to meet the character test as being “the sentence of 12 months’ imprisonment for the 2002 driving convictions”: T [22]. PJ [45]. His Honour considered that this indicated the shorthand expression of “2002 driving convictions” could only have referred to the disqualification conviction: PJ [45]. Fourth, the primary judge noted that when applying the principles derived from HZCP First Instance [2018] FCA 1803 to Mr Nunez ’s case, the Tribunal returned to the definite article and singular form when it stated that the result was that Mr Nunez could not “impugn the essential facts of the conviction”: PJ [46].

Ground 1 of the proposed notice of appeal: Mr Nunez’s “substantial criminal record”

36    By Ground 1 of the proposed notice of appeal (NoA), Mr Nunez contended that the primary judge “erred in finding that the Tribunal correctly understood the basis upon which [Mr Nunez] failed to meet the character test”. Mr Nunez submitted that the Tribunal incorrectly proceeded on the basis that the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act included the conveyance conviction, whereas the only offence that attracted a sentence of 12 months’ imprisonment was the disqualification conviction.

37    Various arguments were made by the Minister and Mr Nunez on those issues, involving somewhat fine semantic and contextual readings of the Tribunal’s reasons. We do not need to deal with any of those arguments for the following reasons:

(a)    Firstly, the parties seemingly proceeded on an unstated assumption that the appellant’s success on ground 2 of his application (and ground 2 of his appeal before us) hinged upon succeeding on ground 1. However, it became clear during oral argument that both parties accepted that ground 2 of the appeal and the application could be understood independently, rather than necessarily sequential to ground 1. The Minister, fairly and appropriately, accepted that he would not be prejudiced if the grounds were put in that way.

(b)    Secondly, related to the first point, it was also apparent that any error in respect of ground 1 of the application (and ground 1 of the proposed NoA) could only result in a material error to the extent there was also error as alleged in ground 2 of the application and proposed NoA (indeed, that was seemingly the only point in putting ground 1).

(c)    Thirdly, because that is so (and because of our conclusion that ground 2 of the application and proposed NoA does involve error on the part of the Tribunal, regardless of whether the appellant succeeds on ground 1) we can proceed directly to ground 2.

Reasoning of the primary judge on ground 2

38    The primary judge held that the second ground must fail given his Honour’s finding that the Tribunal did not proceed on the basis that it was Mr Nunez’s conviction or sentence for the conveyance conviction which provided the foundation for the jurisdiction to cancel his visa: PJ [51]. His Honour continued (at [51]) that when read fairly and in context, it is evident that when the Tribunal stated that Mr Nunez “cannot challenge or impugn the essential facts of the conviction” (T [33]), it meant that Mr Nunez cannot challenge the essential facts of his disqualification conviction. The primary judge further observed that, although the Tribunal noted that “in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus” (as set out in HZCP First Instance [2018] FCA 1803) (T [33]), those “certain circumstances” were confined to the conveyance conviction. In that context, Mr Nunez bore a heavy onus which, it was clear, he had not discharged: PJ [52].

39    The primary judge proceeded to note that if, contrary to the findings he made that the Tribunal did not misunderstand the basis upon which Mr Nunez failed to meet the character test, nor the applicable law, those errors alone could not possibly be said to have been a material error: PJ [48], [53]-[64]. We will return to that issue below – it arises under ground 3 of the appeal.

HZCP

40    It is useful, at this point, to return to HZCP.

41    As we have noted above, at T [32], the Tribunal extracted a passage from Bromberg J’s reasons in HZCP First Instance [2018] FCA 1803. The relevant passage of his Honour’s reasoning appears at [78], where his Honour “adopt[ed] the distillation of the case law” by Beach, McLeish and Niall JJA in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 at [42] (which his Honour had earlier reproduced at [76]).

42    Although the Tribunal hearing took place on 8-9 April 2024 and the decision was handed down on 22 April 2024, the Tribunal did not refer to the decision of the Full Court of this Court in the appeal from HZCP First Instance, which was handed down on 21 November 2019: see HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (HZCP Full Court).

43    In HZCP Full Court, at [23], McKerracher J extracted the reasoning of the primary judge which the Tribunal in the present matter reproduced at [32]. McKerracher J did not suggest that that statement was wrong, although he preferred to express the relevant principle by reference to the reasoning of the Victorian Court of Appeal in LLF [2018] VSCA 155 at [42]-[43] (which McKerracher J extracted at [56], describing it as “apt”):

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

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

(Emphasis added by McKerracher J).

44    McKerracher J went on to apply that approach to s 501CA(4) at [57]-[79] (that is, the same statutory context we are dealing with). That essentially involved the following steps:

(a)    The exercise of the power in s 501CA(4) of the Act is predicated on satisfaction that a person has not passed the character test, which turns on the existence of a conviction or imposition of a sentence ([63], [71]).

(b)    The power cannot therefore arise without the prior foundation of the requisite conviction or sentence ([63],[66]).

(c)    Where a previous conviction or sentence is the foundation for the exercise of power by a decision-maker, the decision-maker cannot impugn or question the essential factual findings that underpin the conviction or sentence on which the power depends (even when considering whether there is “another reason” the decision to cancel the visa ought be revoked) ([67]-[68], [71]).

45    Colvin J generally agreed with McKerracher J (at [179]), but expressed his own reasoning on those issues at [181]-[183] and [192]-[194], which was broadly similar to that of McKerracher J.

46    We do not understand either party to suggest that anything flows from any differences in the expression of the relevant principles by the Full Court as opposed to the primary judge in HZCP First Instance [2018] FCA 1803. In any event, as the primary judge said at [49], the summary of the applicable principles in HZCP First Instance could be seen to have been “effectively endorsed” by McKerracher J and Colvin J in HZCP Full Court (2019) 273 FCR 121.

47    Of considerably more significance for present purposes is the discussion by both McKerracher J and Colvin J of the particular position that applies to a plea of guilty (which is what was in issue in the current matter). At [69], McKerracher J extracted the analysis of Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, which he said “accord[ed]” with his own approach and where her Honour said this:

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

(Emphasis added).

48    In his own reasoning, McKerracher J had earlier pointed to the rationale for such a differentiated approach, saying at [52]-[53]:

… There are reasons why a person might plead guilty to an offence they did not commit. In some of these cases, the person will mount a compelling argument about why they did so and persuade a decision-maker that, notwithstanding the conviction, the true facts are not the essential facts that were accepted for the purpose of the conviction being entered. The decision in Minister for Home Affairs v Sharma [2019] FCA 597 (Sharma) is such a case.

In Sharma, the Tribunal accepted that the applicant did not commit the offences as charged, but accepted responsibility only because he had been persuaded by his ex-wife that he would lose custody of their child…

49    Colvin J made a similar point at [191]:

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

(Emphasis added).

50    None of that could arise in HZCP Full Court (2019) 273 FCR 121, in circumstances where: (a) the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke (at [71] and [151]); and (b) the appellant had been convicted and sentenced after a trial (at [31]). Accordingly, that part of their Honours’ reasoning is strictly dicta, although as the Minister accepted, seriously considered dicta. The Minister (quite fairly) did not suggest that any of that reasoning was wrong.

Ground 2 of the proposed NoA

51    With that background, we turn to ground 2 of the proposed NoA. By that ground, Mr Nunez contended that the primary judge “erred in finding that the Tribunal did not preclude itself from considering the Applicant’s evidence which challenged the facts and circumstances underlying the Applicant’s conviction for driving a conveyance taken without the consent of the owner”. As is apparent from its wording, that ground (as developed in submissions) was focused upon the conveyance conviction.

52    The parties’ respective cases on that ground developed somewhat in argument and moved on from their written submissions. No criticism is intended by that – the developments were, in part, prompted by questions from the Court and closer analysis of the Tribunal’s reasons. But it should also be recognised that not all aspects of the argument were put to the primary judge (again the Minister raised no objection to our dealing with those matters on appeal).

The evidence regarding the tribunal hearing

53    In form, and as argued before us, ground 2 is essentially an argument that the Tribunal’s reasons reveal that the Tribunal misunderstood or misapplied the applicable principles derived from the authorities to which we have just referred. Somewhat unusually then, much argument was directed to the transcript of the proceedings before the Tribunal. We accept that such material is relevant to the issues that arise under grounds 2 and 3 in the ways we describe below: in particular, it is evidence of what was (and what was not) part of the appellant’s case before the Tribunal, and whether that case was narrowed or altered during the hearing before us. That, in turn, casts light on aspects of the Tribunal’s reasons and whether they involved error.

54    The first matter is what the transcript shows was not (on any view) part of Mr Nunez’s case: that is, it was no part of his case to challenge the essential facts that underpin the disqualification conviction. In that regard, Mr Nunez made plain in cross-examination on day one of the hearing that he was “not denying that [he] was driving the vehicle” (being at a time he was disqualified from driving).

55    The second matter concerns the conveyance conviction. As the primary judge observed at paragraphs [17]-[18], knowledge that the conveyance has been taken without the consent of the owner is an element of that offence to which Mr Nunez pleaded guilty. It was that aspect of the facts underlying his resulting conviction that he sought to challenge. His evidence on that aspect was characterised by the primary judge as a “bare denial”: PJ [59]. In our view, it went further than that – giving a specific and detailed account as to what he knew of the ownership of the car.

56    In particular, he said this during cross-examination on day 1 through his interpreter:

INTERPRETER: I accept that I was driving a vehicle that I knew was stolen [this aspect of his evidence appears to have been mis-translated – see further below], but not that I stole the vehicle at —no time. The previous evening, I went to visit some friends in Smithfield, and they were drinking. I didn't drink, but I didn't— but I spent the night there. So the following day, this person had to go away, and I had to — I had to leave. I saw that he was drunk, so I suggested that I drive to where I was going, near Cabramatta, and then I gave him the vehicle. I didn’t know who this person was, I had never seen him. I thought the vehicle belonged to him because he had the keys and, yes, I was driving the car and it was wet, it was raining.

So it was slippery, and my vehicle slipped, and I crashed, and then when this happened, the other person took off. I have never stolen a vehicle. (Indistinct) that it was stolen. I didn’t know that it was a stolen vehicle because this person had their (indistinct) to the vehicle. How could I possibly imagine that it was a stolen vehicle?

MR BURKE: Mr Nunez, the factsheet goes on to state that you were witnessed to run from the vehicle after the crash with the person who was in it with you.

INTERPRETER: I didn’t run off. The other person did. I walked away and walked towards Cabramatta Train Station, and I stayed there. (Audio malfunction) to hide or anything. It was — that's where the police picked me up there— sorry, (indistinct) the right word. That’s where the police stopped me there when I was there. Like I said, I’m not denying that I was driving the vehicle, but I had no idea that the vehicle was stolen, and I did not steal the vehicle.

57    Aspects of that evidence were later further clarified by the interpreter:

INTERPRETER: So the first time that he was asked about the stolen vehicle, I understood that he said that he knew it was stolen, and that is how I interpreted it to Mr Burke. Later on, I believe that he said he didn’t know that it was stolen, but I was, like, confused. That’s what I had understood. That’s what I had heard, but then on, I think, a third occasion when he used the same words as he had in the first instance, I believe that he now said, ‘I didn't steal the vehicle, or, and I didn’t — I was not aware that it was stolen’ or words to that effect. So I would like to make a correction when 1 interpreted that he knew he was — that it was stolen, I believe now that he said he didn’t know it was stolen

58    Both the Tribunal and the Minister’s counsel made clear that they each understood the effect of the appellant’s evidence:

DEPUTY PRESIDENT: And thank you for (indistinct). My clear understanding from the applicant’s evidence is that he said he did not know that the car was stolen, nor did he steal it himself. That’s his evidence here today. That’s my understanding. Yes, Mr Burke.

