Federal Court of Australia
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 810
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SNADEN J:
1 The applicant is a Vietnamese national. He came to Australia in 1997 and, in 2008, was granted a class BS subclass 801 (Spouse) visa. On 8 May 2019, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). It is to that cancellation (the “Cancellation”)—and, more specifically, to the applicant’s attempts to have it revoked—that the present matter pertains.
2 On 5 June 2019, the applicant applied under s 501CA of the Act to have the Cancellation revoked. That application (the “Revocation Application”) did not succeed: on 13 April 2021, a delegate of the first respondent (the “Minister”) decided not to revoke the cancellation. That outcome was brought to the applicant’s attention by letter the following day.
3 On 23 April 2021, the applicant applied to the second respondent (the “Tribunal”) to have that decision (the “Delegate’s Decision”) reviewed. That application (the “Review Application”) also failed: by a written decision made on 7 July 2021 (hereafter, the “Tribunal’s Decision”), the Tribunal affirmed the Delegate’s Decision.
4 By an amended originating application dated 24 May 2022, the applicant applies under s 476A of the Act for various species of relief directed toward the Tribunal’s Decision. He seeks to have the Tribunal’s Decision set aside on the basis that it is a product of jurisdictional error, and to compel the Tribunal to re-decide his Review Application afresh and according to law.
5 For the reasons that follow, the Tribunal’s Decision was not attended by jurisdictional error. The amended originating application must (and will) be dismissed with the usual order as to costs.
Factual background
6 The applicant possesses what the Tribunal described as “a history of very serious criminal offending”. That history was recited as follows (and without controversy) in the reasons that were published in support of the Tribunal’s Decision:
11. On 10 November 2011, His Honour Judge Montgomery of the County Court of Victoria imposed upon the Applicant a sentence of 7 years and 6 months[’] imprisonment with a non-parole period of 5 years for the following offences: conspiracy to import/export marketable quantity of border controlled drugs or plants, attempt to possess marketable quantity of imported border controlled drugs or plants, false or misleading statement in connection with visa permitting non-citizen to remain in Australia and make false statement in course of obtaining an Australian passport.
12. On 28 June 2013, the Applicant was convicted at the Magistrates Court of Victoria sitting at Melbourne in relation to making a false statutory declaration and making false statements. He was sentenced to 6 months[’] imprisonment on each charge to be served concurrently and a total effective sentence of 6 months[’] imprisonment was imposed.
13. On 17 August 2017, His Honour Judge McInerney of the County Court of Victoria imposed upon the Applicant a sentence of 4 years and 6 months[’] imprisonment in relation to two counts of traffick drug of dependence and deal property suspected proceed of crime.
(references omitted)
7 Before the Tribunal, the applicant explained that he was drawn into drug trafficking as a result of having amassed debts due to gambling. After his first conviction, he served time in jail, from which he was released in September 2014. He explained that his life after leaving jail was very difficult. His wife had also gotten herself into debt and had also been drawn into drug-related crime. She, too, was imprisoned, at which point the applicant provided sole care for their son. For financial reasons, he returned to drug trafficking, which led to his being sentenced to further time in jail in August 2017. The applicant told the Tribunal (via his representatives) that:
…he is personally motivated not to reoffend, in part because he is the subject of an arrest warrant in Vietnam concerning drug-related activity which he was associated with prior to leaving Vietnam. The Applicant acknowledged that he has been a recidivist offender, but now claims to have financial, emotional and community support which address the previous triggers of his offending. Similarly, the Applicant gave evidence of having undertaken rehabilitative programs in prison and learning how drugs impact the community. He told the Tribunal that he feels remorseful and foolish.
The legislative framework
8 Section 501 of the Act identifies circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:
501 Refusal or cancellation of visa on character grounds
…
(3A) 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.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
…
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more…
9 Under s 501CA of the Act, a non-citizen whose visa has been cancelled under s 501(3A) of the Act may apply for the revocation of that decision. The provision relevantly provides as follows:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
…
10 The Minister’s powers under s 501CA may be exercised by his or her delegate: the Act, s 496. Decisions made consequent upon such a delegation are reviewable by the Tribunal: the Act, s 500(1)(ba). Decisions made by the Tribunal exercising that power of review are judicially reviewable by this court: the Act, s 476A(1)(b).
11 As might be clear from the facts recited above, there was no contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act, nor that he did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Tribunal (and, prior to that, before the Minister’s delegate) was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation ought to be revoked.
12 Section 499 assumes some significance in this matter. It confers upon the Minister a power to give directions to the Tribunal (amongst others) about the exercise of its powers under the Act. Insofar as concerns the Tribunal’s powers under s 501CA(4), that power of direction has been exercised. By an instrument dated 8 March 2021, the Minister published what has come to be known as “direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”. By that instrument (“Direction 90”), the Tribunal is directed under s 499 of the Act to take account of various considerations when exercising the powers conferred upon it by ss 501 and 501CA of the Act: Direction 90, s 6.
13 By ss 8 and 9, Direction 90 identifies a number of specific considerations to which the Tribunal must have regard when deciding whether or not to exercise (amongst others) the power of revocation conferred by s 501CA of the Act. Section 8 assumes particular significance in this matter. It identifies four “primary considerations” by which decision makers (including the Tribunal) must be guided. Sections 8.1-8.4 then identify more specific considerations to which regard must relevantly be had in respect of each of those four primary considerations.
14 Of present relevance is s 8.1 of Direction 90, which is headed “Protection of the Australian Community”. It provides as follows:
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(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.
15 The “nature and seriousness of the non-citizen’s conduct to date” is then the subject of more extensive consideration in s 8.1.1 of Direction 90. Relevantly, that section provides as follows:
8.1.1 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 the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
…
g) 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).
The Tribunal’s Decision
16 The Tribunal determined that, for the purposes of s 501CA(4)(b)(ii) of the Act, there was not “another reason” why the Cancellation should be revoked. Given the applicant’s concession that he did not pass the character test (as defined by s 501 of the Act), it decided to affirm the Delegate’s Decision.
17 As will shortly be seen, the present application fixes upon the Tribunal’s compliance with Direction 90 (and, more accurately, upon whether or not it erred in the manner in which it took account of the matters of which Direction 90 required that it should take account).
