Federal Court of Australia

Kleinberg v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 402

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, either as taxed or agreed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 August 2020.

2    The applicant was born in, and is a citizen of, the United States of America. He first arrived in Australia on 12 October 1998 and left the country on two occasions with his most recent arrival date being 26 April 1999. He has not departed Australia since.

3    Upon his arrival in Australia on 26 April 1999, the applicant held a three-month visitor’s visa. He apparently overstayed that visa and was subsequently granted a criminal justice stay visa to remain in Australia. In 2001, he married an Australian citizen and, on 10 May 2011, he was granted a Partner (Class BS) (Subclass 801) visa.

4    In the period from 2001 to 2017, the applicant was convicted of 46 separate criminal offences involving criminal trespass, larceny, dishonesty, breaches of licensing laws, breaches of bail agreements, failing to store ammunition separately from firearms, failing to file a statement of affairs and a number of driving offences.

5    The applicant’s visa was mandatorily cancelled on 26 July 2017 by a delegate of the Minister under s 501(3A) of the Act. It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more).

6    On 31 August 2017, the applicant made representations to the Department of Immigration and Border Protection (as it then was) about revoking the decision to cancel the visa. On 18 June 2018, a delegate of the Minister decided not to revoke that decision under s 501CA(4) of the Act. The applicant was notified of that decision on 19 June 2018.

7    The applicant applied to the Tribunal on 28 June 2018 seeking a review of decision of the Minister’s delegate not to revoke the cancellation under s 500(1)(ba) of the Act. The Tribunal affirmed the delegate’s decision on 10 September 2018. The applicant sought review of that decision by the Federal Court. On 12 February 2019, the Court ordered that the decision be set aside and the matter be remitted to the Tribunal, differently constituted, to be determined according to law. On 13 August 2020, the Tribunal again affirmed the decision of the Minister’s delegate not to revoke the visa cancellation.

8    On 3 September 2020, the applicant filed an originating application in this Court seeking review of the 13 August 2020 decision of the Tribunal. Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

9    The applicant has amended his originating application on a number of occasions. Relevantly, on 3 March 2021, the applicant served a second further amended originating application. At the hearing on 5 March 2021, the Minister did not oppose a grant of leave to file that document and I therefore gave leave for the document to be filed and relied upon. By that document, the applicant pressed two grounds of review which were stated as follows:

2.    The Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding or misapplication of paragraph 13.1.1(1)(e) of Direction 79 which resulted in it asking itself a wrong question and concluding that the trend of the Applicant’s offending was increasing in its severity.

Particulars

a.     The Tribunal, at [71]-[72], asked itself whether the trend of the Applicant’s offending was increasing in its severity having regard to the dates on which the Applicant was sentenced for relevant offences or otherwise failed to determine the trend of the Applicant’s offending by reference to the date on which he committed relevant offences.

b.     The Tribunal ought to have posed this question to itself having regard to the dates on which the Applicant committed relevant offences.

3.     Further or in the alternative to ground 2, the Tribunal made a jurisdictional error by illogically finding that the trend of the Applicant’s offending was increasing in severity.

Particulars

a.     The offences which the Tribunal itself considered were the most serious were committed by the Applicant in 2000, 2001 and 2008.

  b.     The Applicant remained in the community until 2016.

10    It can be seen that both grounds of review concerned the Tribunal’s consideration of the trend of the applicant’s criminal offending.

11    At the hearing, the applicant read an affidavit of Hamish William Glenister affirmed 17 December 2020. Mr Glenister is the applicant’s solicitor and represented him at the hearing. The affidavit exhibited a copy of the transcript of the Tribunal hearing.

12    For the reasons that follow, I find that the Tribunal did not err in affirming the delegate’s refusal to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Act.

Background

13    The following is a summary of the factual background that is relevant to the grounds of review raised by the applicant.

14    The applicant was born on 2 September 1972 in California in the United States of America. In 1998, the applicant obtained work with Malaysian Airlines. He met Ms Angela Grimaldi through his employment. As noted above, the applicant came to Australia on 12 October 1998 and left the country on two occasions before returning on 26 April 1999 on a three-month visitor visa, intending to pursue a relationship with Ms Grimaldi. On 29 September 2001, the applicant married Ms Grimaldi. They had a daughter born on 1 September 2004 and a son born on 28 August 2008. On 10 May 2011, the applicant was granted a Partner (Class BS) (Subclass 801) visa.