MR BURKE: That’s my understanding too, Deputy President.

59    That was detailed evidence as to the substance of what had happened, that was not (in fact) at odds with what was stipulated in the police facts (which simply did not deal with the question of whether Mr Nunez knew that the car was taken without the consent of the owner – see PJ [17] and [58] – albeit that that was an essential element of the offence: PJ [18]). Whether the Tribunal accepted that account or not was a matter for it – but (as we will discuss further below) it appears to have avoided consideration of that issue by reason of its approach to the principles discussed in HZCP Full Court (2019) 273 FCR 121.

60    The third matter concerns Mr Nunez’s pleas of guilty. In the course of his cross-examination on day one, he was asked a question by the Tribunal about his pleas of guilty in respect of the “charges” “[a]bout that stolen vehicle”:

DEPUTY PRESIDENT: Do you remember whether you entered a guilty plea or a not guilty plea?

INTERPRETER: Yes, I think that I did plead guilty because I was driving the vehicle, but like — but like I said, I never pleaded guilty of having stolen the vehicle, or knowing that the vehicle was stolen because I didn’t do that.

61    No doubt, that betrays a misunderstanding of the criminal process and what was involved in his plea of guilty which led to the conveyance conviction. But it pointed to some explanation of that plea and what (according to Mr Nunez) he had intended and understood by it. As is apparent from the discussion in HZCP Full Court (2019) 273 FCR 121 and the authorities canvassed in that decision, pleading guilty may reflect a variety of personal motivations, not necessarily reflecting acceptance of all of the facts constituting the essential elements of the offence (see, by way of analogy, the facts of Sharma [2019] FCA 597 at [24] (Anastassiou J). According to Mr Nunez’s evidence (which was not challenged in cross-examination), that was his understanding of what his own plea entailed.

62    That puts in context some of Mr Nunez’s comments, not given as part of his evidence, but in a form of address to the Tribunal at the beginning of day two. We will return to those below.

63    The fourth matter concerns Mr Nunez’s expressed frustrations about the cross-examination process, which flowed in part from what had been explained at that point regarding the principles derived from HZCP First Instance [2018] FCA 1803. Notably, that included an erroneous explanation by the Tribunal of those principles. In particular, immediately after the exchange regarding the applicant’s pleas of guilty we have extracted at [60] above, the Tribunal said this:

DEPUTY PRESIDENT: I’ll just explain something to you. The tribunal, that’s me, has to accept the findings of the courts.

INTERPRETER: Yes.

DEPUTY PRESIDENT: Because that’s not my job, I don’t have the power to do that.

INTERPRETER: Sorry, Deputy President. I think the interpreter perhaps misunderstood the previous sentence.

DEPUTY PRESIDENT: Okay.

INTERPRETER: You said the tribunal does not have to accept or does have to accept.

DEPUTY PRESIDENT: Does not have to – has to accept.

INTERPRETER: Has to accept.

DEPUTY PRESIDENT: Has to accept.

64    That statement by the Tribunal was overly broad and wrong.

65    As we have noted above, there is a well established distinction between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. Only the latter attract the approach spoken of by the Tribunal. Not only did the Tribunal suggest that that was an across-the-board rule, it did so in a context which would have been understood by Mr Nunez as applying to the conveyance conviction (which had been discussed immediately before, and to which it plainly did not apply). The Tribunal made a similar comment later in Mr Nunez’s evidence (see the extract at [69] below), which was also wrong.

66    As we have noted above, those misstatements were part of the basis for the very late application (during the hearing of the appeal) to amend the proposed NoA to add a procedural fairness ground. We joined with Wheatley J in dismissing that application in ex tempore reasons delivered during the hearing. It can also be noted that any misapprehension as to those matters was corrected on day two of the Tribunal hearing by the Minister’s counsel, before the completion of the hearing and at a time which Mr Nunez could have elected to continue to give evidence (see further below).

67    Nevertheless, that puts in context an important exchange that took place shortly after the exchange noted at [63].

68    As we have mentioned above, day one ended somewhat unhappily procedurally, with Mr Nunez becoming agitated and asking the Tribunal to “cancel everything”. He then left the hearing room, before returning on day two (at which point he made clear he wished to proceed with his application – see further below).

69    What happened immediately before Mr Nunez left the hearing on day one is significant. After being asked about an AVO issued on 17 November 2009, Mr Nunez said this:

INTERPRETER: Yes, I accept everything. I will accept everything you say. I’m not going to contradict you.

DEPUTY PRESIDENT: If you disagree, you can say so.

INTERPRETER: I don’t understand what the point of all of this is? Is the point to prosecute me again after I have already paid for what I did? Or is there point to try and understand what I have done in relation to drugs, or the courses that I have done in order to deal with my drug problem.

DEPUTY PRESIDENT: Mr Burke.

MR BURKE: The purpose of this is to ask for your position in relation to evidence that’s before the tribunal of things you have done.

INTERPRETER: My position is that I don’t deny what you’re saying, however, there are certain things that I’m telling you and you’re not believing me, so what is the point? What is the use of me telling you if continue to continue asking me, (Indistinct) said this, (indistinct) said that. So I want to understand what the point of all of this is if you don’t believe me.

DEPUTY PRESIDENT: One of the things that the tribunal has to turn its mind to is the seriousness of your conduct.

INTERPRETER: Yes

DEPUTY PRESIDENT: And in terms of procedural fairness in the course of the hearing, you need to have a good understanding of what the case against you is, and for you to be given a proper opportunity to provide responses if you want to.

INTERPRETER: I understand that I’m in a position which I can respond, but I also understand that you're not going to believe what I say. What you’re going to believe is what he has written there.

DEPUTY PRESIDENT: Why would you say that?

INTERPRETER: Because that’s how it is. You’re going to believe what the police say, not what I say. For example, going back to what we were discussing earlier, you were trying to — he was trying to tell me — sorry, (indistinct) correction. I was trying to tell him that I did not steal the car, but he kept saying that I had stolen the car, and that I knew that the car was stolen, but that's not the case.

DEPUTY PRESIDENT: As I’ve said earlier, the tribunal has to accept the findings of the court. That doesn't mean I don’t listen to what you’re are saying.

INTERPRETER: I know. I know that you’re going to listen to me, but you're going to accept what the court says, not what I'm saying. What's happening is that psychologically you are — I don't know how to say it.

70    It was shortly after that exchange that the appellant asked the Tribunal to “cancel everything” and left the room. But the more important point to note is that throughout Mr Nunez’s actual evidence (and even in the face of the Tribunal erroneously suggesting that it could not even consider his evidence regarding the facts of the conveyance conviction) Mr Nunez maintained that he did not know that the car was stolen. His evidence on that point was at all times firm and consistent, even under circumstances he found difficult.

71    The fifth matter concerns Mr Nunez’s comments the following day at the beginning of the hearing. The status of those comments is somewhat ambiguous. Mr Nunez was no longer being cross-examined (and was not further cross-examined during the hearing). Nor, as we understand the record, was he seeking to give further evidence in chief. What he was seeking to do was to apologise for his behaviour on the preceding day and suggest a procedural way forward (that we examine in more detail below). As such, his comments were really no more than a layperson’s submissions on (unfamiliar) matters of procedure.

72    For our part, and for reasons we will explain below, we cannot see that that could amount to a “recanting” or qualification of his earlier evidence (as was suggested by the Minister).

73    For one thing, he was no longer giving evidence. Of course, the Tribunal was not bound by the rules of evidence and could inform itself on any matter in such manner as it thought appropriate: s 33(1)(a) and s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) as in force at the time of hearing. But, as we will see, both the Tribunal and the Minister’s counsel regarded it as important that Mr Nunez was not prepared to give further “evidence”. That approach reflects the observation made some time ago by Justice Brennan sitting as President of the Tribunal that, while the tribunal is not bound by the same formalities as a court, that does not mean that the “rules of evidence may be ignored as of no account… they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”: Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492. The Tribunal and the Minister’s counsel were apparently concerned to hew closely to that method of inquiry in the context of this hearing. In those circumstances, we would not regard Mr Nunez’s comments on matters of procedure as some kind of “repudiatory testimony”.

74    Nor would we regard it as a submission involving a withdrawal of any reliance on that earlier evidence or a significant narrowing of his case (if that is what is intended by the Minister’s submission). Mr Nunez was not a sophisticated litigant making careful forensic choices. Rather, as emerges from the transcript, he was finding the process of cross-examination difficult and frustrating, particularly within the strictures that he understood that the Tribunal was placing on that process via its incorrect understanding of HZCP. What he sought to do in that context was propose a way the Tribunal could continue to follow what he described as its “normal processes” without him having to give further evidence. We would not understand him to have invited the Tribunal to disregard the evidence he had already given. To explain our reasoning on that issue it is necessary to set out the relevant passages from the transcript in some detail.

75    At the outset of the second day, after apologising for his behaviour on the first day, Mr Nunez asked if he could say something. This exchange then took place:

INTERPRETER: About my behaviour yesterday, I suffer from schizophrenia, and I feel bad. I don’t feel well the way that you speak to me.

DEPUTY PRESIDENT: Me personally?

INTERPRETER: It was ‘you’ plural. ‘You’’ plural’. No, the way that the gentleman here asks me and then he says, ‘No, that's not true,’ and that sort of thing. I don't deny any charges. I take total responsibility for all the problems that I’ve had. With this, I want to say I’m not trying to avoid this immigration process that we have in here. It’s not that I want to avoid it, but I don’t want to go back to the same matter, so I would like to perhaps request from you if you could perhaps make a decision based on the information that you already have about me. I don’t know if it could be done, but I have to tell you what I have in mind. If you make a decision and then you will be asking questions of the witnesses, including my son, the things that you have to ask of them, (audio malfunction). And like I said, I am determined to do the courses, to continue with the SMART Recovery courses, doing courses at the centre, online, and I would be willing, if my visa is not — if my visa cancellation is not is revoked, I would like to continue doing courses, rehabilitation and all that sort of thing, and I am 100 per cent committed to not fall back into the drugs, because my family is at stake here; my family, my children, my mum.

If my visa was returned to me and I happen to commit another offence, I should just be taken to prison and served good — I should be imposed the harshest sentence that could possibly be for the offence, and then I would do my time, and after that, I would be sent back to Nicaragua without a need to be given a chance to appeal that decision. I’m not sure whether you understand what I am trying to say; if that happened, but I don’t think that would happen …

This is all I really have to say. I accept full responsibility for all my problems. I don’t deny it. I've already served my time, but I don’t want to go back to the system again, because mentally, it doesn't help. That’s all.

DEPUTY PRESIDENT: Thank you. I am sorry to hear that you found yesterday stressful, and I will ask Mr Burke to make comments on that. And I do acknowledge that the process is challenging, but the process also means that we need to go through the evidence methodically and the evidence needs to be tested. I understand that you found it challenging. I understand that, and I’m personally sorry that you found it so difficult. What I need to know from you today is whether you would like the tribunal to take evidence from any of your witnesses.