18 It is convenient to replicate the relevant parts of the reasons published in support of the Tribunal’s Decision:
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
65. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.”
66. In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.”
Application of Factors in Paragraph 8.1.1(1) of the Direction
The Nature and Seriousness of the Non-Citizen’s Conduct to Date
67. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
“(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the noncitizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) 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).”
68. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
69. The Applicant claims that he became involved in the drug trade to pay back debts which he had accumulated borrowing large sums of money to fund a gambling problem. Additionally, the Applicant claims that he trafficked drugs to pay for his family expenses, including his son’s private school fees.
70. The Applicant states that he is remorseful for his actions and that he has learnt that trafficking drugs is the worst mistake I have ever made in my life.
71. Taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
72. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
“(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the noncitizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.”
73. The Applicant’s conduct in trafficking drugs can be said to negatively impact vulnerable members of the community, namely drug users and persons experiencing drug addiction.
74. Taking into account all of the evidence, the Tribunal finds that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
…
85. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider:
“whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).”
86. This consideration is directly relevant in this case. The sentencing remarks of His Honour Judge Montgomery of the County Court of Victoria indicate that, at the time of the 2011 sentence, investigations were made as to whether the Applicant would be deported. Notwithstanding this, the Applicant told the Tribunal that at that time he had no understanding that he could be deported. The Tribunal does not accept this.
87. At the hearing the Applicant was also asked about notes taken by prison officers in 2012–13 concerning “deportation issues”. The Applicant said that at that time he did not understand anything about deportation. The Tribunal does not accept this.
88. Similar denials to this effect were advanced by the Applicant’s representatives in the written material lodged with the Tribunal, on his behalf.
89. The Tribunal observes that in 2012 three Court of Appeal justices who considered an appeal application concerning the 2011 sentence observed that the Applicant would experience “stress” “while waiting to learn whether he will be deported at the completion of his sentence”.
90. Having considered all the evidence, the Tribunal considers that the Applicant, having arrived in Australia under a false identity and having been convicted of serious offences, would have understood that his migration status was a relevant issue prior to his re-offending.
91. The Tribunal is satisfied that the Applicant re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status.
92. Having regard to all of the evidence and submissions made to the Tribunal, including that which is outlined in the abovementioned relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, the Tribunal is of the overall view that the nature and seriousness of the Applicant’s conduct can only be characterised as very serious.
The present application
19 By his amended originating application, the applicant identifies four errors that he says attend upon the Tribunal’s Decision. It is convenient to replicate them in full:
1. The Administrative Appeals Tribunal (Tribunal) constructively failed to exercise jurisdiction, in misconstruing sub-para 8.1.1[(1)](b) of Direction 90: visa cancellation and refusal under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90).
Particulars
a. In giving consideration to the protection of the community from criminal or other serious conduct, the Tribunal was required to consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, per para 8.1(2)(a)-(b) of Direction 90.
b. In conducting the assessment of the second limb, the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, per para 8.1(2)(b) of Direction 90, the Tribunal was required to have regard to the principle that;
The types of crimes or conduct described below are considered by the Australian government and the Australian community to be serious;
…crimes committed against vulnerable members of the community (such as the elderly or disabled) or government representatives or officials due to the position they hold, or in the performance of their duties (set out at para 8.1.1[(1)](b)(ii) of Direction 90.)
c. The Tribunal found that the ‘Applicant’s conduct in trafficking drugs can be said to negatively impact vulnerable members of the community, namely drug users and persons experiencing drug addiction’ and that ‘sub-para (b) of para 8.1.1(1) militates in favour of finding that the Applicant’s criminal conduct have been of a very serious nature’ [emphasis added, para 74 of the Tribunal’s decision].
d. In so finding, the Tribunal misconstrued sub-para 8.1.1(1)(b) in two ways. One, sub-para (b) directs decision makers that the types of conduct described there are ‘serious’ not ‘very serious’ (which contrasts with sub-para 8.1.1(1)(a), which sets out different conduct to be taken as of a ‘very serious’ nature).
e. Two, the Direction requires decision makers at sub para 8.1.1(1)(b)(ii) to consider whether crimes are committed ‘against’ vulnerable members of the community, such as ‘the elderly and disabled.’ Properly construed, this requires decision-makers to assess whether the victim of the crime is a vulnerable person. To bring into this assessment persons who are ‘negatively impacted’ by drug trafficking is a step removed from this assessment. Drug trafficking is not committed ‘against’ drug users in the direct way intended by the drafters of sub para 8.1.1(1)(b).
f. The Tribunal thus fell into jurisdictional error.
2. The Tribunal constructively failed to exercise jurisdiction, in misconstruing sub-para 8.1.1[(1)](a) of Direction 90 or, in the alternative, in making an irrational or legally unreasonable finding.
Particulars
a. Sub-para 8.1.1[(1)](a) of Direction 90 provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes, crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
b. The Tribunal assessed this para’s applicability to the Applicant’s circumstances at paras [69]-[71] of its decision, stating that;
i. The Applicant claims that he became involved in the drug trade to pay back debts which he had accumulated borrowing large sums of money to fund a gambling problem;
ii. The Applicant claims that he trafficked drugs to pay for his family expenses, including his son’s private school fees;
iii. The Applicant states that he is remorseful for his actions and that he has learnt that trafficking drugs is the worst mistake he has ever made in his life.
c. The Tribunal concluded that ‘taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1[(1)] of the Direction militates strongly in favour of a finding that the Applicant’s offending has been of a very serious nature [para 71, Tribunal’s decision].
d. The Applicant’s circumstances set out at paragraph (b(i)-(iii) of this ground of review do not constitute violent and/or sexual crimes, crimes of a violent nature against women or children or acts of family violence.
e. There is no explanation as to how the Tribunal concluded that paragraph 8.1.1[(1)](a) militated ‘strongly’ in favour of a finding that the Applicant’s offending has been of a ‘very serious nature’ other than that the Tribunal misconstrued or misunderstood Direction 90. In the alternative, the Tribunal made an irrational or legally unreasonable finding that was so unreasonable that no reasonable decision maker would have arrived at it.