15    The applicant has an offending history that runs from 25 July 2000, being the date of the first offence for which he was sentenced, to 16 December 2014, being the date of the last offence for which he was sentenced. The applicant has been convicted of many criminal offences, which traverse a range of criminal conduct including driving offences such as driving unregistered and/or uninsured vehicles and an incident of exceeding the speed limit; failures to comply with bail agreements; acting as a security or investigation agent without licence; failure to store ammunition away from firearms; and theft and dishonestly taking property without consent. The most serious of these offences took place in 2000 and 2001 and later in 2008. These offences were the conduct relied on in the Tribunal’s consideration of whether the trend of the applicant’s offending was increasing in seriousness. They were as follows (ordered by reference to sentencing dates rather than the dates on which the offences were committed).

(a)    On 1 September 2000, the applicant, together with two or three co-offenders, broke into the premises of a business named Mobile Phone Centre and stole 172 mobile phones having a value of $95,145. On 18 September 2000, the applicant, together with a co-offender, broke into two separate premises of a business named HTI Communications Store, stealing 15 mobile phones with a total value of $3,014. On 28 April 2004, the applicant was sentenced by Judge Muecke in the Adelaide District Court to a term of imprisonment of 1 year and 9 months for offences arising out of this conduct.

(b)    On 12 September 2000, the applicant broke into the premises of a business named All-Phones (Norwood) and stole mobile phones of a total value of $7,521.22. On 1 October 2001, the applicant broke into the premises of a business named Bongiorno’s Café with the intention of stealing property. On 24 November 2001, the applicant broke into the premises of a business named Café Passatempo with the intention of stealing property. On 14 October 2009, the applicant was sentenced in the Adelaide Magistrates Court to a term of 2 years’ imprisonment, suspended for 12 months, for offences arising out of this conduct. In sentencing remarks, the Magistrate noted that the offences were very old, committed some 8 to 9 years ago, and that it had taken time for the offences to come to light through a DNA match. Further, the offences were committed around the same time as the offences for which the applicant was sentenced on 28 April 2004. In the circumstances, the Magistrate determined that while a sentence of imprisonment was appropriate, the sentence would be suspended upon the applicant entering into a bond to be of good behaviour in the sum of $200 for 12 months.

(c)    Between 1 September 2008 and 29 September 2008, the applicant was involved in five incidents of theft. The applicant was at that time the director of a security company which was contracted by a business to collect its takings on Monday and Friday of each week. Over the course of five consecutive Mondays in September 2008, the applicant failed to bank the takings and took them for himself, being an amount of around $170,000. On 29 June 2016, the applicant was sentenced for two of the counts of theft by Chief Judge Muecke in the Adelaide District Court to a term of 4 years and 6 months’ imprisonment backdated to 4 April 2016.

16    Since the September 2008 offending, the applicant’s offending has been persistent but less severe. He has been convicted of 22 offences committed since that date including (generally in chronological order): “drive a motor vehicle while licence is suspended”; “fail to store ammunition separately from firearms”; “failure to make out and file a statement of affairs”; “offensive language”; “drive unregistered motor vehicle on a road”; “drive uninsured motor vehicle on a road”; “exceed speed limit by 10km/h or more but less than 20km/h”; “pass valueless cheque”; “stop in a bicycle lane; “deceive another to cause detriment”; “estreatment of bail”; “fail to comply with bail agreement”; “drive under disqualification or suspension”.

17    At the conclusion of the applicant’s non-parole period for his most recent custodial offence, he was, upon release from criminal custody, taken into immigration detention on 3 January 2018. Accordingly, the applicant has been removed from the Australian community, in either criminal custody or immigration detention, since 4 April 2016.

Legislative Provisions

18    Section 501(3A) of the Act provides that the Minister (or a delegate) must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

19    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

20    Section 501CA of the Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

 (4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

21    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then-Minister made a direction titled “Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (having a commencement date of 28 February 2019). In exercising the power in s 501CA(4) to decide whether to revoke the cancellation of the applicant’s visa, the Tribunal was required to apply Direction 79.

22    Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in Part C (of the Direction), in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen's visa, are articulated in Part C). Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations.

