FEDERAL COURT OF AUSTRALIA

Lee v Minister for Home Affairs [2019] FCA 1669

ORDERS

THE COURT ORDERS THAT:

1.    The application for review is refused.

2.    The applicant to pay the costs of the first respondent to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant is a citizen of Singapore who came to Australia in 2003, and in 2011 he was granted a subclass 801 Partner visa. On 22 January 2018, a delegate of the Minister cancelled that visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act), as a consequence of the applicant being sentenced on 18 September 2015 to 12 years imprisonment for the offence of importing a commercial quantity of border controlled drugs.

2    On or about 27 February 2018, the applicant made representations to the Minister seeking revocation of that decision, which was refused on 21 February 2019. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision, and on 15 May 2019, the Tribunal affirmed the decision. The applicant seeks judicial review of the Tribunal’s decision in the original jurisdiction of this Court under s 476A of the Migration Act.

3    The applicant was represented at the Tribunal, although he appeared in this Court unrepresented with the assistance of an interpreter. The grounds in the application, as originally drafted, were of a generic nature. The respondent filed written submissions in relation to those grounds, and raised another issue, which is addressed in greater detail below, which arises on the material. After those submissions were filed, and prior to the hearing, the applicant filed a document which was an outline of submissions, which alleges eight errors. Two of those errors encompass the additional matter raised by the respondent. I have taken these eight errors to be the applicant’s grounds of review, and address each accordingly.

4    For the reasons below, the application for review is dismissed.

The Tribunal’s decision

5    The Tribunal set out the applicant’s criminal history, noting the most serious offence being the conviction on 18 September 2015 for importing a commercial quantity of heroin. Given the applicant’s criminal record, the Tribunal found, as the applicant had conceded, that he did not pass the character test. As such, in accordance with s 501CA(4)(b)(ii) of the Migration Act, the Tribunal had regard to whether there was “another reason” why the original cancellation decision should be revoked.

6    In determining whether there was another reason why the cancellation decision should be revoked the Tribunal had regard to the considerations in Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, Direction 79 sets out the principles that decision-makers should consider when deciding whether to exercise the discretion to revoke mandatory cancellation decisions, including “primary” and “other” considerations to be taken into account.

7    Protection of the community: the Tribunal placed weight on the significance of the applicant’s criminal offending, notwithstanding it accepted he had not committed a range of crimes over a period of time. It emphasised the detrimental impact drug importation has on the community and noted that “even a single significant offence can constitute a substantial criminal record”. The Tribunal placed weight on the fact that the applicant had initially denied the importing charges. The Tribunal also placed weight on the fact that the applicant, as he claimed, became involved in the criminal enterprise due to threats being made against him in the context of a serious gambling problem. The Tribunal accepted the applicant had been a compliant prisoner but noted that while in prison the applicant had not completed any courses specifically directed to gambling or alcohol addiction. It also noted that, despite gambling $20,000 to $30,000 and drinking two bottles of brandy per day, the applicant had not appreciated that he had either a gambling issue or an alcohol problem. The Tribunal accepted the applicant’s remorse for his offending, but it did not accept that in all of the circumstances his risk of reoffending was negligible, and it considered that the risk of harm to the Australian community if the applicant offended again, was considerable. The Tribunal used these findings as the basis for its conclusion that the protection of the Australian community weighed strongly against revocation.

8    Best interests of the minor child: the Tribunal accepted the applicant had a 10 year old daughter with whom he had established some connection, albeit mainly by electronic means. The Tribunal had evidence from his daughter and his “sworn sister” who was caring for her. The Tribunal noted the applicant’s evidence that he intended to apply for custody, but said there was little evidence of any steps taken in that regard. Nor did the Tribunal accept the applicant’s claim that his daughter would become an orphan if he was unable to look after her. Nonetheless, the Tribunal accepted the applicant’s evidence as to his relationship with his daughter and that he wished to play a meaningful role in her upbringing. The Tribunal found that the best interests of the child favoured revocation.

9    Expectations of the Australian community: the Tribunal considered the totality of the applicant’s circumstances and found that the expectations of the Australian community would be against revocation.