3. The Tribunal constructively failed to exercise jurisdiction, in misconstruing sub-para 8.1.1(1)(g) of Direction 90.
Particulars
a. In assessing the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Tribunal was required to consider ‘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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour)’ (sub-para 8.1.1(1)(g) of Direction 90).
b. The Tribunal noted the following factors in assessing this consideration;
i. Sentencing remarks of Judge Montgomery of the County Court of Victoria indicate that at the time of the 2011 sentence, investigations were made as to whether the Applicant would be deported.
ii. The Applicant told the Tribunal that at the time, he had no understanding that he could be deported.
iii. The Applicant was asked at the hearing about notes taken by prison officers in 2012-2013 concerning ‘deportation issues.’
iv. The Applicant denied having ever had any understanding that he could be deported and did not understand anything about deportation and the Tribunal did not accept this.
v. The Tribunal noted that in 2012, three Court of Appeal justices who considered an appeal application concerning the 2011 sentence observed that the Applicant would experience ‘stress’ while waiting to learn whether he would be deported at the completion of his sentence.
c. The Tribunal considered, in conclusion, that the Applicant would have understood that his migration status was a relevant issue prior to his re-offending, and was satisfied that he re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status [paras 90-91, Tribunal’s decision].
d. Sub-para 8.1.1(1)(g) of Direction 90 contemplates that a relevant factor in assessing the nature and seriousness of the offending is whether a non-citizen has re-offended since being ‘formally warned’ or since otherwise having been made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status.
e. There was no evidence before the Tribunal that the Department of Home Affairs had warned the Applicant in writing of the possible cancellation of his visa under s501 of the Migration Act 1958 (Cth) prior to his re-offending, or indeed at all prior to the current cancellation process under review.
…
g. [T]he existence of discussions by prison officers or comments in judicial remarks regarding sentencing regarding the possibility of deportation cannot be properly construed as a formal warning to the Applicant or even as having made the Applicant aware in writing about the consequences of further offending in terms of his migration status.
…
i. Properly understood, the non-citizen ‘having been made aware in writing about the consequences of further offending’ signifies, at the very least, a piece of correspondence having been provided to the Applicant addressing the consequences of re-offending on his migration status.
…
k. The Tribunal proceeded on the mistaken basis that it was required by paragraph 8.1.1(1)(g) to consider that factor as weighing against revocation when the factor was not an applicable mandatory relevant consideration in this matter.
4. The Tribunal made a finding that was not open on the evidence before it.
Particulars
a. The Tribunal found at [91] that ‘the Applicant re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status.’
b. There was no evidence before the Tribunal that the Applicant had been formally warned, or since otherwise been made aware, in writing about the consequences of further offending in terms of his migration status.
20 Grounds one and two are closely related. By each, the applicant charges the Tribunal with having misunderstood the import of section 8.1.1(1) of Direction 90. Similarly, grounds three and four are related, insofar as each alleges a misunderstanding or misapplication of section 8.1.1(1)(g) of Direction 90. Notwithstanding those connections, it is convenient to address the grounds in three phases: grounds one and two separately, and grounds three and four together. As the parties did by their oral submissions, I shall do so in the order that corresponds to the relevant paragraphs of the Tribunal’s Decision.
21 Before doing so, it is convenient to say something about the court’s task in this case. The applicant alleges that the Tribunal proceeded upon a mistaken appreciation of what Direction 90 required of it and he maintains that those errors were material in the sense that, had they not been made, there was a prospect that the Tribunal would have been drawn to a decision that was favourable to him. Acceptance or rejection of those central contentions requires that the court first make factual findings about how the Tribunal made its decision. Doing so requires that inferences be drawn from the inevitably limited evidence with which the court was supplied—and, most significantly, from the structure and text of the Tribunal’s Decision.
22 The recent observations of the High Court plurality in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, 454 [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ) are apposite (particularly, though not solely, inasmuch as they bear upon the question of materiality):
The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
(references omitted)
23 It is also convenient to say something about Direction 90 and the Tribunal’s obligation in this case to comply with its requirements. It was common ground between the parties—and is plainly the case—that the jurisdiction that the Tribunal was called upon to exercise was conditioned by a requirement that the terms of Direction 90 be complied with. Speaking of a predecessor direction, this court, in Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 (Mortimer J), made the following relevant observations (at [61]):
The terms of Direction 79 are made by s 499(2A) a mandatory part of the Tribunal’s task on review. Failure to “comply” with the terms of the Direction, in the sense of misunderstanding, misapplying or failing to apply an aspect of it means that the Tribunal has not performed its statutory task as the Act intends it to be performed… [A]dherence to the obligation imposed by s 499(2A) is an inviolable condition of the Tribunal’s exercise of its review function. Were it otherwise, the purpose of conferring the power in s 499(1) would be frustrated, and executive guidance, including policy guidance, of the decision making process, which Parliament has authorised, would not be achievable. Plainly enough, there will be cases where the nature of any departure from the terms of the Direction is trivial, or irrelevant to the performance of the review function in a given case. In such cases, it would not be appropriate to describe what has occurred as a contravention of the obligation in s 499(2A) because, in substance and effect on a particular review, the Tribunal has adhered to the terms of the Direction as they are relevant to its task.
Ground two: significance of 8.1.1(1)(a) of Direction 90
24 Paragraphs 67 and following of the Tribunal’s Decision are directed to compliance with Direction 90. It is apparent that the Tribunal was alive to the existence of the direction (and section 8.1.1 thereof, in particular) and that, en route to forming a view about the seriousness of the applicant’s criminal history, it was concerned to address each of the constituent elements of s 8.1.1(1).
25 As much is clear from the fact that that paragraph is replicated in its entirety at [67] of the Tribunal’s Decision (above, [18]), following which each of the seven constituent subparagraphs of 8.1.1(1) ((a) through (g)) is the subject of at least some specific analysis. Save insofar as concerns 8.1.1(1)(d) and (g) of Direction 90, such analysis as there is in each case culminates in an observation that each consideration favours (or “militates” in favour of or strongly in favour of) a finding that the applicant’s drug trafficking history is very serious.