INTERPRETER: Yes. You can proceed with the rules or the process that you normally follow. I’m not saying not to do that. The only thing that I am saying is if, after the witnesses give evidence, after that, perhaps you can make a decision based on what the witnesses have said and the information that is already before you.

76    In the first two emphasised passages, Mr Nunez expressed some affront at it being suggested by the Minister’s counsel in cross-examination that he was not telling the truth, and observed that that process did not make him “feel well”. The thing that had made him not “feel well” was the attack on his honesty or recollection in giving that evidence. Regardless of what view one takes of the evidentiary status of those remarks (see above), he could not be taken to suggest that that attack was well founded. If anything, his protestations about the conduct of the Minister’s counsel rather suggest the contrary. None of that could be understood as contradicting what Mr Nunez said the day before. Nor could it be understood as a submission inviting the Tribunal to reject or ignore his own evidence.

77    What immediately follows (“I don’t deny any charges”, “I take total responsibility for all the problems that I've had”) would not, particularly in that context, be understood to depart from that position. His evidence the day before as to the conveyance conviction was that he “plead guilty because [he] was driving the vehicle” but that he did not understand that he was there accepting that he had “stolen the vehicle, or [knew] that the vehicle was stolen…”. Insofar as his observations on day two were addressed to the conveyance offence, he was asserting that he took “total responsibility” in that way and had not, in fact, disputed that charge by going to trial. The connection between pleading guilty and taking responsibility emerges even more clearly later in his submissions (see below at [85]-[86]). That is also how we would understand the similar statements in the third passage we have emphasised.

78    It is also notable that he asked the Tribunal to “make a decision based on what the witnesses have said [apparently referring to the evidence of the witnesses who were about to give evidence] and the information that is already before you” (a point repeated in the passage we have emphasised at [85]). Of course, the “information” that was already “before” the Tribunal included the evidence that Mr Nunez had given the day before. Mr Nunez’s procedural proposal did not involve disregarding that evidence; he was merely concerned to avoid repeating the difficulties he had experienced the day before giving evidence in cross-examination.

79    Significantly, and perhaps fairly reflecting the fact that Mr Nunez was a lay person, that is the way that both the Tribunal and the Minister seemingly understood and approached those matters. Shortly afterwards, the Tribunal sought to confirm its understanding of what Mr Nunez was saying:

DEPUTY PRESIDENT: … But what you are saying clearly— and please correct me if I am wrong in my understanding — you personally do not wish to give evidence?

INTERPRETER: Can I say, I will (audio malfunction). What can I say? So what evidence can I give? Because, just to be clear, I understand that you have my entire file, and I already said that they were due to the drug issues that I had and I was smoking and that. I already said that things entered my mind that is not like that, and that is the reason why I had arguments. Like I said earlier, what I have done, what I have said, if I have abused anybody, threaten anybody, it’s something that I did at that moment. So the evidence that I can give is already what I said about the courses that I intend to do, that I have done, the courses that I intend to do if my visa is returned, and there is really nothing else that I can say other than that. Sorry, and continue with rehabilitation outside. Continue - - -

DEPUTY PRESIDENT: I hear that.

INTERPRETER: It’s not that what you’re saying, that I don’t want to give evidence. No, it is not that. I already said what I have to say. And it's not that I want to avoid this process. Not at all. I do accept the problems that I've had, and I take on total responsibility. I can’t say anything more. This is all I have to say. Thank you.

80    Again, insofar as the observations about taking on “total responsibility” are directed at the conveyance conviction, they sit comfortably with Mr Nunez’s evidence of his (perhaps idiosyncratic) understanding of what he sought to do in pleading guilty to that charge. There is no inherent inconsistency between those matters.

81    That entire exchange was otherwise concerned with whether Mr Nunez would continue to give evidence. Tellingly at no point did the Mr Nunez or the Tribunal suggest that he was seeking to have the Tribunal disregard the evidence he had already given. Mr Nunez’s reference to what was in his “entire file” was an invitation to the Tribunal to rely upon material other than his testimony to the extent there remained matters upon which he might have been cross-examined. It was not a suggestion that the Tribunal should somehow put from its mind the evidence he had earlier given.

82    As we have already noted, that was plainly the way the Minister’s counsel understood what was proposed in terms of procedure (who also fairly observed that there were difficulties for Mr Nunez in his proposed reliance on his “file”):

Deputy President, it’s a matter for the applicant if he does not wish to give any further evidence under cross-examination from the respondent, if he elects to proceed that way. However, I note two matters that the applicant should be aware of. The first is that the majority of the evidence before the tribunal about the applicant's offending post-2009 would essentially be unchallenged without the applicant having given any further evidence under cross-examination about the NSW Police facts sheets for those offences.

The tribunal would be well aware that Federal Court authority on this matter essentially stands for the proposition that, where a conviction has given rise to, essentially, the mandatory cancellation of a person's visa, failure of the character test, that the essential facts for that conviction are immune from challenge, so they can’t be challenged. But in this case, the relevant offence for that purpose is the applicant’s drive while disqualified offence from 2002.

Otherwise, for the additional convictions that have not given rise to the applicant’s failure of the character test, the essential facts for those convictions are not immune from challenge, although there's a heavy onus on a person that may seek to challenge the essential facts on which those convictions were based. And Deputy President, for your reference, the judgment of Justice Bromberg in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at paragraph 78 distils those authorities in relation to that issue.

So what that means in the applicant’s case, if he does not provide further evidence under cross-examination in relation to offending post-2009, is he would not be able to provide oral evidence in relation to the New South Wales Police facts sheets for those offences such that, if he wishes to, he would not be able to challenge the facts of those offences, albeit, to do so, there would be a heavy onus on him.

Otherwise, the applicant’s election not to give further evidence under cross- examination would result in various assertions and evidence he has provided to the tribunal in support of his application, including in relation to critical matters such as rehabilitation achieved to date, links and relationships with family members and ties in the community, and, otherwise, submissions he has made in support of his case, to be untested, and in that situation, I would make a closing submission that the tribunal should give limited weight to various untested submissions and evidence that the applicant has made. Those are two things that the applicant should take stock of, but ultimately, it’s a matter for him in relation to whether he is subject to further cross- examination.

(Emphasis added).

83    The last aspect of that submission (fairly) pointed to the possible problems for Mr Nunez in seeking to have the Tribunal rely upon his “file” to fill the gaps that were left by his decision not to give evidence.

84    More importantly for present purposes, the Minister’s counsel was there distinguishing between the matters upon which the appellant had given evidence (including the conveyance conviction); and those upon which he had not yet given evidence. It was only in respect of the latter that the Minister understood the appellant not to be advancing any evidentiary case (which would effectively preclude him from challenging the underlying facts of those offences). In contrast, the Minister seemingly accepted that the challenge to the offences up to 2009 was already made and a matter for the Tribunal to determine.

85    Mr Nunez was then asked if he understood and agreed to proceeding in that way. The following exchange took place:

INTERPRETER: Like, I say this again. He talks about the fact that I have to give evidence, but what evidence or what other evidence can I give? I’ve already said everything that I had to say. I accept responsibility, and I (audio malfunction). I am not denying the charges that I have on my record. I accept responsibility (audio malfunction). That’s why, every time that I went to court for each matter, I always pleaded guilty. I served my time. (Indistinct.) At that point, I had to give evidence to be tried in each matter, and this gentleman here is now asking me to give evidence. This is where I’m becoming stressed, because it’s like they are judging me (audio malfunction). He's asking me the questions in evidence about those matters, but I already gave evidence back in court….

And like, yesterday, I swore on the Bible that I would not reoffend, like you say, what you call it, that I would not commit the crimes again. This is the only evidence that I have, the documents, the courses. This is the evidence. This is the evidence that I would think I have to give you, and this is the evidence that I can give you. I cannot give you any other evidence. Like I said, I accept the charges, and I don't know what other evidence I can give you about that.

(Emphasis added).

86    We have already explained our understanding of Mr Nunez’s observations that he was “accept[ing] responsibility” and not “denying the charges that [he had] on [his] record” or “accept[ing]” those charges. Importantly in this passage, he directly equates that “acceptance” and “non-denial” with having pleaded guilty. And, in so far as it concerns the conveyance conviction, his (unchallenged) evidence as to what he meant by that plea was that he did not understand he was accepting that he knew that the vehicle was stolen. None of that involved Mr Nunez trying to pursue inconsistent positions.

87    Otherwise, what is notable about this passage is that Mr Nunez is addressing what he understood to be conveyed by the Minister’s submissions, being that he was being asked to give further evidence (a course that he did not wish to pursue). He was making clear that he had “already said” all that he wished to say.

88    Consistent with that understanding, this exchange took place shortly after:

DEPUTY PRESIDENT: All right. So that we can proceed with the hearing, so do you intend to call witnesses today?

INTERPRETER: Like I said, you’re welcome to continue with the process that you would normally follow. The only thing is that I don't want to continue with what I was doing yesterday that was making me so unwell - - -

DEPUTY PRESIDENT: I understand.

INTERPRETER: - - - but you please continue with whatever you need to do. I have no issues with asking (audio malfunction).

DEPUTY PRESIDENT: Thank you. Thank you. So Mr Burke, do you have anything else to say before (indistinct)?

Mr BURKE: I think just out of abundant caution, Deputy President, if the applicant would confirm his position is that he does not want to give any further oral evidence?

DEPUTY PRESIDENT: He has confirmed it, and I'm satisfied.

MR BURKE: Okay.

DEPUTY PRESIDENT: Yes. I am satisfied, and I think he's made it abundantly clear that he does not wish to continue with a particular process, namely him giving evidence.

89    The Tribunal then asked the appellant to confirm that it had understood him correctly, and the appellant responded “yes”.

90    Far from suggesting some fundamental alteration of his case or withdrawal or recanting of his earlier evidence, the common understanding of both parties and the Tribunal was that Mr Nunez was not subjecting himself to further cross-examination (accepting that would have the implications earlier noted by the Minister’s counsel regarding any post-2009 offending, being implications that the appellant had said he understood). That was the “only thing” Mr Nunez wished to avoid. Mr Nunez’s observations or submissions were not understood by the Tribunal as travelling beyond that “particular process”. In those circumstances, had the Tribunal later departed from that commonly understood position regarding the “particular” procedure to be followed (as it had just been explained by the Tribunal and the Minister’s counsel), it would have raised an obvious issue of procedural fairness: see, by way of analogy, Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [62]-[64] (Gageler and Gordon JJ).

91    Indeed, given its inquisitorial nature, even if the Tribunal had understood Mr Nunez to be seeking to confine his case (which clearly it did not), that would not have avoided the need to confront this issue. It is well established that the Tribunal is obliged not to limit its determination to the “case” articulated by an appellant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the appellant: Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at [65]-[66] (Bromwich and Wheelahan JJ); Benjamin v Repatriation Commission (2001) 34 AAR 270 at [47] (Moore, Emmett and Allsop JJ).

92    Our reading of the transcript also coheres with the fact that the Minister dealt with the substance of the appellant’s evidence regarding the Facts Sheet in his closing submissions (later on day two):

The tribunal should accept the narrative outlined in the police facts sheet as to what those offences for which the applicant received convictions involved. To the extent that those facts were challenged in the applicant’s evidence, that was not sufficient from an evidentiary point to counter what was a detailed summary made by police officers based on witness evidence of what occurred on that occasion. Moreover, the applicant’s plea of guilt for these offences really undermines any challenge made to the facts outlined in the police facts sheet.

