FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The application be dismissed.

3.    The Applicant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 November 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).

2    Section 501 of the Act empowers the Minister or his delegate to cancel a visa if the visa holder does not pass the prescribed character test. It is uncontentious that the applicant does not pass that test, as on 24 November 2014 he was convicted in the Country Court of Victoria on one count of use of a carriage service to procure sexual activity with a person under 16 years of age and one count of wilfully committing an indecent act with a child under the age of 16. On the first charge he was sentenced to 12 months imprisonment but immediately released on a good behaviour bond.

3    The applicant contends however that in deciding to exercise the discretion to cancel his visa, the Tribunal fell into jurisdictional error in two ways. First, by receiving and taking into account certain evidence the applicant gave instead of accepting the essential factual findings underpinning the sentence imposed. Second, by failing to give any or appropriate consideration of the best interests of a minor child in Australia as required under Ministerial Direction No. 79 (Direction 79).

4    For the reasons I explain I am not satisfied that the Tribunal fell into jurisdictional error as alleged and it is appropriate to dismiss the application.

5    The Court is grateful for the assistance provided by Mr Jonathan Barrington and Ms Anna O’Callaghan of counsel, who accepted a referral to represent the applicant in the proceeding on a pro bono basis.

The facts and procedural background

6    The applicant is a 31 year-old male citizen of India who arrived in Australia on 30 December 2006 as the holder of a Student (Class TU) (Subclass 573) visa. He was granted a Temporary Graduate (Subclass 845) visa on 1 July 2010, and then a Skilled – Independent (subclass 885) visa (the visa) on 27 November 2013.

7    On 24 November 2014 the applicant was convicted by guilty plea of:

(a)    One count of using a carriage service to procure sexual activity with a person under 16 years of age contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth) (charge 1); and

(b)    One count of wilfully committing an indecent act with a child under the age of 16 contrary to s 47(1) of the Crimes Act 1958 (Cth) (charge 2).

8    In the Reasons for Sentence delivered on 24 November 2014 Judge Parsons of the County Court of Victoria said

1.    You, Galjinder Singh, have pleaded guilty before me to one count of using a carriage service to groom a person under 16 years of age for sexual activity and one count of wilfully committing an indecent act with a child under the age of 16.

2.    The circumstances giving rise to these crimes were outlined in significant detail by the learned prosecutor in Exhibit 1, the summary of prosecution opening. The document comprises 29 pages and I only propose to summarise briefly from it.

3.    You were 25 years of age at the time of the offending and the complainant in the matter was 11 years of age at the time of the offending.

4.    Around 26 December 2013, you began communicating on the internet with a female person you believed to be a 26 year old Korean female. After approximately one and a half months, that person identified herself by saying she was aged 17 and then that in fact her real age was 11. This was on or about 15 February 2014. The rest of your friends counselled you to desist from any further communication, although you resolved to press on until you learned the truth of her age. You continued to communicate with her, including in a sexualised manner.

5.    On 21 February 2014, you and the young girl agreed to meet near her school. You drove your vehicle to the agreed place and then collected her from outside the Ivanhoe Public Library and then drove to a nearby park, where you chatted, before you kissed the complainant on the lips. That meeting was interrupted by a call from the girl's mother, who had been informed by another parent at the school that her daughter was meeting an adult male that she had met online. The young girl denied this to her mother and you then drove her to some nearby shops and left and she ran home, initially denying meeting you, before partially admitting to the truth.

6.    Later that day you again chatted with others, confirming that you had kissed her and explaining that you knew what you did was wrong, given her age. A selection of these various communications is produced in Annexure B to Exhibit 1.

7.    Those persons with whom you had been communicating warned you against any further involvement again with the young girl and told you that for your own good, and also if you wanted to stay out of gaol and stay in Australia, you should never see the girl again. In fact you kept on communicating with her and the quality and quantity of that further conversation is set out at paragraphs 14, 15 and 16 of Exhibit 1.

8.    You told her not to tell anybody about your meeting because you could go to gaol, and told her to delete all history of the messages and the sexualised communication continued, even after you were aware that her parents were trying to restrict her use of the internet. In fact you managed to communicate with her by means of another webpage on the internet. The communication between you and the child only stopped when police executed a search warrant on your premises on 12 March 2014.

(Emphasis added.)