26 Those constituent observations then accumulate to the point that is expressed at [92] (above, [18]): namely, that the “…Tribunal is of the overall view that the nature and seriousness of the [a]pplicant’s conduct can only be characterised as very serious”. That view is said to have been formed on the strength of “all of the evidence and submissions made to the Tribunal, including that which is outlined in the abovementioned relevant sub-paragraphs of paragraph 8.1.1(1) of [Direction 90]”.
27 In the case of subparagraph 8.1.1(1)(a) of Direction 90, the Tribunal’s analysis spans [68]-[71] of its decision (see above, [18]). It begins, at [68], with a paraphrased restatement of the terms of 8.1.1(1)(a) of Direction 90. [69] and [70] record some relevant background to the applicant’s criminal history. [71] serves as the Tribunal’s conclusion as to what might be made of the requirements of subparagraph 8.1.1(1)(a). It bears repeating:
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
28 The applicant submits that 8.1.1(1)(a) of Direction 90 was irrelevant to the Tribunal’s task. That, he says, extends from the fact that his criminal history does not, in any way, intersect with the various species of criminality to which that subparagraph refers. Subparagraph 8.1.1(1)(a), he says, “…could not guide the Tribunal’s assessment of the seriousness of [his] offending”.
29 The Minister submits that, read fairly and in context, [71] of the Tribunal’s Decision should be understood as nothing more than a conclusion that, having regard to the applicant’s criminal history and to the types of “very serious” offending to which subparagraph 8.1.1(1)(a) of Direction 90 refers, the applicant’s criminality was apt also to be described as “very serious”. Insofar as it reasoned in that way, the Minister concedes that the Tribunal erred, because 8.1.1(1)(a) does not envisage that an applicant’s criminal history will be adjudged “very serious” merely by reason of the matters that that subparagraph records. Nonetheless, he submits that any such error was immaterial in the present context and hence could not rise to the standard of jurisdictional error.
30 I should first address the Minister’s concession. It presupposes that [71] of the Tribunal’s Decision incorporates a finding that the applicant’s history of criminality was properly described as “very serious”. I do not accept that it does. The wording of [71], though unfortunate in ways to which I shall shortly return, is not conclusory (at least not on the subject of the seriousness of the applicant’s prior offending). Rather, it identifies a matter or matters that are said to “militate[] strongly in favour” of a particular finding (namely, that the applicant’s history of criminal offending was “very serious”). As has already been stated, analogues of that observation are also recorded in respect of the other subparagraphs of 8.1.1(1) of Direction 90. It is not until [92] of the Tribunal’s Decision (above, [18]) that a conclusion is expressed: namely, that “…the nature and seriousness of the [a]pplicant’s conduct can only be characterised as very serious”. That conclusion is said to be drawn on the strength of “…all of the evidence and submissions made to the Tribunal, including that which is outlined in the abovementioned relevant sub-paragraphs of paragraph 8.1.1(1) of [Direction 90]”.
31 Reasoning in that way accords with what 8.1.1(1) of Direction 90 required. That paragraph contemplates (amongst other things) that, in determining whether or not to exercise the power of revocation conferred by s 501CA(4) of the Act, decision makers will form a view about—and, as 8.1(2)(a) of Direction 90 requires, will give consideration to—the nature and seriousness of an applicant’s criminal history. It contemplates that that view will be formed “hav[ing] regard to” each of the constituent considerations articulated in subparagraphs (a) through (g) (at least to the extent that each is relevant to that assessment—as to which see Direction 90, s 6). Inevitably, each will contribute to the overall assessment in a cumulative way: some considerations might favour assessments at one end of the proverbial “seriousness spectrum”; others might not, or might incline in favour of something else. Ultimately, what is envisaged is that a single assessment will be made that aggregates all of the ways in which the constituent considerations bear upon it.
32 That is the manner in which the Tribunal here reasoned and there was no error in its doing so. The Minister’s concession is, with respect, misplaced.
33 That, though, does not answer the applicant’s criticisms. The applicant maintains that it was not open to the Tribunal to reason that anything contained within 8.1.1(1)(a) of Direction 90 might assist it in making its assessment of the nature and seriousness of the applicant’s offending. Because it was quite plainly of a contrary view—that is, because it very clearly proceeded on the basis that that subparagraph was apt to inform that assessment—it should, he submits, follow that the Tribunal did at least one of three things, namely that it:
(1) erred by so concluding (and by proceeding to take account of a consideration that was, in truth, irrelevant);
(2) wrongly concluded that the applicant’s criminal history involved crimes of a sexual or violent nature of the kinds to which 8.1.1(1)(a) of Direction 90 refers; or
(3) wrongly concluded that 8.1.1(1)(a) of Direction 90 records the view of the Australian government or community that drug trafficking is considered a “very serious” crime.
34 Some attention should be directed to the nature of the Tribunal’s task in this matter. Neither of section 8.1 or subsection 8.1.1 of Direction 90 mandates that particular decisions be made in particular circumstances. Rather, a decision maker will satisfy what those provisions envisage if, in the course of making a relevant decision (including a decision under s 501CA(4) of the Act), he or she takes account of the considerations of which that suite of provisions (and its interaction with s 6 of Direction 90) requires that account be taken. The direction conditions the exercise of relevant statutory powers upon consideration of identified matters. An exercise of such powers that is made without consideration of those matters is not one that the Act authorises and is, accordingly, liable upon judicial review to a grant of prerogative relief.
35 Whether the Tribunal here took account of what 8.1.1(1)(a) of Direction 90 required that it take into account is a question of fact. If it should properly be inferred, from such evidence as the court has, that the Tribunal, in the course of making its decision, did not do what Direction 90 (or any other prerequisite that conditioned the proper exercise of its jurisdiction) required, then, subject to questions of materiality, jurisdictional error will be established.
36 It might bear repeating that the Tribunal’s obligation to take account of what subparagraph 8.1.1(1)(a) recorded arose by reason of s 6 of Direction 90. That section requires only that the Tribunal “…take into account the considerations identified in sections 8 and 9, where relevant to [its] decision” (emphasis added).
