Federal Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the second respondent of 14 May 2024 not to revoke the cancellation of the applicant’s visa.

2.    A writ of mandamus issue directed to the second respondent requiring it to determine the applicant's request for revocation according to law.

3.    The first respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks judicial review of a decision of the second respondent (the Tribunal), under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), affirming a decision of a delegate of the first respondent (the Minister) to not revoke a decision to cancel the applicant’s visa.

2    I will summarise the relevant background and the legislative scheme before considering the parties’ submissions.

Background

3    The applicant is a citizen of India. On 13 April 2021, he was sentenced to a term of 16 months’ imprisonment, suspended for 18 months. On 17 November 2022, he was sentenced for various offences, including a number of sentences of 12 months’ imprisonment for fraud offences. He was also ordered to serve the previously suspended term of imprisonment.

4    On 14 December 2023, the applicant’s visa was cancelled under s 501(3A) of the Act. The Tribunal affirmed the decision of the Minister’s delegate to not revoke the cancellation decision, but that decision was set aside by the Federal Court of Australia on 18 December 2023.

5    On 14 May 2024, the Tribunal again decided to affirm the non-revocation decision. That is the decision of which the applicant seeks review.

6    I will summarise the salient parts of the Tribunal’s reasons in the course of considering the grounds of appeal.

The legislative scheme

7    Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the holder does not pass the character test because of the operation of para (6)(a) on the basis of para (7)(a), (b) or (c), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

8    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record” as defined by subs (7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. As the applicant had been sentenced to imprisonment for a term in excess of 12 months, the Minister was satisfied that he did not pass the character test.

9    Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to provide representations about revocation of the original decision. The applicant made representations in response to the invitation.

10    Section 501CA(4) provides:

(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.

11    Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”.

12    At the time of the Tribunal’s decision, the Ministerial directions under s 499(1) of the Act for the making of decisions under s 501CA of the Act were contained in Direction No 99 – Migration Act 1958 – Direction under 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

13    Paragraph 9.1 of Direction 99 provided, relevantly:

9.1    Legal consequences of decision under section 501 or 501CA

(1)    Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2)     A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3)     International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

Consideration

Ground 1: Alleged error in the Tribunal’s assessment of the legal consequences of the decision

14    The applicant’s first ground is concerned with the Tribunal’s consideration of the legal consequences of its decision. The ground, as argued, asserts that in finding that the legal consequences of its decision should be given “neutral weight”, the Tribunal misinterpreted or misapplied s 501CA(4) of the Act or para 9.1 of Direction 99, and that the finding was also illogical, irrational or unreasonable.

15    In his written submissions to the Tribunal, the applicant contended:

141.    Another legal consequence of removal is that the applicant will generally be permanently excluded from ever returning to Australia. That is a significant legal consequence in this case.

142.    The Tribunal would be aware that the statutory consequence of a decision to not revoke the cancellation of the applicant’s visa is that, as an unlawful noncitizen, the applicant would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, remain or be liable to detention under s 189 of the Act.

143.    The requirement to detain the applicant in immigration detention and to remove him under s 198 would not apply if, following a decision to not revoke the cancellation of the applicant’s visa, he is granted another visa.

144.    The Tribunal would acknowledge that if it decides not to revoke the cancellation of the applicant’s visa under s 501CA, he would be prevented by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994 (Cth)).

16    The Tribunal made the following findings concerning the legal consequences of its decision:

312.     In consequence of an adverse decision, the Applicant will continue to be detained pursuant to s. 189 of the Act, pending his removal under s. 198. At present, no protection finding has been made under s. 197C, and it remains open to the Applicant to seek such a finding by means of applying for a Protection visa.

313.    To the extent that the Applicant raises non-refoulement obligations, the Tribunal defers consideration of non-refoulement obligations until such time as the Applicant seeks a Protection visa, and the matter can be addressed in proper detail as provided for by the Act.

314.    Otherwise, the Applicant has no other visa options available to him, and he will be deported and permanently excluded from Australia. Whilst these are inevitable legal consequences of an adverse decision, they are the consequences intended by the Parliament.

315.    The Applicant has claimed to be in fear of his cousin who has allegedly has criminal links in India and has threatened and tried to blackmail the Applicant. As stated in the preceding two paragraphs, this Tribunal will defer the assessment of these claims to a Protection visa assessment, a pathway which remains open for the Applicant to pursue.

316.    Accordingly, this consideration is given neutral weight.

(Emphasis added.)

17    In deciding whether, within s 501CA(4) of the Act, there is “another reason” to revoke the cancellation decision, the Tribunal is bound to take into account the legal consequences of its decision. In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (NBMZ), Allsop CJ and Katzmann J held:

8    …The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (per Dixon J). The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. ...

9    The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

18    The inquiry must be directed to at least, “the legal consequences for the applicant of the decision to be made”: NBMZ at [153] (Buchanan J) (emphasis added).

19    In Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Taulahi), the Full Court held at [84]:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation.

20    The Minister’s obligation to consider the legal consequences of the decision that may be made under s 501CA(4) was reinforced by para 9.1 of Direction 99, compliance with which was required by s 499(2A) of the Act.