9    Having regard to reports by a psychologist and a psychiatrist stating that there was only a low risk of the applicant reoffending his Honour concluded (at [26])-[28]):

26.    You have been in no further trouble since this matter and I am, on balance, satisfied that your chances of rehabilitation are reasonably good, in view of the very positive statements made by the experts who have assessed you.

27.    Of course as well as those matters personal to you, which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence and most particularly general deterrence, which is of considerable importance in a case such as this, bearing in mind the significant disparity in your ages and the nature of your offending. I do not believe specific deterrence is of great significance, given the findings of the two experts to which I have referred.

28.    I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest in view of the findings of those experts.

10    In respect of the first charge, the applicant was sentenced to 12 months imprisonment and was immediately released on entering into a recognizance release order in the sum of $1,000 to be of good behaviour for two years. In respect of the second charge, he was ordered to serve a community corrections order for 18 months, undertake 150 hours of unpaid community work over that period under the supervision of a community corrections officer, and undergo programs or courses aimed at addressing factors relevant to his offending, such as a sex offender’s program.

11    On 22 October 2015 the applicant applied for Australian citizenship, disclosing his convictions. On 7 June 2017 he was invited to comment on or respond to information that he may not be of good character. The applicant’s citizenship application was subsequently refused.

12    During a visit to India in October 2017 the applicant married his wife who is also a citizen of India. His wife now lives in Australia on a Visitor visa and she gave birth to their first child in February 2019, in Australia.

13    On 13 March 2018 the Department of Home Affairs (Department) issued the applicant with a Notice of Intention to Consider Cancellation of the applicant’s visa under s 501(2) of the Act, doing so on the basis that the Department reasonably suspected that he did not pass the ‘character test’ by virtue of s 501(6)(a) of the Act as he has a ‘substantial criminal record’ as defined.

14    Section 501(2) of the Act relevantly provides that the Minister may cancel a visa that has been granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

15    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record within the meaning of s 501(7) of the Act, which defines it to include a sentence to imprisonment for 12 months or more. Further, under s 501(6)(e)(i) a person does not pass the ‘character test’ if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child.

16    On 19 April 2018 the applicant’s solicitors lodged detailed written submissions on his behalf. The submissions conceded that the applicant has a substantial criminal record as defined and therefore fails the character test pursuant to s 501(6) of the Act. The applicant argued however that having regard to the factors contained in Ministerial Direction No. 65, the predecessor to Direction 79, the decision-maker should not exercise the discretion to cancel the applicant’s visa.

17    On 31 October 2018 a delegate of the Minister (the delegate) decided that the applicant did not pass the character test and that it was appropriate to exercise the discretion to cancel the applicant’s visa under s 501(2).

18    On 13 November 2018 the applicant applied to the Tribunal for review of the delegate’s decision . The Tribunal affirmed the decision on 30 January 2019.

19    The applicant applied to the Court for judicial review of the Tribunal decision, and for reasons unrelated to the present case the Court quashed the decision and remitted it to the Tribunal for re-determination: Singh v Minister for Home Affairs [2019] FCA 905.

20    The Tribunal heard the remitted application on 28 October 2019. On 7 November 2019 the Tribunal decided to affirm the delegate’s decision. I will set out the relevant passages of the Tribunal’s reasons when dealing with the grounds of the application for judicial review.

The application for judicial review

Ground 1

21    Ground one of the application alleges as follows:

The [Tribunal] fell into jurisdictional error by impugning an essential fact to the Applicant’s sentence, by both inquiring into and considering evidence regarding the Applicant’s knowledge of the victim’s age at 15 February 2014.

22    The applicant submits, and it is common ground between the parties, that where a criminal conviction or sentence is a precondition for an administrative decision-maker’s power to cancel a visa, the decision-maker or a tribunal on review will fall into error if it impugns or ‘goes behind’ the “essential factual findings” underpinning the conviction or sentence: see Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197; (1999) 92 FCR 560 (SRT) at [39]-[48] (Branson, Lindgren and Emmett JJ); Secretary to the Department of Justice and Regulation v LLF (a Pseudonym) & Anor [2018] VSCA 155 (LLF) (Beach, McLeish and Niall JJA); HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP) (McKerracher and Colvin JJ).