37 The applicant maintains that the view of the Australian government and community that sexual and violence-related crimes are “very serious” (as 8.1.1(1)(a) records) was not, here, something that was apt to inform any assessment of the nature or seriousness of his criminal history. It was, he says, irrelevant to that assessment. If that were so, then it might be said that Direction 90 did not oblige the Tribunal to take that view into account.
38 Even if that contention were accepted, it would not follow that Direction 90 (or s 499 of the Act) operated to preclude the Tribunal from having regard to the consideration recorded in subparagraph 8.1.1(1)(a). Absent a sufficient degree of unreasonableness or extreme illogicality, there is nothing improper in the Tribunal’s taking account of something of which Direction 90 did not require it to take account.
39 In any event, I do not accept that that consideration was irrelevant to the Tribunal’s task here. The seriousness with which the Australian government or community views sexual or violent crimes is a consideration that might rationally inform an assessment as to the nature and seriousness of other crimes, including those of the kind of which the applicant had been convicted. Criminality can sensibly be adjudged along a spectrum: some crimes, assessed by reference to various factors (such as their impacts upon victims, the costs that they impose upon the community or their capacity to inspire public outrage) can rightly be considered more serious than others. There is nothing untoward about the Tribunal making its assessment in this case relatively; that is, by reference to the seriousness that might be thought to attach to other criminal conduct, including sexual and violent criminality.
40 That conclusion suffices to address what the applicant submits as to the relevance of subparagraph 8.1.1(1)(a) of Direction 90. It also addresses, to some degree at least, the applicant’s alternative contention that the Tribunal’s finding that the applicant’s criminal history was “very serious” (or its observation that subparagraph 8.1.1(1)(a) of Direction 90, read under the light of or alongside “all of the evidence”, should incline toward that conclusion) was irrational or legally unreasonable. Reasoning in the manner described above (at [39]) cannot so be described.
41 It remains to be determined whether the Tribunal, in this case, proceeded to make its decision upon a correct understanding of what Direction 90 required. It is plainly the case that the applicant’s criminal history here (drug trafficking) was not of a type to which subparagraph 8.1.1(1)(a) of Direction 90 refers (crimes involving violence or sex). But can it safely (which is to say properly) be inferred that the Tribunal misconstrued the nature of his offending, or otherwise mistakenly took the view that it was within the contemplation of that subparagraph?
42 Both of those propositions must be answered in the negative; and for two reasons. First, the Tribunal accurately recorded, at [11]-[13] of its decision (above, [6]) what the applicant’s criminal history involved. Elsewhere in its reasons (including within the section of them that addressed the requirements of Direction 90), it made repeated (and accurate) references to the applicant having been convicted of drug-related offences. It could not be said (and I do not infer) that the Tribunal laboured under the impression that the applicant had, in fact, been convicted of sex- or violence-related offences.
43 Second, the Tribunal also recorded what the effect of subparagraph 8.1.1(1)(a) of Direction 90 was (and, indeed, recorded its terms). It acknowledged that the subparagraph served to record the view of the Australian government and the community more broadly: namely, that violent and sexual crimes are crimes of a very serious nature.
44 The Tribunal’s Decision—particularly at [68]-[71]—bespeaks a consciousness on the Tribunal’s part that sexual and violent crimes are considered to be “very serious” by the Australian government and the Australian community; and that that was something to which it was obliged to have regard in making its own assessment of the nature and seriousness of the applicant’s criminal history. It cannot be said (and, again, I do not infer) that the Tribunal misunderstood the nature of the opinion recorded in that subparagraph.
45 The better conclusion—or, at least, an equally available one—is that the Tribunal formed the view that it formed (namely, that the applicant’s criminal history, having regard to subparagraph 8.1.1(1)(a) of Direction 90, was liable to be considered “very serious”) upon a consideration of the particulars of the applicant’s criminal history and an assessment of where it should lie relative to the “very serious” crimes referred to in (and deemed as such by) that subparagraph. Reasoning in that way did not (or would not) involve any misunderstanding of Direction 90, nor any resultant constructive failure to exercise the jurisdiction that the Tribunal was charged with exercising.
46 The applicant, of course, bears the onus of establishing that the Tribunal erred in the way that he alleges. Doing so requires (at least for present purposes) that the court draw one or both of the inferences that, for the reasons explained in the preceding paragraphs, are not properly to be drawn.
47 It follows that I do not accept that the Tribunal here did any of the three things identified in [33] above. I return, then, to the applicant’s alternative contention: namely, that the Tribunal was led to make “…an irrational or legally unreasonable finding”.
48 Insofar as it is suggested that the Tribunal’s reasoning at [71] of its decision lacked an evident or intelligible justification, it suffices to note what has been said above at [39]-[40]. It cannot be said that the opinion recorded in subparagraph 8.1.1(1)(a) of Direction 90 was irrelevant to the Tribunal’s assessment in this case of the nature and seriousness of the applicant’s offending. Taking account of it as the Tribunal did did not involve any extreme illogicality of the kind that might ground the relief for which the applicant moves: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130]-[131] (Crennan and Bell JJ)].
49 That leaves for consideration whether the Tribunal’s observation was “…so unreasonable that no reasonable decision maker would have arrived at it”. It is easy (I say without criticism of the applicant or his counsel) to be critical of the Tribunal’s observation in [71] of its decision. That observation is not well worded; and the reasoning upon which it hangs is not articulated as clearly or as fulsomely as might be preferable. Nonetheless, it bears repeating that the criticism now levelled in respect of it was that it was beyond what could reasonably have been arrived at.
50 That is a hurdle that the applicant cannot clear. It was open to the Tribunal to consider that repeated drug offending of the kinds in which the applicant had engaged should properly be assessed as “very serious”; and to be moved to do so in part because the Australian government and community regard sexual and violent crimes as “very serious”. The Tribunal’s conclusion cannot fairly be stigmatised as beyond the boundaries of “decisional freedom” that here applied: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ).
51 The task of this court on judicial review (at least presently) is not to critique what the Tribunal was moved to decide or how it chose to express its reasons. The task for this court presently is to assess whether the Tribunal’s jurisdiction was exercised in the manner envisaged by the statute that created it: that is, to consider whether, in the process of arriving at its decision, the Tribunal did (or did not do) that which it was required to do (or not to do).