93    For our part, we do not regard the words “to the extent” as reflecting some diffidence on the Minister’s part as to whether such a challenge was made at all. It rather reflects the fact that some, but not all, of the facts in the Facts Sheet were challenged by Mr Nunez. The Minister clearly regarded those matters as a live issue between the parties, to be determined by the Tribunal on the basis of whether Mr Nunez’s evidence was “sufficient from an evidentiary point to counter what was a detailed summary made by police officers”. At no point did the Minister suggest that Mr Nunez had withdrawn that challenge; at no point did he suggest that Mr Nunez had abandoned reliance upon that evidence such that the Tribunal ought not consider it at all.

94    Revealingly, the Minister took a different tack with respect to the later convictions, on which Mr Nunez was not cross-examined:

The other offences, whilst not immune from challenge, the essential facts upon which those convictions were based would require the applicant to meet a heavy burden to, essentially, challenge them. In circumstances where the applicant elected not to give further oral evidence and thereby those offences and the essential facts of them could not be put to him in cross-examination, I submit that the [Tribunal] should accept the facts that are outlined in the various New South Wales Police facts sheets for these offences …

95    The point being that, there was no factual contest as to those matters (in contrast to the facts of the conveyance conviction, as the Minister understood Mr Nunez’s case).

96    Perhaps most tellingly, the understanding that the challenge to the facts underlying the conveyance conviction was a live issue between the parties is also reflected in the Tribunal’s own reasons. In particular, the Tribunal referred to Mr Nunez’s challenge to the relevant aspects of the Facts Sheet at [31], without suggesting that that challenge had been abandoned, or that the relevant evidence was withdrawn (see the extract at [98] below).

Legal error

97    With that extended account of the Tribunal hearing, we turn to what is (as we have said) an error that largely turns on the Tribunal’s reasons. At its core, Mr Nunez’s case on this issue ultimately involved three propositions, each of which should be accepted.

98    The first proposition concerns paragraph [31] of the Tribunal’s reasons which was in the following terms:

In the course of the hearing, the Applicant challenged some aspects of the Facts Sheet, such as that he did not know that the car was stolen.

99    In light of what follows, we accept that the Tribunal regarded that challenge as one which remained on foot, requiring resolution in its decision. We will return to that below.

100    Mr Nunez relied on the transcript to make good the proposition that the “challenge” spoken of in paragraph [31] did not include the facts underpinning the disqualification conviction. That much seems to be uncontroversial. There is nothing in the reasons to suggest that the Tribunal misunderstood the scope of that challenge. In that regard: it referred to “some aspects [as opposed to all]” of the Facts Sheet and gave (as the only example) Mr Nunez’s knowledge as to whether the car was stolen.

101    The point the appellant sought to make by reference to the transcript in respect of paragraph [31] was that he had not “made any attempt to contradict the fact that he was driving while disqualified…”. On our review of the transcript, that proposition is undoubtedly correct. To the extent that Mr Nunez also made a (more cursory) challenge to the conviction for possessing goods suspected of being stolen, that was not an aspect of the arguments of either party on this appeal. We can therefore put that matter to one side.

102    Mr Nunez’s second proposition concerns paragraph [33], which was in the following terms:

It is evident that in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus. The Applicant’s visa was mandatorily cancelled because among other things, the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions. In such a case, the Applicant cannot challenge or impugn the essential facts of the conviction.

103    Mr Nunez’s essential point regarding that paragraph is that it indicates that the Tribunal was of the view that it did not have the “ability to go behind [the conveyance conviction] and make any findings in relation to the appellant’s evidence as to what he said occurred on that day”.

104    We agree that that is how that paragraph, read in the context of the reasons as a whole, should be understood. As to the three sentences in that paragraph:

(a)    In the first sentence, reflecting what is said in paragraph [32] (where the Tribunal summarised the effect of HZCP First Instance [2018] FCA 1803), the Tribunal observed that in “certain circumstances” it is “possible” to impugn the essential facts underlying the conviction (albeit with the qualification regarding onus). That would be a question of weighing evidence and making factual conclusions, applying the point the Tribunal made about a “heavy onus”. The question would be whether that onus was discharged. Significantly, at no point did the Tribunal undertake such a process in its reasons. Indeed, here, that would have involved the need to grapple with the further qualifications applicable to a plea of guilty discussed in HZCP Full Court (2019) 273 FCR 121. Nowhere does one find any such analysis.

(b)    Instead (see the second sentence) in the circumstances of this case the Tribunal had regard to the fact that the “Applicant’s visa was mandatorily cancelled because among other things, the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions”.

(c)    That, it appears, was the only reasoning for arriving at the conclusion in the last sentence being that “[i]n such a case” “the Applicant” cannot challenge the “essential facts of the conviction”. And, of course, the only challenges to any conviction made by Mr Nunez were those discussed at paragraph [31], which did not include the disqualification offence.

105    In our view, the Tribunal was not in the second and third sentences making an arid point about a theoretical challenge to the disqualification conviction that the appellant did not in fact bring. In the context of its earlier discussion at paragraph [31] of the nature of Mr Nunez’s challenge to “some aspects of the Facts Sheet” (which did not include the disqualification conviction), that would be an odd non-sequitur. The Tribunal rather regarded the point made in the second sentence as the complete (and only) answer to the issues it was dealing with at paragraphs [30]-[33], being the challenge to the aspects of the Facts Sheet concerning the 20 February 2002 convictions referred to at paragraph [31], “such as that he did not know that the car was stolen”.

106    It is unnecessary to delve further into why the Tribunal took that view. Perhaps, reflecting what was argued in ground 1, it misunderstood the basis for the mandatory cancellation of Mr Nunez’s visa pursuant to s 501(3A) of the Migration Act. Perhaps it considered that the inquiry as to whether a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction extended to all related offences arising from the same set of circumstances. Perhaps it was simply muddled. But, whatever it was that led to that approach, it clearly took the view that any such possibility was foreclosed by what it took from HZCP First Instance [2018] FCA 1803.

107    That leads to the appellant’s third proposition: being that the conveyance conviction in fact attracted the principle derived from HZCP First Instance [2018] FCA 1803 stated in the second proposition of T [32]:

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

108    That was common ground between the parties.

109    The only real issue between the parties was the second proposition, which was disputed by the Minister.

110    Ms Ronan, who very ably appeared for the Minister, sought to read the paragraph the subject of that proposition differently to the way we would read it. In oral argument, she contended:

Reading paragraph 33 as a whole, in my submission, it’s sensibly broken up into two parts. The first is the first sentence, and the second part is everything else. So the first sentence there goes to the principle from HZCP recounted at [32(2)] above, which is where the exercise of power was not founded on the relevant conviction, that being the certain circumstances, and there – then read in line with the applicant’s evidence, “the conviction”, there, again, singular, indefinite article, can only be taken to refer to the conveyance conviction, noting as well that there is a heavy onus.

111    Inventive though it is, we do not accept that submission for essentially the reasons above. As the appellant argued, it is telling that the Tribunal does not, at any point, expressly grapple with the issue that the Minister argued had been left open to be dealt with in accordance with the principle from HZCP (the challenge to the facts underpinning the conveyance conviction). It did not grapple with those matters, it may comfortably be inferred, because it understood that it was precluded from doing so by the principle derived from HZCP First Instance [2018] FCA 1803 stated in the first sub-paragraph of T [32]. Again, that was put by the Tribunal in this way:

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

112    Whether it reasoned in the way the appellant argued for in respect of ground 1 or made some other error, it is plain that the Tribunal regarded the conveyance conviction as engaging that principle.

113    The Minister sought to address those omissions in the Tribunal’s reasons this way:

(a)    It was submitted that we should infer (even in the absence of any express reasoning to this effect) that the Tribunal found that the “heavy onus” referred to in the second principle identified at T [32] (see also HZCP Full Court (2019) 273 FCR 121 at [56] per McKerracher J and the explanation of that term by Colvin J at [190], [191]) had not been discharged in circumstances where the appellant had pleaded guilty to the charge and had advanced nothing more than a bare denial during the hearing before the Tribunal;

(b)    Accordingly (and supporting the Minister’s proposed reading of the first sentence of paragraph [33]) there was no error in the Tribunal’s approach to that issue.

(c)    Alternatively, or in addition, the Minister argued that the Tribunal should be understood to have proceeded on the basis that the appellant had “recant[ed]” his evidence, challenging the conveyance conviction when he returned for the second day of the hearing, and refused to give any further evidence or be subjected to cross-examination.

114    We do not accept those submissions.

115    They sought to draw upon what had been said by the primary judge at PJ [59]:

… having regard to the principles enunciated in HZCP, Mr Nunez bore a heavy onus in attempting to impugn his conviction for the offence in question. The suggestion that Mr Nunez could be found to have discharged that heavy onus is, at best, fanciful. Mr Nunez pleaded guilty to an offence an essential element of which was that he knew that the car was stolen. While the Facts Sheet did not expressly refer to that fact, the inference to be drawn from the facts stated in the Facts Sheet is inescapable. Mr Nunez’s evidence before the Tribunal amounted to little more than a bare denial and, in the circumstances explained earlier, while under cross-examination he left the hearing room. While he attended the hearing the following day, he refused to give any further evidence. The transcript of the hearing records that, after the Minister’s legal representative made submissions concerning the principles in HZCP, Mr Nunez stated (through an interpreter): “I accept responsibility, and I … I am not denying the charges that I have on my record. I accept responsibility … That’s why, every time that I went to court for each matter, I always pleaded guilty”.

116    His Honour was there dealing with the issue of materiality, but the Minister sought to leverage that into his defence of ground 2. In making those observations, his Honour’s attention seems not to have been drawn to the passages from HZCP Full Court (2019) 273 FCR 121 we have noted above dealing with the particular considerations that apply to pleas of guilty. As we said, those passages (and the authorities referred to therein) in fact suggest that the “heavy onus” or difficult task facing a person in the position of the appellant given the nature of the findings (see again HZCP Full Court at [190], [191] (Colvin J)) will be more readily overcome in such a case.

117    As such, and even if the Tribunal in fact adopted the path of reasoning suggested by the Minister (peremptorily putting to one side Mr Nunez’s evidence on the basis he had plead guilty), that would itself involve error. But we would not readily infer that it did so in the absence of any express reasoning to that effect. The more likely reading of the Tribunal’s reasons is that which we have identified above.

118    As to the Minister’s suggestion that the appellant’s evidence here was aptly described as a “bare denial”, we have also dealt with that above. True it is that the appellant relied on his own evidence. But, as regards the conveyance conviction, his evidence was specific and detailed as to what he knew of the ownership of the car. Whether the Tribunal did or did not accept that evidence was a matter for it. But we would not readily infer that it was dismissed in the peremptory manner suggested by the Minister (again, in a manner that is to be found nowhere in the Tribunal’s reasons).

119    That leaves the Minister’s argument that the Tribunal is to be understood as finding that Mr Nunez “recanted” his evidence (or perhaps that he abandoned his challenge to the facts underlying the conveyance conviction).

(a)    Firstly, for the reasons we have given above, we do not accept that Mr Nunez’s conduct during the hearing involved recanting his evidence or abandoning that challenge.

(b)    Secondly, as with the other aspects of the Minister’s argument, such a conclusion involves reading into the (general words) of the first sentence of [33] a key finding that is not there. It is well established that what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error (representing as it does what the Tribunal itself considered important and material): Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49] (Kenny and Mortimer JJ) referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [44], [69]. Here we comfortably infer that the Tribunal did not regard any part of Mr Nunez’s conduct as recanting his evidence regarding the conveyance conviction or abandoning his challenge.

(c)    Thirdly, more than that, that approach to the construction of the first sentence of [33] seems to us to be in tension with what appears at [31]. At [31] the Tribunal records its understanding that, in the course of the hearing Mr Nunez “challenged some aspects of the Facts Sheet”. And the only “challenge” made by Mr Nunez lay in the evidence Mr Nunez gave (and maintained) in cross-examination. Had the Tribunal understood that Mr Nunez recanted that evidence it would follow, as a matter of logic, that there was no challenge for the Tribunal to consider. The discussion that followed at [32]-[33] would have been an odd and otiose digression. If that reading of the reasons is correct, the Tribunal spends three paragraphs dealing with a challenge that had been effectively abandoned, only to conclude with a point about a challenge that was never made. We cannot read the reasons in that strained way.

120    The outcome of the Tribunal’s path of reasoning on that issue is rather expressed in blunt terms in the final sentence of paragraph [33]. Consistent with our reading of its reasons, the Tribunal later dealt with the events in which Mr Nunez left the hearing and declined to be further cross-examined (at T [41]), without suggesting that he had by that conduct abandoned the challenge the Tribunal had identified some 10 paragraphs before or recanted his evidence on that issue.

121    In those circumstances, we are unable to conclude that the Tribunal proceeded on the basis that either the appellant had not met his “heavy” evidentiary “onus” or had abandoned altogether his challenge to the facts underlying the conveyance conviction. What is rather clear from the reasons is that the Tribunal understood that those matters simply could not be challenged by reason of the principles from HZCP First Instance [2018] FCA 1803.

122    That was, in our view, an error of the kind alleged in ground 2 of the NoA.

123    We deal further below with whether any different result follows when one considers those matters through the lens of materiality (which was the subject of ground 3).

Ground 3 of the NoA - materiality

124    It follows from what we have said above that the crucial matter for the purposes of this appeal is materiality.

125    Because of his conclusions on grounds 1 and 2 of the application before him, the primary judge did not need to deal with the question of materiality as a necessary part of his reasoning. However, he went on to “briefly address that issue given the Minister’s contention that, if it was found that the Tribunal did preclude itself from considering Mr Nunez’s evidence that he did not know that the car he was driving was stolen, that error was not a relevantly material error”: PJ [53]. Consistent with that starting point, his Honour made clear at the end of this aspect of his reasons that he was not reaching a concluded view on that issue (at PJ [64]):

While it is unnecessary for me to reach a concluded view given that I have found that the Tribunal did not err as contended, if it had come to it, I would have been inclined to find that the errors said to have been made by the Tribunal were not material in the requisite sense.

126    But, of course, an appeal is an appeal from orders not reasons; and to establish error in his Honour’s orders it was necessary to demonstrate that the error we have found in the Tribunal’s reasons in respect of ground 2 was material, which is how we have understood what was argued under ground 3.

127    In expressing his tentative views on materiality, his Honour relied upon a number of matters, which fall into two broad categories.

Realistic possibility of the Tribunal accepting Mr Nunez’s version of the facts underlying the conveyance conviction

128    His Honour first considered whether there was a realistic possibility that the Tribunal might have accepted Mr Nunez’s account of the underlying facts of the conveyance conviction.

129    His Honour commenced by observing that Mr Nunez’s knowledge that the car he was driving was stolen was an essential fact underlying his conviction for the offence in question: PJ [58]. His Honour noted that Mr Nunez’s contention that he did not know that the car was stolen amounted to a traversal of his plea of guilty, and it, therefore, would not have been open to the Court to accept that plea in those circumstances.

130    But as we have noted above, it is established that cases in which a conviction has followed from a plea stand in a different position to those in which there has been a contested trial on the facts: see again HZCP Full Court (2019) 273 FCR 121 at [52], [63], [69] and [191]. That is a point that does not seem to have been drawn to the attention of the primary judge.

131    The primary judge then reiterated that, having regard to the principles in HZCP First Instance [2018] FCA 1803, Mr Nunez bore a heavy onus in attempting to impugn his conviction. It was in that context that his Honour made the observations at paragraph [59] (extracted at [115] above) - referring to Mr Nunez’s “bare denial” and his statement that “I accept responsibility, and I ... I am not denying the charges that I have on my record. I accept responsibility. That’s why, every time that I went to court for each matter, I always pleaded guilty”.

132    As we have said, in our view, Mr Nunez’s evidence went far beyond a bare denial. And his statements regarding “accept[ing] responsibility” and “always plead[ing] guilty” are not in tension with his evidence regarding the conveyance conviction. His pleas of guilty undoubtedly did involve an acceptance of responsibility for his actions. But his specific understanding of what was involved in his plea in respect of the conveyance conviction is a matter on which he gave clear unchallenged evidence. It was for the Tribunal to consider whether it accepted that explanation. There was at least a real possibility that it would have.

133    Notably, although supporting the reasoning of the primary judge in writing, the Minister fairly accepted in oral submissions that:

… it may well be, in the circumstances of this case, that there was an opportunity not taken up, for whatever reason, including because the applicant was self-represented, to have given further detail or evidence as to why he pleaded guilty. The only evidence that was before the tribunal was the acceptance of responsibility for what he had done. And that is the sum total of the evidence in that regard, balanced with the, “But I didn’t know it was stolen”. That doesn’t, in my submission, take one particularly far in explaining why the plea of guilty might have been entered. And so I think I have to accept that, taking that principle, it is certainly possible that that may have been relevant to how the tribunal ought to have addressed evidence. If it did apply HZCP incorrectly with respect to the conveyance conviction, that should have been something or could have been something relevant to its disposition.

134    We agree. However, we would go further. There was in fact specific and unchallenged evidence as to why Mr Nunez pleaded guilty.

135    Unsurprisingly in those circumstances, the focus of the Minister’s oral submissions was upon the other aspect of the primary judge’s tentative views on materiality, to which we now turn.

136    Before we do, we note, for completeness, that the Minister’s “recanting” submission might also be understood as a point about materiality. But for the reasons we have already given, we do not consider that Mr Nunez’s conduct during the hearing is properly characterised as recanting his evidence (or as abandoning his challenge to the underlying facts of the conviction). In any event, for the purposes of the materiality inquiry, it is sufficient that there was a real possibility, not fanciful or improbable, that the Tribunal would have arrived at a different conclusion had it not made the error the subject of ground 2. Ambiguous statements made by an unrepresented litigant who was grappling with unfamiliar procedural matters could not, in our view, eliminate such a possibility.

Other criminal offending

137    The primary judge observed that, while the Tribunal found that the nature and seriousness of Mr Nunez’s criminal offending weighed heavily against revocation (PJ [46]), it was, “at best, fanciful to suggest that his evidence, in the context of his conviction for the offence of driving a conveyance taken without the consent of the owner, could have had any impact whatsoever on that finding”: PJ [60]. That was because the “criminal offending which was the particular focus of the Tribunal's finding in that regard was his offending that involved ‘violent crimes against female members of his family’”. The Minister made a similar argument before us.

138    That issue is very finely balanced.

139    In developing his submissions on ground 1, the Minister pointed us to various aspects of the reasons and material before the Tribunal that suggested that the parties and the Tribunal had tended to group certain charges by reference to particular terms. As such, the Minister contended that the “shorthand expression” of the “2002 driving convictions” (at T [22]) is explained by the Tribunal grouping together various convictions which occurred on the same date as a matter of convenient labelling, as was the case in respect of the “2023 family violence convictions” (at T [22], [40]).

140    But that submission turns the other way when one comes to the manner in which the Tribunal may have reasoned in relation to the conveyance conviction. An important paragraph in connection with that issue is paragraph [44], which we have partially extracted above. For convenience, we reproduce it again here in full:

Furthermore, the Applicant has been convicted of significant driving offences, demonstrating disregard for road rules and traffic laws. The Tribunal views seriously driving offences of the kind of which the Applicant has been convicted, as reflected in the above sentences.

141    At first, it appeared to us (as it appeared to the primary judge – PJ [61]), that the reference to “driving offences”, “demonstrating disregard for road rules and traffic laws” may not include the conveyance conviction, which is perhaps better characterised as an offence demonstrating disregard for laws protecting personal property and proscribing theft. But the Minister’s common-sense point about the shorthand expressions used by the Tribunal suggests otherwise: the Tribunal was simply using convenient grouping labels primarily by reference to the date on which the underlying offences occurred rather than drawing strict lines between the character of the offences.

142    More fundamentally, there is this question: if the conveyance conviction was truly extraneous to the Tribunal’s reasoning, why did the Tribunal expend ink dealing specifically with that conviction and the appellant’s challenge to its underlying facts at T [31]-[33]? That it made such a point of those matters naturally tends to suggest that they were of some importance to its subsequent path of reasoning.

143    There is, we accept, some further ambiguity when one reads the last sentence of T [44] (“[t]he Tribunal views seriously driving offences of the kind of which the Applicant has been convicted, as reflected in the above sentences” (our emphasis)) alongside T [45], which states:

The Tribunal gives significant weight to the Court’s imposition of a custodial sentence, which is an objective reflection of the seriousness of the Applicant’s offending. The Tribunal views a term of imprisonment as the last resort in the sentencing hierarchy (our emphasis).

144    But we do not take the singular term “sentence” in T [45] to be referring to the sentence imposed for the disqualification conviction to the exclusion of the sentence associated with the conveyance conviction. The point the Tribunal was making (applicable to each of the custodial sentences it had grouped under the label “significant driving offences”) was that those sentences reflected their objective seriousness. It would be a distinctly odd form of reasoning to differentiate between those offences in the way the Minister suggests we might.

145    It is, in any event, unsurprising that the Tribunal referred to a singular sentence for those offences, given the sentences of imprisonment were served concurrently.

146    Once that point is reached, it is very difficult to conclude that the error was not material; the Tribunal has expressly given “significant weight” (T [45]) to matters which (if the Tribunal had not erroneously declined to permit the challenge to the underlying facts) might have been given no weight, or at least less weight.

147    That is sufficient to bring this case within LPDT v Minister for Immigration (2024) 280 CLR 321. The Tribunal’s reasons, properly construed, leave no room for doubt that the error “contributed to the evaluative and discretionary decision which the Tribunal made in that [it] bore on the Tribunal’s assessment of Primary Consideration 1, and in that the Tribunal’s assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant’s visa” (LPDT at [35] and see again the Tribunal’s dispositive reasoning here at T [122]-[123], extracted at [27] above, where the Tribunal expressly referred, in an undifferentiated fashion, to “the seriousness and nature of the Applicant’s offending conduct”).

148    There, as here (see LPDT at [36]):

It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects.

149    And there as here, it follows that there is at least a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred: LPDT at [37]. The threshold of materiality was met.

Conclusion

150    Accordingly, grounds 2 and 3 should be upheld and the appeal allowed. Orders 1 and 2 made by the primary judge on 14 August 2025 will be set aside, and in their place, we will order that:

(1)    the decision of the second respondent (Tribunal) dated 22 April 2024 be quashed;

(2)    the matter be remitted to the Administrative Review Tribunal for determination according to law; and

(3)    the first respondent pay the appellant’s costs of the appeal and the matter before the primary judge as agreed or as assessed.