23    It is also common ground that the foundation of the delegate’s power, and of the Tribunal’s power on review, to cancel the applicant’s visa in the present case is that the applicant:

(a)    has a substantial criminal record, having been sentenced to 12 months imprisonment on one count of using a carriage service to procure sexual activity with a person under 16 years of age (s 501(6)(a) read together with s 501(7)); and

(b)    was convicted of charges involving sexually based offences involving a child, being the previously mentioned count of ‘grooming’ and one count of of wilfully committing an indecent act with a child under the age of 16 (s 501(6)(e)).

24    The transcript of the first Tribunal hearing shows that the applicant gave evidence in chief as to his knowledge and belief regarding the victim’s age at and from 15 February 2014 and he was cross-examined on that evidence. The applicant submits that during the hearing of the remitted application (the second Tribunal hearing) he sought to “clarify” his earlier evidence about his knowledge of his victim’s age. The transcript of the second Tribunal hearing is not though before the Court.

25    In its decision on the remitted application the Tribunal set out the surrounding circumstances to the applicant’s offending conduct and conviction, the legislative background to the decision to cancel the applicant’s visa and the evidence before the Tribunal, including the applicant’s evidence in the first Tribunal hearing. The Tribunal described how the applicant’s evidence in the second Tribunal hearing was different in a number of ways to the evidence he gave before the first Tribunal hearing, including in relation to his knowledge or belief as to the victim’s age between 15 February 2014 and 21 February 2014.

26    In relation to the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014, the Tribunal said the following (at [39]):

The Tribunal has considered Mr Singh’s written submissions and evidence at the previous hearing. His oral evidence at the present hearing can be summarised as follows:

...

(b)    Mr Singh said that after having a lot of time to think in detention, he had concluded that he was in ‘denial’ and ‘covering up’ his offending….Mr Singh stated:

…

(ii)    Contrary to his previous evidence about not knowing the girl was 11 until meeting her on 21 February 2014, Mr Singh conceded he ‘definitely’ knew she was 11 from 15 February 2014, approximately six days prior to the meeting. Mr Singh said that on meeting the girl she was wearing a school jumper and ‘was looking minor;’

(iii)    Contrary to his previous evidence that it was the child who pressed him to arrange the meeting, Mr Singh agreed it was he who did so, stating inter alia: ‘Yes I was the one who arranged the meeting…I couldn’t control it…it was the first time I was forming any relationship with a female…It was very unfortunate she was 11 years old….It was the first time I had that feeling – it was real life instead of chat and I wanted to be a part of it;’

(iv)    Mr Singh agreed that despite having six days to reflect on the wisdom of meeting with a child, he nevertheless chose to do so. He also knew that having physical contact with the child and sending her sexualised messages was unlawful and he had tried to cover up his conduct by telling the child to delete their messages and not tell others;

…

(xiv)    …Mr Singh contended that even after realising the 23 year old Korean woman was a fake and even though he knew the girl was 11 years old from 15 February 2014, including after meeting her on 21 February 2014, he still somehow conflated the two:

‘Everything was in front of me, but I was in denial and not accepting it…When I met her I liked her and was already attracted to her.’ He stated that on reflection, his conduct was ‘very bad…it was kind of filthy;’

…

(Emphasis added.)

27    The Tribunal referred to that and other changes in the applicant’s evidence in making findings in relation to the primary consideration of “Risk to the Australian community”. The Tribunal said (at [61] and [63]):

It is not to Mr Singh’s credit that he maintained what he now concedes was an untruthful position on key aspects of his evidence for over five years, despite plentiful opportunities to tell the truth, including most recently at the January 2019 hearing. His concessions give rise to concerns about the veracity of the expert assessments made by Ms Matthews and Dr Ong. It follows that:

(a)     The Tribunal does not accept Mr Singh was truthful when telling Ms Matthews that he did not know the child was 11 until meeting her [on 21 February 2014];

…

(f)    In light of his concession about knowing the child was 11 from 15 February 2014, the Tribunal does not accept that Mr Singh was truthful when telling Dr Ong that when meeting the child on 21 February 2014, he only ‘suspected’ she was ‘younger than 17 years of age’;

…

The Tribunal rejects Mr Singh’s submission that he continued to conflate the image of the 23 year old Korean popstar with the child after 15 February 2014, which came across as unpersuasive and self-serving. The Tribunal also rejects the contention made on Mr Singh’s behalf at the previous hearing about him being a victim of the child who was seeking to ‘cause harm to other people,’ or that he was ‘caught up in some strange game…this young girl was playing.’ The Tribunal also rejects Mr Singh’s claim at the present hearing that these submissions by his counsel at the January 2019 hearing, were made without his instructions or agreement. The Tribunal considers these submissions are broadly reflective of Mr Singh’s earlier evidence, aspects of which he has only now repudiated.