52 Here, the applicant’s offending was of a kind that the Tribunal could reasonably have considered to be “very serious”. It could reasonably have formed that view by taking into account the view of the Australian government and community about the seriousness that attaches to sexual and violent offending. The applicant cannot establish that that is not what here occurred.
53 I do not accept that the Tribunal erred in the manner that ground 2 of the applicant’s amended originating application asserts.
Ground one: significance of 8.1.1(1)(B) of Direction 90
54 Paragraphs 72 to 74 of the Tribunal’s Decision (above, [18]) concern the matters recorded in subparagraph 8.1.1(1)(b) of Direction 90. [72] is little more than a restatement of those matters. [73] contains a conclusion that the applicant’s “…conduct in trafficking drugs can be said to negatively impact vulnerable members of the community”. [74] is the equivalent of [71], save that it pertains to subparagraph 8.1.1(1)(b) (rather than subparagraph 8.1.1(1)(a)) of Direction 90. Indeed, it assumes very similar wording, which bears repeating:
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
55 The applicant mounts two attacks upon the observation recorded in [74] of the Tribunal’s Decision. First, it is said that subparagraph 8.1.1(1)(b) of Direction 90 speaks of criminality that is “serious”, rather than “very serious”; and that, insofar as the Tribunal was inclined to the view that the applicant’s conduct was “very serious” on the strength (or partly on the strength) of what that subparagraph records, it must have misconstrued what is there recorded. Second, it is said that subparagraph 8.1.1(1)(b) of Direction 90 is directed to crimes that are committed “against” vulnerable members of the community, rather than crimes that “negatively impact” them; and that, insofar as the Tribunal was inclined to assess the seriousness of the applicant’s criminal history against what that subparagraph records (and by reference to the negative impacts of his conduct), it must have misconstrued what is there recorded.
56 The Minister submits, much as he did in respect of ground two, that, read fairly and in context, [74] of the Tribunal’s Decision should be understood as nothing more than a conclusion that, having regard to the applicant’s criminal history and to the types of “serious” offending to which subparagraph 8.1.1(1)(b) of Direction 90 refers, the applicant’s criminality was apt to be described as “very serious”. Again, the Minister concedes that the Tribunal, insofar as it reasoned in that way, erred because 8.1.1(1)(b) does not envisage that an applicant’s criminal history will be adjudged as “serious” merely upon consideration of the matters that that subparagraph records. Nonetheless, he submits that any such error was immaterial in the present context and hence could not rise to the standard of jurisdictional error.
57 The Minister’s concession in respect of [74] of the Tribunal’s Decision is equivalent to the concession that was made in respect of [71]. For reasons equivalent to those expressed above (at [30]-[32]), I do not accept that the Tribunal, in expressing the observation that is contained within [74] of its reasons, erred in the manner conceded.
58 I also do not accept that the Tribunal misconstrued subparagraph 8.1.1(1)(b) of Direction 90 in either of the ways that the applicant alleges. Again, that is a conclusion that rests upon factual findings concerning the manner in which the Tribunal was led to make the observation that it made (see above, [34]-[36]). In the paragraphs that follow, I shall identify the findings to which I am (or, more importantly, am not) drawn in respect of this aspect of the present application.
59 It cannot properly be inferred that the Tribunal’s observation in [74] of its decision proceeded upon the footing that subparagraph 8.1.1(1)(b) of Direction 90 records the view that the Australian government and community consider the types of offending there referred to as “very serious”. It is plain from [72] of the Tribunal’s Decision that the Tribunal properly understood that that subparagraph is concerned with offending that is considered to be “serious”, rather than “very serious”. It recorded as much in that paragraph. An inference of the kind that the applicant presently invites cannot be reconciled with that (accurate) observation in [72] of the Tribunal’s Decision.
60 Instead, there is a more (or at least equally) plausible explanation as to how the Tribunal was drawn to the observation that is recorded in [74] of its Decision. It is allied to what is said above (at [45]) in respect of [71] of the Tribunal’s Decision. The Tribunal formed (or might fairly be thought to have formed) the view that it formed—namely, that the applicant’s criminal history, having regard to 8.1.1(1)(b) of Direction 90, was liable to be considered “very serious”—upon a consideration of the particulars of the applicant’s criminal history and an assessment of where it should lie relative to the “serious” crimes referred to in 8.1.1(1)(b) of Direction 90. That reasoning did not (or would not) involve any misunderstanding of Direction 90, nor any constructive failure to exercise the jurisdiction with which the Tribunal was invested.
61 Again, it fell to the applicant to establish the factual foundation upon which his contention rests. Doing so requires that the court infer a want of appreciation on the part of the Tribunal for that of which subparagraph 8.1.1(1)(b) of Direction 90 required that account be taken. That inference cannot properly be drawn because there is at least one competing inference that the evidence is equally capable of supporting. Because it cannot properly be drawn, the applicant cannot establish the factual foundation upon which the success of his present contention rests.
62 Next, the applicant submits that the Tribunal misconstrued 8.1.1(1)(b) by equating “crimes committed against vulnerable members of the community” with crimes that “negatively impact vulnerable members of the community”. Again, I do not accept that any such misconstruction here occurred. Two points bear noting.
63 First, the distinction between crimes that are committed against identified victims and crimes that negatively affect them is, in all likelihood, illusory. Criminal conduct manifests in acts or omissions punishable by the state. To speak of conduct that is engaged in “against” a person is very likely to do no more that to speak of conduct that visits (and perhaps directly visits) adverse consequences for him or her. It is not difficult to understand how drug trafficking might amount to conduct that visits such consequences for those who experience drug addiction.
64 Second and regardless (and more significantly), it cannot here be inferred that the Tribunal misunderstood subparagraph 8.1.1(1)(b) of Direction 90 so as to bring within its contemplation crimes that “negatively impact” vulnerable people. To do so would require that the court ignore what appears in [72] of the Tribunal’s Decision. There, the Tribunal accurately recorded that subparagraph 8.1.1(1)(b) of Direction 90 applies in respect of (amongst other things) “crimes committed against vulnerable members of the community”. It is inherently unlikely that the Tribunal, having plainly grasped what that part of Direction 90 envisaged, would proceed in the very next paragraph of its reasons to attribute something different to it.