21    The obligation is not just to consider the legal consequences of a decision, but to do so reasonably, rationally and logically and on a correct understanding of the law: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [25].

22    In order to determine the applicant’s first ground, it is necessary to examine the Tribunal’s reasoning for its finding that the legal consequences of its decision should be given “neutral weight”. That reasoning, it must be acknowledged, is somewhat difficult to follow.

23    The Tribunal began by finding at [312] that a legal consequence of a non-revocation decision would be that the applicant would continue to be detained pending his removal from Australia.

24    The Tribunal then stated at [313] that it would “defer” consideration of the applicant’s non-refoulement claims until such time as the applicant sought a Protection visa, when the matter could be addressed in proper detail as provided by the Act.

25    The Tribunal stated at [314] that, other than applying for a Protection visa, the applicant had no visa options available to him, and he would be deported and permanently excluded from Australia. The Tribunal then stated, “[w]hilst these are inevitable legal consequences of an adverse decision, they are the consequences intended by the Parliament”. Although not free from doubt, the Tribunal seems to have meant that in the event of the applicant applying for and being refused a Protection visa, the applicant would be deported and excluded. It may be noted that on this understanding of what the Tribunal meant, the identified consequences were not in fact “inevitable”, so that the use of that word reflects some looseness of language.

26    The Tribunal then reiterated at [315] that it would “defer” the assessment of the applicant’s non-refoulment claim to the Protection visa pathway. By this, the Tribunal meant that it declined to assess the applicant’s claims that he was owed non-refoulement obligations and would leave that assessment for any Protection visa process.

27    The Tribunal then concluded at [316], “[a]ccordingly, this consideration is given neutral weight”. The words “this consideration” referred to the legal consequences of a decision not to revoke the cancellation decision that the Tribunal had just identified, namely the applicant’s continued detention pending his removal and his removal and exclusion from Australia in the event that any subsequent Protection visa application failed.

28    By the expression “neutral weight”, the Tribunal meant that the adverse legal consequences for the applicant had no influence on its decision one way or the other. The Tribunal accordingly considered that such circumstances provided no support for a decision that the cancellation decision be revoked.

29    The applicant submits that the sole reason given by the Tribunal for attributing neutral weight to the identified legal consequences of an adverse decision was that they were intended by Parliament. I accept that this was a reason given by the Tribunal, but do not accept that it was the sole reason.

30    The Minister submits that, read fairly and as a whole, the primary basis for the Tribunal’s attribution of neutral weight was that the Tribunal had elected to defer assessment of the applicant’s non-refoulement obligations and, hence, it was unknown what legal consequences would ultimately flow from a decision adverse to the applicant. It is not clear that the Tribunal reasoned in this way, particularly as the Tribunal used the word “inevitable” to describe such consequences at [314]. However, the Tribunal’s emphasis on “deferring” consideration of the applicant’s claim to fear persecution if he were removed to India, does suggest that the Tribunal considered that it was merely possible that the applicant would be removed and excluded from returning to Australia. On that basis, I accept that a reason why the Tribunal attributed “neutral weight” to the legal consequences of its decision was the applicant’s removal and exclusion from Australia were merely possible, and not inevitable, consequences.

31    The first reason given by the Tribunal for attributing “neutral weight” to the legal consequences it had identified was that, “they are the consequences intended by the Parliament”. The Tribunal must be understood to have meant that, because Parliament intended that a decision not to revoke a cancellation decision would carry adverse legal consequences for an applicant, it would give no weight to such adverse consequences in deciding whether or not the decision ought to be revoked. There is an element of circularity involved in the Tribunal’s reasoning.

32    Section 501CA(4) of the Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked: Plaintiff M1/2021 at [22]. There is no expressed or implied legislative preference for the making of a decision to either revoke or affirm the decision. The decision is left to the Tribunal’s discretion.

33    As NBMZ and Taulahi make clear, Parliament’s intention was that in deciding whether or not to revoke the cancellation decision, the Tribunal must take into account the legal consequences of the decision under consideration. Section 501CA(4) of the Act does not evince any intention that the legal consequences should be given any particular weighting: cf Plaintiff M1/2021 at [24]. It must also have been Parliament’s intention that the Tribunal would determine for itself the weighting it should attribute to the legal consequences of the decision under consideration.

34    The Tribunal identified the consequences of a decision not to revoke the cancellation decision (namely, possible removal and exclusion of the applicant from Australia) and decided to give those consequences neutral (no) weight because, “they are the consequences intended by the Parliament”. The statement in such absolute terms was inaccurate: such consequences are only intended by Parliament if the Tribunal decides not to revoke the cancellation decision. The Tribunal’s reasoning attributes to Parliament an intention or preference for the making of a decision adverse to an applicant such that those consequences will ensue. Since the Tribunal is conferred with wide discretion to determine whether it is satisfied there is “another reason” whether the cancellation decision should be revoked, no such intention or preference is discernible from s 501CA(4) of the Act.

35    The Tribunal’s approach of attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation on the basis that Parliament intended such consequences reflects a misconstruction of s 501CA(4) of the Act.

