FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
7 MAY 2019
THE COURT ORDERS THAT:
2. The applicant pay the first respondent’s costs of this application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 On 2 August 2018, the applicant, the Minister for Home Affairs, applied to this Court for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal upheld an appeal against a decision of a delegate of the Minister denying the first respondent, Mr Sharma, a Partner (Temporary) (Class UK) visa.
2 For the reasons that follow the application for judicial review is refused.
3 On 7 October 2009, the first respondent, a citizen of India, arrived in Australia on a Student (Class TU) visa. He was subsequently provided a further student visa.
4 On 28 April 2014, the first respondent married an Australian Citizen. On 13 November 2014, the first respondent lodged an application for a partner visa with the Minister for Immigration and Border Protection, whose relevant responsibilities have since been assigned to the Minister. The visa was sponsored by the first respondent’s then wife.
5 On 5 March 2015, the first respondent’s then wife gave birth to their son.
6 In July 2015 the first respondent and his then wife separated and she withdrew her sponsorship of the visa.
7 On 7 January 2016, the first respondent was charged with four offences of Recklessly Causing Injury to his son, to which the first respondent eventually pleaded guilty, on or around 22 December 2016.
8 The first respondent was ordered to serve a 12-month community corrections order but no conviction was recorded. The details and procedural history of these offences are described below.
9 On 11 September 2017 the Minister provided the first respondent with a Notice of Intention to Consider Refusal. In brief, the Notice stated that “the Department … holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s 501(6)(d) of the Migration Act”. The Notice contains text from (i) to subsection 501(6)(d) of the Migration Act 1958 (Cth), which relevantly states that “in the event the [applicant] were allowed to enter or to remain in Australia, there is a risk that the [applicant] would … (i) engage in criminal conduct in Australia …” The Notice attached several documents relevant to the charges.
10 On 9 October 2017 the first respondent provided a response to the Notice through his lawyer Carina Ford. The response stated that three factors should be considered by the Minister in determining whether to refuse the first respondent’s visa application, being the Magistrate’s remarks in determining what punishment to impose on the first respondent, a psychological assessment of the first respondent, and the fact that he had completed various behaviour change programs. The balance of the letter described the bases for these factors.
11 On 22 March 2018, a delegate of the Minister made a decision under s 501(1) of the Act refusing to grant the first respondent a partner visa. The delegate was not satisfied that the first respondent passed the ‘character test’ contained in s 501(6), as the delegate found that if the first respondent were “allowed to … remain in Australia, there is a risk that [he] would engage in criminal conduct in Australia”: s 501(1)(d)(i) of the Act. In coming to this conclusion, the delegate had regard to, inter alia, the charges. Further, the delegate was not satisfied that other reasons existed to exercise the discretionary power to grant the visa having regard to the factors set out in Ministerial Direction No. 65 (Direction 65), which the delegate was bound to consider: s 499(2A) of the Act.
12 On 18 April 2018 the second respondent, through his solicitors, filed an Application for Review of Decision with the Tribunal. The application was made on various grounds. Relevantly for present purposes, the first respondent stated that he had only pleaded guilty to the charges because his ex-wife had told him to take the blame for causing the injuries to their son, as if he did not do so their son would be taken away from them by the Department of Human Services.
13 On 5 July 2018, the Tribunal set aside the delegate’s decision and substituted a decision that the first respondent not be refused a partner visa under s 501(1) of the Act. The Tribunal accepted the first respondent’s evidence concerning the reasons he pleaded guilty to the charges. Further, the Tribunal held that reasons existed for the first respondent to remain in Australia, namely that it was in the best interests of the first respondent’s son.
Application to this court
14 The applicant applied to this court for judicial review of the Tribunal’s decision on 2 August 2018. On 14 August 2018 the Tribunal filed a submitting notice.
15 By its Notice of Appeal, the applicant seeks to impugn the Tribunal’s decision on the following ground:
“1. The Tribunal's decision dated 5 July 2018 (the Tribunal's decision) is affected by jurisdictional error because the Tribunal applied the wrong legal test or failed to take into account a relevant consideration or took into account an irrelevant consideration or otherwise constructively failed to exercise its jurisdiction.”
16 The ground is particularised with respect to three aspects of the Tribunal’s reasons, namely that the Tribunal:
(1) impermissibly looked behind the first respondent’s guilty pleas;
(2) misapplied s 501 of the Act; and
(3) misapplied Direction 65.
17 Each of these grounds is considered in turn below.
Ground One – the Tribunal impermissibly looked behind the first respondent’s guilty pleas
18 The particulars under Ground One, aside from repeating the background to the proceeding, state as follows:
“In so deciding [for the first respondent], the Tribunal accepted the first respondent's evidence that, in making admissions about recklessly causing injuries to his son, he had lied to police about, in particular, the circumstances in which his son's ankle had been broken: see, in particular,  and -. In doing so, the Tribunal impermissibly looked behind the first respondent's guilty pleas to the Magistrates' Court. …”
19 The applicant submits that this analysis was in error, as the first respondent did not discharge the onus of proof necessary to enliven the power to look behind the guilty pleas.
20 It is well established that there are limitations on the circumstances in which an administrative decision-maker may make findings inconsistent with facts underpinning a criminal sentence. In HZCP v Minister for Immigration and Border Protection  FCA 1803 Bromberg J at  reviewed the relevant recent authorities from which the following categories may be distilled:
“(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.”
21 This statement adopted the approach taken by the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation v LLF  VSCA 155. In the present case, as the applicant correctly accepted, the Tribunal’s exercise of power is within the second of the above categories.
22 The fact of the conviction creates a ‘heavy onus’ on the party seeking to agitate an alternate view of the facts forming the necessary basis of that conviction.
23 The applicant contended that there were three findings by the Tribunal which indicated that it had gone behind the essential facts underlying the first respondent’s guilty plea and sentencing:
“28.1. the Tribunal placed little or no weight on Mr Sharma’s voluntary guilty pleas before the Magistrates’ Court to all four offences of recklessly causing injury to his son, which guilty pleas were made with the benefit of legal representation;
28.2. the Tribunal found that, aside from Mr Sharma’s evidence that he lied to police about the cause of his son’s broken ankle, there was “nothing else in the evidence” which explained the cause of that injury; and
28.3. the Tribunal rejected as “surmise” the expert evidence of the paediatrician, Dr Tully, about the ankle injury of Mr Sharma’s son.”
24 I do not agree with the applicant’s characterisation of the Tribunal’s reasons. In my view, the Tribunal made it abundantly clear in its reasons that the first respondent was telling the truth when he said he did not commit the offences as charged, but accepted responsibility because he had been persuaded by his ex-wife that if he did not do so the couple would lose custody of their child. This finding was the explicit basis upon which the Tribunal found that the respondent would not be a threat to the community if allowed to remain in Australia. I can see no reason to disturb that key factual finding concerning the first respondent’s reason for pleading guilty to the charges, or the conclusion reached by the Tribunal consequent upon that finding.
25 The Tribunal did not come to its view lightly: see  of the Tribunal’s decision. Relevant evidence was adduced at the hearing before the Tribunal. Three lay witnesses and a psychologist gave evidence as to the character of the first respondent. Further, a recording of the Magistrate’s sentencing remarks was played to the Tribunal. The Tribunal gave detailed consideration to the circumstances of the offences and the evidence presented at the hearing. The relevant circumstances included the medical evidence of injuries sustained by the first respondent’s son, which the Tribunal member noted was produced without consultation with the first respondent or explanation by him: .
26 The Tribunal did not in my view impermissibly look behind the charges. Rather, it accepted the evidence given by the first respondent concerning the circumstances that led to the charges being laid against him and the reasons he pleaded guilty to them. This approach was open to the Tribunal.
Ground Two – the Tribunal misapplied s 501 of the Act
27 The second ground is particularised as follows:
“The applicant refers to and repeats the particulars to ground 1 above.
The Tribunal did not make any finding in its decision as to whether or not it was satisfied that the first respondent passed the "character test" (as defined in s 501(6) of the Act).
At best, the Tribunal found, at , that there was "no basis ... in the evidence to reach a conclusion that Mr Sharma would engage in criminal conduct if allowed to remain in Australia within the meaning of s 501(6)(d)(i) of the Act" (original emphasis). However, that finding did not engage s 501(6)(d)(i), which is directed to the existence of a mere "risk" that a person would in future engage in criminal conduct.
Further, the Tribunal purported to analyse considerations set out in the Direction relevant to the exercise of the discretionary power in s 501(1) of the Act: see, for example, . Such an analysis would have been unnecessary unless the Tribunal had found, for the purpose of s 501(1), that it was not satisfied that the first respondent satisfied the character test. However, no such finding, whether express or implied, is discernible from the Tribunal's reasons.”
28 The applicant seeks to impugn the Tribunal’s application of s 501 in two ways. First, that the Tribunal misapplied s 501(6)(d)(i) by determining whether the first respondent would or would not engage in criminal conduct, as opposed to whether the first respondent would be at ‘risk’ of engaging in criminal conduct. Second, that the Tribunal conflated the two distinct steps required when applying the section.