10    Other considerations: the Tribunal accepted the applicant had ties to Australia, including familial ties, and he considered Australia to be his home, having lived here, at that time, for about 15 years. It accepted that members of the applicant's family in Australia would be adversely affected if his visa cancellation was not revoked. The Tribunal took into account the applicant’s claim that he would have to start again if he returned to Singapore, but noted the applicant had presented little evidence of his business interests overseas which had necessitated frequent overseas travel. The Tribunal had no evidence to support the applicant’s contention that his siblings in Singapore would not be able or willing to assist him if he returns.

11    The Tribunal engaged in the requisite balancing exercise, and concluded that notwithstanding there were strong reasons in favour of revocation, the protection and expectations of the community outweighed such considerations, and there were no other reasons why the original decision should be revoked.

Additional matter

12    As noted above, the respondent filed submissions prior to the applicant, in which it appropriately identified a matter which arises in these proceedings, namely the manner in which the Minister's delegate notified the applicant of the decision not to revoke the cancellation of his visa. In support, the respondent read the affidavit of Aaron Marcus Moss dated 7 August 2019 (the Moss Affidavit).

13    Accompanying the delegate's notification letter to the applicant of the decision not to revoke the cancellation of his visa, were two copies of each document required to be given to the applicant in accordance with s 501G(2), with the exception of one set of documents. The omitted documents were described in an index entitled “evidence or other material considered in this case” that accompanied the delegate's decision as “Attachment J1: Further submissions received 28 December 2018 (includ[ing] duplicates of Attachments B, C1)” (Attachment J1). The respondent accepted that Attachment J1 was not before the Tribunal when it made its decision, noting however, that the existence of Attachment J1 (and its consideration by the delegate) had been communicated to the applicant by way of inclusion in that index of evidence/material accompanying the delegate’s notification letter.

14    Notwithstanding the description of Attachment J1 as “further submissions”, it was comprised of five separate documents, including letters, a memorandum and a transcript, each described in paragraph [5] of the Moss Affidavit. However, as is clear from the Moss Affidavit, three of those documents (or duplicates thereof) were contained in the Court Book as material before the Tribunal, being duplicates of other documents that were provided to the applicant alongside the delegate’s notification letter. There were only two documents not included in the material before the Tribunal, which were: (1) a memorandum dated 19 December 2017, bearing the seal of Corrective Services NSW MSPC Long Bay (the Memorandum); and (2) a letter from the NSW Crime Commission to Andrew Solicitors, dated 15 February 2018 (the Letter). The Memorandum appears to be an internal Corrective Services document recording that the applicant was scheduled for his annual classification review, and that as he was participating in an external leave program, the review could be conducted in his absence with his permission. The Memorandum reflects that the applicant permitted that to occur. The Letter was from the NSW Crime Commission to the applicant’s solicitors referring to a consent order made in the proceedings of “NSW Crime Commission v Sang Foo Lee.” The Letter details, pursuant to that order, the amount owing, the rate at which interest would accrue on that lump sum, and that a property identified in the letter could be sold, charged, mortgaged or otherwise used to raise finance to enable the proceeds assessment order to be satisfied.

15    The applicant’s submission as to the failure to provide those documents forms the basis of grounds 3 and 4 of his review.

16    Against that background I turn to address the grounds of review.

Grounds of review

Ground 1: the Tribunal erred in saying the applicant did not complete any courses about his addictions

17    The applicant’s complaint is that the Tribunal stated that he did not complete any courses about his addictions when the “Getting Smart” course which he completed does cover alcohol, drug and gambling addictions, amongst other issues. The applicant’s complaint is based on a misreading of the Tribunal’s reasons.

18    The Tribunal made the following observation at paragraph [42]:

The Tribunal is mindful that the applicant has not presented evidence of having successfully completed any specialised drug, alcohol or gambling rehabilitation programs, although the Tribunal accepts that the applicant had completed other behavioural programs, as well as trade courses.

19    The Tribunal then referred to courses undertaken at paragraph [43]:

The applicant told the Tribunal he no longer had a gambling problem because he has been in jail and also because gambling had separated him from his family and he explained how the two courses ‘Getting Smart’ and ‘Seasons of Growth’ helped him overcome his addictions. The Tribunal is mindful that the ‘Seasons for Growth’ program is a program that deals with grief and loss. The applicant confirmed in oral evidence that the program did not address his gambling. The Tribunal does not accept that this program would have assisted the applicant in dealing with gambling, drug or alcohol use. The applicant said that the ‘Getting Smart’ program did relate to drinking, gambling and drugs. The applicant noted that he participated in other programs, including one provided by [the] Eclipse Foundation which he initiated but did not complete. The Tribunal accepts that the applicant did not use drugs or alcohol during his incarceration but in the Tribunal’s view, he may have had quite limited opportunities for such activities while in prison and immigration detention. Neither would gambling be readily available to the applicant in detention or when he participated in the work release program.

20    As is clear from the passage recited, the Tribunal recognised that the applicant said that the “Getting Smart” course did address gambling, drug and alcohol issues. Unlike the position in relation to the “Seasons of Growth” course, the Tribunal made no contrary finding. It follows that the Tribunal took into account the fact that the “Getting Smart” course did, in part, address drinking, gambling and drugs.

21    Contrary to the applicant’s submission, the Tribunal did not state that he did not complete any addiction courses. Rather, the Tribunal’s observation, as is clear from the passage recited above, was that there was no evidence that he had completed any specialised drug, alcohol or gambling rehabilitation programs.

22    The “Getting Smart” course was not a course which specialised in drug, alcohol and gambling rehabilitation. So much is recognised by the applicant who stated in this ground of appeal that the course “does in fact cover alcohol, drug and gambling addiction among other issues” (emphasis added). The applicant’s contention that the Tribunal erred cannot be accepted.

23    This ground is not established.

Ground 2: no mention at the Tribunal hearing of the applicant working in the community and the fact he was given parole

24    The applicant’s submission is that he was given a C3 classification (permitting him to work in the community) and was given parole at the earliest possible time, because he was deemed to be of no risk to the community. He complained that there was no mention of this at the Tribunal hearing.

25    However, while there was no specific reference in the Tribunal’s reasons to the applicant’s C3 classification or parole period, the Tribunal did expressly acknowledge that the applicant was released during his incarceration to undertake work in the community for a period of approximately one year.

26    I note, however, that the Tribunal observed that while there was no evidence that the applicant participated with drugs, alcohol or gambling during this period of release, it was mindful of the fact he would have been checked on a regular basis and if he undertook those activities it would affect his status. The Tribunal concluded that the fact that the applicant did not engage in those activities during his community work “may not necessarily be reflective of his future conduct when he is released into the community”. That is, the applicant’s conduct in detention does not necessarily reflect what his conduct might be, when the applicant is released into the community and has full access to goods and activities that were limited to him during his incarceration.

27    It is clear that the Tribunal did refer to the fact of release while the applicant was incarcerated. The Tribunal also accepted that the applicant was assessed as having good prospects of rehabilitation and that he was an exemplary detainee. However, in that context the Tribunal placed weight on the fact that he had not undertaken any specialised addiction course targeted to the factors that led to his offending. The Tribunal also observed that given gambling was a principle source of income for the applicant in the past, should he rely on it in the future, there is a risk he would become involved in the same activities.

28    Contrary to the applicant’s submission, the Tribunal addressed the matters complained of in this ground. The applicant’s complaint is really a factual one; that a different conclusion ought to have been reached.

29    This ground is not established.

Grounds 3 and 4: Attachment J1 was not provided to the applicant (and therefore, was not before the Tribunal) and the respondent’s submission is inconsistent on the topic of s 501G(2)

30    These are the grounds that reflect the issue raised by the respondent, as noted at paragraphs [12] to [15] above.

31    Section 501G of the Migration Act is in the following terms:

501G Refusal or cancellation of visa—notification of decision

(1)     If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:

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

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

(ba)     not revoke a decision to cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)     sets out the decision; and

(d)     specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non‑disclosable information) for the decision; and

(f)     if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i)     states that the decision can be reviewed by the Tribunal; and

(ii)     states the time in which the application for review may be made; and

(iii)     states who can apply to have the decision reviewed; and

(iv)     states where the application for review can be made; and

(v)     in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)     sets out such additional information (if any) as is prescribed.

(2)     If the decision referred to in subsection (1):

(a)     was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and

   (b)     is reviewable by the Administrative Appeals Tribunal; and

   (c)     relates to a person in the migration zone;

   the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:

   (d)     is in the delegate’s possession or under the delegate’s control; and

   (e)     was relevant to the making of the decision; and

   (f)     does not contain non‑disclosable information.

  (3)     A notice under subsection (1) must be given in the prescribed manner.

(4)     A failure to comply with this section in relation to a decision does not affect the validity of the decision.

32    In relation to ground three, the applicant’s argument is that the failure to provide Attachment J1 to him, which resulted in the materials not being before the Tribunal, is a breach of s 501G(2). Ground four is a complaint that the respondent’s submission is inconsistent because it contended there was no breach of s 501G(2), but went on to provide alternative arguments on the basis that, “but if there was” a breach, certain other submissions would apply. The applicant submitted that “a breach is a [b]reach no matter how significant or insignificant it is”.

33    The respondent submitted in the first instance that there was no breach of s 501G(2) by the Minister failing to provide the two documents referred to above, where neither document was “relevant to the making of the [delegate's] decision”: s 501G(2)(e).

34    The respondent submitted that the documents have no apparent relevance to the Tribunal’s exercise of power. In support of that submission the respondent addressed the contents of each document. The respondent contended that neither document appeared to have been the subject of any submission or explanation to the delegate or the Tribunal and that the delegate made no express reference to either document. The respondent pointed out that the applicant was represented by counsel before the Tribunal and detailed documentation was given to the Tribunal by his counsel, including a statement of facts and contentions which did not refer to the documents. The respondent submitted that neither document was relevant to the making of the decision, and therefore did not need to be provided to the applicant under s 501G(2).

35    The alternative submission put by the respondent was that even if there was a breach of s 501G(2), it did not cause the applicant’s review application to the Tribunal to be invalid. The applicant did commence the review, he had representation and the Tribunal made a decision. Therefore, on the respondent’s submission, the absence of Attachment J1 from the volume of materials provided to the applicant did not prevent the Tribunal from assuming jurisdiction to conduct the review. The respondent referred to a number of authorities in what was said to be analogous statutory settings to support its submission: see Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627; Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129.

36    The respondent contended that this submission was not inconsistent, as the applicant submitted in ground four, but instead provided an alternative argument.

37    In reply the applicant submitted both documents were relevant. The applicant submitted that the Letter was very important because it shows he needs to pay interest each week and that if he does not resolve the problem, there will be an issue as to where his wife and daughter can live. In relation to the Memorandum, the applicant submitted that it shows that he performed well in prison.

38    The respondent’s first submission should be accepted.

39    As was accepted by the respondent, the failure to provide the documents was an oversight. However, considering the content of each of the two documents objectively, they have no obvious relevance to the issues before the Tribunal.

40    Section 501G(2) does not require every document before the delegate to be provided to the applicant, only those “relevant to the making of the [delegates] decision”: s 501G(2)(e). As described above, the Memorandum appears to be an internal document recording that the applicant was scheduled for his annual classification review. The fact of being scheduled for such a review does not relate to any issue before the Tribunal. In any event, any information in the document (e.g. that he was on an external program) is found elsewhere. The Letter to the applicant’s solicitors referring to a consent order in relation to proceeds proceedings is really a description of the effect of that order. That does not address any issue before the Tribunal. Given their apparent lack of relevance, not surprisingly the documents (or their contents) were not referred to in the delegate’s decision, nor by the applicant in his written statement of facts, issues and contentions in the Tribunal. The applicant was represented before the Tribunal, with that written statement being prepared by his legal representatives (being signed by counsel).