The Tribunal found (at [70]) that while the risk of the applicant reoffending was low it was nevertheless "real and unacceptable".

28    The Tribunal also referred to that and other changes in the applicant’s evidence (at [91]) in making findings in relation to the primary consideration “Expectations of the Australian community”. The Tribunal found that the Australian community would expect the applicant’s visa to be cancelled, which finding “is strengthened by the significant concessions Mr Singh has made at the present hearing, some five years after his offending, and characterisation of some aspects of his previous evidence as untrue and ‘covering up.’”

29    The summary of prosecution opening, on which Judge Parsons expressly relied, said:

After approximately 1½ months of communicating via Meowchat, the Accused identified the complainant’s profile picture was from the internet. She initially responded by saying she was aged 17 years, before informing him that her real age was 11 at or around 15 February 2014.

(Emphasis added.)

30    In the reasons for sentence his Honour said (at [4]):

Around 26 December 2013, you began communicating on the internet with a female person you believed to be a 26 year old Korean female. After approximately one and a half months, that person identified herself by saying she was aged 17 and then that in fact her real age was 11. This was on or about 15 February 2014. The rest of your friends counselled you to desist from any further communication, although you resolved to press on until you learned the truth of her age. You continued to communicate with her, including in a sexualised manner.

(Emphasis added.)

31    The applicant submits that it is evident from the summary of prosecution opening, the applicant’s plea of guilty and the reasons for sentence, that the sentencing judge accepted that the applicant:

(a)    had been told by the victim of his conduct that she was 11 years old by 15 February 2014; and

(b)    reasonably believed that she was under 16 years of age from 15 February 2014;

but did not know that she was 11 years old between 15 February 2014 and their meeting on 21 February 2014.

32    The applicant contends that his knowledge or belief as to the victim’s age between 15 February 2014 and his meeting with her on 21 February 2014 was an essential fact of the sentence imposed. He argues that the Tribunal was bound to accept that essential fact and that it was not open to the Tribunal to “engage in any inquiry” which would impugn the sentence: SRT at [40]. On the applicant’s argument the Tribunal’s reception, consideration and acceptance of evidence concerning the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014 ran contrary to what was accepted at sentencing, and the Tribunal thereby fell into jurisdictional error. He submits that evidence impugning the asserted essential fact could not be inquired about, received or challenged. Instead, it had to be accepted by the Tribunal.

33    The applicant further contends that his belief as to the victim’s age went to the heart of the sentencing exercise because it coloured the circumstances of the criminality he engaged in. He points to the reports of a psychologist, Ms Pamela Matthews, dated 24 July 2014 and 21 October 2014, and a psychiatrist, Dr Kevin Ong, dated 21 October 2014, which were in evidence before the County Court. He argues that those reports referrred to the applicant’s belief regarding his victim’s age and that they guided the sentencing judge in reaching conclusions as to his prospects for rehabilitation, which strengthens the contention that the applicant’s knowledge or belief as to his victim’s age between 15 and 21 February 2014 was an essential fact in the sentence.

Consideration

34    The question for decision is whether the Tribunal impugned or ‘went behind’ the essential factual basis of the sentence imposed in respect of charge 1.

35    In a passage cited with approval by the majority in the Full Federal Court in HZCP (at [102]), the Victorian Court of Appeal in LLF at [42] explained:

…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.

(Citations omitted and emphasis added)

36    It is common ground that the present case falls in the fomer of the above two above categories. The foundation of the Tribunal’s exercise of power was the imposition of a sentence of 12 months imprisonment for grooming a person under 16 years of age for sexual activity and the conviction of the applicant of two sexually based offences involving a child. It is the sentence, rather than the conviction which the applicant alleged was impugned by the Tribunal’s decision.

37    The Full Court in SRT explained what is meant by impugning a sentence (at [40]):

The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.

(Emphasis added.)

38    As Justice McKerracher explained in HZCP (at [77]):

As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function. The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

(Citations omitted and emphasis added.)

39    In a similar vein Justice Colvin said (at [181]-[182]):

In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others). The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute…

In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view. Usually, the legislative context will also require the further conclusion that the decision-maker is not entrusted with power to contradict the necessary factual basis for the conviction or the sentence. However, the extent to which the foundation for the power constrains the fact finding process of the decision-maker will depend upon a proper consideration of the legislative provision in each case.

(Emphasis added.)

40    In my view, on a fair reading of the Tribunal’s reasons, it did not impugn the essential factual basis of the criminal sentence.

41    First, it is necessary to keep in mind that the applicant’s knowledge of the victim’s age was not a necessary element of his conviction for using a carriage service to ‘groom’ a person under 16 years of age for sexual activity contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth).

42    That section provides as follows:

A person (the sender) commits an offence if:

(a)    the sender uses a carriage service to transmit a communication to another person (the recipient); and

(c)    the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and

(d)    the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

(e)    the sender is at least 18 years of age.

43    Section 474.27(1) can be satisfied where either: (i) the recipient of the communication is under 16 years of age; or (ii) the sender believes the recipient is under 16 years of age. Before the County Court, it was uncontentious that the recipient was 11 years of age at the relevant time and it was therefore unnecessary for the prosecution to establish the applicant’s belief as to the victim’s age.

44    This is confirmed by the indictment, particulars and statement of offence in respect of charge 1, to which the applicant pleaded guilty. The indictment in respect of that charge was set out in the summary of statement of offence as follows:

Use a carriage service to groom a person under 16 years of age for sexual activity contrary to subsection 474.27(1) of the Criminal Code (Cth).

The particulars and statement of offence in the indictment stated:

The Director of Public Prosecutions for the Commonwealth of Australia, who prosecutes in this behalf for Her Majesty the Queen, charges that GALJINDER SINGH at Melbourne in Victoria between the 15th day of February 2014 and the 11th day of March 2014, being at least 18 years of age, used a carriage service to transmit a communication to [redacted] being someone who is under 16 years of age, with the intention of making it easier to procure [redacted] to engage in sexual activity with him.

The charge documents made no mention of the applicant’s belief or knowledge as to the victim’s age, and merely alleged that the victim was under 16 years of age at the time of the applicant’s conduct.

45    That the applicant’s knowledge or belief as to the victim’s age between15 February 2014 and 11 March 2014 was not a necessary element of his conviction is relevant to, but not of itself dispositive of, the question of whether such knowledge or belief was essential to the sentence.

46    Second, I do not accept the applicant’s contention that his knowledge or belief as to the victim’s age between 15 and 21 February 2014 was an essential fact found by the sentencing judge and upon which the sentence is based.

47    There is little or nothing to show that the applicant’s knowledge or belief as to the victim’s age over that six day period was essential to the sentence or that the sentence was based in such a finding. Judge Parsons said little in the sentencing reasons in relation to the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014. The reasons (set out at [8] above) show that his Honour made only a passing reference to the applicant’s knowledge or belief in that regard(at [4]), by noting that having been told by the victim on 15 February 2014 that she was 11 years old, he “resolved to press on” until he learned the truth of her age. That reference aside, his Honour did not address the applicant’s knowledge or belief regarding her age.

48    The applicant contends that the sentence was imposed on the basis that his Honour accepted that he reasonably believed the victim of his grooming was under 16 years of age, but did not know between 15 and 21 February 2014 that she was 11 years old. But his Honour did not directly refer to that knowledge or belief and did not give it any significance in the sentencing reasons.

49    Furthermore, having regard to the following matters, it is inherently unlikely that Judge Parsons would have seen the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014 as essential to the sentence.

(1)    The applicant was convicted of grooming a person under the age of 16 years for sexual activity. The victim was under 16 years of age, and the applicant submits that his Honour accepted that by 15 February 2014 the applicant reasonably believed that the victim was under 16 years of age. They were the primary facts underpinning the sentence.

(2)    The applicant was convicted of grooming a person under the age of 16 years for sexual activity over the period 15 February 2014 until 11 March 2014, being a period of 25 days. His Honour relied upon and referred to the summary of prosecution opening which stated that the applicant was aware after meeting the victim on 21 February 2014 that she was 11 years old from. It is inherently unlikely that the applicant’s knowledge of the victim’s age during the first six days of the period was essential to the sentence when, for the majority of the period of his offending conduct, the applicant knew that the person he was grooming was an 11 year old child.

(3)    His Honour said after meeting with and kissing the victim on 21 February 2014 the applicant “continued to communicate with her, including in a sexualised manner”. The summary of prosecution opening stated that after meeting the victim the applicant “continued communicating with her, asking if she was now his girlfriend, telling her that he loved her and that he couldn’t wait until he could hold her and kiss her again.” The summary of prosecution also set out internet chat messages from the applicant to the victim, representative of the communications the applicant had with the victim after his meeting with her, including the following:

I want another kiss

U gonna feel horny when I’m gonna touch

I think I’m gonna kiss you everywhere on your body

Make sure you don’t tell anyone about us meeting…otherwise we can both get in big trouble

Make sure…you don’t…otherwise I’m gunna get in jail and my whole life gonna finish…also couple of another people too

The applicant only ceased his sexualised communications with the victim when he was arrested on 12 March 2014. It is inherently unlikely to have been essential to the sentence imposed on the applicant that, for the first six days of the period of his offending conduct, he did not know the victim was 11 years old, when he continued to communicate in a sexualised manner with her for almost three weeks after learning the victim’s age on 21 February 2014.

50    In such circumstances it is appropriate to infer that his Honour did not consider the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014 to be essential to the sentence.

51    Third, I do not accept the applicant’s contention that Judge Parsons’ reliance on the reports of Ms Matthews and Dr Ong confirms or shows that the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014 was an essential fact in the sentence imposed.

52    His Honour expressly relied on those reports and made it clear that the opinions expressed regarding the low risk of the applicant reoffending were material to his view that the applicant’s prospects for rehabilitation were “reasonably good”. But the reports do not show that the applicant’s knowledge or belief as to the victim’s age was essential to the sentence.

53    The forensic history set out by Dr Ong does not make express reference to the applicant’s knowledge or belief as to the victim’s age during the period of 15 February 2014 to 21 February 2014. The report said that the victim had informed the applicant that “she was anywhere between 11, 15 or 17 years of age” but that at the time of kissing her (being 21 February 2014), the applicant “acknowledged that he suspected she may have been younger than 17 years of age”. That acknowledgement was inconsistent with the the sentencing judge’s acceptance (on the applicant’s submissions) that the applicant reasonably believed his victim was under 16 years of age at 15 February 2014. There is little or nothing in the report to indicate that the applicant’s knowledge or belief as to the victim’s age between 15 and 21 February 2014 had any significance in Dr Ong’s conclusions, nor that his Honour treated that matter as essential to the sentence imposed.

54    Ms Matthews’ reports put forward a similar factual account to that set out in the sentencing reasons (at [4]). The reports do not however treat as important any assertion by the applicant that he reasonably believed that his victim was under 16 years old but did not know that she was 11 years old at 15 February 2014, and there is nothing in the reasons for sentence to show that his Honour treated that as essential to the sentence. It is also worth noting that, notwithstanding its concerns about the correctness of Ms Matthews’ opinion in light of the applicant’s changed evidence, the Tribunal accepted her assessment that the applicant’s risk of reoffending was low (at [68]).

55    Fourth, even if contrary to my view the applicant's knowledge or belief as to the victims age between 15 and 21 February 2014 was essential to the sentence, I am not persuaded that the Tribunal’s consideration of the change in the applicant’s evidence regarding that can properly be said to ‘impugn’ or ‘go behind’ the sentence in the manner described in the authorities.

56    Where a conviction or sentence is the basis for an administrative decision-maker or reviewing tribunal's jurisdiction, the decision-maker or tribunal may not review the essential factual basis of a conviction or sentence “but the circumstances of the conviction [or sentence] can be reviewed for a purpose other than impugning the conviction [or sentence]”: LLF at [42]. The function of deciding whether to cancel a visa, which leads to removal from Australia, involves many different considerations to those involved in criminal sentencing and an applicant may present to the Tribunal matters pertaining to a conviction or sentence provided they do not contradict the facts a court found in arriving at a conviction or sentence: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180 (Davies J); Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 331; (1991) 30 FCR 49 (Davies J).

57    In Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247; 39 ALR 649 at 653, Fisher and Lockhart JJ said the following in the context of a Tribunal decision setting asisde a decision to deport the respondent on the basis of a criminal conviction, under s 12 of the Act as it then was:

There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial…The Tribunal's task includes assessing the deportee's character and personality, his criminal behaviour, the risk of repetition of criminal acts, the likelihood of his rehabilitation, the future risk to the Australian community if he remains here and the likelihood of harm to him if he is deported.

58    Having regard to the applicant’s about-face in admitting in the second Tribunal hearing, amongst other things, that by 15 February 2014 he “definitely knew” that the victim of his grooming was only 11 years old and that he had been “covering up” in his previous evidence, the Tribunal concluded (at [61]) that it was not to the applicant’s credit that he had maintained an untruthful position for over five years. That conclusion was unremarkable.

59    The Tribunal’s finding that the applicant had been untruthful about that and other matters was relevant to its conclusions that:

(a)    while accepting that the risk to the Australian community of the applicant reoffending was low, his risk of recidivism was “nevertheless real and cannot be considered remote or fanciful”. The Tribunal considered such risk to be unacceptable to the Australian community, particularly given the seriousness of the potential harm from any further sexual offending against a child (at [69]-[70]); and

(b)    the tolerance of the Australian community for crimes against children, particularly sexual crimes, is "particularly low", and the Australian community would expect the applicant’s visa to be cancelled (at [91]).

60    Those matters were material to the Tribunal’s ultimate conclusion (at [129]) that the primary considerations of “Protection of the Australian community” and “Expectations of the Australian community” weighed substantially against the applicant’s application and outweighed the collective weight of other considerations which were in the applicant’s favour. Those assessments were a necessary part of the Tribunal’s task in deciding whether to exercise the discretion to cancel the applicant’s visa, and by considering or taking into account the change in the applicant’s evidence the Tribunal did not impugn or go behind the sentence imposed in the County Court.

61    Ground one of the application must be dismissed.

Ground 2

62    Ground 2 of the application alleges as follows:

The [Tribunal] fell into jurisdictional error by failing to give any, or appropriate, consideration to a relevant consideration, namely cl. 9.2(4) of Direction 79 (Best interests of a child in Australia) by overlooking evidence directly relevant to the effect that separation would have on the Applicant’s daughter.

63    Clause 9 of Direction 79, made under s 499 of the Act, provides that in deciding whether to cancel a visa the best interests of minor children in Australia is a primary consideration. Clause 9.2(4)(d) of Direction 79 provides that:

9.2 Best interests of minor children in Australia affected by the decision

…

(4) In considering the best interests of the child, the following factors must be considered where relevant:

…

(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

64    In relation to the best interests of minor children in Australia, the Tribunal noted that the applicant has a young child and two young nephews who normally reside with him in Australia. It found that the applicant is likely to play a meaningful role in the lives of these children should he be allowed to remain in Australia, including financially and by providing practical and emotional support. It proceeded on the basis that if the applicant was repatriated to India but his child and nephews remained in Australia, there would be an adverse impact on the interests of those children and placed substantial weight on that as a factor in favour of not exercising the discretion to cancel the applicant’s visa.

65    The Tribunal said at [80] and [127]:

80.    In relation to Mr Singh’s biological child, the Tribunal has proceeded on a worst case premise that if his wife’s pending visa application is approved, there is the potential at least that she and her child will remain in Australia. The Tribunal accepts that Mr Singh’s wife is suffering depressive symptoms as a first-time mother, while concurrently dealing with the prolonged uncertainty surrounding Mr Singh’s visa status. Both she and her child are reliant on Mr Singh and Mr Singh’s sister. Under such circumstances, Mr Singh’s repatriation would be adverse to the child’s best interests, including by losing the financial, emotional and practical support Mr Singh could provide. Maintaining a close father-child relationship would also be very difficult if Mr Singh was returned to India. Alternatives to physical contact are clearly suboptimal. If on the other hand it were still the intention of Mr Singh’s wife that she and her child accompany Mr Singh back to India, a direct parental relationship by both parents could be maintained.

…

127.    Notwithstanding the uncertainty surrounding the visa status of Mr Singh’s wife and child, and the extent to which his former brother-in-law will continue to perform a parental role for Mr Singh’s nephews, the Tribunal concludes it is in the Best interests of children in this matter for Mr Singh to remain in Australia. The Tribunal places substantial weight on this primary consideration in favour of not exercising the discretion to cancel his visa.

(Emphasis in original.)

66    The applicant submits that the Tribunal’s consideration of the impact on his child of his removal from Australia was unduly narrow, and that the Tribunal did not give the issue proper, genuine and realistic consideration or engage in an active intellectual process in relation to the matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [45] (Griffiths, White and Bromwich JJ).