65 It is more (or at least equally) likely that the Tribunal was moved to consider that the opinion of the Australian government and community (namely that crimes committed against the vulnerable are “serious”) was apt to inform its own assessment of the nature and seriousness of the applicant’s drug crimes. Reasoning in that way would not involve error. If the Australian government and community consider that crimes committed against the vulnerable are “serious”, then it was open to the Tribunal to consider that other negative impacts wrought by criminal conduct upon the vulnerable might also be relevant to its assessment of the nature and seriousness of the applicant’s criminal history. Reasoning in that way would not involve any misconstruction of Direction 90, nor any constructive failure to exercise the jurisdiction with which the Tribunal was seized.
66 Again, the applicant cannot establish the factual foundation that he needs to establish in order to make good on the submission that he advances.
67 I do not accept that the Tribunal misconstrued subparagraph 8.1.1(1)(b) of Direction 90 and thereby erred, or otherwise constructively failed to exercise the jurisdiction with which it was invested. The applicant’s first ground of challenge to the Tribunal’s Decision must fail.
Grounds three and four: significance of 8.1.1(1)(G) of Direction 90
68 It is convenient to address grounds three and four of the application simultaneously. They concern the extent to which the applicant was (or to which there was evidence before the Tribunal that he was) aware, in 2017 (when he was convicted again of drug trafficking), that further offending might sound in adverse migration consequences.
69 Paragraphs 85 to 91 of the Tribunal’s Decision (above, [18]) address the consideration referred to in subparagraph 8.1.1(1)(g) of Direction 90. That analysis assumes what is by now a familiar structure. It begins with a restatement of subparagraph (g), which is then described as “directly relevant in this case”. It records—and rejects—the applicant’s assertion that, at the time of his sentencing in 2011, he was not made aware that his offending might result in his being deported. It then refers to other evidential material that was before the Tribunal that suggested, or might have suggested, an awareness on the applicant’s part that his offending could visit adverse migration consequences upon him.
70 At [89] of its decision, the Tribunal refers to comments made by the Victorian Court of Appeal in the context of an appeal concerning the applicant’s 2011 sentence. At [90], the Tribunal observes that the applicant “would have understood that his migration status was a relevant issue prior to his re-offending”.
71 That analysis culminates (at [91]) in the conclusion with which the applicant takes issue: namely, that he reoffended after he was “formerly warned or [was] otherwise…made aware in writing about the [migration] consequences of further offending”.
72 The applicant submits that, by that conclusion, the Tribunal erred in either or both of two ways, namely:
(1) first (expressed in ground four), by drawing a factual conclusion that the evidence did not support (namely, that the applicant had reoffended after he had been warned or made aware, in writing, that doing so might bring about adverse migration consequences); and
(2) second (expressed in ground three), by regarding the state of the applicant’s knowledge (or the manner in which it had actually come to be formed) as a consideration of which subparagraph 8.1.1(1)(g) of Direction 90 required that it take account.
73 The Minister contends that, in truth, there was sufficient evidence before the Tribunal to ground its conclusion that the applicant had been made aware, in writing, that his offending (or further offending) might bring about adverse migration consequences; and that the Tribunal did not, therefore, err by drawing that conclusion. Even assuming that that contention were to be rejected, the Minister submits that the Tribunal nonetheless did not err in a way that should sound in the grant of prerogative relief because its factual finding was not material to the outcome of the application before it.
74 As with other aspects of the matter, the parties were agreed (or not obviously in dispute) regarding matters of legal principle. The Tribunal’s finding that the applicant had reoffended after having received notice in writing that doing so might jeopardise his migration status was, on any view, one of fact. Such a finding, even if wrong, will rarely suffice by itself to stigmatise a discretionary administrative decision as the product of jurisdictional error: CRU18 v Minister for Home Affairs (2020) 277 FCR 493 (“CRU18”), 503 [29] (Wigney, Jackson and Snaden JJ); BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26 (“BHD18”), 39 [29] (Allsop CJ, Collier and Colvin JJ).
75 In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
76 In CRU18, the full court observed (at 503 [31]) as follows:
A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ…)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).
Equivalent observations were made in BHD18 (at [29]; Allsop CJ, Collier and Colvin JJ).
77 Nevertheless, if a discretionary administrative decision were to proceed upon a factual premise for which there was no evidence, then it might be vulnerable to relief on judicial review. The observations of Moshinsky J in BSE17 v Minister for Home Affairs [2018] FCA 1926 are apposite. In considering a ground of judicial review based upon the absence of evidence, his Honour said at [33]:
The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [39]- [41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 per Deane J.
78 In BHD18, the full court relevantly observed as follows (at [29]):
…A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]–[37].
79 Although not expressed as such, it is convenient to treat ground three as though pressed in the alternative to ground four. If, contrary to what the applicant submits by his fourth ground, the Tribunal did not err by finding that the applicant had been made aware in writing that further offending might bring about adverse migration consequences, it would necessarily follow that the Tribunal did not misconstrue subparagraph 8.1.1(1)(g) of Direction 90 in the way alleged by ground three.
80 To determine whether the Tribunal erred by concluding that the applicant had been made aware in writing, prior to his re-offending in 2017, that further offending might jeopardise his migration status, attention must turn to the evidence with which the Tribunal was furnished. Three aspects of it are of present relevance.
81 First, the Tribunal was supplied with the reasons given by the County Court of Victoria for the sentence that was imposed upon the applicant in 2011. Amongst other things, those reasons summarised the submissions that were advanced on his behalf. One such submission focused upon the possibility that the applicant might be deported in consequence of his conviction. That submission was the subject of analysis in the reasons that the court gave for the sentence that was imposed. That analysis ought not to be replicated here. It suffices to note that the court referred to a statement that had been received from an official of the Department of Immigration and Citizenship, which was said to have set out the various ways in which the department might consider deporting the applicant.
82 Second, the Tribunal was referred to the decision of the Victorian Court of Appeal that dismissed an appeal that the applicant brought against the sentence that the County Court imposed upon him. By that (appeal) decision (a citation for which was supplied but should not here be repeated), the Court of Appeal noted—and the Tribunal was told that it had noted—that the applicant would, throughout the period of his imprisonment, be subjected to at least some degree of stress borne of the possibility that he might be deported once released. The reasons of the Court of Appeal record that that notion of subjection to deportation-related stress was a circumstance to which the applicant pointed in support of his contention that the sentence that had been imposed upon him was manifestly excessive.