41    Neither document was “relevant to the making of the [delegate's] decision”: s 501G(2)(e). It follows there was no relevant failure of the respondent to comply with s 501G(2).

42    If I am incorrect about that, the respondent’s alternative argument succeeds. That is, the failure by the respondent to do something (in this case, provide the J1 Attachment to the applicant) did not invalidate the applicant’s application to the Tribunal. The requirements in the notification provision are not such that any departure therefrom would result in invalidity, without consideration of the extent and consequences of the departure: see for example: Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [35]-[36]; Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 at [12]-[13]; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 at [65]-[69]. While I appreciate that each of those cases involved a different provision and factual circumstances, they are generally analogous to the situation in this case. Even if the respondent had failed to comply with s 501G(2) in notifying the applicant of the non-revocation decision and failing to include the documents in Attachment J1, the applicant was able to, and did, commence the review, he was represented by counsel, and he participated in the hearing, resulting in the Tribunal’s decision. The notification was effective to put the applicant on notice of his rights to review.

43    Moreover, given the nature of the documents as described above, the absence of the two documents was of no practical import to the Tribunal’s decision. The failure to consider the documents did not result in jurisdictional error: see, for example: Navoto v Minister for Home Affairs [2019] FCA 295 at [47], adopted by the Full Court of this Court in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [30].

44    These grounds are not established.

Ground 5: the Tribunal erred in its consideration of the expectations of the Australian community

45    The applicant’s submission was that the Tribunal erred in finding the expectations of the Australian community would be against revocation as he committed the offence under duress and he believed the community would in fact give him a second chance due to his ties to Australia.

46    In oral submissions, the respondent referred to a number of authorities and noted that while there is some discordance between them as to the correct approach to be taken in determining the expectations of the Australian community, the Tribunal had considered the applicant’s submissions on this issue “in quite some detail” and had not fallen into error simply by paying close regard to the nature of the applicant’s criminal offending.

47    This ground is, in reality, a merits argument.

48    In any event, the reasons reflect that the Tribunal considered the arguments raised by the applicant which are raised by this ground; that the community would have been more lenient to him for the reasons he specifies.

49    I note the observation of Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311 at [85]:

The applicant’s argument misconceives the representative nature of the Tribunal’s function and, for that matter, the same function when the exercise of the revocation power is being considered by the Minister or his delegate. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did. There is no error, legal or factual, in what the Tribunal did, let alone the requisite jurisdictional error.

50    The references to Direction 65 apply equally to Direction 79. The Tribunal considered the applicant’s submissions concerning his specific circumstances, and conducted the requisite assessment.

51    No error has been established.

Ground 6: no impact on Australian business interests

52    The applicant submitted there is an inconsistency between the Tribunal’s finding at paragraph [84] that there was no evidence before it concerning any impact on Australian business interests and the finding at paragraph [87] that the applicant’s wife’s future business opportunities may be adversely affected if the visa remains cancelled. The applicant submitted that the findings are inconsistent and that this purported contradiction is an error.

53    There is no relevant inconsistency. The impact on Australian business interests is required to be taken into account, but that relates to present or actual interests. Nonetheless the impact on the applicant’s wife was taken into account, which was different from present business interests. The applicant’s wife’s evidence was that she wished to establish a business and without the applicant’s assistance she considered she could not realise that. The two statements complained about address different issues.

54    This ground is not established.

Ground 7: the Tribunal erred in not addressing the applicant’s invalidity arguments

55    The applicant submitted that the Tribunal erred in not addressing his argument that sub-clauses 6.3(1) and (3) in Direction 79 were invalid.

56    The respondent submitted that the failure to address the argument, given its nature, is not jurisdictional error.

57    The submission before the Tribunal was in the applicant’s statement of facts, issues and contentions, and was that clauses 6.3(1) and (3) of Direction 79 were “invalid to the extent those clauses mandate that being able to stay in Australia is a ‘privilege Australia confers on non-citizens’”, referring to a passage from the judgment of Griffiths J in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [70], the part relied on being as follows:

…In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as “expectations of the Australian community” and the “privilege” of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a “privilege”. For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of “privilege” in a legal sense.

58    It is unclear what the applicant’s submission actually was. The written submission was no more detailed than that. There was no explanation in the submission as to how that passage leads to invalidity, noting that the passage relied on does not suggest invalidity. Nor did the applicant suggest in that submission the purported effect of his submission. The applicant’s written submission then proceeded to advance submissions as to the expectations of the Australian community by reference to the facts in this case. I note that as the transcript of the proceedings before the Tribunal is not before this Court it is unclear whether this aspect was maintained or advanced orally. I note also that while the Tribunal did briefly refer to sub-clauses 6.3(1) and (3) in its reasons when outlining the relevant legal framework, there is no indication in the reasons that the Tribunal relied upon these parts of the direction in any particular way.

59    I note that in any event, it is well established that a decision maker is not required to refer in its reasons to every submission: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45].

60    Further, Stretton did not conclude the clauses were invalid, rather the passage relied on suggested an inaptness in the language used in the clauses. The passage from Stretton cited above formed part of a subparagraph in a paragraph of the judgment which addressed the proposition that the indicators in the Migration Act that assist in evaluating a decision under s 501(2), are broad. In any event, an evaluation of the submission, in the context of this case reflects that the failure to consider it (if it was pursued at the hearing but not considered) is not such as to amount to jurisdictional error. It could not realistically have affected the Tribunal’s decision.

61    Therefore, this ground is not established.

Ground 8: the Tribunal erred in describing offences as convictions

62    The applicant complained about a passage in paragraph [27] where the Tribunal stated “[w]hile some of the drug offences were subsumed during the sentencing, the convictions indicate that the applicant had been convicted of multiple offences which include trafficking, possession, and import/export of prohibited drugs”. The applicant submitted that he was only convicted of importation of a commercial quantity of a border controlled drug, and the other offences were subsumed in the sentence having been taken into account by being placed on a form pursuant to s 16BA of the Crimes Act 1914 (Cth). He submitted he had not been convicted of those other offences and the Tribunal had made an incorrect finding.

63    The respondent accepted those offences were on a form, were not contested, and were taken into account by the sentencing judge in assessing the overall criminality of the applicant’s offending. The respondent submitted that while these additional offences were not convictions, the Tribunal was entitled to consider all of those matters as they concerned the applicant’s overall criminal offending. Consequently, on the respondent’s submission there was no substantial misunderstanding of fact that impacted on the jurisdiction of the Tribunal.

64    The sentencing remarks for the applicant’s offending reflect that the respondent is correct that the offences of trafficking and possession were placed on a s 16BA form. Section 16BA provides a procedure whereby an offender can request a sentencing judge, when sentencing them for offences to which they plead or have been found guilty, to take into account other offences. In doing so it is necessary to comply with the procedure set out in Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146; R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]. This includes that those offences must be admitted by the offender. The consequence is that the sentence imposed for the offence, in which the form offences are taken into account, will be increased, and therefore may be higher than might otherwise be appropriate. In this instance, there is no conviction in relation to the offences on the form.

65    However, an error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]; ESU17 v Minister for Home Affairs [2019] FCA 300 at [17]. For example, where an error of fact leads to unreasonableness, illogicality, irrationality or reasoning for which there is no probative basis, and the erroneous finding is material to the ultimate decision, jurisdictional error may be established: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41(d)]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] – [132], [135] per Crennan and Bell JJ; see for example: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. The “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] per Robertson J. Circumstances giving rise to jurisdictional error do not arise in this case.

66    For the offences to be taken into account in the s 16BA form, the applicant must have admitted them. The applicant does not have a conviction for those offences, but they are offences which are proved. Referring to the applicant having been convicted of those offences is incorrect. However, the error is not a substantial one, such as to amount to jurisdictional error. The import of the Tribunal’s comments in that passage is that he has committed more than one offence, which is correct. The Tribunal’s factual error had no consequence on the outcome and did not constitute jurisdictional error.

67    This ground has not been established.

Conclusion

68    The grounds have not been established. Consequently, the application for review is dismissed.

Associate:

Dated:    11 October 2019