67    The applicant relies on an undated letter by a maternal and child health nurse, Ms McKinnon, which states that she had visited the applicant’s family on three occasions, and said:

My purpose for writing is to support Navneet [the applicant’s wife] in requesting leniency in her husband's appeal to provide Navneet the support she needs for her emotional state and parenting. This is order [sic] will benefit Asees [the applicant’s daughter] in this crucial stage of development.

Navneet is an isolated first-time mother whose husband is currently in detention with an expired visa due to a criminal conviction. As Navneet is on a bridging visa, this leaves the family with no income and an uncertain future. Navneet’s parents remain in India and her husband’s parents are deceased. It is usually the cultural norm in India to have parental and spousal support in caring for an infant. Navneet has no transport, and didn’t even have a pram for Asees despite her being 6m old.

Ms McKinnon said that she had performed a test which showed that the applicant’s wife is suffering from severe post-natal depression. She then said:

Research states that the first three years of life are a period of incredible growth in all areas of a baby's development, but also highlights the impact maternal depression and stress can have on an infant’s mental health and developing mind. Please refer to https://www.zerotothree.org/early-development/infant-and-early-childhood-mental-health. Baby Asees demonstrated signs of anxiety, in that she is very stranger wary, described as waking frequently and relying on breast-feeding to pacify and sleep. I have not observed Asees to smile in my three visits to the family so far.

68    The applicant contends that the Tribunal’s reasoning does not disclose any or sufficient engagement with the concerns raised by Ms McKinnon, which he argues is inconsistent with the requirements under cl. 9.2(4) of Direction 79. He submits that if the Tribunal had given proper, genuine and realistic consideration to the psychological impact that separation from the applicant would have on his child, it may have reached a different conclusion.

Consideration

69    This ground of the application must also be rejected.

70    First, Ms McKinnon’s letter was primarily directed to the effect on the applicant’s wife of her separation from the applicant, the isolation she has suffered as a result of his detention, her postnatal depression, and the effect those matters are likely to have on their child. Those matters were considered by the Tribunal. The Tribunal accepted (at [80]) that the applicant’s wife was suffering from postnatal depression while concurrently dealing with the prolonged uncertainty surrounding the applicant’s visa status. It accepted that cancellation of the applicant’s visa would “be adverse to the child’s best interests including by losing the financial, emotional and practical support [the applicant) could provide”. Importantly, it accepted (at [82]-[83] and [127]) that it is in the best interests of the applicant’s child that the applicant remains in Australia and placed “substantial weight” on that primary consideration in favour of not exercising the discretion to cancel the applicant’s visa.

71    Second, it is not appropriate to infer that the Tribunal overlooked Ms McKinnon’s letter or did not properly take it into account when in its reasons the Tribunal specifically noted (at [24](f)) that the letter was in evidence, briefly summarised the letter, and noted (at [80]) that the applicant’s wife is “suffering depressive symptoms as a first-time mother” which information came from the letter. The letter was a single page in over 1,000 pages of material filed in the Tribunal, and the applicant did not call Ms McKinnon to give evidence; he did not refer to the letter in submissions; and he placed no weight on the letter during the Tribunal hearing. It is appropriate to infer that the applicant’s choice as to the conduct of his case and the material that he took the Tribunal to was reflected in the extent to which the Tribunal referred to the letter. The Tribunal was not required to refer in the reasons for decision to every piece of evidence and every contention made by an applicant: Carrascalao at [45].

72    Third, if contrary to my view it is accepted that the Tribunal failed to give the matters set out in Ms McKinnon’s letter proper, genuine and realistic consideration to the extent required by cl. 9.2(4) of Direction 79, the applicant failed to demonstrate that such an error was material in the sense that it deprived the applicant of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). The Tribunal found that cancellation of the applicant’s visa was not in the best interests of his young child and gave “substantial weight” to that factor in favour of not exercising the discretion to cancel the applicant’s visa. But, having examined the factors for and against visa cancellation, the Tribunal concluded (at [129]) that the protection of the Australian community against a low but nevertheless real and unacceptable risk that the applicant would reoffend, and the expectations of the Australian community that has a “particularly low” tolerance for sexual crimes against children, outweighed the best interests of any minor children in Australia. If (contrary to my view) the Tribunal failed to give appropriate consideration to the letter, I am not persuaded that such a failure deprived the applicant of a realistic possibility of a different outcome.

COSTS

73    It is appropriate to make orders to dismiss the application and for the applicant to pay the Minister’s costs.

Associate:

Dated:    28 April 2020