FEDERAL COURT OF AUSTRALIA

Campbell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 228

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This application concerns the capacity of the second respondent, the Administrative Appeals Tribunal, to go behind criminal convictions in hearing a merits review application from a decision of a delegate of a Minister not to revoke the mandatory cancellation of a visa on character grounds.

2    This issue was addressed by the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 (McKerracher J and Colvin J, Derrington J dissenting). The majority in HZCP held that where a previous conviction or sentence is the foundation for the exercise of a statutory power by a decision-maker, the essential factual findings underpinning that outcome cannot be impugned or questioned. Special leave to appeal from HZCP was refused by the High Court on 15 October 2021: [2021] HCATrans 168.

3    The applicant, a citizen of New Zealand who has resided in Australia with her children since September 2007, seeks to distinguish the present case from HZCP. The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, contends that HZCP squarely applies to the necessary question of statutory construction.

4    For the reasons that follow, the Minister’s contention is correct. HZCP applies to the convictions and sentences in contention in this case and the application must be dismissed with costs.

Legislative regime

5    In these reasons, statutory references are confined to the Migration Act 1958 (Cth). In particular:

(a)    Section s 501(3A) provides:

The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

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

(b)    Section 501CA(4) provides:

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.

6    An important observation to make about s 501(3A) and s 501CA(4)(b)(i) in relation to the “character test” referred to in each, and otherwise exhaustively defined in s 501(6) (including by reference to the definition of “substantial criminal record” in s 501(7)) is that:

(a)    mandatory cancellation under s 501(3A) operates in circumstances in which the visa holder:

(i)    per s 501(7)(a), (b) or (c) respectively has been sentenced to death, imprisonment for life or sentenced to imprisonment of 12 months or more (in practice, invariably the last of these); and

(ii)    per s 501(3A)(b) is still serving a full-time custodial sentence for an offence against a law of the Commonwealth, State or a Territory at the time of the decision, noting that current sentence does not have to be the sentence meeting the description in (i);

whereas

(b)    revocation of such a cancellation decision under s 501CA(4)(b)(i) depends upon the Minister (or a delegate or the Tribunal) being satisfied that the former visa holder passes the character test, and if that does not transpire, the former visa holder must satisfy the decision-maker that there is another reason why the original mandatory visa cancellation should be revoked; and

(c)    the “character test” for the purposes of s 501CA(4)(b)(i) goes well beyond only criminal activity to include such things as a risk of inciting discord in the Australian community per s 501(6)(d)(iv).

7    It follows that there is a more limited and more serious basis for satisfaction that the visa holder does not pass the character test for mandatory visa cancellation in the first place under s 501(3A) than there is for satisfaction that the same person does not pass the character test for the purposes of revocation of that visa cancellation decision under s 501CA(4)(b)(i).

8    Accordingly, absent some change in circumstances dispensing with the basis for the failure to pass the character test for the purposes of mandatory visa cancellation, revocation of that cancellation decision will almost always depend on the former visa holder being able to establish that there is another reason why that revocation should take place despite failing the character test on the same or a different basis.

9    It is in this statutory context that the issue of being able to go behind a criminal conviction and sentence assumes singular importance.

HZCP

10    It is more useful to reproduce the key paragraphs of the majority judgments in HZCP than to endeavour to summarise them, not least because the competing arguments in part turn upon precisely what McKerracher J and Colvin J were saying in a number of key passages.

11    McKerracher J stated and held in HZCP:

[1]    The appellant arrived in Australia from Sri Lanka in mid-2009, then aged 22. In the following year, he was granted a protection visa. In August 2011, he attacked two men in the company of three other co-offenders. On 19 December 2013, he was sentenced to two and a half years imprisonment for grievous bodily harm and 12 months imprisonment for unlawful wounding to be served concurrently. His visa was the subject of a mandatory cancellation. A delegate of the Minister declined to revoke that decision.

…

[54]    The exercise of power under s 501CA(4) is not directly founded on the fact of conviction or sentence. Rather it is based on the fact of a decision having been made under s 501(3A), a person making representations in accordance with an invitation to do so, and the Minister being satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked. The question at the heart of the appeal is whether, as a matter of statutory construction, s 501CA(4) should be construed so as to oblige the Minister to accept the conviction or sentence and its essential facts.

[55]    Section 501(3A) and s 501CA(4) of the Migration Act are closely linked. The former provides for mandatory cancellation of a visa granted to a person in the event that the person has first, a substantial criminal record by virtue of having been sentenced to death, imprisonment for life or to a term of imprisonment of 12 months or more, or the person has been convicted of a sexual offence involving a child; and secondly, is serving a sentence of imprisonment. The latter gives the Minister a discretionary power to revoke a visa cancellation under s 501(3A) in prescribed circumstances. The power under s 501CA(4) cannot arise unless there has been a visa cancellation under s 501(3A) which, in turn, must have as its foundation, a conviction or a sentence of one of these kinds. Neither power would arise without the prior foundation of the requisite conviction or the sentence.

…

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

…

[67]    It may be accepted that “another reason” is a broad expression. What is excluded from falling within the scope of the expression is the possibility of the applicant passing the character test as the decision-maker does not come to consider whether there exists “another reason” under s 501CA(4)(b)(ii) if the decision-maker is satisfied the person passes the character test. What does this mean in practical terms? Scope for satisfaction on the first limb in s 501CA(4)(b)(i) must be limited, for such satisfaction would seemingly only be arrived at where there was an error when the Minister was satisfied in s 501(3A)(a). The wrong person may have been identified or there may have been a material error in the charge record. There may be other possibilities, but to proceed to “another reason” there must be a lack of satisfaction that the person passes the character test, which in turn centres on, relevantly, conviction or sentence.

[68]    To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention. These provisions were introduced against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision-maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed. Can the jurisdictional fact being a “satisfaction” create a different requirement without express legislative expression to that effect? If anything, the scope for such evidence will be more limited in the latter situation. One can challenge the lack of satisfaction or assert that the failure to be satisfied was based on legal or jurisdictional error. But where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.

…

[70]    The evidence on which the appellant sought to rely would not be relevant in relation to the first limb in revocation. That is, it could not be relied upon by the Tribunal when considering whether it was satisfied that a person passes the character test. The argument advanced in this instance is that, given the scope of “another reason” and the importance of the subject matter to all concerned, that the fetter on reliance on facts which would contradict the essential facts of the conviction or sentence found by a court should not apply to the issue as to a satisfaction of “another reason” under the second limb.

…

[76]    Further, and consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.

[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: Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Cmr of Taxation v Munro (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 per McHugh J (at [53]). 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.

12    Colvin J agreed with McKerracher J, and additionally held:

[192]    The legislated process applicable in this case begins with a legislative direction to the Minister to cancel a visa based upon the occurrence of particular types of convictions and sentences. It is the character and seriousness of those convictions and sentences that condition the statutory requirement to cancel the visa. The legislature acts upon the confidence that can be entrusted in the criminal process by which the convictions and sentences might arise and gives them a particular consequence, namely cancellation of a visa. Further, the structure of s 501CA(4)(b) reinforces that conclusion because the ameliorating or qualifying power to revoke the cancellation does not confer authority to question the factual basis for the convictions and sentences. It confers a power to revoke if the decision-maker is satisfied that one of two limbs is met.

[193]    The first limb is that the person passes the character test. The character test enumerates a number of matters each of which mean that a person does not pass the test. Many of those depend upon a person having been convicted of an offence or having received a particular sentence for a criminal offence. None of those provisions invites an inquiry as to whether the conviction or sentence was properly imposed or the truth or otherwise of the facts upon which they were based. The required state of satisfaction is as to the fact of the specified conviction or sentence. Other parts of the character test enumerate matters that require an evaluative judgment to be formed. They each concern matters of criminal behaviour or a risk to security. Therefore, where the question is whether a person fails to pass the character test by reason of a conviction and sentence, the first limb does not invite an inquiry as to whether the conviction or sentence was properly imposed or properly supported by the facts.

[194]    The second limb is ‘another reason why the original decision should be revoked’. The use of the words ‘another reason’ directs attention to any topic other than the matters that mean the person does not satisfy the character test. They assume that the decision-maker has not been satisfied of the first thing (namely, that the person passes the character test). The focus upon ‘another reason’ means that the consideration is to be undertaken on the basis that the person does not pass the character test. If the failure to satisfy that test is due to a criminal conviction or sentence then it assumes that there is confidence to be reposed in the fact of the conviction or sentence (and the facts upon which it was based). The decision-maker considering whether there is ‘another reason’ under s 501CA(4)(b)(ii) must accept that the person has been convicted or sentenced in a manner that means they do not pass the character test. They are not authorised to go behind that aspect. It is not ‘another reason’ if the reason is to refute the first limb. Such an approach would undermine the first limb and allow a person to claim that the visa cancellation should be revoked because the factual matters that necessarily underpin the conviction or sentence are not true. The other reason would become no more than a challenge to the approach to the subject matter of first limb that the legislature requires the decision-maker to adopt.

[195]    In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.

[196]    The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was ‘another reason’ to revoke the decision under s 501(3A) to cancel the appellant’s visa. The Tribunal was correct in that view.

The Tribunal’s decision

13    The Tribunal summarised the applicant’s criminal convictions and sentences in relation to four groups of criminal offences, the last of which is in issue in this proceeding, being fraud and perjury offences committed between 2009 and 2011. On 28 February 2018, a jury in the District Court of Queensland in Rockhampton found the applicant guilty on all seven counts in an indictment, and she was duly convicted on each. On 8 March 2018, the trial judge sentenced her to sentences of imprisonment for each conviction. In an appeal to the Queensland Court of Appeal against convictions on all but count 1, convictions on counts 4 and 6 were quashed (and no retrial took place), with the appeal as to the remaining counts 2, 3, 5 and 7 being dismissed: R v Campbell [2019] QCA 127.

14    The Tribunal summarised the convictions and sentences that were upheld as follows:

[49]    The nature and type of evidence the Applicant gave or sought to rely on to explain/excuse/ameliorate her conduct also resulted in convictions for certain “derivative offences”. She issued proceedings claiming family provision from Mr Butler’s estate by falsely propounding a de-facto relationship with him that apparently ran for a period of more than two years. She was unsuccessful in those proceedings. In those proceedings, she led certain evidence including affidavits. Those affidavits were relied on in the family provision trial. After she lost the family provision trial, an allegation was made against her that she had falsely sworn in both and written and oral evidence to matters concerning her respective relationships with Mr Butler and another man, namely, Jeremy Johnson. It is this spoken and written evidence that spawned the remaining Counts on the indictment.

[50]    For ease of reference, I have tabulated the five convictions of the Applicant relevant to this aspect of her offending. Those convictions occurred on 8 March 2018 at the Rockhampton District Court following a trial before judge and jury.

15    Before the Tribunal, the applicant did not contest the conviction or sentence on count 1 in the above table, but did seek to contest the convictions and therefore sentences on counts 2, 3, 5 and 7 (contested convictions and sentences). It is evident that this approach was a strategic decision designed to enable her to seek to challenge the contested convictions and sentences, because her statement of facts, issues and contentions before the Tribunal included the following:

[30]    The Applicant contends that it is open to her to advance a factual account of her conduct which is inconsistent with her convictions, and respective sentenced imposed, for the offending she denies. This is because:

(a)    the Applicant admits that she was properly convicted of the offence of fraud in relation to the transfer of the motor vehicle in November 2011;

(b)    the sentence imposed in respect of that offence (18 months’ imprisonment) is sufficient for the Applicant to fail the character test through s 501(7)(c) of the  Act;

(c)    the Applicant’s position therefore does not call into question or undermine the propriety of either:

(i)    the mandatory cancellation of her visa on 21 August 2018; or

(ii)    the essential facts giving rise to the Tribunal’s jurisdiction to determine this matter.

[31]    In circumstances where the Applicant does not seek to advance a factual position that is inconsistent with the facts giving rise to the Tribunal’s jurisdiction, the factual position advanced by the Applicant can be accepted by the Tribunal.

16    The Tribunal had earlier addressed the application of HZCP as a preliminary point and explained how this would be addressed as follows (footnotes omitted):

[22]    As will be ventilated in my later discussion regarding the Applicant’s risk of recidivism, there is a persistent theme of denial, obfuscation or sheer refusal on the part of the Applicant to accept her commission of the relevant offences. This statement needs to be conditioned by reference to the relevant seven-count indictment presented against her and on which she was tried. For present purposes, the Applicant does not deny commission of the offence particularised in Count 1. Further, Counts 4 and 6 were quashed by the Court of Appeal and were not subsequently re-prosecuted.

[23]    The Applicant maintains a position of denial, obfuscation, and sheer refusal to accept responsibility persists with reference to Counts 2, 3, 5, and 7. The Applicant was unsuccessful in appealing those Counts to the Court of Appeal. Despite that appeal outcome, the contention now propounded is that it is open to her to advance before this Tribunal a factual context about her commission of the offending particularised at Counts 2, 3, 5 and 7 which is inconsistent with the factual context that gave rise to her respective conviction on those Counts. For reasons that follow, I reject that contention.

[24]    The Applicant has, in effect, latched onto a distinction drawn by Colvin J in HZCP v Minister for Immigration and Border Protection (“HZCP”) between two mutually exclusive categories of decision-making powers which rely on criminal history. The first category is comprised of powers which have two characteristics:

(a)    the power relies on the fact of a particular criminal conviction or sentence; and

(b)    the statute does not include a further power to go behind the conviction or sentence in the exercise of the power.

[25]    The second category is comprised of powers which, in contrast, have two different characteristics:

(a)    criminal convictions or sentences are relevant to the exercise of the power; and

(b)    the power does not have the criminal conviction or sentence as either:

(i)    the power’s jurisdictional foundation; or

(ii)    one of the factual matters that must be acted upon in the exercise of the power.

[26]    The Applicant submits, in substance, that there is at least one power in s 501CA(4) which fits into the second category. She further submits that the sentence imposed for the offence which she admits to committing is enough to satisfy s 501(7)(c) of the Act. She argues that because this sentence satisfies s 501(7)(c) of the Act, she is not calling into question the mandatory cancellation or the essential facts giving rise to the Tribunal’s jurisdiction.

[27]    The first observation to be made about this argument is that it appears to incorrectly assume that there are multiple powers in s 501CA(4) of the Act. There is only one: the power to revoke the mandatory cancellation. But even if there were multiple powers, the Applicant’s argument would still, in my respectful opinion, fail. That is because the power in s 501CA(4) of the Act depends on the facts of an Applicant’s convictions or sentences and the Act does not provide an auxiliary power to go behind the conviction. As Colvin J explained, later in the same reasons:

“The legislated process applicable in this case begins with a legislative direction to the Minister to cancel a visa based upon the occurrence of particular types of convictions and sentences. It is the character and seriousness of those convictions and sentences that condition the statutory requirement to cancel the visa. The legislature acts upon the confidence that can be entrusted in the criminal process by which the convictions and sentences might arise and gives them a particular consequence, namely cancellation of a visa. Further, the structure of s 501CA(4)(b) reinforces that conclusion because the ameliorating or qualifying power to revoke the cancellation does not confer authority to question the factual basis for the convictions and sentences. It confers a power to revoke if the decision‑maker is satisfied that one of two limbs is met.

[…]

In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.

[28]    Therefore, I (1) base my analysis of the instant matter on the facts which underlay the Applicant’s convictions for the offences; and (2) draw on other sources only to the extent they do not contradict the facts underlying the convictions on Counts 1, 2, 3, 5 and 7 of the indictment on which she was sentenced by Judge Burnett in 2018 and her remaining convictions.

17    As a result of this approach, the Tribunal did not further consider the applicant’s submission that she did not commit the offences in counts 2, 3, 5 or 7, and in particular did not consider evidence she relied upon in support of that submission. That evidence comprised a single page affidavit sworn by Ms Karina Dee Ellis on 22 May 2012, deposing to the applicant’s involvement with the deceased Mr Butler, which was inconsistent with her convictions on counts 3, 5 and 7. That affidavit was apparently available to the applicant at her self-represented trial, but it seems she neither called Ms Ellis, nor requested the prosecutor to call her.

The grounds of review

18    The grounds of review are as follows:

[1]    The Second Respondent (“Tribunal”) fell into jurisdictional error by finding that it did not have jurisdiction to make factual findings inconsistent with the Applicant’s convictions for Counts 2, 3, 5 and 7 on 28 February 2018.

[2]    The Tribunal fell into jurisdictional error by failing to engage in genuine consideration of significant and clearly expressed matters raised by the Applicant in support of her application, specifically that she did not commit the offences reflected by Counts 2, 3, 5 and 7 for which she was convicted on 28 February 2018.

[3]    The Tribunal fell into jurisdictional error by failing to have regard to the relevant material in evidence before it, specifically the affidavit of Karena Dee Ellis affirmed on 22 May 2012.

19    The applicant now seeks to treat grounds 2 and 3 as particulars of materiality. It is common ground that grounds 2 and 3 are not reached unless the applicant succeeds on ground 1.

20    The applicant’s endeavour to challenge the contested convictions on counts 2, 3, 5 and 7 was not accepted by the Tribunal. This challenge including the facts and circumstances in which those offence were found to have been committed. This in turn contributed to the determination that there was not “another reason” why the visa cancellation decision should be revoked.

21    Even if the Tribunal’s decision on this issue was found to be erroneous, that did not necessarily mean such an error was material for the purposes of a finding of jurisdictional error. Even if the endeavour to challenge the disputed convictions and sentences had been permitted, the applicant still had to establish in this Court that there was a realistic possibility that this challenge would have been successful in light of the fact that those convictions and sentences followed jury guilty verdicts and an unsuccessful appeal.

The competing arguments and their resolution

22    The essence of the applicant’s argument on ground 1 is that the conviction and 18 month sentence on count 1 was sufficient to engage jurisdiction at both the original cancellation stage for the purposes of s 501(3A) and at the revocation stage for the purposes of s 501CA(4)(a)(i), such that the convictions and sentences on counts 2, 3, 5 and 7 were not needed to engage the Tribunal’s jurisdiction. Based on that reasoning, she contends that it was open to her to seek to challenge the conviction and thus sentences on counts 2, 3, 5 and 7 before the Tribunal insofar as they had a bearing on whether there was “another reason” why the cancellation decision should be revoked, per s 501CA(4)(a)(ii).

23    The applicant’s argument may be succinctly summarised as follows:

(a)    the ratio of HZCP at [63] per McKerracher J, endorsed by Colvin J at [179], is to be read in a way that confines it to the facts in that case;

(b)    the Full Court in HZCP was not required to consider the present situation in which the former visa holder had been sentenced to multiple sentences of imprisonment of 12 months or more, each of which prison sentence would individually satisfy s 501(3A)(a)(i) via s 501(7)(c);

(c)    the Full Court in HZCP did not take issue with the facts which gave rise to at least one of those sentences which enlivened the mandatory cancellation power conferred by s 501(3A) and caused the failure to meet the character test for the purposes of s 501CA(4), but advanced an inconsistent factual position concerning one or more of the other sentences of 12 months or more;

(d)    the reasoning of the majority in HZCP supports the former visa holder not advancing a factual position which undermines the basis upon which the revocation power in s 501CA(4)(b)(ii) has been enlivened, but does not go further to limit advancing a factual position inconsistent with other convictions and sentences;

(e)    given that she did not cavil with the essential facts behind count 1, which carried a sufficient sentence to satisfy mandatory visa cancellation via s 501(3A)(a)(i) and to cause her to fail the character test for the purposes of s 501CA(4)(b)(i), she did not advance a factual position contrary to HZCP;

(f)    the factual position that she did advance did not in any way undermine the propriety of any of the original mandatory visa cancellation decision under s 501(3A), the Tribunal’s finding that she did not pass the character test for the purposes of s 501CA(4)(b)(i) or the basis upon which the Tribunal’s power and obligation to determine whether there was another reason for revocation under s 501CA(4)(b)(ii) was enlivened; and

(g)    accordingly, the Tribunal’s finding that it did not have power to adopt a factual position inconsistent with any of counts 2, 3, 5 of 7 was a denial of jurisdiction constituting jurisdictional error, subject to materiality being established.

24    Conversely, the Minister supports the Tribunal’s reasoning for reasons that I accept and prefer to the applicant’s arguments above. The primary basis for that support is that, contrary to the applicant’s characterisation summarised at [23(a)] above, HZCP was determined on a question of conventional statutory construction, rather than being confined to its particular granular facts. That much is made clear by McKerracher J at [54] and Colvin J at [191]-[192]. McKerracher J, overtly supported by Colvin J, took into account a line of authority stemming from cases in the mid-twentieth century on this topic, and the compelling policy reasons standing behind not undermining the judicial function involved in criminal proceedings when that is the foundation for the subsequent exercise of executive power: see [76]-[77].

25    As McKerracher J observed at [68], the provisions in question – s 501(3A) and s 501CA(4) – were introduced “against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision-maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed”, so that such a fundamental change by the application of the term “another reason” could not have been the legislative intention. The key provisions were construed by the majority in HZCP in that context.

26    The Minister also relies upon Colvin J at [192]-[195] in supporting the conclusions reached by McKerracher J. Colvin J concluded at [195] that “a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked”. The analysis leading to that conclusion starts with mandatory cancellation being triggered by particular convictions and sentences, such that s 501CA(4)(b) does not confer authority to question the factual basis for those outcomes. Rather, there is a power to revoke the visa cancellation upon either s 501CA(4)(b)(i) or (ii), being met. I consider that the reliance by the Minister on this reasoning is sound.

27    As the Minister points out in relation to the first of those two limbs, in s 501CA(4)(b)(i), if the basis for the finding that the character test was not satisfied by reason of a criminal conviction, the vitiating error may be in the decision-maker’s understanding of what had taken place in the criminal process, rather than by finding error in that process as to conviction or sentence: see Colvin J at [193]. I would add, the error might also be found as a part of that criminal process, such as by a successful appeal in criminal proceedings. Colvin J specifically noted that other parts of the character test in s 501(6) enumerate matters that call for an evaluative judgment, such as criminal behaviour, or a risk to security, a point to which I return below.

28    As the Minister correctly points out in relation to the second of those two limbs, in s 501CA(4)(b)(ii), Colvin J observed at [194] that “the use of the words ‘another reason’ directs attention to any topic other than the matters that mean the person does not satisfy the character test”, proceeding upon the assumption that the decision-maker has not been satisfied that the person passes the character test. His Honour held that if that failure to satisfy that test is due (in whole or in part, I interpolate) to a criminal conviction or sentence, the facts upon which it is based, in considering whether there is “another reason”, the decision-maker must accept that the conviction or sentence has taken place in a manner that means they do not pass the character test (i.e., the first limb). It cannot be such a reason if the first limb is thereby refuted. The legislature must be taken to have reposed confidence in the fact of conviction and sentence and the facts upon which each is based, none of which may be contradicted.

29    The final aspect of the Minister’s reasoning is that McKerracher J observed at [66]-[67] that the making of a revocation decision requires the decision-maker to decide whether the former visa holder passes the character test, and if so, s 501CA(4)(b)(ii) is not reached. It follows that even to consider “another reason” means that there must be a lack of satisfaction that the former visa holder passes the character test, which in turn centres upon the conviction or sentence.

30    It may further be observed that in the case of a mandatory visa cancellation, the scope for the former visa holder to satisfy the decision-maker that she or he passes the character test is clearly intended to be narrow and difficult to meet. That is especially so given that the s 501(3A) gateway of having been sentenced to prison for 12 months or more and currently serving a prison sentence (not necessarily for one or more of the same sentences) has already been passed. This supports the conclusions reached in HZCP at [67] reproduced above, and also Bromberg and Mortimer JJ in DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [23]-[24].

31    Section 501CA(4)(b)(i) is concerned, as a practical matter, with the exceptional circumstance of an error in a finding that the former visa holder failed the character test based on the specific version of that test in s 501(3A). Such an error may include convictions being overturned on appeal, and thus detected in the course of the criminal proceedings. It follows that it is inherently unlikely, as a matter of statutory construction, that something as serious as an offence producing a sentence of imprisonment of 12 months or more would not be considered in the reasoning in not being satisfied that a former visa holder passes the character test merely because no concession has been made to that effect.

32    The immediately preceding reasoning leads to one argument advanced by the applicant that has not yet been specifically addressed. It concerns the concession reproduced above at [15] as to count 1, and the suggestion that the Tribunal proceeded upon that concession without considering the impact of counts 2, 3, 5 and 7 on whether she passed the character test. This was said to leave counts 2, 3, 5 and 7 open to challenge due to forming no overt part in the basis for jurisdiction. There are two flaws in that argument.

33    First, I would not read [11] of the Tribunal’s reasons (“I am therefore satisfied that the Applicant does not pass the character test”) as being any sound basis for concluding that the Tribunal did not have regard to the convictions and sentences for counts 2, 3, 5 and 7 in relation to the applicant’s not satisfying the Tribunal that she passed the character test. That is especially so as those convictions are considered in some detail later in the Tribunal’s reasons, and the Tribunal was plainly fully aware of the argument being advanced upon that basis. It cannot be taken that the Tribunal at [11] was not relying on convictions and sentences for counts 2, 3, 5 or 7, as well as count 1. Such a reading is not fairly available, even without resort to the requirement to read the Tribunal’s reasons beneficially.

34    Secondly, even if, contrary to that conclusion, the Tribunal formally did only have regard to count 1 in failing to be satisfied that the applicant passed the character test for the purposes of s 501CA(4)(b)(i), I do not consider that jurisdiction is or can be conferred by no more than a concession being made, as opposed to such a concession being no more than an acknowledgement of the effect of a state of affairs. Such jurisdiction is based upon the existence of the relevant jurisdictional fact, which may be met by more than one such fact. It is not to be constrained by the mere stance of a party, important though that is to the efficient dispatch of the business of a busy, and in this area in particular, tightly time constrained decision-making process. There is no question that counts 1, 2, 3, 5 and 7 were all known to the Tribunal and all were an unassailable basis for jurisdiction for the purposes of s 501CA(4). A concession as to one of those counts did not and could not render the rest of the counts a jurisdictional irrelevancy. All five convictions and sentences cannot be challenged because of their undeniable jurisdictional status.

35    For the foregoing reasons, ground 1 must fail. It is not therefore necessary to consider grounds 2 and 3 and the issue of materiality had there been error established as alleged.

Conclusion

36    The originating application must be dismissed with costs.

Associate:

Dated:    17 March 2022