FEDERAL COURT OF AUSTRALIA

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 2 August 2023 be set aside.

2.    The applicant’s application for review by the second respondent be redetermined according to law, with the second respondent being differently constituted.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

INTRODUCTION

1    The applicant is a citizen of Vietnam who first arrived in Australia on 8 March 2009 at the age of 21 as the holder of a Higher Education Sector (Subclass 573) visa.

2    On 30 April 2021, the applicant was sentenced to an aggregate term of imprisonment of seven years and six months in respect of four offences including the supply of a large commercial quantity of methamphetamine (4.8 kilograms).

3    As a result of that sentence, on 1 June 2021, the applicant’s Bridging (Subclass 030) visa (visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant did not pass the character test as he had a substantial criminal record within the meaning of s 501(7)(c) of the Act.

4    On 10 May 2023, a delegate of the first respondent (the Minister) decided to not revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act. On 2 August 2023, the second respondent (the Tribunal) affirmed the Minister’s decision (the Decision): see Nguyen v Minister for Immigration, Citizenship Multicultural Affairs [2023] AATA 2543 (AAT).

5    By an application to this Court, the applicant seeks judicial review of the Decision. The applicant’s grounds of review are that the Tribunal erred in finding:

(a)    at AAT [5], [23], [36], [39], [58], [61] and [99] that the applicant had been convicted of nine offences, including an offence of supply prohibited drug which, by reason of s 35(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), was not to be regarded for any purpose as an offence committed by the applicant (Ground 1);

(b)    at AAT [49] that the fact that the drugs the subject of the applicant’s offending were not disseminated “[did] not diminish the seriousness of the applicant’s conduct” (Ground 2);

(c)    at AAT [111] that the applicant “refused to get assistance through the Drug Referral Service”, having previously found at AAT [109] that “on both occasions he was found not to be eligible” for that service (Ground 3);

(d)    at AAT [120] that the applicant had been identified as a “primary figure with the introduction and distribution of contraband within Long Bay Hospital Correctional Centre”, when there was no direct evidence and the applicant had not been cross-examined as to the matter (Ground 4); and

(e)    at AAT [131] that the applicant, after his release from immigration detention, “preferred to evade authorities instead of doing the right thing and presenting himself to the [Australian Border Force (ABF)]” when he was under no legal compulsion to do so (Ground 5).

6    For the reasons set out below, I am satisfied the application for judicial review should be granted in respect of Ground 1. As a result, the Decision must be set aside and the applicant’s merits review application must be reheard by the Tribunal according to law. The Tribunal must be differently constituted by reason of a need for the applicant’s merits review application to be considered afresh.

BACKGROUND

7    As noted above, the applicant first arrived in Australia on 8 March 2009 at the age of 21. Since that time, he has remained in Australia under various visas. On 5 March 2018, the applicant was granted the visa which came to be mandatorily cancelled on 1 June 2021.

8    By the time of the Tribunal’s Decision, the applicant had resided in Australia for over 14 years. Although the applicant’s mother and brother reside in Vietnam, the applicant has family ties to and connections in the Australian community. The applicant’s partner, Ms Qan, and their three minor children reside in Australia. The applicant’s other family ties in Australia include his parents-in-law and brother-in-law. The applicant also has close friends in the Australian community.

9    Prior to committing the offences for which he was most recently sentenced, the applicant had the following criminal history:

(a)    on 30 June 2009, the applicant was convicted of shoplifting (of a value less than $2,000) for which he received a fine of $600 (First Conviction);

(b)    on 3 March 2015, the applicant was convicted of an offence of taking part in enhanced indoor cannabis cultivation (commercial) in respect of which he received a term of imprisonment of 19 months that was suspended upon the entry of a bond pursuant to s 12 of the Sentencing Procedure Act (Second Conviction);

(c)    on 3 October 2017, the applicant was convicted of driving a vehicle with an illicit drug present in his blood in respect of which he received a fine of $600 and was disqualified from driving for a period of four months (Third Conviction);

(d)    on 5 April 2018, the applicant was convicted of possessing “a prohibited drug (cannabis) 2g” in respect of which he received a bond operative for a period of two years (Fourth Conviction).

10    On 30 April 2021, the applicant was sentenced to a term of imprisonment by Flannery SC DCJ (the Sentencing Judge) in the District Court of New South Wales in respect of the following charges:

(a)    Charge 1: the applicant was convicted of the offence of dealing with property proceeds of crime (less than $100,000). The charge related to the fact that an amount of $56,759 was found in the applicant’s vehicle when, on 29 August 2017, it was stopped and searched by law enforcement officers. It was accepted that $40,000 of the amount found was from the sale of a lawful business. The applicant was convicted in respect of the amount of $16,759 (Fifth Conviction);

(b)    Charge 2: the applicant was convicted of the offence of, on 4 April and 14 June 2018, supplying a prohibited drug of a large commercial quantity, being methamphetamine totalling 4.8 kilograms, to an undercover police operative in exchange for cash payments totalling $330,000 (Sixth Conviction);

(c)    Charge 3: the applicant was convicted of the offence of dealing with property proceeds of crime less than $100,000. The charge related to the fact that when law enforcement officers executed a search warrant on the applicant’s home and another location, they found cash in separate amounts of $28,000 in a wardrobe, $14,350 in a bedside drawer and $50,100 in a bag located in a kitchen (Seventh Conviction);

(d)    Charge 4: the applicant was convicted of the offence of possessing an unauthorised and dismantled pistol which was located when law enforcement officers were executing the search warrants relating to Charge 3 (Eighth Conviction).

11    It will be apparent from the above that the applicant had a total of eight convictions, and his most recent offending gave rise to four convictions.

12    When it came to sentencing the applicant in respect of Charge 2, the Sentencing Judge took into account a further charge (Charge 5) which alleged that the applicant was involved in a further supply of a prohibited drug being that, on 11 April 2018, an associate of the applicant supplied an undercover police operative with 499g of methamphetamine.