83 Third, the Tribunal was provided with some hand-written notes apparently prepared by prison officers during the applicant’s incarceration. Amongst other things, those notes referred to the applicant’s being “considered for deportation” and otherwise facing a “deportation issue [or issues]”.
84 Insofar as it might serve as a basis for the Tribunal’s belief that subparagraph 8.1.1(1)(g) of Direction 90 was, in this case, relevant (or “directly relevant”), the applicant attacks that evidence from two angles.
85 First, the applicant contends that the evidence did not suffice to establish that he had received any of what was referred to. At least insofar as concerns some of the relevant material, that appears to be a fair contention. It is not apparent that the sentencing remarks made by the County Court in 2011 were provided to him in writing (although it must surely be assumed—and indeed, it is apparent—that the applicant was present in court when they were made). Likewise, there is no evidence that directly establishes that he received either a copy of the Court of Appeal’s written reasons for dismissing his appeal in 2012, or a copy of the hand-written notes apparently produced by prison officers during his time in jail.
86 Nonetheless, it could not be said that there was no evidence that the applicant had received written notice sufficient to support the conclusion to which the Tribunal was drawn. As has already been noted, the sentencing remarks of the County Court in 2011 referred, by way of summary of part of the submission that was advanced on the applicant’s behalf, to its having received a written statement from an officer of the Department of Immigration and Citizenship. That statement, so those remarks recorded, identified that there was at least a possibility that the applicant might be deported in consequence of his offending. That possibility was one that the applicant’s counsel had sought to introduce as a factor that should guide the court’s assessment of an appropriate sentence; indeed, one that ought to serve to reduce what might otherwise have been considered appropriate. The statement that was tendered to establish that possibility was one that the Tribunal was entitled to infer had been given to (and, having been received, had been advanced on the instruction of) the applicant.
87 Second, the applicant contends that none of the relevant material that was before the Tribunal concerned the consequences of future offending. Because there was no reference in any of that material to the prospect that he might lose his visa (or be subjected to some other adverse migration consequence) if he were to offend again, none of it, he says, can be said to qualify as a warning or notice regarding what might happen to him if he were to reoffend. That being so, he says, there was no basis for the Tribunal to conclude that he was made aware in writing that further offending might bring about adverse migration consequences.
88 Respectfully, I do not accept that contention. Insofar as the applicant was told that adverse migration consequences might attach to the offending for which he was sentenced in 2011, he must, I think very plainly, be understood implicitly to have been told also that further offending would visit equivalent consequences: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1429, [17] (Bromwich J). The contrary suggestion—that he should be understood to have appreciated that his historical offending could jeopardise his migration status but not that future offending might also—is self-evidently unrealistic (if not absurd).
89 It follows that I do not accept the premise upon which ground four of the applicant’s amended originating application was advanced. The Tribunal did not err, for want of evidence, by concluding that the applicant had reoffended after having been made aware, in writing, about the potential migration consequences of doing so. The account that the Tribunal took of that circumstances was taken consistently with the requirements of subparagraph 8.1.1(1)(g) of Direction 90 (which is to say that I also do not accept the premise inherent in the applicant’s third ground of challenge).
90 But, even if I am wrong about that—that is to say, even if the Tribunal did err by drawing that conclusion without a proper evidential foundation and/or did err by misconstruing subparagraph 8.1.1(1)(g) of Direction 90—it does not follow that any such error should sound in the grant of prerogative relief. As much is so because the conclusion that the Tribunal drew and the construction of Direction 90 upon which it thereafter proceeded could not realistically be described as critical to any of the Tribunal’s findings (including its intermediate finding (expressed at [92] of its reasons) that the applicant’s offending was “very serious”, or its ultimate finding (or state of satisfaction) that there was not another reason why the Cancellation ought to be revoked).
91 At [90] of its reasons, the Tribunal concluded that the applicant “…would have understood that his migration status was a relevant issue prior to his reoffending”. On the strength of the evidence that was before it (in particular, that which is summarised above at [81]-[83]), that conclusion appears to be unimpeachable (even if the awareness to which the finding refers was brought about otherwise than by written notice or warning). At the very least, it was plainly open to be drawn.
92 The Tribunal’s finding as to what the applicant knew or understood at the time of reoffending was also a matter to which it was entitled to have regard in assessing the nature and seriousness of the applicant’s criminal history. That is so regardless of whether the state of the applicant’s awareness arose in the manner that subparagraph 8.1.1(1)(g) of Direction 90 contemplates. If it did so arise, then his knowledge or understanding was a matter of which Direction 90 obliged the Tribunal to take account. If it did not, then there was no such obligation; but the applicant’s state of knowledge or understanding remained a relevant consideration to which the Tribunal was at liberty to have regard if it wished.
93 Even if the Tribunal had appreciated that the applicant had not received a written notice or warning concerning the consequences of future offending (if that be the true position), there is no reasonable prospect that it might thereafter have proceeded to reach any conclusion as to the nature and seriousness of his criminal history other than the one that it did (namely, that it was “very serious”). Given that it considered on the strength of the other criteria identified in paragraph 8.1.1(1) of Direction 90 that the applicant’s criminal history was “very serious” or otherwise not such as might warrant revocation of the Cancellation; and having considered that the applicant had at least some awareness of the migration consequences that might potentially attach to any reoffending, it is, frankly, fanciful to suggest that the Tribunal might nonetheless have drawn a more lenient conclusion than it did simply because that state of awareness arose otherwise than by means of advice of the kind to which subparagraph (g) refers.
94 It follows that any error upon which the Tribunal’s Decision proceeded (if there was one at all) was not one of jurisdiction. Neither of grounds three or four of the applicant’s amended originating application is made out.
Conclusion
95 None of the grounds set out within the applicant’s amended originating application can be accepted. The application must and will, therefore, be dismissed. The applicant should pay the Minister’s costs. There shall be orders to those effects.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. |
Associate:
