Federal Court of Australia

Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    A writ of certiorari issue, directed to the second respondent, quashing its decision made 9 November 2023.

3.    A writ of mandamus issue, directed to the second respondent, requiring it to determine the applicant's application for review according to law, with the second respondent being differently constituted.

4.    Pursuant to r 4.19 of the Federal Court Rules 2011 (Cth), the first respondent pay the applicant's costs of the application to be taxed if not agreed, such costs to be paid directly to the applicant's pro bono counsel.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Nature of the application

1    The applicant is a 41-year-old citizen of New Zealand. Subject to a few brief periods of absence, he has resided in Australia since he was 22 years old.

2    The applicant's Class TY Subclass 444 Special Category (Temporary) visa was cancelled by a delegate of the Minister on 1 September 2021 under s 501(3A) of the Migration Act 1958 (Cth). It was cancelled because the applicant failed the character test specified in s 501(6) due to his substantial criminal record within the meaning of s 501(7)(c), and because the applicant was serving a sentence of imprisonment on a full-time basis in a correctional centre at the time (s 501(3A)(b)).

3    On 16 August 2023 a delegate of the Minister refused to revoke the original visa cancellation decision. The applicant sought review of the non-revocation decision by the Administrative Appeals Tribunal. The applicant was unrepresented throughout that process.

4    On 9 November 2023 the Tribunal affirmed the delegate's decision not to revoke the visa cancellation decision, and published reasons (TR). By this application the applicant seeks review of the Tribunal's decision.

Key issues in summary

5    It is not in issue that in undertaking its task the Tribunal was bound by s 499(2A) of the Migration Act to comply with (relevantly) Direction No. 99 - visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

6    This application turns on two key issues. First, by ground 1, it raises the issue of the task required by a decision-maker in order to assess and evaluate risk of further harm as required by paragraph 8.1.2(2)(b) of Direction 99 (extracted below).

7    Second, by ground 3, it raises the issue of the treatment of offences where no conviction is recorded. A number of cases have addressed this issue in the context of various state and commonwealth sentencing regimes.

Applicant's offending and the Form 1 process

8    As it informs the reasons more generally, it is appropriate to commence by setting out the applicant's history of criminal convictions.

9    The applicant was convicted of 10 offences between January 2010 and August 2021. His earlier offending included traffic related offences and drug possession. In May 2015, the applicant was placed on a 12-month good behaviour bond. He then breached the terms of the bond.

10    On 14 October 2016, the applicant was involved in an incident involving a police chase and the seizure of drugs and firearms. He was a passenger in a car that was pursued by the police. During the pursuit he threw a number of items out of the window of the car, including a bag of methamphetamine and a firearm which subsequently discharged on the ground.

11    Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides a 'Form 1' procedure, whereby it was open to the applicant to admit guilt in relation to further offences and have them taken into account for the purpose of sentencing for principal offences. No separate penalty is imposed and no conviction is recorded for further offences taken into account under this scheme (the relevant provisions are extracted below). I will refer to this regime generally as the Form 1 scheme.

12    As a result of the 14 October 2016 incident, on 14 December 2017 the applicant was convicted of supplying a prohibited drug and possessing a prohibited firearm. He was sentenced by the New South Wales District Court for those principal offences and given a two-year intensive correction order. Under the Form 1 scheme the District Court took into account a further offence of possessing an unregistered firearm.

13    On 14 November 2019, the applicant was arrested and charged with a number of additional offences.

14    On 19 August 2021 he was convicted of supplying a commercial quantity of prohibited drug and possession of a shortened firearm. He was sentenced to 5 years and 10 months' imprisonment for those principal offences. Under the Form 1 scheme the District Court took into account three further offences the applicant had been charged with, being participation in a criminal group, not keeping a firearm safely and possession of ammunition without a permit.

15    It follows that there were four further offences to which the applicant admitted guilt and which were taken into account by the District Court within the meaning of the Form 1 scheme when sentencing on the respective principal offences but were not the subject of any conviction.

Grounds of review

16    There are three grounds of review in the applicant's amended review application. The applicant contends that:

(1)    The Tribunal failed to comply with para 8.1(2)(b) of Direction 99, as at TR [74]-[75] it failed, in substance, to complete an assessment and evaluation of the risk to the Australian community based on the likelihood of the applicant engaging in further criminal or other serious conduct; and/or, alternatively, failed to properly take that factor into account.

(2)    The Tribunal failed to comply with the requirements of Part 2 of Direction 99, as at TR [116]-[118], in attributing weight to each relevant consideration, the Tribunal failed to make 'a single evaluation of their relative significance thereby weighing them all together'.

(3)    The Tribunal erred in that it took into account an irrelevant consideration, namely the four further offences that were taken into account by the District Court, on 14 December 2017 and 19 August 2021 when sentencing the applicant in accordance with the Form 1 scheme.

The statutory context and Direction 99

17    Section 501CA of the Migration Act provides that:

Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(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.

18    The Tribunal was satisfied that the applicant made the representations required by s 501CA(4)(a): TR [7]. It decided the applicant did not pass the character test as defined by s 501 of the Migration Act, because he has a substantial criminal record as specified by s 501(6)(a) and s 501(7)(c): TR [8]-[9]. Those findings are not in issue.

19    What is in issue is the basis upon which the Tribunal was not satisfied there was another reason to exercise its discretion to revoke the visa cancellation decision. In this context, what is important is Direction 99, which sets out in considerable detail the executive's policy position in relation to cancellation decisions under (relevantly) s 501CA of the Migration Act.

20    Paragraph 6 of Direction 99 provides that a decision-maker must take into account the considerations identified in paragraphs 8 and 9 in deciding whether or not to revoke cancellation of a visa, where relevant to the decision.

21    Paragraph 8 of Direction 99 sets out five primary considerations that must be taken into account. These are:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the strength, nature and duration of the applicant's ties to Australia;

(4)    the best interests of minor children in Australia; and

(5)    expectations of the Australian community.

22    Paragraph 9 of Direction 99 sets out four other considerations which must be taken into account. These are:

(a)    legal consequences of the decision;

(b)    extent of impediments if removed;

(c)    impact on victims; and

(d)    impact on Australian business interests.

23    The Tribunal in this case gave no weight to primary considerations 2 and 4, nor to other considerations (a), (c), and (d). This reasoning is not in issue.

24    Primary consideration 1 (protection of the Australian community from criminal or other serious conduct) is directly relevant to this case. The Direction specifies at paragraph 8.1 how the Tribunal is to consider such protection:

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.

25    Paragraph 8.1.1 of Direction 99 sets out matters to be taken into account in considering the nature and seriousness of the non-citizen's conduct. It is not necessary to set it out.

26    Paragraph 8.1.2 relevantly provides as follows:

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

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

(emphasis added)

The Tribunal's reasons

27    Having addressed paragraph 8.1.1 of Direction 99, the Tribunal found that the totality of the applicant's unlawful conduct was very serious: TR [42]-[58]. As to paragraph 8.1.2(1), the Tribunal said the harm that would be caused by the applicant's re-commission of unlawful conduct involving the supply of illicit drugs is so serious that any such risk may be unacceptable to the Australian community: TR [61]-[64]. As to paragraph 8.1.2(2), the Tribunal said there was no safe finding except that the applicant's recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community: TR [74]-[75]. The Tribunal concluded primary consideration 1 confers a 'very heavy level of weight against revocation': TR [78] (original emphasis).

28    Turning for completeness to the Tribunal's treatment of other primary considerations, as to primary consideration 3 the Tribunal considered that although the applicant had been in Australia for some time, his social ties were minimal: TR [80]-[86]. It found this consideration conferred slight weight in favour of revoking the visa cancellation: TR [87].

29    Primary consideration 5 required the Tribunal to assess whether there were any factors that modified the community's expectations towards the applicant. It found the Australian community's expectations are no different than normal towards the applicant. Accordingly, it reasoned the very serious nature of the applicant's offending compelled a finding that the Australian community expects the Government can and should refuse to set aside the mandatory cancellation of the applicant's visa: TR [89]-[101]. It found this consideration conferred a very heavy level of weight against the Tribunal revoking the cancellation: TR [102].

30    The Tribunal briefly considered other consideration (b), being the extent of impediment should the applicant be removed. It concluded that consideration conferred a slight level of weight in favour of revoking cancellation: TR [103]-[113].

31    The Tribunal concluded that on the basis of 'a holistic application of the considerations' there was not another reason (in the language of s 501CA(4)(b)(ii)) to revoke the mandatory cancellation of the applicant's visa: TR [115]-[119].

Principles generally on review

32    The jurisdiction of the Federal Court to review the decision of the Tribunal is limited, by s 476A(2) of the Migration Act, to jurisdictional error.

33    A failure to comply with the express requirements in a lawful Ministerial Direction as to the considerations to be brought into account and the manner in which those considerations are to be weighed in deciding whether to revoke a visa cancellation may constitute jurisdictional error: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68]; and FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6].

34    The extent to which an error must be material in order to constitute jurisdictional error was explained recently by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. The plurality summarised the applicable principles as follows (at [14]):

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.

(original emphasis, citations omitted)

Ground 1 - likelihood of reoffending

35    The applicant contends that the Tribunal erred in the manner in which it undertook the task of considering the likelihood of the applicant reoffending, as it was obliged to do by paragraph 8.1.2(2) of Direction 99. The applicant refers to the findings at TR [74]-[75].

36    It is appropriate to record more fully the reasons of the Tribunal on this issue. It was addressed at TR [65]-[75] under the heading 'The likelihood of the non-citizen engaging in further criminal or other serious conduct'.

37    From TR [65], the Tribunal referred to evidence of what the applicant had told other people. It referred to a case note report written by a Ms Cotter who had undertaken a PARRCC assessment (planning for adjustment, responsivity, reintegration, criminogenic needs and communication) on 3 September 2021. Ms Cotter wrote:

He advised case management he first started using cannabis at the age of 13, before moving on to use methamphetamines regularly. By his 20's, James advised he was using up to 'one ball a day'. James added here that his use 'got out of control' and expensive, leading him to offend to fund his habit. James has a lengthy criminal history; he advised case management he believes at this stage her will return to his criminal lifestyle and drug use upon realise from his current sentence.

…

When asked about his hope for his future, James appeared unable to list any goals he has; he stated his now knowing about his visa situation makes this difficult. Despite this, James remained unable to list any goals he had previously had either. James was unable to list any goals and did not appear driven to do so- CMO [Case Management Officer] encouraged him to consider things he might want to achieve for his future. James has a long history of similar offence patterns and was noted to state he intends to return to his previous lifestyle, with no apparent drive to change.

(Tribunal's emphasis and underlining)

38    The applicant apparently confirmed under cross-examination that the extract represented a fair assessment of 'where [he was] in March 2022': TR [66].

39    The Tribunal referred at TR [67] to a further case note report prepared in July 2022, which cited a letter written by the applicant to another inmate, that said:

I got 9 months till go Villawood. lol. I feel nervous about it but I heard Villawood is alright I still waiting for my appeal so hopefully I kick a goal so I can get back to selling Ice & fucking junkie girls. Hahahaha'

40    The applicant recalled under cross-examination those words being used.

41    From TR [69] the Tribunal addressed the applicant's evidence about rehabilitative courses he had undertaken 'at various times', noting that although a number of courses were listed, the applicant was unclear as to whether he had completed or participated in some of them. Further, it noted that under cross-examination the applicant had admitted that after completing a certain course he had gone on to reoffend.

42    From TR [71] the Tribunal recorded some admissions by the applicant as to his conduct. It observed that the applicant made comments to the effect that if he were to read about his case he would not give himself a second chance, and that as much as he would like another chance in Australia, he did not think he deserved one. He also agreed that if anyone looked at his record, it was not good.

43    From TR [74] the Tribunal set out the following purported finding and assessment with respect to the applicant's risk of reoffending:

Findings about risk

[74]    The state of the evidence points to no other safe finding except that the Applicant's recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community. These are my reasons for this finding:

•    consistent participation in drug supply enterprise: with the exception of some questionable and self-serving evidence about him working in the financial services industry, it seems clear the Applicant's time in Australia has been dominated by an involvement in organised criminal activity around the supply of illicit drugs. As found at least by one judicial sentencing officer, he has not been a small-role player in this activity. The level of his involvement has caused him to (1) feel compelled to go armed in the community; (2) refuse to follow the requirements of police who were making enquiries into his conduct and to willingly engage in a police car chase that only ended by the crashing of the black Lexus vehicle he was in into a parked police vehicle; (3) be in possession of a substantial amount of methamphetamine; and (4) be in possession of a not insignificant amount of cash;

•    little or no rehabilitation: the Applicant accepted that he was taking 'Ice' at the time he committed his most recent offences. While there is a modicum of his participation in rehabilitative courses, there is little or nothing to suggest that he has experienced any rehabilitative effect from those courses or, indeed, that this Tribunal can, in any way, safely find that the Applicant's predisposition to abuse methamphetamine is under any sort of remedial management and control such as to speak positively to any recidivist risk he now represents;

•    the Applicant's behaviour in prison: while this conduct was put to him in cross-examination does not automatically fall within the auspices of any componentry of the Direction, it seems clear the Applicant has an unresolved predisposition towards violence in circumstances he feels it appropriate. He was part of a group in the prison that bashed a person they thought was serving time for offences against minors. He was of the view that one's safety in prison effectively amounted to a situation of ‘bash others before they bash you.' This predisposition towards violent solutions to issues confronting him - especially in the circumstances of the closed environment - does not at all speak well to his current recidivist risk. If he is prepared to be violent in prison, there is every likelihood he will be violent in the much less regulated environment of the community;

•    what others have observed about the Applicant: in her report, Ms Renee Cotter confirmed that the Applicant is unable to list any goals he may have if returned to the community and that he was otherwise not driven to creating any such list. Concerningly, Ms Cotter noted that the Applicant '..has a long history of similar offence patterns and was noted to state he intends to return to his previous lifestyle with no apparent drive to change.' In his report, Mr Sackel noted the Applicant telling another inmate of his intention to try and recover his Visa to remain in Australia '…so I can get back to selling ice and fucking junkie girls. Ha ha ha ha';

•    what the Applicant makes of his own case: the Applicant conceded that after the facts and circumstances of his offending being put to him '… in front of me…in black and white…I can't disagree with anything that's been said…' and that '…as much as I would like another chance in Australia I do agree that I definitely don't deserve one.' And further, '….if you're looking at my record obviously it doesn't look good. I know I don't deserve another chance even though I would like one.'

Assessment of risk

[75]    I am of the view that this Applicant represents an unresolved and otherwise unknown level of recidivist risk. The only safe finding is that his current level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community.

(original emphasis)

44    The Tribunal than concluded as to primary consideration 1:

[77]    With reference to the weight attributable to this Primary Consideration 1:

(a)    I have found that the nature and seriousness of the totality of the Applicant's conduct to date has been very serious;

(b)    I have made findings about the harm that would ensue in the event the Applicant reoffended in any of the realms in which he has previously offended. Most significantly, with reference to the Applicant recommitting offences in the realm of supplying illicit drugs, I have found this would result in significant physical, psychological and potentially catastrophic harm to end-users of those substances. Significant harm and adverse impacts would also be experienced by their family members and / or carers who are compelled to live with the social impact of a person's addiction to illicit drugs;

(c)    in terms of recidivist risk, I have found that the Applicant represents an unresolved and otherwise unknown level of recidivist risk and that his risk of reoffending is now no different to what it was at the time of his most recent removal from the Australian community back into which he now seeks re-admission.

(original emphasis)

45    It is therefore apparent that the Tribunal on three occasions purported to find that the applicant's recidivist risk was unknown and was whatever it was 'at the time of his most recent removal from the Australian community'.

Summary of respective submissions

46    The applicant relies on the fact that the Tribunal does not state or describe what it considered the recidivist risk to be at the time of the applicant's most recent removal from the Australian community. The applicant submitted that this manner of reasoning, with its reference to an unidentified risk at an earlier time, is a failure to comply with the requirements of paragraph 8.1.2(2) of Direction 99.

47    The applicant submits that although there was material before the Tribunal potentially relevant to the applicant's reoffending risk 'at the time of his most recent removal', that material was not referenced in the reasons, and so the reasons do not disclose a clear assessment of the applicant's reoffending risk. The applicant relies primarily in this regard on statements in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 (Feutrill J) to the effect that the Tribunal was obliged to complete an assessment and evaluation of the likelihood of the applicant engaging in further criminal or other serious activity.

48    Counsel for the applicant also challenged the adequacy of the Tribunal's reasons by referring to s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its written reasons its findings on material questions of fact, and a reference to the evidence or other material on which those findings were based.

49    The Minister submitted that viewed as a whole, the Tribunal's assessment - that the applicant's risk of reoffending is the same as it was when he was most recently removed from the community - must be understood as a reference to the applicant having a high risk of reoffending. The Minister contended that although the language of the Tribunal was somewhat unclear, the reasoning reflects the paucity of evidence available, and nonetheless constitutes an assessment as required by paragraph 8.1.2(2) of Direction 99.

50    The Minister submitted that RNSQ was incorrectly decided, contending that it was put too strongly in that case that an assessment of risk must occur in every case. The Minister submitted that there is no error in not engaging in a qualitative assessment of risk if there is some good reason for not doing so, such as there being insufficient material for the Tribunal to rely on. However, it was submitted that it was not necessary for me to form a view as to whether I am bound to follow RNSQ, because in any event, the present case is distinguishable. It was said that the gravamen of the alleged error by the Tribunal in RNSQ was that the Tribunal considered it unnecessary to assess the applicant's reoffending risk: in contrast, it was said, the Tribunal in the present case did ultimately make an assessment of risk.

51    The Minister submitted that the correct approach to the issues raised in the present case was that identified in Chen v Minister for Immigration and Border Protection [2017] FCA 46 (Burley J) at [65]-[68], which in turn followed and applied the decision of Moshinsky J in BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68]. The Minister also relied on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [44]; and RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 254 at [55] (Wigney J).

52    The tension in the respective submissions therefore rests on whether the conclusions at TR [74], [75] and [77(c)] reflect that the Tribunal has properly undertaken the task required of it by paragraph 8.1.2(2) of Direction 99.

The authorities

53    It is useful to commence with a line of decisions concerning reviews of the exercise of discretion by a Minister under s 501 of the Migration Act. Those decisions do not concern the application of a Direction. However, as will be seen, they have been cited and applied by this Court in subsequent cases that have considered the task required under various Directions in order to properly take into account the question of reoffending by a non-citizen.

54    In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, Mortimer J concluded that in the context of the exercise of power by a Minister under s 501(2) of the Migration Act, the risk of harm to the Australian community is a mandatory consideration: at [122]-[123].

55    This statement was later approved but qualified by the Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367. The majority (Rangiah J, with whom North J agreed) decided that a Minister is obliged to consider the risk of harm posed by a visa holder remaining in Australia in exercising the discretion under s 501(2). However, a Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm despite the fact that such an evaluation may be centrally relevant to a Minister's decision in most cases: at [70]-[74].

56    In Ayoub, to which both parties referred in this case, the Court considered whether the Minister had properly completed an assessment of the anticipated risk of harm to the Australian community when exercising discretion under s 501(2) of the Migration Act. The discussion in Ayoub of Tanielu and Moana, amongst other cases, as to whether an assessment of risk was a mandatory consideration, is not relevant to the present case. Relevantly, the appellant argued that the Minister had failed to properly consider the risk of reoffending. It was said that the Minister had not ascribed any particular quality, or probability, of risk of reoffending. However, the Court made the following comments as to the task to be undertaken in assessing the risk of harm:

[44]    It was not necessary, with respect, for the Minister to 'ascribe' any particular characterisation to the 'quality of risk' and even if there were, the Minister described the risk of harm to individuals or the Australian community as 'unacceptable'. Nor was it necessary for the Minister to 'evaluate the risk of harm in a particular way': see Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [71].

[45]    Reasons may be expressed differently by different Ministers. To the extent that be relevant, which may be doubted, a Minister may see fit to characterise a particular risk as 'serious': e.g., Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [17] to [20]. And some Ministers may see fit to try and effect some form of assessment by reference to the nature of the criminal conduct which gives rise to the exercise of the power conferred by s 501(2) and (6)(a) of the Migration Act by reference to the risk that re-offending may pose to the Australian community. In some cases a failure on the part of a Minister to do more than simply refer to there being a 'risk' may evidence a failure properly to take that factor into account. A mere reference in passing to the prospect of there being a 'risk' may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account.

[46]    Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an 'unacceptable risk' or a 'grave and serious risk', may not be sufficient to clothe a statement of reasons with impunity.

(original emphasis)

57    In AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451, a differently constituted Full Court rejected an argument by the appellant that the Minister was obliged not only to take into account the risk of harm to the Australian community but also to quantify that risk, stating relevantly:

[55]    That argument should be rejected. It is inconsistent with both Moana and Ayoub, as well as Brown [[2015] FCAFC 141; (2015) 235 FCR 88]. In Brown, Rares, Flick and Perry JJ said at [41]:

First, even if the Minister had a duty to consider the risk of harm to the Australian community, he had no duty to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk: Moana [2015] FCAFC 56 at 71; Ayoub [2015] FCAFC 83 at [44].

[56]    There is, in any event, a further reason why the argument must be rejected. That is because, even if (contrary to the above), the Minister was obliged to quantify the risk of the appellant re-offending, he did so, as is reflected in his conclusion at [39] of his statement of reasons that the appellant posed an 'unacceptable risk'.

58    In BSJ16, the issue was whether a decision by the Minister not to revoke a cancellation of a visa under s 501CA(4) was legally unreasonable due to a failure to assess the likelihood of reoffending. Moshinsky J proceeded on the basis that the principles in relation to the power to cancel a visa as discussed in cases including Moana and Ayoub were applicable in relation to the issues before him relating to the exercise of power under s 501CA(4). The applicant had submitted that there were particular ways in which the Minister was to identity or weigh the risk of harm (see [65]). His Honour held:

[68]    By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community 'in any particular way or to ascribe any particular characterisation to the quality of the risk': see Brown at [41], citing Moana at [71] and Ayoub at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).

[69]    The applicant's submission summarised in [65] above, to the effect that there are only two logical or rational modes of reasoning, is overly prescriptive. There may be other ways of reasoning in relation to the risk of harm to the Australian community which are logical and rational. It is necessary to look at the reasoning adopted in the particular case and consider whether it is legally unreasonable.

…

[71]    The finding that the applicant posed 'an ongoing likelihood of reoffending' is tantamount to a finding that there was 'a' risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process. It was not incumbent on the Minister to make a more precise finding as to the gradation of risk posed by the applicant in order to support a rational and logical reasoning process. Indeed, it might be said to be unrealistic to expect the Minister to do so given the inherent difficulty of predicting human behaviour of this kind.

59    That reasoning was subsequently upheld on appeal: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; (2017) 252 FCR 82 at [33]-[45].

60    Each of Tanielu, Moana, Ayoub, AZAFQ and BSJ16 concerned a decision of the Minister. They did not address compliance with any Direction. In Chen, the question of assessment of risk was raised in the context of a decision by the Tribunal where a Direction had been issued by the Minister. Relevantly, paragraph 13.1.2 of Direction 65 applied. The terms of paragraph 13.1.2 of Direction 65 are relevantly the same as the terms of paragraph 8.1.2 of Direction 99. The only apparent difference is that paragraph 13.1.2(2) commences with the words 'In considering the risk', whereas paragraph 8.1.2 commences with the words 'In assessing the risk'. I do not think anything of substance turns on this difference.

61    The importance of the decision in Chen is that Burley J (at [61]) referred to and adopted the reasoning of Moshinsky J in BSJ16 in his consideration of whether Direction 65 included language that was prescriptive as to the manner in which the risk of harm to the Australian community was to be evaluated by the Tribunal. His Honour said:

[65]    The correct analysis in the present case is to 'consider' whether the Tribunal had regard to the principle set out in cl 13.1.2(1), and also had 'regard', cumulatively, to the nature of the risk of harm to individuals or the Australian community should the applicant engage in further misconduct, as well as the likelihood that the applicant would engage in further such misconduct, taking into account available information and evidence on the risk of reoffending as required in cl 13.1.2(1). However, no language in cl 13.1.2 requires that the Tribunal provide an estimate of the extent of the likelihood of re-offending. The question of 'likelihood' is left at large, to be considered cumulatively with the other factors mentioned, in the light of the principle identified. Accordingly, in my view the language in cl 13.1.2 imposes no duty upon a delegate to ascribe any particular characterisation to the quality of the risk provided that the matters referred to in it are taken into account.

[66]    In the present case, the Tribunal considered (at [44] - [49]) the reasons the applicant claimed he became involved in the criminal activity; his past vulnerability to participating in criminal activity when under financial strain; the uncertain financial conditions that the applicant would face upon his release; the fact that rehabilitation had not been tested; evidence from a number of witnesses that the applicant was remorseful and that they did not consider that he would reoffend; the applicant's recent history of smoking marijuana; his extensive adverse driving record and his contrition. Having regard to all of these matters, the Tribunal concluded that the applicant had little regard for abiding by the law before his conviction in 2014.

[67]    In adopting this approach, the Tribunal focused on what might happen in the future, and gave consideration to the likelihood of the applicant reoffending, in the circumstances facing him upon his release. In addition, the Tribunal assessed the nature of the harm caused to individuals or the Australian community, should the applicant reoffend and concluded that there would be potentially significant and irreparable financial and psychological damage to the Australian community if the applicant were to reoffend.

[68]    Having regard to these matters, I am satisfied that the Tribunal considered the risk to the Australian community having regard to, cumulatively, the matters set out in cl 13.1.2 of the Direction. I am not satisfied that the Direction requires the Tribunal to provide an estimate of the likelihood of reoffending.

62    The approach in Chen was referred to in Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1643 at [70]-[71] (Rangiah J); and Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1281 at [47] (Collier J) (both in relation to Direction 79).

63    In RNSQ, Feutrill J was concerned with the application of Direction 90. The Tribunal in RNSQ did not make a finding as to the applicant's likelihood of reoffending. It considered the nature of the evidence made it difficult to make a finding, and that in any event, it was unnecessary to make a finding because the level of tolerable risk to the Australian community for that applicant's reoffending was zero (RNSQ at [43]). Feutrill J decided that the Tribunal's reasoning failed to comply with Direction 90 and amounted to jurisdictional error. His Honour said:

[73]    Therefore what matters in the assessment of the risk to the Australian community is not how the risk of harm is assessed or evaluated but that there is an actual assessment and evaluation undertaken of that risk. That assessment and evaluation cannot be undertaken properly and in accordance with Direction 90 without the decision-maker assessing and evaluating the likelihood of the particular non-citizen engaging in further criminal or serious conduct.

[74]    Further, in the context of the evaluation of risk and tolerance for risk in connection with criminal behaviour the concept of 'unacceptable risk' is not without content in Australian law and has general features which can be derived from authorities on that topic. One feature is that an assessment needs to be made of the likelihood of a person engaging in conduct in the future which may cause harm: Tanielu at [102]. It is only after that risk has been assessed or evaluated that the decision-maker is then in a position to consider if the risk is acceptable or unacceptable having regard to the assessed risk to the community and other factors such as the tolerance of the community having regard to the particular circumstances of the non-citizen in question.

…

[76]    The Tribunal's reasons do not reveal that it has completed an assessment and evaluation of the risk to the Australian community based on the likelihood of the applicant engaging in further criminal or other serious conduct and, then, assessed and evaluated the extent to which that risk is or is not acceptable having regard to the particular circumstances of the applicant … Having reached the conclusion, in effect, that no risk was acceptable, the Tribunal was of the view it was not necessary for it to make any specific findings as to the actual risk of the applicant reoffending (that is, a specific finding about the likelihood of the applicant engaging in further criminal or other serious conduct). The Tribunal considered even if it accepted that the risk was low, based on its earlier conclusion that no risk was tolerable, any risk was unacceptable (T [152]).

[77]    The effect of that process of reasoning was that the Tribunal, in substance, failed to complete an assessment and evaluation of the likelihood of the applicant engaging in further criminal or other serious conduct as it was required to do in accordance with para 8.1.2(2)b) of Direction 90. Even if the Tribunal was of the view that a low risk of reoffending was not acceptable, a finding as to the likelihood of the applicant engaging in further criminal or other serious conduct was necessary for the purpose of evaluating the relative weight to be given to the protection of the Australian community.

(original emphasis)

64    In RDYQ, Wigney J considered the issue in the context of Direction 90 (relevantly identical to Direction 99). The Tribunal had before it substantial evidence relevant to the applicant's likelihood of reoffending, and it was considered effectively common ground between the parties that the applicant had a low risk of reoffending. Nevertheless, the Tribunal did not explicitly make a finding with respect to the applicant's likelihood of reoffending, which the applicant challenged. Wigney J dismissed the challenge, stating:

[54]    It would, in all the circumstances, have been preferable for the Tribunal to explicitly refer to the requirement, under paragraph 8.1.2(2)(b) of Direction No. 90, to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. It would also have been preferable for the Tribunal to make a clear and express finding concerning the likelihood of the applicant engaging in further criminal or other serious conduct. That said, the requirement under paragraph 8.1.2(2)(b) of Direction No. 90 is not that the Tribunal make an express finding concerning the likelihood of the non-citizen engaging in further criminal or other serious conduct. The requirement is that the Tribunal 'have regard to' that consideration.

[55]    In all the circumstances, it is not possible to conclude that the Tribunal did not 'have regard to' the likelihood of the applicant engaging in further criminal or other serious conduct. The Tribunal addressed the evidence concerning that issue at some length in its reasons. Even if the Tribunal was required to make a finding in that regard, a fair and contextual reading of the Tribunal's reasons indicates that the Tribunal effectively found that there was a risk, albeit a low risk, of the applicant reoffending. It should be emphasised in that regard that the Tribunal's reasons should not be read 'minutely and finely with an eye keenly attuned to the perception of error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6; quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456.

65    As noted, the parties expressed reservations about aspects of the reasons in RNSQ relating to risk of reoffending. Questions such as whether the finding in RNSQ at [77] might be perceived as more prescriptive than the findings in Chen at [65] and [68] and RDYQ at [54]-[55] and whether an assessment of the risk of reoffending is always required do not need to be determined on this application. The Tribunal in this case purported to make a finding about the likelihood of reoffending. As will be seen, the difficulty is the manner in which that was undertaken.

Consideration

66    Direction 99 does not require the Tribunal to make an express finding concerning the likelihood of the applicant of further offending. Nor, having regard to Chen, is the Tribunal required to provide an estimate of the likelihood of reoffending. The Tribunal must, however, in assessing the risk that may be posed to the Australian community by the non-citizen, have regard to the likelihood of reoffending, taking into account the matters set out in paragraph 8.1.2(2)(b)(i) and (ii) of Direction 99.

67    In this case the Tribunal seems to have appreciated the task it was expected to undertake. For example, it speaks of an assessment of risk, so utilising the language of paragraph 8.1.2(2). It has purported to make a finding concerning the likelihood of the applicant engaging in further criminal or other serious conduct, the course endorsed by Wigney J in RDYQ. That finding, however, is devoid of clarity or content. I accept that the Tribunal has referred to evidence that might be relevant to an assessment of the likelihood of reoffending. In particular, it has referred to the statements the applicant made to Ms Cotter in September 2021 about the prospect of returning to his criminal lifestyle and the apparent lack of engagement with rehabilitation programs. Such evidence is relevant having regard to paragraph 8.1.2(2)(b) of Direction 99. However, the Tribunal's finding as to the likelihood of the applicant reoffending was that it is 'now no different to what it was at the time of his most recent removal from the Australian community'. So, two question arise - when was that time and what was that likelihood?

68    The Minister submitted that the Tribunal's reference to the time of the applicant's most recent removal from the Australian community must be a reference to what happened when he was sentenced in August 2021. At that time the sentencing judge observed in his published reasons (Sentencing Reasons) that the applicant had been assessed at a high risk of reoffending. According to the Minister, it follows that the Tribunal made findings that can only sensibly be understood as a finding that there was a high risk of reoffending and that the risk to the Australian community, were the applicant to reoffend, is unacceptable.

69    However, although the Sentencing Reasons were before the Tribunal, they are not referred to in the Tribunal's reasons. The Minister accepts this to be the case. Nor is there any reference to the term 'high risk'.

70    I note that the sentencing judge in the Sentencing Reasons did not find that the applicant was at high risk of reoffending. Rather, the statement in the Sentencing Reasons is a reference to an earlier mentioned assessment undertaken in October 2020 which referred to the applicant being at high risk of reoffending. That itself is likely a reference to a statement in a community corrections officer's report of October 2020 that the applicant had been assessed at a 'T2/High risk of reoffending' (part of the G-documents).

71    I also note that although the Tribunal acknowledged other G-documents by footnote in its reasons, the Sentencing Reasons are not referred to by footnote. There is reference in the Tribunal's reasons to the applicant's criminal history running from January 2010 to August 2021, and to the fact that his 'most significant offending' was dealt with by the Coffs Harbour District Court on 19 August 2021: TR [16]. However, it cannot be inferred that this information has been sourced from the Sentencing Reasons, as those reasons make no reference to Coffs Harbour. Therefore, it appears the Tribunal has sourced this information separately (potentially from the National Criminal Check, which is G5 of the G-documents). In the absence of any reference to the Sentencing Reasons, it is difficult to find a reasonable basis from which to infer that the Tribunal read the Sentencing Reasons, adopted the reference in them to the effect that the applicant had been assessed at a high risk of reoffending, and inferred that the relevant date of the assessment was around 19 August 2021. Reaching this conclusion involves speculatively filling in gaps.

72    Further, whilst in accordance with the submissions of the applicant and the Minister I have taken into account the sentencing date of 19 August 2021 as 'the time of [the applicant's] most recent removal from the Australian community', it is by no means clear that is the date the Tribunal had in mind for the purpose of its purported finding. For example, the sentence imposed on 19 August 2021 was recorded as 'an aggregate sentence of imprisonment of 5 years, 10 months, to commence on 14 November 2019', with a 'non-parole period of 3 years, 4 months expiring on 13 March 2023'. The Tribunal had regard to evidence about the conduct of the applicant in corrective custody in November 2020 and February 2021: TR [38]-[39]. The sentence record taken with this evidence suggests the applicant was in custody from November 2019 or at least from some other date well prior to 19 August 2021. Assuming that to be right, then equating the likelihood of reoffending at the time of the Tribunal's reasons to whatever it was at the time of the applicant's 'most recent removal from the Australian community' highlights some uncertainty as to the relevant date of that removal, and the nature of any evidence as to his likelihood of reoffending at that date. The reference in the same paragraphs (TR [75] and [77(c)]) to the risk of reoffending being unknown and unresolved further complicates giving content to those findings.

73    In my view, the finding by the Tribunal equating the applicant's likelihood of reoffending to an unidentified earlier likelihood of reoffending, even though repeated three times, is devoid of meaningful content. The finding reveals that the factor set out in paragraph 8.1.2(2) of Direction 99 was not properly taken into account for the purpose of the Tribunal's consideration of risk to the Australian community.

74    Further, whilst the applicant also challenged the adequacy of the Tribunal's reasons by reference to s 43(2B) of the Administrative Appeals Tribunal Act, it is to be recalled that where reasons are given for a decision, the plausible justification for the course of reasoning taken is to be found in those reasons. So much was confirmed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ). In that case, the Minister in the appeal put forward justifications for the decision under review which were not matters mentioned in the reasons for decision. The Court said at [47]:

This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The 'intelligible justification' must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not …

75    In my view the reasons of the Tribunal do not disclose the evidence or materials relied upon for the purpose of the statements made at TR [74], [75] and [77(c)]. The Minister cannot provide justification for those reasons by speculating as to what the Tribunal may or may not have had in mind, but has failed to enunciate in the reasons, and similarly it is not appropriate for this Court to do so.

76    The applicant has established that the Tribunal has failed to exercise its statutory power in compliance with the requirements of paragraphs 8.1.2(2) of Direction 99 and s 499(2A) of the Migration Act. Accordingly, there was jurisdictional error. The applicant submitted that the error is material because it could have affected the weight to be attached to primary consideration 1 and so the overall decision. The Minister conceded in light of LPDT that if error is established, it is material. That concession was properly made.

77    Accordingly, ground 1 is upheld.

Ground 2 - the evaluative exercise of weighing or balancing

Manner in which the Tribunal weighed the considerations

78    As noted, by this ground the applicant challenges the manner in which the Tribunal attributed weight to the relevant considerations, having regard to the requirements of Part 2 of Direction 99.

Requirements of Direction 99

79    I have summarised above at [21] and [22] paragraphs 8 and 9 of Direction 99, which set out the various primary and other considerations that the Tribunal must take into account, where relevant to a decision.

80    Paragraph 7 provides for the manner in which considerations are to be given weight.

81    That task (in the context of the similar Direction 90) was explained in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (Colvin, Stewart and Jackson JJ) as follows:

[27]    Therefore, the Direction requires greater weight to be given to primary considerations unless there is some reason why that general approach should not be adopted. Further, the Direction does not confine the decision-maker to the primary and other considerations. It follows that part of the task for a decision-maker in complying with the Direction is to evaluate whether it is appropriate for a consideration that is not a primary consideration to be given greater weight than one or more primary considerations. In addition, when evaluating whether there is 'another reason' to revoke a visa cancellation in the exercise of the power conferred by s 501CA(4), the decision-maker must evaluate whether one or more primary considerations outweighs other primary considerations.

[28]    In consequence, compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of 'weight' to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.

82    A further example is provided by VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160 (Colvin J). In VZWF the decision-maker listed the relevant factors required to be considered by Direction 90 along with their weight, followed by a statement that an application of the Direction favoured not revoking the cancellation of the applicant's visa. The Minister conceded that the decision should be set aside. However, Colvin J provided brief reasons. His Honour found the Tribunal's approach amounted to a failure to comply with Direction 90 and so constituted jurisdictional error, referring to CRNL.

Tribunals' approach in this case

83    The Tribunal identified the applicable principles as mandated by Direction 99, including the primary and other conditions that it was bound to take into account where relevant and weigh in reaching its decision.

84    As I have summarised above ('The Tribunal's reasons'), the Tribunal considered each of the primary and other considerations in turn and attributed a certain weight to them, identifying whether in each case they were in favour of or against revocation of the visa cancellation.

85    The Tribunal considered the weight it attached to each consideration: TR [116]. It then found that the combined 'very heavy weight' of primary consideration 1 and 5, against revoking the cancellation, was sufficient to outweigh the combined weights of primary consideration 3 and the other consideration in support of revoking the cancellation.

86    It concluded at [118]:

A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant's Visa.

Submissions

87    The applicant submitted that the Tribunal's 'holistic application of the considerations', failed to undertake the principal burden of Direction 99, because there is no other reasoning provided that might be said to indicate a relative weighing of those considerations. He submits that the Tribunal's approach is not consistent with the task required, as explained in CRNL and VZWF, in terms of revealing whether the final decision was anything other than the consequence of a mathematical totalling of the weight ascribed to the relevant factors.

88    The Minister submitted that this case is distinguishable from CRNL and VZWF, on the basis that the Tribunal did not simply attribute a weight to each consideration, but did what was anticipated by the reasons in CRNL: that is, it considered in a holistic manner the combined weights of certain considerations against the combined weight of others and came to an overall evaluation of where the balance should lie.

Consideration

89    I accept the Minister's submission in relation to ground 2. The task undertaken by the Tribunal is distinguishable from that described in CRNL and VZWF and I am not persuaded that the Tribunal has not properly understood or undertaken the task required of it in this regard. Ground 2 is dismissed.

Ground 3 - errors as to convictions

90    Ground 3 raises the issue of the treatment of offences where no conviction is recorded. It is accepted by the Minister that the Tribunal erroneously described and referred to offences taken into account as convictions. However, the Minister does not accept that those errors lead to jurisdictional error in this case.

91    I will summarise a line of cases that has recently considered similar arguments in the context of various state and commonwealth legislation, before turning to the relevant legislation and the particular errors said to have been made by the Tribunal in this case.

The line of cases

92    In Lee v Minister for Home Affairs [2019] FCA 1669 Abraham J considered the s 16BA procedure under the Crimes Act 1914 (Cth), which allows an offender to admit guilt with respect to a federal offence, have that offence taken into account for the sentencing of another offence, and thereby not be regarded as being convicted of the offence taken into account. The Tribunal's error in wrongly referring to a conviction was found not to constitute a jurisdictional error in that case.

93    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 the High Court confirmed that in refusing to revoke the cancellation of the respondent's visa under s 501CA(4), the Minister engaged in error by considering certain findings of guilt made by the Queensland Children's Court. Section 184(2) of the Youth Justice Act 1992 (Qld) specified that such findings were not to be taken as a conviction for any purpose. The Minister therefore took into account a consideration made irrelevant by s 85ZR(2) of the Crimes Act, being the respondent's offending as a child for which no conviction was recorded under the Youth Justice Act s 184(2). Section 184 of the Youth Justice Act engaged s 85ZR and s 85ZS(1)(d)(ii) of the Crimes Act (see further below).

94    In Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 the High Court found that s 14 of the Children (Criminal Proceedings) Act 1987 (NSW) operated in a similar way to s 184(2) of the Youth Justice Act. It ruled that the delegate was precluded from considering the appellant's youth offending. Section 85ZR(2) of the Crimes Act was engaged and the application for review was allowed.

95    Those High Court authorities were applied in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465 (Hespe J) to s 8(1) of the Sentencing Act 1991 (Vic), which provided that a finding of guilt without the recording of a conviction must not be regarded as a conviction for any purpose.

96    Finally, in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468, Shariff J considered the same legislative provision that is relevant in this case. That provision is s 35(4) of the Sentencing Procedure Act. His Honour found that the reasoning in Thornton and Lesianawai applied to s 35(4). The Minister accepts that I am bound by the decision in Nguyen unless I am persuaded that it is wrong. The Minister submitted that there are arguments that were not put to Shariff J that should lead to a different result.

Part 3 Division 3 of the Sentencing Procedure Act

97    As noted above, the Form 1 scheme as considered in Nguyen identifies a 'principal offence' and other 'further offences' which the Court may take into account when dealing with the offender for the principal offence. Further offences must be offences with which the offender has been charged, but not convicted, and of which the offender 'admits guilt' and wishes the court to take them into account in sentencing for the principal offence.

98    Part 3 of the Sentencing Procedure Act is headed 'Sentencing procedures generally'. Division 3 of Part 3 is headed 'Taking further offences into account'. Section 32 provides that in any proceedings for a principal offence, the prosecutor may file a document specifying other offences for which the offender has been charged but not convicted, being offences that the offender has indicated they wish to have the court take into account when dealing with the principal offence.

99    Sections 33 to 35 of the Sentencing Procedure Act relevantly provide:

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.

34    Ancillary orders relating to offences taken into account

(1)    If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.

…

(4)    In this section, 'ancillary order' means an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.

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.

(5)    In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings -

(a)    reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and

(b)    had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.

(6)    The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.

100    The operation of these provisions in New South Wales courts was outlined in (relevantly) 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 and Abbas v The Queen [2013] NSWCCA 115.

101    As acknowledged in those decisions, the court gives effect to the Form 1 scheme in a context where the basic principle of the common law is that no-one should be punished for an offence of which they have not been convicted. The application of that principle may, however, be qualified by statute. As is apparent, ss 34 and 35(5) provide limited circumstances in which the effect of there being an admitted further offence may be considered. Regardless, there is no conviction. This is significant. The scheme ensures that even where there is an admission of guilt, there is not taken to be a conviction for any purpose.

102    Clearly the sentencing judge in New South Wales was bound by and acknowledged the Form 1 scheme. The question here is whether the applicant is to be taken by the Tribunal as never to have been convicted of the relevant further offences for the purpose of considering his application to revoke his visa cancellation under the Migration Act.

103    To answer this question, it is necessary to consider the operation of ss 85ZR(2) and 85ZS of the Crimes Act.

The Crimes Act - Thornton and Lesianawai

104    Sections 85ZR and 85ZS appear under the heading for Part VIIC Division 2 of the Crimes Act 'Pardons for persons wrongly convicted, and quashed convictions'. However, as observed in Thornton at [12], the heading is indicative rather than exhaustive of its provisions.

105    Section 85ZR addresses the effect of state or foreign law provisions in relation to offences in particular circumstances. Relevantly, s 85ZR(2) deals with offences under State or foreign laws of which a person is taken never to have been convicted in particular circumstances or for a particular purpose. It relevantly provides:

85ZR    Pardons for persons wrongly convicted

…

(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.

106    Section 85ZS elaborates on the consequence where s 85ZR(2) applies, relevantly providing:

85ZS    Effect of pardons for persons wrongly convicted

(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.

107    The High Court considered the effect of these provisions of the Crimes Act alongside state laws which prohibit certain conduct from being recorded or regarded as a conviction in Thornton (Queensland's Youth Justice Act) and Lesianawai (New South Wales's Children (Criminal Proceedings) Act).

108    The outcome in Thornton, as summarised by Beech-Jones J in Lesianawai was:

[22]    In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was 'not taken to be', a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the 'corresponding purpose' was 'any purpose', including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that '[t]he Minister's consideration of Mr Thornton's youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act' (emphasis added).

[23]    Gordon and Edelman JJ reached the same conclusion by in part relying on s 85ZS. Their Honours construed s 85ZR(2) so that, if a State law provides that in 'particular circumstances' a person is deemed never to have been convicted of an offence for any purpose, then a Commonwealth authority in that State in those circumstances is to take that person as never having been convicted for any purpose. Their Honours construed ss 183 and 184 of the Youth Justice Act as specifying particular circumstances in which a person was taken never to have been convicted, namely, where a finding of guilt had been made and a court had decided or been mandated not to record a conviction. Thus, their Honours found that s 85ZR(2) was engaged for all purposes in those particular circumstances. Their Honours concluded that ss 85ZS(1)(d)(ii) and 85ZM of the Crimes Act precluded the Minister from taking into account any of the 'findings of guilt' made against the respondent or the fact that he had been charged with the offences he committed when he was a child.

(footnotes omitted)

109    In Lesianawai, Beech-Jones J considered similar provisions of the Children (Criminal Proceedings) Act (referred to in the reasons as the Children Proceeding Act) which had the effect that a person under the age of 16 years could not be convicted of particular offences, despite being found guilty or pleading guilty. His Honour observed that:

[32]    … like the provisions of the Youth Justice Act considered in Thornton, the above provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose. An example of a statutory provision that provides to the contrary is s 33(6) of the Children Proceedings Act, which was introduced with effect from 3 November 2008. Section 33(6) deems a finding of guilt by the Children's Court to be a conviction '[f]or the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence' and enables the Court to exercise power under that legislation as if the person had been convicted of the offence.

(footnotes omitted)

110    In conclusion his Honour accepted the plaintiff's contention that:

[35]    … once it is concluded that [the plaintiff] is 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, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody).

111    Therefore, as explained by the High Court, the effect of s 85ZR is that full force and effect is to be given by a commonwealth authority to a law of a State under which a person is 'for any purposes' to be taken never to have been convicted of an offence. The 'corresponding purpose' as referred to in s 85ZR is therefore 'any purpose', and this includes the purpose of a commonwealth authority making a decision under s 501CA(4) of the Migration Act: Thornton at [13], [36] (Gageler and Jagot JJ).

112    The question is whether s 35(4) of the Sentencing Procedure Act similarly engages s 85ZR(2). This was addressed by Shariff J in Nguyen.

The decision in Nguyen

113    In Nguyen, as in this case, the Administrative Appeals Tribunal decided not to revoke the cancellation of the applicant's visa under s 501CA(4) of the Migration Act, having regard to Direction 99. In its reasons it referred to an offence taken into account under the Form 1 regime of the Sentencing Procedure Act and erroneously described it as a conviction (Nguyen at [55]). Shariff J decided that s 35(4) of the Sentencing Procedure Act was sufficiently similar to the provisions considered in Thornton and Lesianawai such that the Tribunal's consideration of the charge was an error. As his Honour described:

[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.

114    His Honour reasoned that the wording of s 35(4) in the context of the overall procedure makes it clear that an offender is not to be considered convicted of a further offence taken into account under s 33. Even though Part 3 Division 3 of the Sentencing Procedure Act serves a different purpose to that of the legislative schemes considered in Thornton and Lesianawai, the purpose of each statute shares a common element, in that the offender is not to be taken as convicted when the requisite conditions are satisfied. As his Honour stated:

[51]    … 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 Procedures Act serves a different policy purpose to the provisions considered in Thornton and Lesianawai. In a simplified sense, the Sentencing Procedures 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 Procedures 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 Procedures 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.

115    His Honour found that the Tribunal's error was material, and accordingly the ground of review was made out: at [55]-[63].

116    I am obligated to follow the earlier decision of Shariff J in Nguyen, unless I think that decision was plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J); Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; (2017) 255 FCR 96 at [93] (Reeves, Farrell and Gleeson JJ) (overturned on appeal but on a different point).

117    Having regard to Thornton and Lesianawai, I agree with the reasons in Nguyen and would follow them. I agree that s 35(4) of the Sentencing Procedure Act relevantly has the same effect as the legislation the subject of Thornton and Lesianawai. Although there is an admission of guilt in relation to further offences, s 35(4) provides that the person is not regarded as being convicted of those offences for any purpose, unless the legislation provides otherwise. I agree that although the legislation in Thornton and Lesianawai addresses juvenile rather than adult offending, the important common element remains - that is, the state legislation concerns circumstances where a person is never convicted or is taken never to have been convicted of an offence. Although there are differences in the language across the provisions of the various state acts, those differences do not direct a different result in this case. I agree that the Tribunal is precluded from treating further offences taken into account under the Form 1 scheme as offences of which the applicant has been convicted.

118    In coming to this view, I have taken into account the two arguments raised before me which the Minister submitted were not raised before the primary judge in Nguyen.

The Minister's first argument

119    The first argument rests on an application of s 34 of the Sentencing Procedure Act.

120    As set out above, s 34 provides that if a court takes a further offence into account, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence. An ancillary order is defined for the purpose of the section. It is limited to an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege.

121    The Minister submitted that despite s 35(4), s 34 of the Sentencing Procedure Act, read with s 85ZR of the Crimes Act, permits the Tribunal for the purpose of deciding on revoking a visa cancellation under s 501CA to have regard to further offences taken into account. That is because in the context of the power to make ancillary orders about such offences (including the suspension of a licence or privilege) further offences are 'taken as convictions'.

122    According to the Minister, this follows because s 85ZR(2) of the Crimes Act only applies to the 'corresponding purpose' or circumstances, specified by the State law, for which an offender is considered not to be convicted. I have already indicated that, applying Thornton, the 'corresponding purpose' to which s 85ZR(2) refers having regard to s 35(4), is 'any purpose'. However, the Minister submitted, in effect, that the corresponding purpose in this case would be for 'any purpose subject to the purpose of making any ancillary orders under s 34(1)'.

123    The Minister accepted that s 34 provides for the making of judicial ancillary orders, whereas the loss of a visa is an administrative consequence. However, the Minister submitted that this distinction does not matter, because s 34(1) regards a further offence taken into account as a conviction for the purpose of ancillary consequences of the further offence. It follows, according to the Minister, that the same exceptions to the statutory prohibition on regarding further offences taken into account as convictions apply to the Tribunal, and those exceptions include any ancillary consequences for the offence taken into account.

124    The Minister says that the loss of a visa is properly characterised as an ancillary consequence, since, consistent with the definition provided in s 34(4) of the Sentencing Procedure Act, revocation of a visa is a loss of a licence or privilege. The Minister relies on the definition of visa in s 29 of the Migration Act and Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 469.

125    I do not agree with the Minister's interpretation of the interrelationship between s 34(1) of the Sentencing Procedure Act and s 85ZR(2).

126    Section 34(1) is not a deeming provision. It does not provide to the effect that if a further offence is taken into account, then (despite s 35(4)) there is 'deemed' to be a conviction for the purpose of making ancillary orders. It does not provide to the effect that there is 'taken to be a conviction' for the offence (in contrast, for example, to s 33(6) of the Children (Criminal Proceedings) Act 1987 (NSW) referred to in Lesianawai at [32]). In fact, the words of the provision deny any premise that there is a deemed conviction. Rather, they provide that the court may make ancillary orders with respect to a further offence taken into account that it could have made had it convicted the offender of the offence. The words acknowledge the absence of any conviction.

127    In that sense, the language of s 34(1) is consistent with that of s 35(4). Section 34(1) proceeds to permit the court to make ancillary orders with respect to a further offence taken into account, but without regarding the offender as having any conviction for it. Section 35(4) confirms that taking into account a further offence is not to be regarded as a conviction for that offence for any purpose. Therefore, even if s 85ZR(2) operates in a manner that would permit the Tribunal to have regard to ancillary orders, the Tribunal cannot proceed on the basis that the offender has been convicted of a further offence taken into account.

128    Second and in addition, s 34(4) confines ancillary consequences to consequences that may be imposed by the sentencing court. It concerns the exercise of judicial power. The types of orders listed in the provision fall within the scope of those which a sentencing judge has the power to impose or restrict. It does not refer to ancillary orders at large. Although noting the generality of the principle as to the meaning of words being influenced by their immediate context (Pearce DC, Statutory Interpretation in Australia (10th ed, Lexis Nexis, 2024) at [4.47]), I reject in this case the suggestion that the loss or suspension of a licence or privilege to which s 34(4) refers would extend to revocation of a visa. Unsurprisingly, the provision has been relied upon in order to cancel licences such as a driver's licence: Gardner v The Queen [2003] NSWCCA 199 at [28]; R v Richards [2002] NSWCCA 84 at [12]-[13]. That circumstance is far removed from cancellation of a visa. A court cannot cancel a visa. That remains an executive act.

129    As the applicant observed, a judicial ancillary order and revocation of a visa are of a very different nature: Bensegger v The Queen (1979) WAR 65 at 71; R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311; and Chu Shao Hung v The Queen (1953) 87 CLR 575 at 583-585, 589.

130    Relevantly, and as we are concerned in this case with New South Wales sentencing practices, the observation of Street CJ in Chi Sun Tsui is useful. The issue before the Court in Chi Sun Tsui was whether a convicted person's visa status could be taken into account for the purpose of withholding a non-parole period under the Probation and Parole Act 1983 (NSW). Street CJ found it could not, on the basis that:

the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society …

131    That statement of Street CJ was cited with apparent approval by the High Court in R v Shrestha (1991) 173 CLR 48 at 58 (Brennan and McHugh JJ).

132    The Minister referred to Air Caledonie at 469, in which the High Court referred to a person's ability to enter Australia via airplane as a 'privilege'. The Minister says that language supports the contention that loss of a visa is loss of a privilege to remain in Australia and so an ancillary consequence. I do not consider this case assists the Minister. Although the Court used the term 'privilege', that term is broad. The issue in Air Caledonie was whether a particular legislative fee fell within the ambit of a law imposing taxation within the meaning of s 55 of the Constitution. In that context, the Court's description of entering Australia as a privilege is of no particular significance to the issues in this case, especially in light of the above authorities.

133    The same can be said about s 29 of the Migration Act, to which the Minister also referred, which describes a visa as permission to travel to and remain in Australia. So much is to be accepted but this wording alone is broad and has no apparent connection to ancillary orders as defined in s 34(1) of the Sentencing Procedure Act.

134    In conclusion, even if the Minister's argument that it could rely on s 34(1) as a reason for having regard to 'convictions' for the further offences were accepted, there is no sound basis for an assertion that the type of ancillary order where such a 'conviction' might be taken into account would extend to cancellation of a visa.

The Minister's second argument

135    As extracted above, s 35(4) provides that:

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.

136    The Minister relies on these emphasised words as a textual distinction from the state legislative provisions considered in Thornton and Lesianawai, submitting that the words 'merely because of its being taken into account' leave open other circumstances in which a further offence taken into account may be regarded by the court (and so the Tribunal) as a conviction. The Minister submitted that the word 'merely' directs that a further offence is not to be regarded as a conviction 'in the limited circumstances where regard is had only to the fact that it was taken into account in sentencing for another offence'. That is, use of the word 'merely' permits the further offences taken into account under the Form 1 scheme to be regarded as convictions because of other circumstances. The Minister submitted that:

It is still open [to the Tribunal] to regard it as a conviction if, as occurred in the present matter, the totality of the circumstances [include] the conduct giving rise to the Form 1 offence, the applicant's admission to the offending and a sentencing court's consideration of the offending.

137    In such a scenario, the Minister submitted, the Tribunal has not taken into account the further offences 'merely because the court had taken them into account' but because on the facts, as admitted by the applicant, he engaged in the conduct amounting to the further offences. Or, as expressed during the hearing, the Tribunal was entitled to take into account the further offences not because they were taken into account by the sentencing judge under the Form 1 scheme, but because it is entitled to take into account the applicant's underlying conduct.

138    According to the Minister, it is the word 'merely' in the phrase 'merely because of its being taken into account' which creates the foothold for such other circumstances to be considered.

139    There are a number of difficulties with this submission having regard to the Tribunal's reasons in this case.

140    First, the natural reading of the section is that endorsed by Shariff J in Nguyen (at [52]). The words 'merely because of its being taken into account' only seek to emphasise the rule that a further offence taken into account should not be regarded for any purpose as a conviction.

141    Second, the Tribunal expressly referred to there being convictions for the applicant's further offences. It did not simply refer to the underlying conduct. It referred to the 'convictions' on a number of occasions (see the table at [152] below). As I conclude below, the error in wrongly referring to those further offences as convictions was material. Even if the construction of s 35(4) permits reference by the Tribunal to the underlying conduct the subject of further offending, it would not permit the Tribunal to also reason, as it did in this case, on the assumption that the applicant has convictions for those offences when he does not.

142    In my view, these matters lead to a conclusion that the second argument cannot be accepted in the circumstances of this case.

143    Considering further the Minister's submissions, it seems to me that other matters support the conclusion that 'merely' is to be understood as it was explained by Shariff J. It is true that the applicant (who appeared in person before the Tribunal) made admissions to the Tribunal about his conduct, but that is hardly surprising in circumstances where the Form 1 scheme is premised on the applicant admitting guilt in relation to the further offending. The applicant had already expressed guilt for the purpose of sentencing. His admission is part of the reason he is protected from a conviction being recorded for the further offences taken into account. It would be an odd result if repeating such an admission before the Tribunal then denied the applicant the benefit of the application of s 85ZR(2). This tells against the construction advanced by the Minister.

144    In this context it is also relevant that, as explained in Thornton at [60], s 85ZR(2) is to be read with s 85ZS. If s 85ZR(2) is engaged then s 85ZS(1)(d)(ii) provides in effect that a person who knows, or could reasonably be expected to know that in the particular circumstance a conviction is not taken to have occurred, then despite any other Commonwealth Law (such as s 501CA(4) of the Migration Act), not only is any conviction not to be taken into account, but neither is the fact that the person was charged with the offence. The Minister conceded in oral submissions that if, contrary to its principal submission, s 85ZR is engaged, then further offences taken into account could not be considered in a manner inconsistent with the operation of s 85ZS. However, the Minister's principal submission has the effect that despite the applicant participating in the Form 1 scheme, the Tribunal may take into account that the applicant was charged with the further offences, a circumstance that would not otherwise pertain.

145    In considering these factors, as senior counsel for the Minister fairly accepted, on his case the word 'merely' is left to do a lot of work. And that is so in circumstances where there is no indication that inclusion of the word 'merely' was intended to have such a purpose or outcome.

146    The parties provided supplementary submissions addressing the legislative history of ss 34 and 35 of the Sentencing Procedure Act and whether any extrinsic materials assisted with their interpretation. As to those sections generally, it was observed that a provision permitting the court to make ancillary orders with respect to further offences taken into account was introduced by the Criminal Procedure (Sentencing) Amendment Act 1989 (NSW), which relevantly introduced ss 21, 22 and 23 into the Criminal Procedure Act 1986 (NSW) (CP Act). Those provisions are the predecessor sections to ss 33, 34 and 35 of the Sentencing Procedure Act introduced in 1999. Although the terms are different, the effect of ss 21 and 22 of the CP Act is relevantly similar to ss 33 and 34 of the Sentencing Procedure Act. Similarly, s 23(5) of the CP Act relevantly provided that:

An offence taken into account under section 21 shall not, because of its being so taken into account, be regarded for any purpose as an offence of which a person has been convicted.

147    Notably, it is apparent that s 35(4) of the Sentencing Procedure Act has one textual difference to this earlier provision, being the inclusion of the word 'merely'.

148    The applicant in his supplementary submissions referred to the Minister's second reading speech which addressed the changes to the CP Act as follows (the Hon Edward Pickering, NSW Legislative Council, 3 May 1989, at 7251):

A further and most important aspect of the change is that a judicial officer will be able to make ancillary orders when taking offences into account. Thus, judicial officers will be able to order restitution, compensation, costs, forfeiture, disqualification and loss or suspension of a licence or privilege, as if the person had been convicted of the offence or had offences taken into account. However, the court shall not otherwise impose any separate punishment for the offence or offences. Victims will be further protected and offenders will not be able to avoid compensating their victims simply because the matters have been dealt with in this way. Any right of appeal against such an order is preserved, and the order lapses if the decision in respect of which the offence was taken into account is quashed or set aside. A person is not to be considered to have been convicted of any offence taken into account, and further proceedings cannot be instituted for such an offence, unless the decision in relation to the principal offence is overturned.

149    I do not consider this extract assists. It explains that victims' interests would be further protected by the proposed scheme. It confirms that a person is not to be considered to have been convicted of any offence taken into account under the scheme. Nothing said is inconsistent with the applicant's submissions as to the operation of the Sentencing Procedure Act.

150    Regrettably there appears to be no explanation in any extrinsic materials as to why the word 'merely' was introduced in s 35(4) when the Sentencing Procedure Act came into effect. If its insertion was intended to bring about a change in the law, and open up the circumstances which might permit regard to 'convictions' for further offences, one might have expected to see some explanation. The Form 1 scheme expressly permits regard to the further offences in particular circumstances: see for example ss 34(1) and 35(5) of the Sentencing Procedure Act. In light of the importance of s 35(4) to the overall objective of the Form 1 scheme, it might be expected to see any further exceptions provided for clearly. Insertion of the word 'merely' does not achieve that, and nor, in my view, is it apparent from the text of the legislation that it was intended to. I have not overlooked the canon of construction to the effect that when words are inserted in a statute they are intended to have meaning: Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70 at 86. It can, however, be accepted that sometimes words in statutory provisions are mere surplusage: Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 at [55].

151    In this case, I am not persuaded that the Minister's submissions as to the role of the word 'merely' are to be accepted. To my mind its inclusion does no more than colour (without changing) the emphatic nature of the phrase as identified in Nguyen.

The error in this case

152    The Tribunal outlined in detail the applicant's offending history. In doing so, it made no distinction between the applicant's convictions and further offences taken into account under the Form 1 scheme, which were not convictions. It exaggerated and misstated the number of convictions. The parties agree that was an error which the Tribunal repeated on a number of occasions. The applicant in his submissions provided a table detailing instances of error in the Tribunal's reasons in the form of an incorrect reference to a conviction or reasoning that builds upon such incorrect references, some of which I adopt below:

Materiality

153    The Tribunal took into account matters it was precluded from taking into account. As to materiality, the applicant submitted that the Tribunal's error infected its reasoning in regard to the nature and seriousness of the applicant's conduct, and therefore the weight to be afforded to primary considerations 1 and 5.

154    The Minister submitted the Tribunal's error did not make any difference to the outcome, because it was the applicant's conduct giving rise to his convictions that formed the substance of the material relied on for the Tribunal's reasoning. That is, it was the applicant's supply of drugs and possession of firearms (in relation to which he was convicted) that the Tribunal was ultimately concerned with and was determinative of the outcome.

155    In my view, the Tribunal's error crosses the threshold of materiality as described in LPDT. The extent of the Tribunal's error was significant, as evidenced by the table above at [152]. It is important to have regard to the decision made by the Tribunal and how the decision was made: LPDT at [10].

156    The matters the subject of the error were taken into account by the Tribunal in making the Tribunal's findings with respect to primary considerations 1 and 5. Those considerations were described by the Tribunal as very heavily weighing against revocation, and so were apparently highly determinative of the Tribunal's final decision. In particular, however, in considering the materiality of the error, it is important to have regard to how the Tribunal's decision was made.

157    The Tribunal did not merely refer to conduct but referred to convictions and the (wrong) number of convictions. In contrast to Nguyen, where the Tribunal erroneously considered only one offence taken into account under the Form 1 scheme as a conviction, in this case the Tribunal made this mistake with respect to four further offences taken into account. Whilst the number of further offences wrongly considered is not of itself determinative, it is not insignificant. The Tribunal in this case commented on the number of convictions and calculated a rate of offending based on a number that included them. The Tribunal also included those further offences as convictions when referring to the applicant's 'most significant offending' the subject of the sentencing on 19 August 2021. The Tribunal expressly referred in that context to the number of offences committed. Even allowing for the fact that the applicant had been convicted of more serious principal offences, the process of reasoning by the Tribunal reveals a reliance on the (wrong) number of convictions on a number of occasions. Accordingly, I do not consider this to be a case where the possibility of a different outcome is to be described as fanciful or improbable.

Conclusion

158    Ground 3 is accordingly upheld.

Other matters

159    Costs should follow the event. The Court acknowledges that Mr Papalia represented the application on a pro bono basis. It is appropriate in the circumstances that, as requested, there be a costs order under r 4.19(3) of the Federal Court Rules 2011 (Cth).

160    I also note that it was junior counsel for the Minister who properly identified to the applicant's counsel at an earlier stage in this proceeding the potential for ground 3 to arise. This conduct by counsel on the Minister's behalf should also be acknowledged.

Associate:

Dated:    9 August 2024