13    The applicant pleaded guilty to Charge 5 and gave an indication pursuant to s 33(2)(a) of the Sentencing Procedure Act that the offence was to be taken into account in sentencing him in relation to Charge 2. By reason of s 35(4) of the Sentencing Procedure Act, the offence to which the applicant had pleaded guilty in respect of Charge 5 was not to be regarded “for any purpose as an offence of which” he had been convicted. This procedure is generally referred to as “taking into account matters on a Form 1”: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [2]. It is a reference to the procedure prescribed in s 32(1) of the Sentencing Procedure Act.

THE TRIBUNAL’S REASONS

14    The Tribunal hearing took place over three days on 18, 19 and 20 July 2023. The applicant was legally represented at the hearing and provided a statement of facts, issues and contentions. The Minister was also legally represented at the hearing and also filed a statement of facts, issues and contentions (Minister’s SFIC). Oral evidence was given by the applicant, his partner and mother-in-law.

15    The Tribunal made its Decision on 2 August 2023 and published reasons on the same day. The Tribunal identified that there were two issues it had to determine, being whether the applicant passed the character test and, if not, whether there was another reason why the Minister’s decision should be revoked: at AAT [21].

16    The Tribunal observed that on 30 April 2021, the applicant had been sentenced to an aggregate term of imprisonment of seven years and six months with a non-parole period of four years and six months in respect of “five offences for which he was convicted” (emphasis added): at AAT [23]. As the aggregate sentence imposed was greater than 12 months and amounted to a “substantial criminal record”, it followed that the applicant did not pass the character test and this was properly conceded by the applicant before the Tribunal: at AAT [23].

17    In determining whether there was another reason why the cancellation decision should be revoked, the Tribunal had regard to and applied the considerations in Direction No 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99): at AAT [25]ff. Among other things, Direction 99 sets out the principles that decision-makers should consider when deciding whether to exercise the discretion to revoke mandatory cancellation decisions, including “primary” and “other” considerations to be taken into account.

Primary Consideration 1

18    The Tribunal considered “Primary Consideration 1” relating to the protection of the Australian community: at AAT [33]-[140].

19    The Tribunal first assessed the nature and seriousness of the applicant’s conduct by reference to his criminal history both prior to and including his most recent offending: at AAT [35]-[36]. In doing so, the Tribunal examined the findings and remarks of the Sentencing Judge, including in relation to Charge 5: at AAT [40]-[46]. The Tribunal acknowledged that the applicant’s offending did not fall within the types of offences that were expressly characterised as “serious” under paragraphs 8.1.1(1)(a) and (b) of Direction 99, but reasoned that these paragraphs were not exhaustive (at AAT [48]) and that the “drug related offences, particularly those involving the supply of a commercial quantity of a prohibited drug” were “at the very least serious”: at AAT [49]. In coming to this conclusion, the Tribunal accepted that the drugs supplied by the applicant were not disseminated into the community, but that this did not diminish the applicant’s conduct and role in being a point of contact and being involved in the “exchanges” that led to their supply: at AAT [49]. The Tribunal noted that the Sentencing Judge considered that the offences relating to dealing with the property proceeds of crime were also serious. The Tribunal concluded that it considered “the [a]pplicant’s conduct in respect of the drug supply (and related) offences to be at least serious”: at AAT [50].

20    The Tribunal then had regard to the sentence imposed on the applicant, which it concluded reflected the serious nature of his offending conduct: at AAT [54]-[56]. It also considered the frequency, trend and cumulative effect of the applicant’s offending and, while the Tribunal acknowledged there were “gaps” between the applicant’s offending, it found that between 2017 and 2018, the applicant’s offending was frequent, that there was a general trend of increasing seriousness (at AAT [60]), and that the cumulative effect of his offending imposed costs to the Australian community (at AAT [61]). The Tribunal also made adverse findings about information the applicant had provided to authorities: see AAT [62]-[66].

21    The Tribunal next considered the risk to the Australian community in the event that the applicant committed further offences or engaged in other serious conduct: at AAT [70]ff. The Tribunal had regard to independent evidence about the market for methylamphetamine and its effects on the community: at AAT [72]-[73]. The Tribunal observed that the applicant had been able to “source and supply large quantities of methamphetamine” and was involved in “exchanges” to knowingly and intentionally engage in the supply of large quantities of that drug: at AAT [74]. The Tribunal considered that, if the applicant were to re-engage in further drug-related offences, particularly the supply of methamphetamine, the effects on the Australian community would be widespread and devastating: at AAT [75].

22    In considering the likelihood of the applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, the Tribunal had regard to the evidence before it including a psychologist’s report, the remarks of the Sentencing Judge, evidence given by the applicant and others, as well as letters from the State Parole Authority and a Pre-Release Report: at AAT [76]-[98]. Having regard to the evidence, the Tribunal:

(a)    accepted that the first offence committed by the applicant (shoplifting) shortly after his arrival in Australia was of a very different nature to his later offences and that the risk of him committing further shoplifting offences was very low: at AAT [99];

(b)    accepted that that there was gap of four years until the applicant’s next involvement in criminal conduct: at AAT [100];

(c)    was concerned that the applicant sought to downplay his involvement in the cultivation of cannabis offence in 2013 by suggesting he was “innocently caught up in the events”: at AAT [101];

(d)    was concerned about the applicant seeking to downplay his wrongdoing in relation to his conviction for driving with an illicit drug present in his blood: at AAT [102];

(e)    found that the applicant’s attempt to blame others (for the possession of prohibited drug conviction), and his refusal to accept responsibility and denial of wrongdoing despite evidence to the contrary, cast doubt over whether he was genuinely remorseful for his past offending conduct: at AAT [104];

(f)    found that the evidence suggested that the applicant, even after pleading guilty and being sentenced, and having served over four years in custody for the supply of methamphetamine and proceeds of crime offences, still blamed others (the police and a former inmate he met while in custody) for his predicament: at AAT [105];

(g)    was also concerned that the applicant twice refused assistance through a Drug Referral Service: at AAT [111];

(h)    formed the view that the applicant pleaded guilty to the drug supply, firearm and proceeds of crime offences not because he acknowledged his wrongdoing but because, having already served almost three years in prison, he was likely to be released sooner: at AAT [112]-[114];

(i)    found that in seeking to shift the blame for his involvement in the drug supply offending on to his former inmate and the undercover police officer, the applicant demonstrated an unwillingness to take responsibility for his actions and a failure to comprehend the impact of his conduct: at AAT [112]-[116];

(j)    found that the applicant’s lack of insight into his offending and the impact of his conduct cast doubt over his claims of remorse and increased the risk of recidivism: at AAT [118];

(k)    expressed concern about the Applicant’s conduct while in custody including his “numerous breaches” of custodial conditions: at AAT [119]. However, the Tribunal acknowledged that the applicant had confronted some difficulties while in custody and that his breaches and misconduct had significantly reduced over time. The Tribunal also found that the applicant was suffering from addictions (though the Tribunal was concerned whether these addictions had been adequately addressed by him), and that there was evidence of the applicant completing several programs while he was in prison but found there was “limited clinical evidence” about whether these programs had assisted the applicant in addressing his drug and gambling addictions: at AAT [120]-[126];

(l)    considered that while the applicant was remorseful, it appeared to be largely remorse for the stress he had occasioned to his family as opposed to remorse for his conduct: at AAT [127];

(m)    had concerns about the applicant’s actions and conduct after he was released into the community (from immigration detention) in December 2022 (at AAT [129]) because the applicant “decided” to remain unlawful in the community instead of reporting to authorities after he was informed the cancellation of his visa had been “revalidated”: at AAT [130]. The Tribunal considered that the applicant’s conduct in preferring to “evade authorities instead of doing the right thing and presenting himself to the ABF” did not align with the “characteristics of a person who claims to have transformed into a law-abiding individual”: at AAT [131];

(n)    considered the circumstances in which the applicant was eventually located and detained and, while acknowledging that the applicant was not charged with any offences at this time, found that the circumstances in which he was apprehended raised the concern that the applicant may have “resumed involvement with negative elements from his past”: at AAT [134];

(o)    was not satisfied that the applicant had any more insight into his offending than he did in the past: at AAT [137];

(p)    acknowledged the existence of several “protective factors” which could lower the applicant’s likelihood of reoffending, but found the support of family, his relationships with his children, his access to stable accommodation, being the subject of a bond and previous convictions for drug related offences and the risk of visa cancellation, had not prevented the applicant from serious reoffending in the past: at AAT [138]-[139].

23    Considering the evidence in its totality, the Tribunal found there was a moderate risk of the applicant re-offending if released into the community and that Primary Consideration 1 weighed “very heavily” against revocation: at AAT [140].

Other Primary Considerations

24    The Tribunal found that Primary Consideration 2 (family violence) was not relevant: at AAT [141].

25    The Tribunal found that Primary Consideration 3 (strength, nature and duration of ties to Australia), especially the applicant’s ties to his partner and children, all of whom were Australian citizens, weighed moderately in favour of revocation: at AAT [142]-[162].

26    The Tribunal found that Primary Consideration 4 (best interests of minor children) weighed heavily in favour of revocation: at AAT [163]-[193].

27    The Tribunal found that Primary Consideration 5 (expectations of the Australian community) weighed heavily against revocation: at AAT [194]-[206].

Other considerations

28    The Tribunal then turned to the “other considerations”. The Tribunal found that the legal consequences of the decision to the applicant was neutral (at AAT [208-214]), as was the impact on victims and Australian business interests (at AAT [223]-[225]). The Tribunal found the extent of impediments if the applicant was removed from Australia weighed slightly to moderately in favour of revocation: at AAT [215]-[222].

Tribunal’s conclusion

29    In conclusion, the Tribunal was not satisfied that the considerations in the applicant’s favour outweighed the protection of the Australian community and the expectations of the community, and so affirmed the decision to cancel the applicant’s visa: at AAT [226]-[229].

GROUND 1

30    By Ground 1, the applicant contends that the Tribunal erred in finding at AAT [5], [23], [36], [39], [58], [61] and [99] that the applicant had been convicted of nine offences, including the offence relating to Charge 5 (the supply of a prohibited drug) which, by reason of s 35(4) of the Sentencing Procedure Act was not to be regarded for any purpose as an offence committed by the applicant.

Statutory context

31    In considering the parties’ submissions relating to Ground 1, it is necessary to examine the statutory provisions that bear upon the applicant’s contentions. Division 3 of Part 3 of the Sentencing Procedure Act provides a mechanism by which an offender may plead guilty to a further offence and indicate that he or she wishes that offence to be taken into account on sentencing in relation to a principal offence, but without the further offence being regarded as a conviction for any purpose. The operative provisions are ss 33 and 35. Section 33 of the Sentencing Procedure Act provides as follows:

33 Outstanding charges may be taken into account

(1)    When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2)    The court may take a further offence into account in dealing with the offender for the principal offence—

(a)    if the offender—

(i)    admits guilt to the further offence, and

(ii)    indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b)    if, in all of the circumstances, the court considers it appropriate to do so.

(3)    If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

(4)    A court may not take a further offence into account—

(a)    if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or

(b)    if the offence is an indictable offence that is punishable with imprisonment for life.

(5)    For the purposes of subsection (4)(a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.

(6)    Despite subsection (4)(a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.

32    Section 35 of the Sentencing Procedure Act provides as follows:

35 Consequences of taking offences into account

(1)    If a further offence is taken into account under this Division—

(a)    the court is to certify, on the list of additional charges, that the further offence has been taken into account, and

(b)    no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.

(2)    This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.

(3)    An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to—

(a)    the further offence in respect of which the admission was made, or

(b)    any other offence specified in the list of additional charges.

(4)    An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.

(emphasis added)

33    The applicant contended that s 35(4) of the Sentencing Procedure Act has additional significance in that it is picked up by s 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act). Section 85ZM(1)(c) of the Crimes Act provides that, for the purposes of Part VIIC of that Act, a person shall be taken to have been convicted of an offence if the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence. However, s 85ZR(2) of the Crimes Act then provides that:

(2)    Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign 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 or foreign country:

…

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

(emphasis added)

34    Section 85ZS of the Crimes Act provides:

(1)    Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence:

(a)    the person is not required, in those circumstances or for that purpose, to disclose the fact that the person was charged with, or convicted of, the offence;

(b)    it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence;

(c)    in the case of a Commonwealth offence or a Territory offence—the person is not otherwise subject to any legal duty or disability to which he or she would not have been subject if he or she had not been convicted; and

(d)    anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not:

(i)    without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first-mentioned person not to disclose it to that other person or that authority; or

(ii)    in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.

(2)    Subsection (1) does not affect the generality of section 85ZR.

35    The effect of ss 85ZR(2) and 85ZS of the Crimes Act were considered in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 and in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) ALJR 475.

36    In Thornton, the High Court (Gageler, Gordon, Edelman and Jagot JJ, Steward J dissenting) considered whether the Minister had engaged in jurisdictional error by taking into account findings of guilt recorded by the Queensland Children’s Court in deciding not to revoke the automatic cancellation of a visa under s 501CA(4) of the Act. The decision examined s 184(2) of the Youth Justice Act 1992 (Qld) (Youth Justice Act), which provided that “a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose”. Gageler and Jagot JJ observed at [33] that the language of s 184(2) ensured that a finding of guilt is not and was not taken to be a conviction for “any purpose”. Their Honours reasoned at [33] that, when regard is had to s 85ZR(2)(b) of the Crimes Act, a person shall be taken, relevantly, by any Commonwealth authority in Queensland never to have been convicted of the offence to which s 184(2) applied. Their Honours further reasoned at [36] that, as s 184(2) of the Youth Justice Act expressly operated for any purpose, this included, for the purpose of s 85ZR(2)(b), the Minister’s consideration of Mr Thornton’s juvenile offending in deciding not to revoke the cancellation of his visa. Gageler and Jagot JJ held that by taking into account Mr Thornton’s convictions as a juvenile, the Minister had taken into account an “impermissible consideration” that was “material” to the Minister’s decision. This was because Mr Thornton’s offending as a juvenile was not of “marginal significance” to the Minister’s decision but was central to that decision including the evaluation of the risk he represented to the Australian community.

37    Gordon and Edelman JJ also arrived at the same conclusion including by relying upon s 85ZS of the Crimes Act. Their Honours stated at [61]:

… ss 85ZR(2) and 85ZS combine relevantly to operate so that where a State law provides that a person is to be taken never to have been convicted of an offence under a law of that State, then a Commonwealth authority shall not take account of the fact that the person was charged with, or convicted of, that offence. The Commonwealth law is not to contradict the State law.

38    Their Honours concluded at [74] that ss 85ZS(1)(d)(ii) and 85ZM precluded the Minister from taking into account any of the findings of guilt against Mr Thornton as a juvenile or the fact that he had been charged with such offences. At [79]-[80], Gordon and Edelman JJ reasoned that the Minister’s error was material as Mr Thornton’s juvenile offending was relied upon in assessing his risks to the Australian community among other things and because “the reasonable conjecture that the decision could have been different had the error not occurred cannot, on the face of the Minister’s reasons, be displaced”.

39    The effect of ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act were considered again more recently in Lesianawai in respect of its interaction with s 14 of the Children (Criminal Proceedings) Act 1987 (NSW) (Children Proceedings Act). Section 14(1) of the Children Proceedings Act provides:

Recording of conviction

(1)    Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:

(a)    shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and

(b)    may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

40    Beech-Jones J (with whom each of Gageler CJ, Gordon, Edelman and Gleeson JJ agreed) observed at [32] that, like the provisions of the Youth Justice Act considered in Thornton, s 14 of the Children Proceedings Act reflects a clear distinction between a finding of guilt and a conviction. His Honour at [35] accepted the contention that, as the applicant in that case was taken never to have been convicted of the offences for which he was sentenced by the Children’s Court when he was under the age of 16 years for any purpose, it followed from the reasoning in Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the Minister’s delegate from “relying on those convictions (or the findings of guilt they embody)”. His Honour rejected submissions made by the Minister which relied upon the decision in Hartwig v PE Hack [2007] FCA 1039. His Honour at [38]-[39] reasoned that the statutory provisions considered in Hartwig were distinguishable as they involved an exercise of discretion by a sentencing court not to record a conviction where an offender had pleaded or been found guilty, but those provisions did not expressly provide that the offender was taken never to have been convicted. The provisions in Hartwig were unlike those contained in the Youth Justice Act and the Child Proceedings Act which provide that the relevant plea of guilty, finding of guilt or conviction are not to be taken to be a conviction for any purpose.

The parties’ submissions

41    In the present case, the applicant submitted that s 35(4) of the Sentencing Procedure Act was analogous to the provisions considered in Thornton and Lesianawai such that the Tribunal is precluded from considering Charge 5 as a conviction. The applicant emphasised that the applicant had a total of eight convictions and that four of the convictions had led to the applicant’s most recent custodial sentence. The applicant contended that despite this, the Tribunal had taken into account and considered Charge 5 as if it were a conviction at AAT [5], [23], [36], [39], [58], [61] and [99].

42    The applicant submitted that the error was material as the Tribunal took Charge 5 into account in informing its consideration of the seriousness of the applicant’s conduct and the risk to the Australian community, and that these matters informed its conclusion that Primary Consideration 1 (protection of the Australian community) weighed “very heavily” against revocation.

43    The Minister accepted that the Tribunal referred to Charge 5 in its reasons but submitted that the Tribunal could lawfully take it into account on the basis that the relevant provisions of the Sentencing Procedure Act are distinguishable from those considered in Thornton and Lesianawai. The Minister submitted that s 33(2) of the Sentencing Procedure Act expressly provides that the Sentencing Judge may “take into account” the “further offence” in sentencing an offender for a “principal offence” such that, relying upon Attorney General’s Application at [18], an offender will receive a longer sentence than he or she otherwise would. The Minister submitted that as a result of this approach the sentence imposed by the Sentencing Judge “necessarily included an element for [Charge 5]” being taken into account, and the Tribunal had to have regard to that sentence as this was the basis upon which the applicant’s visa was cancelled under s 501(3A) of the Act and under paragraph 8.1.1(1)(c) of Direction 99. The Minister further submitted that the Tribunal had regard to the sentencing remarks of the Sentencing Judge as they were relevant, and these remarks included references to Charge 5. The Minister contended that the “suggestion that despite necessarily considering the sentence and sentencing remarks the Tribunal nevertheless must disregard conduct taken into account in the sentence and mentioned in those remarks is contradictory and cannot have been intended by s 85ZR(2) of the Crimes Act 1914 in the circumstances of this case”.

44    The Minister also relied upon Lee v Minister for Home Affairs [2019] FCA 1669, where Abraham J at [62]-[67] dealt with a similar sentencing process provided for under s 16BA of the Crimes Act. In Lee at [64]-[65], her Honour had regarded the Tribunal’s reliance on offences included in a “form” pursuant to s 16B of the Crimes Act as being an error of fact.

45    The Minister submitted that both parties were represented before the Tribunal, but neither of them had made any submissions concerning the effect of Charge 5 being taken into account in sentencing. It was submitted that as a result of this, it is more likely that the Tribunal was using the language of “conviction” in its references to Charge 5 as a shorthand, albeit inaccurate, descriptor (as opposed to the Tribunal misunderstanding the effect of the offence being taken into account on sentencing). The Minister submitted that the Tribunal’s reasons should be read fairly and as a whole, and the Court should not be concerned with mere looseness of language or unhappy phrasing: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The Minister contended that references by the Tribunal to Charge 5 being a “conviction” were no more than loose language or unhappy phrasing and should not lead to an inference that the Tribunal erred in law. Alternatively, the Minister submitted that any error made by the Tribunal in describing Charge 5 as a “conviction” was no more than an error of fact and not a jurisdictional error, as held by Abraham J on similar facts in Lee at [62]-[67].

46    The Minister further submitted that the error was not material in that there was no realistic possibility that the Tribunal might have come to a different conclusion. The Minister submitted that as the principal offence of supplying 4.8 kilograms of methamphetamine was almost ten times the amount of the offence in Charge 5, there was no realistic possibility that the Tribunal could have to come to a different conclusion. To a like effect, the Minister submitted that it would have made no difference to the outcome whether the Tribunal had regard to eight as opposed to nine offences.

Consideration

47    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the plurality (with whom Beech-Jones J agreed) stated at [9] that, where it is alleged in an application for judicial review that a decision is affected by jurisdictional error, two questions must be addressed: “has an error occurred and, if so, was that error material”. Here, I am satisfied that an error has occurred and that it was material.

48    In finding that the Tribunal engaged in an error, I accept that the statutory provisions under consideration in this case are not the same as those considered in Thornton and Lesianawai. However, in my view, for relevant purposes, the differences between the statutory regimes do not matter. That is because s 35(4) of the Sentencing Procedure Act expressly provides that an offence taken into account in accordance with the procedure in ss 32 and 33 is not to be regarded “for any purpose” as an offence of which an offender has been convicted. In this respect, s 35(4) is on similar (though not identical) terms as the provisions considered in Thornton and Lesianawai. As in Thornton and Lesianawai, s 35(4) was, and is, picked up by s 85ZR(2)(b) of the Crimes Act such that the Tribunal’s reliance upon Charge 5 as having been an offence committed by the applicant, or in respect of which the applicant had been convicted, was contrary to the direction that the applicant was to be taken never to have been convicted of that offence. The Tribunal here took into account this impermissible consideration and thereby engaged in error.

49    The Minister’s submissions pointed to the fact that under s 33 of the Sentencing Procedure Act, the Sentencing Judge was permitted to, and did, take into account Charge 5 as a further offence in sentencing the applicant in respect of the principal offence being Charge 2. It was submitted that as a result of this, the Tribunal had to take into account Charge 5 as it was necessarily linked to Charge 2 and was addressed in the sentencing remarks of the Sentencing Judge. The Minister’s reliance upon this aspect of the “Form 1” procedure enacted under Division 3 of Part 3 of the Sentencing Procedure Act ignores the effect of s 35(4) (to which I will return). The purpose of the “Form 1” procedure was addressed by a five member Court of the Court of Criminal Appeal of the Supreme Court of New South Wales in Attorney General’s Application. There, Spigelman CJ (with whom each of Wood CJ at CL, Grove, Sully and James JJ agreed) explained at [18]-[19] that:

A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. See, eg, R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 68 at 179, per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128–129; R v Morgan (1993) 70 A Crim R 368 at 371–372.)

These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a “bottom up” approach.

50    Importantly, as Spigelman CJ explained, the purpose of the process is to impose a sentence in respect of the primary or principal offence (by imposing a longer sentence than that which would otherwise be the case), but this does not result in the offender being convicted or punished for the other or further offence. As the Chief Justice further explained at [23]:

The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (R v De Simoni (1981) 147 CLR 383 at 389, 395–396; R v Olbrich (1999) 199 CLR 270 at 278 [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.

51    The reference to R v De Simoni (1981) 147 CLR 383 at 389 at 395–396 and R v Olbrich (1999) 199 CLR 270 at 278 [18] is significant to the present context. It is axiomatic that an offender is only to be punished (relevantly, here, by way of sentence) in respect of an offence for which he or she has been convicted. Nothing in Division 3 of Part 3 of the Sentencing Procedure Act alters that axiomatic principle of the common law. To the contrary, the provisions of that Division reinforce that the offender is not to be taken as convicted of the other or further offence. Specifically:

(a)    s 32(1) makes it clear that the document filed with the sentencing court is to specify the other offences with which the offender has been charged “but not convicted”, being the offences which the offender has indicated are “offences that the offender wants the court to take into account when dealing with the offender for the principal offence”; and

(b)    s 35(4), which, as noted above, provides that an offence taken into account under this Division is not “merely because of its being taken into account” to be regarded as a conviction for that offence.

52    It is important to focus on the words in s 35(4) “merely because of it being taken into account” under Division 3. Those words acknowledge that the sentencing court may take into account the other offence in sentencing the offender for the principal offence, but do not by that mere fact alone mean that the offender is to be taken to have been convicted of the other offence.

53    It may be accepted that the procedure in Division 3 of Part 3 of the Sentencing Procedure Act serves a different policy purpose to the provisions considered in Thornton and Lesianawai. In a simplified sense, the Sentencing Procedure Act facilitates a quid pro quo whereby an offender may elect to have a higher sentence imposed in respect of a principal offence in return for a lesser number of convictions. The enactments considered in Thornton and Lesianawai serve different purposes relating to the recording of convictions for juvenile offenders. However, those different purposes have a common element being that the relevant offender is not to be taken as having been convicted when the relevant qualifying conditions are enlivened. As explained by Beech-Jones J in Lesianawai at [39], the statutory provisions in Thornton and Lesianawai provided that a finding of guilt without any conviction being recorded was not, and was not taken to be, a conviction for any purpose. Here, s 35(4) of the Crimes Sentencing Procedure Act has the same effect. The admission of guilt provided for in s 33(2) does not alter the statutory refrain in s 35(4) that the offence is not to be taken to be a conviction for any purpose. This accords with recent observations to similar effect by Hespe J in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 at [7]-[9].

54    Contrary to the Minister’s contentions, the conclusion I have reached does not place the Tribunal in a position where it is unable to comply with paragraph 8.1.1(1)(c) of Direction 99 or where it cannot have regard to the Sentencing Judge’s remarks on sentence. Paragraph 8.1.1(1)(c) of Direction 99 requires the Tribunal to have regard to the sentence imposed by the courts for a crime or crimes and make an assessment of the nature and seriousness of the offending. As a result of s 85ZR(2), the Tribunal must do so without infringing the restriction imposed by the combination of s 35(4) of the Sentencing Procedure Act and s 85ZR(2) of the Crimes Act. That is, it cannot have regard to an offence which, as a result of the statutory provisions, the applicant is taken never to have been convicted.

55    Here, the Tribunal had regard to Charge 5 as an offence of which the applicant had been convicted. Although the Tribunal acknowledged in AAT [36] and in part at AAT [43] that Charge 5 was taken into account as part of Charge 2 and was included on a “Form”, the Tribunal elsewhere treated Charge 5 as an offence in respect of which the applicant had been convicted. This is apparent from each of the passages of the reasons relied upon by the applicant, but in particular:

(a)    at AAT [49], the Tribunal stated that it considered the applicant’s “drug offences” (in the plural) to be at the very least serious. Similarly, at AAT [50] the Tribunal again referred to the “drug supply (and related) offences” (in the plural) as being at least serious. In both paragraphs, the Tribunal referred to and relied upon there being more than one drug offence, which necessarily included Charge 5 as it was the only other drug offence in respect of the applicant’s most recent offending;

(b)    at AAT [54], the Tribunal referred to the “offences relating to drug supply” (in the plural), together with the other offences, as having resulted in the Sentencing Judge imposing an aggregate sentence of seven years and six months imprisonment in circumstances where Charge 5 was not an offence, and the applicant was not sentenced in respect of that Charge;

(c)    at AAT [61] in assessing the cumulative effect and frequency of the applicant’s offending, the Tribunal relied upon there being “nine convictions”, which impermissibly accounted for Charge 5 as having been a conviction;

(d)    at AAT [74] in assessing the applicant’s conduct to determine the nature of harm in the event of further criminal conduct, the Tribunal relied upon the fact that the applicant had been able to source and supply large quantities of methamphetamine in circumstances where he was to be taken to have been only charged and convicted of one such supply;

(e)    at AAT [227], the Tribunal relied upon the applicant’s “criminal offences, particularly those related to the supply of large quantities of methamphetamine” indicating that it had proceeded on the basis that there was more than one such supply offence.

56    While it must be accepted that the Tribunal was not informed by the parties as to the effect of s 35(4) of the Sentencing Procedure Act, I do not accept the Minister’s submissions that the Tribunal’s references to Charge 5 were merely “loose language” or “unhappy phrasing”. I am satisfied that the Tribunal impermissibly took into account Charge 5 as an offence of which the applicant had been convicted.

57    I do not consider that Abraham J’s decision in Lee is applicable. First, her Honour was dealing with a Commonwealth offence in respect of which s 85ZR and 85ZS of the Crimes Act had no application. Second, Lee was decided before Thornton and Lesianawai.

58    I am also satisfied that the error here was material. In LPDT, the plurality stated at [14] that:

The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

59    Importantly, in assessing whether the decision could have been realistically different, the inquiry that is posited is “backward-looking” by reference to “the decision that was made and, depending on the nature of the error, how that decision was made”: LPDT at [10]. This requires an examination of how the Tribunal in fact made its decision without assuming the “function of the decision-maker”: LPDT at [15].

60    The Minister submitted that the Tribunal’s reliance on Charge 5 could have made no difference to the decision including because Charge 2 was the more serious charge and involved almost ten times the quantity of drug supplied to the undercover operative. The Minister also submitted that the fact that there were eight and not nine charges could have made no difference to the result. In my view, these submissions paid scant regard to the decision that was actually made by the Tribunal and invited a counter factual enquiry without regard to the Tribunal’s reasons. The Tribunal’s reasons do not expose that it considered Charge 2 to be the more serious charge, or that Charge 5 was the lesser charge. Nor do the Tribunal’s reasons disclose that it considered that the quantity of drug supplied under Charge 2 was far more serious than the quantity of drug supplied in Charge 5. Rather, the Tribunal’s reasons disclose that it placed reliance on the two “drug offences” together as being serious, and that it was these “drug offences” that were the most serious of the applicant’s recent offences. That this is the case is demonstrated in particular at AAT [49] where the Tribunal stated that it considered “the drug related offences particularly those involving the supply of a commercial quantity of prohibited drug, to be at the very least “serious””. As is apparent from this passage, the Tribunal did not delineate between the two charges, but treated them together as serious. In light of the Tribunal’s reasons, the Minister’s contention that the addition of Charge 5 could have made no difference to the outcome invites an adoption of the vice identified by the plurality in LPDT at [29] of seeking to apply a different process of reasoning to that of the Tribunal to reach the same end.

61    Nor do I accept the Minister’s submission that unlike in Thornton, Charge 5 was of “marginal significance” to the Tribunal’s reasoning. As I have noted, the Tribunal had regard to the fact of there being “drug related offences” (in the plural) in arriving at its conclusion as to the seriousness of the applicant’s conduct. It also relied upon there being two such offences (in the plural) in its assessment of the frequency and cumulative effect of the applicant’s offending: at AAT [58], [59] (final sentence), [60] and [61]. The Tribunal’s consideration of the “drug related offences” (in the plural) was not limited to an assessment of Primary Consideration 1, but extended to its final weighing of all the considerations. In this regard, at AAT [227], in weighing all of the considerations, the Tribunal relied upon the applicant’s criminal offences “particularly those related to the supply of large quantities of methamphetamine” as being serious.

62    Given the way in which the Tribunal reasoned to its conclusions, I am satisfied that the error here was material in the sense that there is a realistic possibility that the result could have been different. That is, there is a realistic possibility that, if it had complied with the restriction imposed by s 35(4) of the Sentencing Procedure Act and s 85ZR(2) of the Crimes Act, the Tribunal could have come to a different conclusion as to whether to revoke the applicant’s visa cancellation. Having regard to the reasons of the Tribunal, it cannot be affirmatively concluded that the outcome would inevitably have been the same: LPDT at [16].

63    Accordingly, I am satisfied that the applicant has established Ground 1 and that the application for judicial review should be upheld on that basis.

GROUND 2

64    By Ground 2, the applicant contends that the Tribunal erred by finding at AAT [49] that the fact that the drugs supplied by the applicant were never disseminated “[did] not diminish the seriousness of the applicant’s conduct and role he played” or “lessen the [a]pplicant’s culpability”.

65    The applicant submitted that the Tribunal failed to have regard to the fact that the applicant had only been involved in the supply of methamphetamine at the instigation of an undercover officer and that this was of no relevance to its inquiry as to the protection of the Australian community. It was submitted that the role of the undercover officer in requesting and receiving the methamphetamine was relevant.

66    This ground is not made out. The relevant passage of the Tribunal’s reasons relied upon by the applicant is contained in the part where the Tribunal dealt with paragraph 8.1.1(1) of Direction 99 which required the Tribunal to assess whether the applicant’s conduct would be viewed as very serious or serious by the Australian government and the Australian community. Such an assessment is an evaluative one: see Afu v Minister for Home Affairs [2018] FCA 1311 at [85]; CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [28]-[29]. In making its assessment of the seriousness of the applicant’s conduct, the Tribunal acknowledged that the relevant drugs had not been disseminated into the community as they were seized as part of an undercover police operation, but that this did not diminish the seriousness of the applicant’s conduct in that the applicant had nevertheless sought to have the drugs disseminated into the community: at AAT [49] and [74]. There was no error, legal or factual, in the Tribunal making this evaluative assessment as to the seriousness of the applicant’s offending.

67    Ground 2 is not established.

GROUND 3

68    By Ground 3, the applicant contends that the Tribunal erred at AAT [111] in finding that the applicant had refused to get assistance from the Drug Referral Service in circumstances where the Tribunal had found at AAT [109] that the applicant was not eligible for that service.

69    In support of Ground 3, the applicant pointed out that at AAT [109] the Tribunal found that the applicant was referred to the “Magistrate Early Referral into Treatment (MERIT) program” on 15 March 2018 and 5 April 2018 “and that on both occasions he was found not to be eligible because he did not have a demonstrated illicit drug problem”. The applicant submitted that this contradicted the Tribunal’s expression of concern at AAT [111] that the applicant “had refused to get assistance through the Drug Referral Service despite being referred for the program on two occasions”. The applicant submitted that the Tribunal acted in a legally unreasonable way in making such contradictory findings.

70    The Minister submitted that the Tribunal’s reasons, in fact, reflected inconsistent evidence given by the applicant. This was because the applicant gave evidence that when he was released on a good behaviour bond in April 2018, he was “using drugs and was not thinking or acting sensibly”: at AAT [108]. The Minister contended that this evidence was inconsistent with the fact that the applicant had been found to be ineligible for a drug referral program in March and April 2018 on the basis that the applicant “did not have a demonstrated illicit drug problem”: at AAT [109]. It was submitted that the Tribunal’s expression of concern at AAT [111] as to the applicant not seeking assistance through the “Drug Referral Service” reflected this inconsistent evidence given by the applicant. The Minister submitted that once the Tribunal’s reasons were read as a whole and fairly, no legal unreasonableness was demonstrated having regard to the applicant’s inconsistent evidence.

71    I agree with the Minister’s submissions. The Tribunal’s reasons at AAT [108]-[111] have to be read as a whole, and fairly: Plaintiff M64/2015 at [59]-[60]; Wu Shan Liang at 271-272. The Tribunal was grappling with inconsistent evidence given by the applicant. On the one hand, the applicant said that in March to April 2018, he was using drugs and not acting or thinking sensibly: at AAT [108]. On the other hand, the applicant was found not to be eligible for the relevant drug referral service in March and April 2018 because, on the applicant’s explanation, he did not have “a demonstrated illicit drug problem” at the time: at AAT [109]. There may have been explanations for these seemingly inconsistent positions, but it was open to the Tribunal to find that the applicant was refusing to obtain assistance through the relevant “drug referral program”. I do not regard this conclusion as being legally unreasonable having regard to the inconsistent evidence given by the applicant.

72    Ground 3 is not made out.

GROUND 4

73    By Ground 4, the applicant contends that the Tribunal erred in finding at AAT [120] that he had been identified as a “primary figure with the introduction and distribution of contraband within Long Bay Hospital Correctional Centre”. The applicant contended that the Tribunal’s finding at AAT [120] denied him procedural fairness because the evidence relied upon by the Tribunal was drawn from “prison records” that were not specifically put to the applicant for comment at the hearing before the Tribunal. It was submitted that it was “incumbent on the Tribunal” before using “prison records” which were “susceptible of more than one meaning” to “put its interpretation of those records to the applicant”.

74    The Minister contended that there was no denial of procedural fairness in circumstances where the applicant’s “prison records” were expressly relied upon by the Minister in the hearing before the Tribunal. The Minister’s SFIC at [64](e) made express reference to the “prison records” and the Minister made submissions about the applicant’s risk of re-offending by reference to those records. The Minister contended that in those circumstances the applicant had ample opportunity to consider and traverse the “prison records”, especially in circumstances where the applicant was represented at the hearing before the Tribunal.

75    Ground 4 is not made out. As the Minister points out, the applicant had an opportunity to address the Tribunal about the content of the “prison records”. Moreover, the applicant had such an opportunity with knowledge that the Minister was relying upon those records in a way that was adverse to him. In those circumstances, it was not incumbent on the Tribunal to raise with the applicant that the “prison records” contradicted his evidence. As was said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [36], the Tribunal is not required to actively assist the applicant in putting his or her case, or to carry out an inquiry in order to identify what that case might be. There was no error engaged in by the Tribunal as alleged by the applicant.

GROUND 5

76    By Ground 5, the applicant contends that the Tribunal erred in finding at AAT [131] that the applicant, after his release from immigration detention, “preferred to evade authorities instead of doing the right thing and presenting himself to the ABF” when he was under no legal compulsion to do so.

77    The context to Ground 5 is that on 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) retrospectively validated the earlier cancellation of the applicant’s visa. This led to the applicant being sent a letter dated 17 February 2023 that stated:

Your visa cancellation under section 501 of the Migration Act has been validated by operation of the Aggregate Sentences Act and is legally effective, and you no longer hold a visa. As such, you are an unlawful non-citizen and may be detained and removed from Australia…

As you no longer hold a valid visa to remain in Australia, you are liable for immigration detention and we encourage you to self-report to the Australia Border Force. You can do so by contacting: field.operations.vic.tas@abf.gov.au.

78    The applicant submits that, while the letter correctly stated that the applicant was “liable to immigration detention”, it did not state that he was obliged to submit to detention. The applicant pointed out that neither the general provisions of the Act nor the transitional provisions introduced by the Migration Amendment (Aggregate Sentences) Act 2023 created a positive obligation on the applicant to do what was “encourage[d]” by the letter of 17 February 2023.

79    Having regard to these contextual matters, the applicant submitted that the Tribunal erred in finding that the applicant “preferred to evade authorities instead of doing the right thing”. It was contended that the Tribunal acted on a “wrong principle” that a “law-abiding individual” would “do the right thing” and surrender to the ABF.

80    The Minister accepted that the letter dated 17 February 2023 did not require or oblige the applicant to self-report himself to the ABF or submit to detention. However, the Minister submitted that a fair reading of the Tribunal’s reasons was that it was making an assessment as to whether to believe the applicant that he was remorseful for his previous criminal conduct and had transformed into a law-abiding citizen. The Minister submitted that it was open for the Tribunal to reject the applicant’s contentions in this regard by finding that in this instance the applicant had not done the “right thing”.

81    Ground 5 is not made out.

82    The Tribunal correctly observed that the letter dated 17 February 2023 “encouraged” the applicant to “self-report to immigration authorities”: at AAT [130]. Further, in observing that the applicant had decided not to report to the authorities and remaining “unlawful in the community”, the Tribunal was making an observation as to the correct factual position that then prevailed as a result of the applicant remaining in the community: at AAT [130]. At AAT [131], the Tribunal observed that the applicant “faced a choice”. These aspects of the Tribunal’s decision are unremarkable and factually correct. The applicant did face a choice: he could submit to detention or remain unlawful in the community.

83    The Tribunal then proceeded to state that, when confronted with this choice, the applicant “preferred to evade authorities” instead of “doing the right thing and presenting himself to the ABF”: at AAT [131]. There are at least two ways of reading this part of the Tribunal’s reasons. On one reading, this part of the Tribunal’s reasons may indicate that the Tribunal considered that the applicant had a legal obligation to submit himself to the ABF. The use of the word “evade” may suggest that the Tribunal considered that the applicant was seeking to avoid or escape a legal obligation. Likewise, the Tribunal’s reference to the applicant “doing the right thing and presenting himself to the ABF” may suggest that the Tribunal considered that this was the “right thing” to do because the applicant had a legal obligation to do so. If the Tribunal’s reasons are read this way, the Tribunal would have been proceeding on a factually incorrect basis as there was no legal obligation imposed on the applicant to submit himself to detention and the letter dated 17 February 2023 did not say so.

84    The alternative way of reading the Tribunal’s reasons is that the Tribunal was not seeking to say that the applicant had a legal obligation to submit himself to detention, but was unpicking the applicant’s contention that he had become a reformed member of the community. Read this way, the Tribunal was expressing that such a reformed member of the community (if truly so reformed) would not have sought to remain unlawful in the community and would have approached the relevant authorities as suggested in the letter of 17 February 2023. If read this way, the Tribunal’s use of the word “evade” and the expression “doing the right thing” may be regarded as “unhappy phrasing” to convey the idea that the applicant had not behaved in a way that the Tribunal considered was consistent with a person who was claiming to have become a reformed member of the community. In my view, this is the correct way to read the Tribunal’s reasons. This reading is consistent with the Tribunal recognising at AAT [130] that the letter of 17 February 2023 “encouraged” the applicant to “self-report” to the ABF; it did not compel him to do so.

85    In coming to this conclusion, I have borne in mind here, as the Minister submitted, that the Tribunal’s reasons must not be approached with an eye attuned to error: Plaintiff M64/2015 at [59]; Wu Shan Liang at 272. I have also borne in mind that, in essence, the Tribunal was seeking to assess the applicant’s submission that he was at a low to medium risk of re-offending on the basis that, among other things, he was a reformed person who was now a law-abiding citizen. This was necessarily an evaluative task, which, in the Tribunal’s view could be assessed by examining the manner in which the applicant behaved when met with a choice. It is also a matter about which reasonable minds will differ. In the present case, I do not consider that the Tribunal’s reasons were legally unreasonable. Nor do I consider that the Tribunal acted on a wrong principle.

86    Accordingly, Ground 5 is rejected.

DISPOSITION

87    It follows that the applicant has established Ground 1 and, accordingly, the Tribunal’s decision should be set aside and redetermined. The applicant’s merits review application will need to be considered afresh. I consider that the Tribunal should be differently constituted so that there is no risk on the redetermination of Charge 5 being regarded as having given rise to a conviction.

88    In view of the preceding reasons, I will make the following orders:

(a)    The decision of the second respondent made on 2 August 2023 be set aside;

(b)    The applicant’s application for review by the second respondent be redetermined according to law, with the second respondent being differently constituted;

(c)    The first respondent pay the applicant’s costs as agreed or taxed.

Associate:    

Dated:        9 May 2024