Federal Court of Australia

WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Second Respondent dated 1 December 2023.

2.    A writ of mandamus issue requiring the Second Respondent to determine the Applicant’s application for review made on 7 September 2023 according to law.

3.    The First Respondent pay the costs of the Applicant, as agreed or assessed.

THE COURT NOTES THAT:

4.    The First Respondent accepts, and the Court is satisfied that, the decision of the Second Respondent dated 1 December 2023 is affected by jurisdictional error, as:

(a)    the Second Respondent had regard to three offences for which no convictions were recorded pursuant to s 8(1) of the Sentencing Act 1991 (Vic);

(b)    s 8(2) of the Sentencing Act 1991 (Vic) engages s 85ZR of the Crimes Act 1914 (Cth) (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17);

(c)    accordingly, the Applicant’s offences for which convictions were not recorded were irrelevant considerations, and the Second Respondent erred by taking those offences into account; and

(d)    that error was material as, absent the error, there was a realistic possibility that the outcome of the decision could have been different (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14]–[16]).

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

REASONS FOR JUDGMENT

HESPE J:

1    The Applicant seeks review in this Court of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the First Respondent (Minister) to refuse to revoke the mandatory cancellation of the Applicant’s visa. The Minister accepts that jurisdictional error has been demonstrated. The parties propose the making of orders by consent that would quash the Tribunal’s decision and require a further determination according to law. The terms of an order for costs have also been agreed.

2    For the following reasons, I am satisfied that there was jurisdictional error by the Tribunal and there should be consent orders in the terms proposed.

3    The parties were agreed that the Tribunal had taken into account a record of offending which included three offences for which no convictions were recorded pursuant to s 8(1) of the Sentencing Act 1991 (Vic). Two of the offences were the subject of orders of the Melbourne Magistrates’ Court made on 8 November 2002 and one of the offences was the subject of an order of the Dandenong Magistrates’ Court made on 24 June 2011. The Tribunal had regard to the record of these offences and/or the Applicant having been convicted of these offences at TR [30], [53], [58], [67], [108] and [147].

4    The Minister accepted that in taking into account a record of offending which included the three offences for which no conviction was recorded the Tribunal took into account irrelevant considerations. I am satisfied that this concession was correctly made.

5    Section 8(2) of the Sentencing Act provides:

Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.

6    Section 85ZR(2)(b) of the Crimes Act 1914 (Cth) relevantly provides:

Despite any other Commonwealth law…where, under a State law…a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State…:

…

(b)    the person shall be, in any State…, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State…, never to have been convicted of that offence.

7    Having regard to the reasons of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6, s 8(2) is properly characterised as a State law under which a person is “in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State” and therefore engages s 85ZR(2)(b).

8    Unlike the legislation the subject of the decision in Hartwig v PE Hack [2007] FCA 1039, the Sentencing Act contains no definition of “conviction” and draws no distinction between having been “convicted” and recording a conviction. The basis on which Hartwig was distinguished in Lesianawai does not apply to s 8(2) of the Sentencing Act. Furthermore, as was explained in Lesianawai (at [37]), s 85ZR(2) is not restricted to a State law that sets aside the fact, or relieves the effects, of a previous conviction. The effect of s 8(2) of the Sentencing Act is thus to take a person against whom no conviction is recorded as having never have been convicted of that offence.

9    In these circumstances, s 8(2) of the Sentencing Act cannot be distinguished from the provisions of the Youth Justice Act 1992 (Qld) considered in Thornton.

10    I am satisfied that the Tribunal took into account matters which, by virtue of s 8(2) of the Sentencing Act and s 85ZR(2)(b) (and, if necessary, s 85ZS(1)(d)(ii)) of the Crimes Act, the Tribunal was precluded from taking into account. The Tribunal thereby took into account irrelevant considerations, being matters it was, as a matter of law, not entitled to take into account.

11    It was conceded by the Minister that the matters taken into account were material in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16]. I agree that having regard to the reasons of the Tribunal it cannot be affirmatively concluded that the outcome would inevitably have been the same had the error not been made: LPDT at [16].

12    Having taken into account irrelevant considerations, and that error being material, the Tribunal’s decision is infected with jurisdictional error. The writs of certiorari and mandamus in the terms agreed should issue.

Associate:

Dated:    6 May 2024