Associate:

Dated:    28 August 2026

REASONS FOR JUDGMENT

WHEATLEY J:

151    I have had the considerable benefit of reading a draft of the reasons of Charlesworth and Lenehan JJ. Although I disagree with their Honours, those reasons allow me to fairly briefly state the reasons why I would dismiss the appeal.

152    However, I agreed with their Honours that the application for leave to rely on a new ground of appeal should be dismissed (see above at [3]). I also agree that the application for an extension of time in which to appeal should be granted (for the reasons at [4]-[10], above), but then the appeal should be dismissed. Although I disagree as to the final result, that does not mean that the appeal had no reasonable prospects of success; clearly it did given the reasons of the majority.

153    I also gratefully adopt their Honours recitation of the Background Facts (at [11]-[13] above). As was described by the primary judge (PJ at [6]), the following offences of the Appellant are significant for this appeal, and I will define them as follows:

(i)    driving while disqualified from holding a licence, for which he was ultimately sentenced (on appeal) to 12-months’ imprisonment (Disqualified Driving Conviction);

(ii)    possessing goods suspected of being stolen, for which he was sentenced to six-months’ imprisonment (Possessing Goods Conviction);

(iii)    driving a conveyance taken without the consent of the owner, for which he was ultimately sentenced (on appeal) to 4-months’ imprisonment (Conveyance Conviction);

(iv)    negligent driving (not occasioning death or grievous bodily harm), for which he was fined; and

(v)    not giving particulars to the other driver [involved in an accident], for which he was fined.

154    It is apparent, as was observed by the primary judge, that Mr Nunez pleaded guilty.

Grounds of Appeal

155    In summary, Mr Nunez advances the following grounds of appeal, that the primary judge erred:

(1)    in finding that the Tribunal correctly understood the basis upon which Mr Nunez failed to meet the character test;

(2)    in finding that the Tribunal did not preclude itself from considering Mr Nunez’s evidence challenging the facts and circumstances of the Conveyance Conviction;

(3)    in finding that even if the Tribunal had erroneously precluded itself (Ground 2) that error was not material.

Ground 1 - Did the Primary Judge err in not finding a misunderstanding by the Tribunal?

156    This ground of appeal is essentially ground 1 as advanced before the primary judge, that the Tribunal misunderstood the basis for the mandatory cancellation. This is because the Tribunal considered that the basis of the cancellation included the Conveyance Conviction, whereas the mandatory cancellation was imposed on the basis of the Disqualified Driving Conviction.

157    Apart from the observations at [37(c)] above, of the reasons of Charlesworth and Lenehan JJ, I agree Ground 1 is unnecessary to consider any further.

158    However, were it necessary to consider, for the reasons given by the primary judge (PJ at [41]-[48]), it is clear that the Tribunal did not misunderstand the applicable law or the applicable conviction which was the basis of mandatory cancellation decision.

159    I would dismiss this ground of appeal.

Ground 2 – Did the Tribunal “act on” its misunderstanding?

160    Given the way that the grounds of appeal are expressed (as was dealt with by the primary judge), it becomes apparent why the parties proceeded on the basis that the Appellant had to succeed on ground 1 first and then sequentially consider and succeed on Ground 2, but if and only if, Ground 1 was upheld.

161    However, as the argument progressed at the hearing, it was developed that Ground 2 could be considered independently of Ground 1. Obviously, however given how Ground 2 is framed, it required some transformation, which occurred during the hearing before this Court.

162    The Minister in oral submissions before this Court accepted that in the Tribunal’s decision at T at [31], the only aspect of criminal offending (from the Facts Sheet) that were challenged concerned the Conveyance Conviction. However, that is not correct. The relevant Facts Sheet dealt with the arrest and all five offences of 24 December 2001 (being the February 2002 convictions) (PJ at [6]). The Appellant also challenged the facts for the Possessing Goods Conviction. At the Tribunal hearing, after being asked questions about the facts and circumstances surrounding the Conveyance Conviction (to which I will return), the Appellant was asked questions about the Possessing Goods Conviction and that the police located property on the Appellant that belonged to another person, being Mr Turek. The Facts Sheet recorded that the Appellant replied, to the police “I found it you can charge me with it, I’ll see you in Court” and he was asked about this at the Tribunal hearing. The Appellant said in cross-examination:

INTERPRETER: I say it again, I have no idea who that [Mr Turek] is. I remember the police found me in Cabramatta, and that’s where they arrested me. I remember that there was a friend there as well who didn't want me to be taken away, but I was telling him not to get involved. I didn’t oppose to what the police were doing. I was there and then they arrested me. In relation to this person [Mr Turek] or whatever it is, believe me that I don't remember having anything in my bag then - anything to do with that - that had anything to do with a person called [Mr Turek]. I'm not a thief and I’ve never been a thief. I’ve worked.

163    This was in the context of the Tribunal’s decision at T at [31], where it stated:

31    In the course of the hearing, the Applicant challenged some aspects of the Facts Sheet, such as that he did not know that the car was stolen.

164    The precise proposition put to the Minister’s counsel was:

Do you accept in paragraph 31 that the only – the only aspect – this is [Appellant’s] submission. The only aspect of the criminal offending that was sought to be challenged and that is referred to there is what you’re referring to as the conveyance offence?

165    To which the Minister’s counsel responded “I accept that. Yes.”

166    There could be a variety of reasons, to which the Court is not privy, why the Minister was willing to accept the proposition from the Court. However, the Minister maintained his submission regarding the proper meaning of T at [33] of the Tribunal’s decision. The Appellant’s argument rested largely on what it submitted was the proper understanding of [33] of the Tribunal’s decision, together with an absence of any subsequent discussion or consideration afterwards of the Conveyance Conviction with the principles from HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (Bromberg J) and HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 (HZCP-FC) (McKerracher and Colvin JJ, Derrington J in dissent). As such, any concession regarding [31] of the Tribunal’s decision is not necessary for the central part of the Appellant’s argument.

167    This then led to the third proposition, in relation to Ground 2, that the Conveyance Conviction attracted the principle derived from HZCP and HZCP-FC.

168    Because I am of the view that the Tribunal did not fall into error, there is no need to analyse the decisions in HZCP and HZCP-FC in detail. Such an undertaking should occur where the case turns on those principles. As was observed by Derrington J in HZCP-FC at [93], these are difficult questions. It is sufficient to make the following observations.

HZCP and HZCP-FC

169    After considering the earlier referred to authorities at [76] of HZCP, Bromberg J set out the applicable principles from the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (Beach, McLeish and Niall JJA) at [42], his Honour adopted the distilled the principles from LLF and expressed those at [78].

170    It is that distillation of the principles (HZCP at [78]) which the Tribunal reproduces at T at [32] of its decision.

171    In HZCP-FC, after setting out the appellant’s submissions at [33]-[53], McKerracher J referred and described as “apt” (at [56]) the reasoning in LLF at [42]-[43]. His Honour relevantly stated at [63] and [66] in HZCP-FC:

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

…

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

172    McKerracher J at [69], endorsed (as did Bromberg J at [74]) Branson J’s approach in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 at [40]-[45], which included the following observations:

(a)    at [43] that “require(ed) a decision-maker under s 200 of [the Migration Act] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted...” and

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

173    Colvin J in HZCP-FC generally agreed with McKerracher J but added some observations concerning the principles to be applied (at [179]). Including at [191]:

However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. …

174    The majority in HZCP-FC dismissed the appeal. Although it might have been preferrable for the Tribunal to refer to and rely on the Full Court’s decision, given the reasoning, there was no error by the Tribunal referring to the reasoning of Bromberg J in HZCP, rather than the decision on appeal.

The Tribunal Hearing

175    The hearing and the position taken by the Appellant before the Tribunal, is important context for his arguments and a proper understanding of the Tribunal’s reasons. The hearing took place over the course of two days, on 8 and 9 April 2024. The Tribunal delivered its decision on 22 April 2024. That is, within 2 weeks of the hearing.

176    It is also necessary to understand how the hearing took place. The Appellant commenced giving evidence on the first day at 11.05am. An early lunch break was taken 12.34pm, and the Appellant resumed his evidence at 1.36pm. It is then apparent that the Appellant became agitated during cross-examination and the Appellant left the Tribunal hearing at 2.03pm. The Tribunal took a short adjournment of about 30 minutes to give the Appellant an opportunity to return to the hearing. The Appellant did not return to the Tribunal that day. The matter was adjourned at 2.50pm and it resumed on the second day at 10.03am, whereby Mr Nunez was again in attendance. The Appellant advised he did not wish to continue to give evidence (by way of cross-examination), on that resumption. It is also tolerably clear, upon a proper understanding of what occurred at the hearing that the Appellant withdrew, recanted, retreated or renounced his earlier evidence, and did not seek to rely on it any further (for simplicity, I will just refer to it being withdrawn). He accepted responsibility for his actions, he did not deny the charges or his actions and he “always pleaded guilty”. What the Appellant ultimately pressed was for the Tribunal to understand that he was now undertaking recovery courses and was promising to reform.

177    With that overview, it is then necessary to consider what occurred at the hearing in further detail.

Day One of the Tribunal Hearing

178    On the Appellant commencing to give evidence he was asked questions regarding his family in Australia and in Nicaragua. He was also asked about certain information he provided on the relevant forms he had completed as part of his request for revocation of the cancellation decision. The Minister’s representative then asked him questions about his children and his drug use.

179    The cross-examination then moved on, and Mr Nunez was asked questions about his criminal offending. Those questions commenced with the incidents on the evening of 24 December 2001. The Appellant gave evidence regarding that offending, including in relation to the Conveyance Conviction (although initially it appeared inconsistent, or unclear this was later corrected by the interpreter, which is explained below). The effect of that evidence was that although he was driving the vehicle, he did not know and did not steal the vehicle.

180    Further matters from the relevant police Facts Sheet were put to the Appellant including matters involving the Possessing Goods Conviction, to which the Appellant responded as is quoted above at [162].

181    Shortly prior to the luncheon adjournment, and after an exchange regarding the Appellant’s recall of these charges. The following exchange took place:

DEPUTY PRESIDENT: I'll just explain something to you. The tribunal, that's me, has to accept the findings of the courts.

INTERPRETER: Yes.

DEPUTY PRESIDENT: Because that's not my job, I don't have the power to do that.

INTERPRETER: Sorry, Deputy President. I think the interpreter perhaps misunderstood the previous sentence.

DEPUTY PRESIDENT: Okay.

INTERPRETER: You said the tribunal does not have to accept or does have to accept.

DEPUTY PRESIDENT: Does not have to - has to accept.

INTERPRETER: Has to accept.

DEPUTY PRESIDENT: Has to accept.

INTERPRETER: Yes.

DEPUTY PRESIDENT: The tribunal has to accept the findings of the court.

INTERPRETER: Then I did hear it correctly.

DEPUTY PRESIDENT: Yes. Okay. Good because that's very important to get it right.

INTERPRETER: Yes.

DEPUTY PRESIDENT: I can't question the courts findings, so I have to accept those convictions even though you may disagree with aspects of the facts. You understand that.

(emphasis added)

182    It is fair to say, that the expression used by the Tribunal could have been better. However, this should also be seen in the context of the further emphasised passage from the Tribunal, which is considered further below.

183    After the luncheon adjournment, during the afternoon session of cross-examination on the first day of the hearing, the interpreter corrected the Appellant’s earlier evidence that had been given to make it clear that the Appellant stated he did not know that the car was stolen. As observed, earlier there was a passage of cross-examination where the answer given was unclear. The Deputy President stated his understanding of the Appellant’s evidence was:

… My clear understanding from the applicant's evidence is that he said he did not know that the car was stolen, nor did he steal it himself That's his evidence here today. That's my understanding. …

184    The cross-examination moved onto to ask the Appellant questions about an AVO that was issued on 17 November 2009. The following then took place in the hearing, it is a long passage but it is important to put the comment of the Deputy President and the position of the Appellant in its proper context:

MR BURKE: But you accept, Mr Nunez, that you weren’t allowed to contact Ms Loper through that order unless through a lawyer.

INTERPRETER: Yes, I accept everything. I will accept everything you say. I’m not going to contradict you.

DEPUTY PRESIDENT: If you disagree, you can say so.

INTERPRETER: I don’t understand what the point of all of this is? Is the point to prosecute me again after I have already paid for what I did? Or is there point to try and understand what I have done in relation to drugs, or the courses that I have done in order to deal with my drug problem.

DEPUTY PRESIDENT: Mr Burke.

MR BURKE: The purpose of this is to ask for your position in relation to evidence that's before the tribunal of things you have done.

INTERPRETER: My position is that I don’t deny what you’re saying, however, there are certain things that I’m telling you and you’re not believing me, so what is the point? What is the use of me telling you if continue to continue asking me, ‘(Indistinct) said this, (indistinct) said that. So I want to understand what the point of all of this is if you don’t believe me.

DEPUTY PRESIDENT: One of the things that the tribunal has to turn its mind to is the seriousness of your conduct.

INTERPRETER: Yes.

DEPUTY PRESIDENT: And in terms of procedural fairness in the course of the hearing, you need to have a good understanding of what the case against you is, and for you to be given a proper opportunity to provide responses if you want to.

INTERPRETER: I understand that I’m in a position which I can respond, but I also understand that you're not going to believe what I say. What you're going to believe is what he has written there.

DEPUTY PRESIDENT: Why would you say that?

INTERPRETER: Because that’s how it is. You’re going to believe what the police say, not what I say. For example, going back to what we were discussing earlier, you were trying to - he was trying to tell me - sorry, (indistinct) correction. I was trying to tell him that I did not steal the car, but he kept saying that I had stolen the car, and that I knew that the car was stolen, but that’s not the case.

DEPUTY PRESIDENT: As I’ve said earlier, the tribunal has to accept the findings of the court. That doesn’t mean I don’t listen to what you’re are saying.

INTERPRETER: I know. I know that you’re going to listen to me, but you’re going to accept what the court says, not what I’m saying. What’s happening is that psychologically you are- I don’t know how to say it.

DEPUTY PRESIDENT: Mr Nunez, you participating in this hearing is voluntary.

INTERPRETER: Yes.

DEPUTY PRESIDENT: And you applied for a review by the tribunal, and the review process is about the tribunal gaining a better understanding of your circumstances, and of the offending of (indistinct words). I understand what you’re saying, but Mr Burke is also entitled to test the evidence and cross-examine you on certain matters, and I know that discussing your criminal history may not be what you want to be reminded of, but it is something that I must take into consideration. Two things, I have to decide whether there’s, indeed, ground for cancellation, but that’s not disputed here.

It has been accepted, and it is in the statement of facts and issues provided by your previous lawyer, but you don’t dispute that you don’t meet the character test, and based on the material before me, I have to make that finding that you don’t meet the character test, but I don’t just stop there. As I said earlier, I have to consider a number of matters which are found in the document called Direction Number 99, and that Direction asks me to consider a number of matters including the seriousness of your conduct, the risk of you reoffending, but I also have to consider matters such as your ties to Australia, the strength of those ties, whether there are impediments to your removal and the interest of any minor child.

So far, we have spoken but we haven’t finished of the seriousness of your criminal conduct and, Mr Nunez, it is serious. The direction clearly states that family violence must be taken to be serious, and there has been domestic violence in this instance. It doesn’t just mean physical violence, Mr Nunez. It can be making threats. It can be name calling. It can be scaring someone. You understand?

INTERPRETER: I understand. Well, based on all of that, I would like to cancel everything.

DEPUTY PRESIDENT: What do you mean?

INTERPRETER: And not continue with anything, and we just finish with everything, and I go back to (indistinct). That’s all I have to say.

DEPUTY PRESIDENT: That’s entirely up to you. As I said, it is voluntary for you to be - - -?---I’ve got nothing more to say. Thank you (indistinct).

Okay. But you do know what the decision is likely to be.

INTERPRETER: No, I don’t want to know anything.

DEPUTY PRESIDENT: You can appreciate, based on the material before me, the decision is likely not to be in your favour.

INTERPRETER: Whatever it is, that will be. You are the one who decides, not me.

DEPUTY PRESIDENT: You have nothing else to say?---No.

And you are certain you do not wish to continue here today?

INTERPRETER: No.

DEPUTY PRESIDENT: Does that mean you are withdrawing your application, or you want me to make a decision?

INTERPRETER: Cancelling everything. Don’t make any decisions. I’m cancelling everything.

DEPUTY PRESIDENT: Okay. I need to understand this very clearly, and you are not legally represented, and I need you to listen to me very carefully. (Indistinct) you want to speak to family members as well?

INTERPRETER: It doesn’t matter. There is nothing else to say.

DEPUTY PRESIDENT: I agree, Mr Burke. I think I’m very concerned that the applicant is not represented, and I need him to have some time to speak to members of his family because he’s got the right to choose what he wants to do, but I want to make sure that I’ve done my job right.

MR BURKE: Of course, Deputy President. I wouldn’t oppose an adjournment until whenever the applicant - - -

DEPUTY PRESIDENT: Of course. For half an hour, I think.

MR BURKE: And, Deputy President - - -

DEPUTY PRESIDENT: Mr Nunez - - -

MR BURKE: Just one thing I need to - - -

DEPUTY PRESIDENT: Mr Nunez. For the record, the applicant has left (indistinct). What I will do though, I would adjourn (indistinct words). I’ll come back at 2.30 to be advised whether the applicant is withdrawing his application or is he wanting me to make a decision based on the material (indistinct). Either option is available. Okay. I’ll come back at 2.30. Thank you.

(emphasis added)

185    In this context, it is clear that the Appellant was becoming agitated by the questions being asked of him. His statements that he would like to “cancel(ling) everything” do not, at this stage, amount to a withdrawal of his evidence or of his application for review. The Appellant continued with the hearing by appearing on day two. He had his witnesses give evidence in support of his case. He also made submissions to the Tribunal. The Appellant would not have undertaken any of those matters if he was withdrawing his entire application from the Tribunal.

186    The Tribunal resumed at 2.34pm (on day one), however the Appellant did not appear. His brother said a few words on his behalf. The Minister submitted that the Appellant should be given overnight to consider his position and to give Mr Nunez the opportunity to appear at the Tribunal on the next day of the hearing. After some further submissions, the Tribunal adjourned until the next day.

Day Two of the Tribunal Hearing

187    At the resumption of the hearing on 9 April 2024, the Appellant was in attendance and appeared. The hearing commenced as follows (again it is a longer passage, but it is important to understand the Appellant’s position as conveyed to the Tribunal):

DEPUTY PRESIDENT: Good morning and welcome to the tribunal. How are you this morning, Mr Nunez?

INTERPRETER: A little bit better. I would like to apologise for what happened yesterday.

DEPUTY PRESIDENT: That’s okay. You don’t have to apologise, but thank you.

INTERPRETER: I would like to say something. May I say something?

DEPUTY PRESIDENT: Please go ahead.

INTERPRETER: About my behaviour yesterday, I suffer from schizophrenia, and I feel bad. I don’t feel well the way that you speak to me.

DEPUTY PRESIDENT: Me personally?

INTERPRETER: It was ‘you’ plural. ‘You’ plural’. No, the way that the gentleman here asks me and then he says, ‘No, that’s not true,’ and that sort of thing. I don’t deny any charges. I take total responsibility for all the problems that I’ve had. With this, I want to say I’m not trying to avoid this immigration process that we have in here. It’s not that I want to avoid it, but I don’t want to go back to the same matter, so I would like to perhaps request from you if you could perhaps make a decision based on the information that you already have about me. I don’t know if it could be done, but I have to tell you what I have in mind.

If you make a decision and then you will be asking questions of the witnesses, including my son, the things that you have to ask of them, (audio malfunction). And like I said, I am determined to do the courses, to continue with the SMART Recovery courses, doing courses at the centre, online, and I would be willing, if my visa is not - if my visa cancellation is not - is revoked, I would like to continue doing courses, rehabilitation and all that sort of thing, and I am 100 per cent committed to not fall back into the drugs, because my family is at stake here; my family, my children, my mum.

If my visa was returned to me and I happen to commit another offence, I should just be taken to prison and served good - I should be imposed the harshest sentence that could possibly be for the offence, and then I would do my time, and after that, I would be sent back to Nicaragua without a need to be given a chance to appeal that decision. I’m not sure whether you understand what I am trying to say; if that happened, but I don’t think that would happen.

This is all I really have to say. I accept full responsibility for all my problems. I don’t deny it. I’ve already served my time, but I don’t want to go back to the system again, because mentally, it doesn't help. That’s all.

DEPUTY PRESIDENT: Thank you. I am sorry to hear that you found yesterday stressful, and I will ask Mr Burke to make comments on that. And I do acknowledge that the process is challenging, but the process also means that we need to go through the evidence methodically and the evidence needs to be tested. I understand that you found it challenging. I understand that, and I’m personally sorry that you found it so difficult. What I need to know from you today is whether you would like the tribunal to take evidence from any of your witnesses.

INTERPRETER: Yes. You can proceed with the rules or the process that you normally follow. I’m not saying not to do that. The only thing that I am saying is if, after the witnesses give evidence, after that, perhaps you can make a decision based on what the witnesses have said and the information that is already before you.

DEPUTY PRESIDENT: Well, I will not be making a decision today anyway.

INTERPRETER: I know. I know that. Yes. You did say yesterday that maybe two weeks, before 22 April.

DEPUTY PRESIDENT: That’s right. But what you are saying clearly- and please correct me if I am wrong in my understanding – you personally do not wish to give evidence?

INTERPRETER: Can I say, I will (audio malfunction). What can I say? So what evidence can I give? Because, just to be clear, I understand that you have my entire file, and I already said that they were due to the drug issues that I had and I was smoking and that. I already said that things entered my mind that is not like that, and that is the reason why I had arguments. Like I said earlier, what I have done, what I have said, if I have abused anybody, threaten anybody, it's something that I did at that moment. So the evidence that I can give is already what I said about the courses that I intend to do, that I have done, the courses that I intend to do if my visa is returned, and there is really nothing else that I can say other than that. Sorry, and continue with rehabilitation outside. Continue - - -

DEPUTY PRESIDENT: I hear that.

INTERPRETER: It’s not that what you’re saying, that I don’t want to give evidence. No, it is not that. I already said what I have to say. And it’s not that I want to avoid this process. Not at all. I do accept the problems that I’ve had, and I take on total responsibility. I can’t say anything more. This is all I have to say. Thank you.