23    Paragraph 13 of Direction 79 outlines the primary considerations to be taken into account, and reads in part:

13.    Primary considerations – revocation requests

    …

(2)     In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

    b)     The best interests of minor children in Australia;

    c)     Expectations of the Australian community

24    Paragraph 13.1 deals with primary consideration a), protection of the Australian community:

13.1 Protection of the Australian Community

(1)     When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

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

a)     The nature and seriousness of the non-citizen’s conduct to date; and

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

13.1.1 The nature and seriousness of the conduct

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

…

 d)     Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

     e)    The frequency of the non-citizen’s offending and whether     there is any trend of increasing seriousness;

     f)     The cumulative effect of repeated offending;

g)     Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

h)     Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

…

25    By force of s 499 of the Act, the Tribunal was under a statutory duty to consider the nature and seriousness of the non-citizen’s criminal offending to the date of decision as a primary consideration: Rokobatani v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [12]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [55]. A failure to address the nature and seriousness of the non-citizen’s criminal offending, where relevant, as a primary consideration is a failure to conduct the review required by the Act and, subject to materiality, will constitute jurisdictional error: Uelese v Minister for Immigration (2015) 256 CLR 203 (Uelese) at [68]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39].

Decision of the Tribunal

26    On 12 July 2019, the applicant filed a statement of facts, issues and contentions in the Tribunal. It is relevant to note that, in relation to paragraph 13.1 of Direction 79 (protection of the Australian community), and specifically paragraph 13.1.1(1)(e) (the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness), the applicant contended that:

The frequency of Mr Kleinberg’s offending, 13.1.1(1)(e), is the next factor. Since committing his most serious offences in 2008, Mr Kleinberg has committed another 3 dishonesty offences and a number of driving offences. It should be noted that ‘estreatment of bail’ is not an offence of itself.

The 3 further dishonesty offences were relatively minor in nature, involving modest sums of money and the deception of businesses rather than individuals. While they did result in a term of imprisonment, it should be noted that Mr Kleinberg was already serving a term. The seriousness of Mr Kleinberg’s offending is certainly trending downwards.

27    Two observations can be made about those contentions. First, they focussed on the period from the time at which the applicant committed his most serious offences, in 2008, rather than from the time that the applicant first began to offend (in September 2000). Second, on that basis, they advanced the contention that the seriousness of the applicant’s offending was trending downwards.

28    The Tribunal’s reasons considered at some length the first primary consideration in Direction 79, being the protection of the Australian community from criminal conduct. In a section of the reasons headed “The Nature and Seriousness of the Applicant’s Conduct to Date” (at [28]-[53]), the Tribunal summarised and discussed the seriousness of the applicant’s offending. In doing so, the Tribunal divided the offending into a number of categories as follows:

29    First, under the heading “Criminal trespass and larceny”, the Tribunal summarised the applicant’s offending in September 2000 for which the applicant was sentenced on 28 April 2004, as well as the further offending (on 12 September 2000, 1 October 2001 and 24 November 2001) for which the applicant was sentenced on 14 October 2009. In respect of the sentencing remarks on 28 April 2004, the Tribunal noted the Court’s conclusion that the offending was serious, premeditated and planned. In respect of the sentencing remarks on 14 October 2009, the Tribunal observed that the applicant had misled the Magistrate that the applicant had not committed offences in the intervening period; in fact, the applicant had committed offences a year earlier in September 2008.

30    Second, under the heading “Offences of Dishonesty”, the Tribunal summarised the applicant’s offending in September 2008 for which he was sentenced on 29 June 2016. In respect of the sentencing remarks, the Tribunal noted the Court’s remark that the applicant is] “not an inherently bad man” but that, in terms of the actual nature of the offending, the crime was “a significant one” and the applicant “stole a lot of money from a client of your company when you were entrusted with that money as part of your contractual position relating to that client’s business”. The Tribunal also noted that the applicant’s criminal history disclosed that there were further offences of dishonesty, comprising two counts of “deceiving another to cause detriment” (by passing two valueless cheques), for which he was, on 3 February 2017, convicted and sentenced to three months imprisonment. Those offences occurred on 21 and 28 October 2013.

31    Third, under the heading “Failure to meet regulatory requirements”, the Tribunal said that “the Applicant’s criminal history is redolent of repeated failures to meet the requirements of regulatory authorities governing the activity in which he chose to participate.” The Tribunal referred to three instances of the applicant receiving convictions for acting as a security or investigation agent without first obtaining the appropriate licence, as well as the applicant’s conviction for an offence arising from his failure to make out and file a statement of affairs pursuant to a request from his Trustee in Bankruptcy.

32    Fourth, under the heading “Driving offences”, the Tribunal noted that the applicant’s criminal history contains something in the order of 20 individual driving offences, and that the repeated nature and seriousness of this offending moved beyond being punished by fines and/or suspension of driving privileges, and into the realm of custodial time.

33    Fifth, under the heading “Abuse of bail privileges extending to him”, the Tribunal noted that the applicant’s criminal history demonstrates five instances of the applicant’s abuse of the privilege of bail (by failing to observe and comply with the terms of bail that have been granted to him). The Tribunal also considered it of concern that some of the applicant’s offending was committed while enjoying the privilege of bail.

34    The Tribunal then undertook a detailed discussion of the considerations set out at paragraph 13.1.1(1) of Direction 79. In the course of that discussion, the Tribunal concluded that sub-paragraphs (a), (b), (c) and (i) were not relevant in the case of the applicant.

35    In relation to sub-paragraph (d), the sentence imposed by the courts for a crime or crimes, the Tribunal concluded:

68.     The Applicant’s criminal history therefore has some very significant episodes of dishonest offending which have been punished by significant head custodial terms requiring him to serve periods of 10 months (April 2004) and one year and nine months (June 2016) in actual custody. He is now 47 years of age. In terms of weight attributable to this sub-paragraph (d), his offending has been punished by head custodial terms totalling some 8.5 years. This represents approximately 50% of his time in the mainstream Australian community for the roughly 17 years preceding his entry into criminal custody/immigration detention in April 2016. This sub-paragraph (d) therefore militates in favour of a finding that the Applicant’s offending is of a very serious nature.

36    In relation to sub-paragraph (e), the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the Tribunal observed as follows:

69.    Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the allocation of any weight to this sub-paragraph (e) largely replicates the exercise required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.

70.    I will deal firstly with the frequency of the Applicant’s offending. He is presently 47 years of age. His offending (in terms of sentencing appearances) spans the period January 2001 to February 2017. The Applicant’s offending history, viewed fairly and reasonably, contains a long list of some 47 offences. He was in the Australian community for something like 17 years prior to his removal in April 2016. Stated numerically, he is responsible for the commission of something in the order of approximately 2.5 offences for each year he has been in the mainstream Australian community. This figure does not take into account the period he spent in actual custody prior to April 2016. Clearly, the Applicant’s offending has been frequent.

71.    Similarly, the level of seriousness of the Applicant’s offending cannot be said to be decreasing over the course of its time span. There can be no other finding than that the offending involving the theft of almost $100,000 worth of mobile telephones (and associated accessories) in September 2000 was, indeed, very serious offending. The further chapter to the offending from September 2000 came to light by way of DNA evidence. This saw the Applicant charged and convicted for further offences with a resulting head custodial term of two years. Any suggestion that Mr Grasso SM’s decision to wholly suspend the custodial term was somehow indicative of a decrease in the seriousness of the offending is dispelled by the dramatic increase in the seriousness of the offending that came before Chief Judge Muecke for sentencing in June 2016.

72.    This was the conduct involving the Applicant’s theft of some $170,000 in cash from a client that had entrusted those funds to him as part of a contractual arrangement between the Applicant and the business from which he took the money. This conduct was punished by a head custodial term of four years and six months. There is, thus, a clearly discernible trend in the seriousness of the Applicant’s offending that came before the courts between 2001 and 2017.

73.    An application of this sub-paragraph (e) therefore leads to a finding that both the frequency of his offending, as well as its increasing level of severity, must attract a finding that his offending has been of a very serious nature.

37    In relation to sub-paragraph (f), the cumulative effect of repeated offending, the Tribunal concluded (at [90]) that the applicant’s repeated offending justified a finding, on the basis of cumulative effect, that the offending had been of a very serious nature.

38    In relation to sub-paragraph (g), whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending, the Tribunal concluded that there were three instances where the applicant had provided false and/or misleading information to the Department and that, as a result, that consideration weighed heavily against the applicant (at [107]).

39    In relation to sub-paragraph (h), whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status, the Tribunal found that the applicant had received two formal warnings (from the Department) and two informal warnings (in the context of sentencing submissions). The Tribunal concluded that:

121.     The content and terms of (at the very least) the two formal letters of warning issued by the Minister to the Applicant in October 2009 and May 2011 could not have been clearer. The Applicant’s blatant disregard of (at least) these two formal warnings is palpable and beyond excuse. The reality that the Applicant has ignored at least two duly issued warnings by the Minister about the adverse impact that his continued offending conduct would have on his migration status in this country is, to my mind, confirmatory of the very serious nature of his subsequent conduct.

122.     He has been given multiple opportunities to modify and ameliorate his conduct. He has failed to do so after each such opportunity and, indeed, has persistently offended after each such warning. This refusal to heed the Minister’s warnings is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of “very serious” to the nature of the Applicant’s offending.

40    The Tribunal’s ultimate conclusion with respect to paragraph 13.1.1(1) of Direction 79 was as follows:

124.     Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (d), (e), (f), (g) and (h) of paragraph 13.1.1(1) of the Direction, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.

Ground 2

41    Paragraph 13.1.1(1)(e) of Direction 79 required the Tribunal, when considering the nature and seriousness of the non-citizen’s criminal conduct or other offending to date as a mandatory consideration, to have regard to, as one factor, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.

42    By ground 2, the applicant contends that the Tribunal misunderstood or misapplied paragraph 13.1.1(1)(e) and thereby fell into jurisdictional error. In that respect, the applicant argued that non-compliance by the Tribunal with a direction made under s 499 of the Act can constitute jurisdictional error, citing Uelese at [64]. The applicant also argued that the Tribunal was required to proceed on a correct understanding of the law, including Direction 79. In that regard, the applicant referred to in Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84 (Okoh) in which Derrington J said (at [48]) that, in forming its state of satisfaction that there was, or was not, “another reason why” the visa cancellation decision should be revoked, the Tribunal was required to proceed on a correct understanding of the law, referring to Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 at [30]; Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22 at 35 [33]; Graham v Minister for Immigration & Border Protection (2017) 263 CLR 1 at [57]. In Okoh, Derrington J concluded that the Tribunal’s decision was vitiated by virtue of errors including that it wrongfully attributed negative weight to the matters required to be considered pursuant to para 14.2(1)(a)(i) of Direction 79, which reflected a misunderstanding of the operation of Direction 79 generally or at least in that case.

43    The applicant argued that any trend of increasing seriousness in the applicant’s offending had to be determined by reference to the dates on which the applicant actually offended as opposed to the dates on which he was sentenced for those offences. The applicant submitted that the following aspects of the Tribunal’s reasons show that the Tribunal misunderstood or misapplied para 13.1.1(1)(e) and assessed whether there was a trend of increasing seriousness in the Applicant’s offending by reference to the dates on which he was sentenced rather than the dates on which he committed the relevant offences:

(a)    At [70], the Tribunal correctly identifies that, in terms of sentencing appearances, the applicant’s offending spans January 2001 to February 2017 and that the applicant was removed from the community in April 2016.

(b)    At [71], the Tribunal finds that “the Applicant’s offending cannot be said to be decreasing over the course of its time span”. The applicant argued that, in context, that “time span” refers to the span of the applicant’s sentencing appearances. At [71], the Tribunal also identifies three courses of conduct which it considered relevant to this factor. Those three courses of conduct spanned from 1 September 2000 to 29 September 2008. The applicant argued that it is implicit that the Tribunal must have considered the three courses of conduct to represent the applicant’s most serious offending.

(c)    At [72], the Tribunal found, by reference to the applicant’s offending in September 2008 which saw him steal $170,000.00, that there was “a clearly discernible trend in the seriousness of the applicant’s offending that came before the courts between 2001 and 2017”.

(d)    At [73], the Tribunal concluded that there was an “increasing level of severity” to the Applicant’s offending.

44    I reject the applicant’s submission that the Tribunal formed its assessment of paragraph 13.1.1(1)(e) of Direction 79 by reference to the date on which the applicant was sentenced in respect of his offences rather than the date on which the offences were actually committed. The submissions are based on a strained and unfair reading of the Tribunal’s reasons. The following matters can be noted.

45    First, the Tribunal’s reasons demonstrate that the Tribunal was cognisant of the timeline of the applicant’s offending. At paragraphs [30]-[54] of its reasons, the Tribunal accurately summarises the instances of the applicant’s offending, including the chronology of the offences and the procedural history of the sentencing for the offences. No confusion between the commission of offences and the sentencing for offences is shown.

46    Second, at [69], the Tribunal observed that, in considering the seriousness of offending, it is appropriate to have regard to the sentence imposed (given the obvious relationship between the seriousness of an offence and the resulting sentence). That paragraph explains why, in the context of considering paragraph 13.1.1(1)(e) of Direction 79, the Tribunal has regard to the sentences imposed for the applicant’s offending.

47    Third, at [70], the Tribunal considered the “frequency” of the applicant’s offending, which is part of the requirement of paragraph 13.1.1(1)(e) of Direction 79. In that context, the Tribunal expressly noted that the applicant’s offending “in terms of sentencing appearances” spanned the period January 2001 to February 2017. By the reference to sentencing appearances, the Tribunal demonstrated its awareness of the distinction between the dates of offending and the dates of sentencing.

48    Fourth, at [71], the Tribunal found that the level of seriousness of the applicant’s offending cannot be said to be decreasing over the course of its time span. The Tribunal thereby rejected the applicant’s submission, made in his statement of facts, issues and contentions filed before the Tribunal, that there was a decrease in the seriousness of offending. The Tribunal rejected the submission because it had regard to the entire course of the applicant’s offending which commenced (relevantly) in September 2000. The Tribunal found that the offences committed in September 2008 (for which the applicant was sentenced in June 2016) involved a “dramatic increase” in offending.

49    At [72], the Tribunal completed its consideration of the increase in offending associated with the offences committed in September 2008. The Tribunal concluded that “[t]here is, thus, a clearly discernible trend in the seriousness of the applicant’s offending that came before the courts between 2001 and 2017”. Reading that conclusion in context, I have no doubt that the Tribunal found that the offending in September 2008, for which the applicant was sentenced in June 2016, was the apex of the seriousness of offending.

50    In my view, there is no error in the Tribunal’s conclusions at [71] and [72], and no confusion between the dates of offending and the dates of sentencing. It may be that the applicant's offending after September 2008 was less serious than the offending in September 2008. However, that circumstance does not render inapplicable or irrelevant the consideration referred to in paragraph 13.1.1(1)(e) of Direction 79. I accept the respondent’s submission that paragraph 13.1.1(1)(e) is not limited to circumstances in which the applicant’s offending shows a continuing increase over time such that the consideration ceases to apply if the offending reaches an apex at a point in time which is then followed by less serious offending. The applicant’s approach to paragraph 13.1.1(1)(e), involving excessive literalism, fails to engage with the substance of the paragraph and the subject matter it is concerned with. Further, and in any event, the decision-maker is required to take into account "any" trend of increasing seriousness of the applicant's offending. There was such a trend between 2000 and 2008, although not after 2008. That was relevant to the Tribunal’s decision and was taken into account by the Tribunal. I am not persuaded that the Tribunal misunderstood paragraph 13.1.1(1)(e) of Direction 79 or the facts.

51    Accordingly, in my view it was open to the Tribunal to find (and take into account), at [73], that the applicant’s offending had been of a very serious nature by reason of both the frequency and increasing level of severity of the offending.

52    For those reasons, I dismiss ground 2.

Ground 3

53    By ground 3, the applicant contends that the Tribunal made a jurisdictional error by illogically finding that the trend of the Applicant’s offending was increasing in severity. The applicant relied on the principles concerning illogicality stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [34]-[42] by Gummow ACJ and Kiefel J and at [133] by Crennan and Bell JJ. The applicant submitted that, if there is only one conclusion which can be drawn from the material before the person whose state of mind is relevant, a conclusion to the contrary will be illogical and not based on probative material, relying on EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 at [85] per Derrington J.

54    The basis for the applicant’s contention that the Tribunal made an illogical finding (that the trend of the applicant’s offending was increasing in severity) was materially the same as for ground 2. The applicant submitted that the only conclusion open on the evidence was that the trend of the applicant’s offending was decreasing in seriousness. For the reasons explained in respect of ground 2, in my view the Tribunal’s reasoning and findings with respect to paragraph 13.1.1(1)(e) of Direction 79 were not illogical and were open to it to be made. It follows that I also reject ground 3.

Conclusion

55    In conclusion, I reject both grounds 2 and 3 advanced by the applicant. It follows that the application should be dismissed with costs.

Associate:

Dated:    22 April 2021