29 In relation to the first criticism, section 501(6)(d)(i) provides:
(6) For the purpose of this section, a person does not pass the character test if:
(d) in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia;
30 The relevant particular states that “[a]t best, the Tribunal found, at , that there was "no basis ... in the evidence to reach a conclusion that Mr Sharma would engage in criminal conduct if allowed to remain in Australia within the meaning of s 501(6)(d)(i) of the Act". This characterisation of the Tribunal’s reasons as ‘at best’ founded on the question of whether the first respondent ‘would’ engage, as opposed to ‘risk’ of engaging in criminal conduct, is inaccurate. The Tribunal’s reasons must be read as a whole.
31 The Tribunal at  says “… I cannot agree with Mr Brown’s [counsel for the Minister’s] submission that there is an overall risk to the Australian community such that it would need protection unless Mr Sharma is deported.” Further, the Tribunal at  said that “I regard any future risk as only minimal and remote, given that no one is a zero-risk. I accept Mr Newton’s evidence [the psychologist who assessed the first respondent], who I note assessed [the first respondent] as a low risk among the low” (emphasis in original). The references to ‘risk’ in those paragraphs must be taken as a reference to the risk of the first respondent engaging in criminal conduct if allowed to remain, not to a conclusion about whether the first respondent ‘would’ engage in criminal conduct.
32 Taking into account ,  and the context of the application to the Tribunal, I do not accept applicant’s submission that the Tribunal misapplied the test in s 501(6)(d)(i) by assessing the first respondent against a standard of whether he ‘would’ engage, as opposed to the ‘risk’ of engaging in criminal conduct. The finding in the conclusion to the Tribunal’s decision may have imprecisely used the word “would” rather than “risk”, but nothing of substance turns on this essentially trivial semantic criticism.
33 Turning to the second particular. It is well established that a decision-maker under s 501 is first to apply the character test and then determine whether to exercise the power to refuse to grant or to cancel a visa having regard to the requirements in Direction 65: Brown v Minister for Immigration & Citizenship  FCA 1098; 112 ALD 67, 69 . Here, the Tribunal plainly found for the first respondent on the first step. Accordingly, strictly speaking the Tribunal was not required to consider Direction 65. The applicant’s contention that the Tribunal fell into error by taking into account Direction 65 in the mix of considerations regarding the character test in my view is analytically flawed.
34 As a matter of analysis there is no reason why factors relevant for the exercise of the discretion as mandated by Direction 65 may not also be relevant to determining the anterior question of whether the first respondent satisfied the character test.
35 The applicant’s written submissions provided some clarity as to the exact causal path of error alleged. It contended that matters in Direction 65 such as the expectations of the Australian Community and the interests of the first respondent’s son, were not relevant to a finding as to whether or not the first respondent was at risk of offending if allowed to remain in Australia. So much may be accepted as true. However, the presence of certain factors not relevant to the character test does not mean that other factors in Direction 65 which are relevant to that question should not be considered, with or without explicit reference to Direction 65.
36 In my view, a fair reading of the Tribunal’s reasons as a whole reveals clearly that it considered the character test, concluded in favour of the first respondent, and also considered the discretion (albeit unnecessary to do so), and concluded in favour of the first respondent. So much is clear from the extracts of the Tribunal’s reasons set out above regarding its conclusions as to the potential for reoffending, and  of the reasons which states that “…the primary considerations in [Direction 65] do not call for the deportation of [the first respondent].” Though the Tribunal’s reasons tend to shift at times between analysis of the first and second steps, this in no way demonstrates any analytical or legal error.
Ground three – the Tribunal misapplied Direction 65
37 Ground three is particularised as follows:
“The applicant refers to and repeats the particulars to ground 1 above.
In its purported analysis of the considerations set out in [Direction 65], the Tribunal impermissibly proceeded on the basis that it did not accept the essential facts underpinning at least one of the first respondent's guilty pleas to the Magistrates' Court: see, for example,  and −.
Further, and having regard to that purported analysis, there is no indication that, in accordance with subparagraph 11.1.1(b) of [Direction 65], the Tribunal ever had regard to the principle that crimes committed against vulnerable members of the community (such as minors) are serious.”
38 For the reasons given above, I reject this ground. In my view, the approach taken by the Tribunal was rational and justified having regard to its acceptance of the explanation given by the first respondent of the background that led to him taking responsibility for the charges and pleading guilty to them.
39 For the above reasons, the appeal is dismissed with costs.