(emphasis added)

188    The Minister’s representative then addressed the Tribunal which was in the presence of the Appellant to the effect that the Minister would make a particular submission, if the Appellant did not give further evidence. This submission referred to and outlined the principles from HZCP. Express reference was made to offending post-2009, for which no evidence had yet been given. The hearing continued as follows:

MR BURKE: Deputy President, it’s a matter for the applicant if he does not wish to give any further evidence under cross-examination from the respondent, if he elects to proceed that way. …

…

Those are two things that the applicant should take stock of, but ultimately, it’s a matter for him in relation to whether he is subject to further cross­ examination.

DEPUTY PRESIDENT: Did you understand that, Mr Nunez?

MR NUNEZ: Yes.

DEPUTY PRESIDENT: And you’re happy to proceed on that basis?

INTERPRETER: If we need to proceed, we need to proceed, but I have a question, one last question.

DEPUTY PRESIDENT: Yes.

INTERPRETER: Like, I say this again. He talks about the fact that I have to give evidence, but what evidence or what other evidence can I give? I've already said everything that I had to say. I accept responsibility, and I (audio malfunction). I am not denying the charges that I have on my record. I accept responsibility (audio malfunction). That’s why, every time that I went to court for each matter, I always pleaded guilty. I served my time. (Indistinct.) At that point, I had to give evidence to be tried in each matter, and this gentleman here is now asking me to give evidence. This is where I’m becoming stressed, because it's like they are judging me (audio malfunction). He’s asking me the questions in evidence about those matters, but I already gave evidence back in court.

I understand, like I said previously, that all these issues were caused because I was under the influence of drugs. If I had come here to this tribunal with no documents showing that I had been to the SMART Recovery (audio malfunction) or that I had been (indistinct) centre, then the tribunal could say, ‘Okay. This person has done nothing to help himself with the problem he has. He doesn't care about anything. We’re not going to return his visa.’ That’s it. This is the only evidence that I can show you, that I have done something in relation to my problem. And like we say, it is better late than never.

…

(emphasis added)

Did the Tribunal preclude consideration of available evidence?

189    What is evident from the way the hearing progressed is that on the first day of the hearing the Appellant gave evidence regarding the details of the Conveyance Conviction. He became agitated and stressed. He stated to the Tribunal that he sought to “cancel everything” and left the hearing. With overnight to reflect and consider his position, the Appellant appeared on day two of the hearing. Clearly, he did not actually seek to “cancel everything” on day one. The Tribunal was also aware of this, as it continued with the hearing, received evidence from other witnesses, heard final submissions and delivered a decision. None of which would have been required by the Tribunal, had the Appellant withdrawn his application by his statement, that he sought to “cancel everything”.

190    When the Appellant again appeared on day two, he clarified his position to the Tribunal. He withdrew the reliance on his evidence regarding any matters where he contradicted any of his criminal offending. He stated 5 times to the Tribunal that he accepted full responsibility for his conduct. He stated 3 times to the Tribunal that he did not deny any of the charges. Finally, he stated that he always pleaded guilty. These statements were a complete acceptance of the criminal charges for which he had entered a guilty plea. Furthermore, these statements were a withdrawal of his evidence of any challenge to the convictions for which he had given contrary evidence. The Appellant did not resume the witness box or give any further evidence. All of these statements to the Tribunal were on day two of the hearing. These were statements made shortly after the resumption of the hearing in the morning and were made both before and after the Minister’s submissions regarding HZCP and the possible distinction between pre and post-2009 offending. These were not statements made by the Appellant when he was agitated. He had had the benefit of the overnight break, to reflect and consider his position. He attended the Tribunal hearing in the morning and made his position to the Tribunal clear. Mr Nunez was not seeking to withdraw his application from the Tribunal, but he was accepting his past conduct, problems and criminal offending.

191    These were also not statements because the Appellant was led into error by a statement by the Tribunal. There is no doubt that the initial description of what the Tribunal must accept, in relation to findings by the Court (see above at [182]) could have been better. The Tribunal also did not draw any distinction between a conviction which founds the jurisdiction for the decision-maker and others. However, that statement must not be taken in isolation. The Tribunal also stated that it would listen to Mr Nunez’s evidence, that he can disagree if he wants to, that the Tribunal needs to gain a better understanding of Mr Nunez’s circumstances, including his criminal history and the seriousness of his conduct. These observations of the Tribunal were all on the first day of the hearing. Further, these observations were in the context of the Appellant’s evidence and his participation in the hearing. The elaboration by the Tribunal that it needed to consider his criminal history and the seriousness of his conduct was broadly consistent with the requirements that the Tribunal must undertake. It certainly would not have led the Appellant to understand that the Tribunal must solely accept the findings of the Court. These additional observations had been made by the Tribunal to the Applicant before he considered his position overnight.

192    The position Mr Nunez wanted the Tribunal to understand and consider in its decision was his intention and commitment to reform and rehabilitate. There is an inherent inconsistency between Mr Nunez, on the one hand, seeking for the Tribunal to rely on his acceptance of his offending, showing potential insight into that offending together with his commitment to reform and rehabilitation but, on the other hand seeking to rely on earlier evidence contrary to the acceptance of that offending.

193    In closing submissions, which occurred orally, at the immediate close of evidence, the Minister did not expressly submit that the Appellant had withdrawn his challenge to the convictions which were not the basis for visa cancellation. The Minister did submit that “(t)o the extent that” the facts were challenged and that “any” challenge was insufficient. It is unnecessary to consider whether such submissions raised any issue regarding a withdrawal of Mr Nunez’s evidence because the Minister’s submissions and position taken are not determinative of any alleged error by the Tribunal, in this regard.

194    In this context, it is necessary to consider the Tribunal’s decision at [33]. The Tribunal stated:

It is evident that in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus. The Applicant’s visa was mandatorily cancelled because among other things, the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions. In such a case, the Applicant cannot challenge or impugn the essential facts of the conviction.

195    This was directly after the Tribunal’s reference to HZCP at [78], (T at [32]), regarding the conviction being the foundation for the exercise of power, and the other convictions. On a proper understanding of the hearing before the Tribunal, it is plain that the first sentence of [33] is referring to the Tribunal’s acknowledgement that there can be circumstances, consistent with and by application of HZCP, to call into question or challenge essential facts which underly a conviction. However, in so doing, again consistent with and by application of HZCP, there is a heavy onus on the person seeking to challenge such matters. That first statement contains a footnote reference to HZCP. It is effectively the Tribunal putting into its own words its understanding of the second aspect from HZCP. There are no references in that sentence to the particular aspects or circumstances of this case. If it applied, the Appellant bore a heavy onus in this respect, and in circumstances where he had expressly withdrawn reliance on any contrary evidence previously given, he could not possibly discharge that heavy onus.

196    Then secondly, with express reference to the Appellant, the Tribunal considers the basis upon which his visa was cancelled. The Tribunal observes that the underlying facts for the conviction resulted in the mandatory cancellation of his visa (being his failure to pass the character test) cannot be challenged. Evidentially, that is a reference to the Disqualified Driving Conviction, it being the basis upon which Mr Nunez did not pass the character test (PJ at [51]).

197    The Tribunal considered under the heading of “seriousness of the Applicant’s offending” and “The Applicant’s criminal history” in detail the Appellant’s criminal offending (T at [29]-[46]) and determined that the nature and seriousness of the Appellant’s criminal offending weighed heavily against revocation.

198    At [41] of the Tribunal’s decision, the Tribunal refers to the progress of the hearing and that Mr Nunez reiterated “that he accepts all” and declined to give further evidence. The Tribunal then balances and weighs the evidence, with a particular focus on the violent crimes against female members of his family (PJ at [60], T at [42] and [123]).

199    The primary judge (PJ at [59]) observed that Mr Nunez bore a heavy onus in “attempting” to impugn his conviction for the offence in question. Initially the Appellant gave evidence contrary to the underlying essential facts relevant to the Conveyance Conviction. These were described as a bare denial. Whether that characterisation needs to be accepted is also unnecessary to decide, because the primary judge observes, by reference to the Appellant stating he accepted responsibility, that Mr Nunez could not, in any event discharge the heavy onus which he bore.

200    The primary judge refers to and relies on the transcript of the hearing (PJ at [63]) and again refers to the Appellant’s acceptance for the responsibility of his crimes. That is, in so far as the primary judge was considering any evidence given by the Appellant contrary to the Conveyance Conviction, it was done on the basis of considering an alternative position, if that evidence was available for the Tribunal to consider. However, properly understood and on fair reading of the transcript (as was considered by the primary judge), “more significantly” the Appellant did not want to go over his convictions again, he accepted responsibility for his crimes and he wanted the Tribunal to make a decision based on the information that the Tribunal already had about him (that is, from his “entire file”).

201    It is not in any way determinative that the Minister’s submissions included a possible application of HZCP, in closing submissions. That a party makes submissions on a particular issue which are not then dealt with, because those submissions were unnecessary is, of itself, unremarkable. The Tribunal did not deal with such submissions because it had accepted Mr Nunez’s position to withdraw any contrary evidence given in relation to his criminal offending. There is express reference to that position of Mr Nunez, in the context of the second day of hearing (not the first day) by “reiterating” that he “accepts all” (T at [41]). As such, it was unnecessary for submissions regarding that to be dealt with, in any detail. It is the Tribunal’s reasons for decision which must be construed, to ascertain whether there is error, not a party’s submissions.

202    The Appellant’s position before the Tribunal should be accepted. This was not a single isolated statement of a self-represented person, said when agitated. It was repeated in fairly lengthy passages, having had overnight to consider his position. It is not valid to criticise the Tribunal for disregarding any evidence, which had been subsequently abandoned or withdrawn (recanted). Mr Nunez was representing himself at the Tribunal hearing. That hearing and the matters advanced and withdrawn by Mr Nunez took a particular course, and the Tribunal relied on those matters in its decision. By analogy, “the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the appellant’s lawyers at this later stage of the process”: DWN027 v Nauru (2018) 92 ALJR 548; [2018] HCA 20 at [21] (Kiefel CJ, Gageler and Nettle JJ). Mr Nunez is now represented and he seeks to recast how matters transpired before the Tribunal. Mr Nunez is “seeking to put his [or her] case before this Court in a way that it was not put below and [of the appellant] criticising the reasoning of the decision maker in a manner that overlooks the forensic context in which the reasoning was expressed.”: DWN027 at [21]. That is not a jurisdictional error.

203    As is clear from a fair reading of the transcript, the Tribunal was aware of the Appellant’s earlier evidence regarding the Conveyance Conviction, however, the Tribunal was also aware, as is evident from its reasons, that this position was withdrawn, and the Appellant accepted his previous criminal offending.

204    It is also evident that the Tribunal understood the correct principles to be applied. The Tribunal promptly delivered its decision (only 13 days later) after the two day hearing. The Tribunal accepted the withdrawal of certain evidence by Mr Nunez and proceeded on the repeated position that he accepted responsibility for his criminal offending. Mr Nunez made short, clear closing submissions, repeating his earlier position that he wanted the Tribunal to consider his reform, that he was “sorry for the mistakes that (he has) made or the offences”, he was “determined to fix (his) issues” and his “promise to be a good person”. The Tribunal properly considered those matters in its consideration of risk to the Australian community (T at [51]-[58]).

205    No error, in terms of Ground 2, or how it was developed in the hearing has been established.

Ground 3 - Materiality

206    As there was no error, it is unnecessary to consider any aspects of materiality.

Conclusion on the Appeal

207    As such, the primary judge did not err, in finding that there was no jurisdictional error of Tribunal.

208    For the above reasons, I would dismiss the appeal.

Associate:    

Dated:    28 August 2026