36    I will proceed to consider the Tribunal’s second reason for attributing neutral (no) weight to the legal consequences of a decision not to revoke the cancellation decision, namely that the applicant’s removal and exclusion from Australia were merely possible, and not inevitable, consequences of such a decision.

37    A decision by the Tribunal not to revoke the cancellation decision would require that the applicant be removed from Australia as soon as reasonably practical (ss 196(6) and 198 of the Act) and he would be precluded from returning to Australia (s 503(1)). However, if he applied for a Protection visa, he would remain in immigration detention pending determination of his application (s 196(1)). And if a Protection visa were granted, he would not be removed and excluded from returning to Australia. In that sense, the Tribunal was correct to reason that the applicant’s ultimate removal and exclusion from Australia were possible, rather than inevitable, legal consequences of its decision.

38    In Taulahi, the Full Court explained at [84] that the decision-maker’s obligation is to take into account, “the direct and immediate statutorily prescribed consequences of the decision in contemplation”. In my opinion, that description encompasses the statutory consequences that the applicant is liable to removal from Australia as soon as reasonably practicable and precluded from returning to Australia, as well as detention. The possibility that the applicant might be able to obtain a Protection visa and might not ultimately be removed and excluded from Australia was a matter for the Tribunal when considering the weight to be attributed to the liability of the applicant to removal and preclusion from Australia. However, the Tribunal was required to consider the legal consequence that the applicant was immediately made liable to detention, removal from Australia and preclusion from returning.

39    The Tribunal considered that no weight should be given to the potential for the applicant’s ultimate removal and exclusion from Australia because they were possible but not certain consequences. However, the Tribunal failed to take into account the direct and immediate legal consequences of an adverse decision. The possibility that the applicant might make an application for a Protection visa and might not ultimately be removed or excluded from Australia, did not relieve the Tribunal from its obligation to take into account the immediate and direct statutory consequences. The Tribunal’s failure to comply with that requirement amounted to a jurisdictional error.

40    In addition, the Tribunal’s finding that no weight should be given to the statutory consequences of removal and exclusion from Australia because they were possible but not certain consequences was made in a context where the Tribunal had expressly declined to consider the merits of the applicant’s claims that he should not be placed in an position where he could be removed to India because he would face harm there. In Plaintiff M1/2021, it was held at [30] that a decision-maker is entitled to defer consideration of whether the applicant was owed non-refoulement obligations on the basis that it was open to the applicant to apply for a Protection visa. The plurality observed at [39] that, “it nevertheless may be necessary…to take account of the alleged facts underpinning that claim where those facts are relied upon…in support of there being ‘another reason’”. The plurality made no suggestion that a decision-maker is relieved from their obligation to take into account the legal consequences of the decision under consideration where they decide to defer such consideration.

41    By taking the approach of deferring the entirety of the applicant’s claim that he was owed non-refoulement obligations, the Tribunal disabled itself from assessing the probability of the potential legal consequences it had identified occurring. In those circumstances, the Tribunal’s attribution of neutral weight, or no weight, to the possibility of the applicant being removed and excluded from Australia effectively treated as certain the mere possibility that the applicant would succeed in obtaining a Protection visa. In my respectful opinion, the Tribunal’s approach, “lacks an evident and intelligible justification”: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].

42    Further, while the Tribunal had initially identified an inevitable legal consequence of a non-cancellation decision as being that the applicant would remain in immigration detention (see s 196(1) of the Act), it did not refer to that factor again. It is not apparent why the Tribunal decided that no weight should be given to that consequence. In my respectful opinion, the Tribunal could not logically or reasonably have concluded that the continuing detention of the applicant did not weigh to at least some extent in favour of revocation. That was a further jurisdictional error.

43    The applicant’s first ground must succeed.

Ground 2: The Tribunal’s treatment of traffic offences

44    The applicant’s second ground asserts that the Tribunal erred in its treatment of the applicant’s history of traffic offences by:

(a)    failing to have regard to the sentences and fines imposed by the Magistrates Court;

(b)    characterising the offences as “very serious” and thereby misinterpreting or misapplying para 8.1.1 of Direction 99, or applying the direction in a way that was illogical, irrational or unreasonable; and

(c)    finding, without evidence, that the applicant had “regularly exposed road users to unnecessary danger”.

45    The applicant’s second ground is concerned with the Tribunal’s findings concerning the applicant’s traffic history. The Tribunal stated at [93]:

He was taken through his traffic history which included offences of speeding, unlicenced driving, driving at high speed with methylamphetamine in his system whilst his licence was suspended, and unlawful use of a motor vehicle. He acknowledged that driving under the influence of drugs can lead to very serious accidents, and said he felt bad about this:

When I think about those things, I feel like I was lucky that nothing happened in terms of any accidents or anything, like, the way I was using drugs and still driving, it, you know, as we hear the news now, that can lead to very serious accidents. And, you know, when I think about it now, about the crimes that I did, I was using drugs and then driving, that could have led back to something very serious in terms of someone else being injured, and something could have happened to someone else as well. So I feel really bad about that, that these were the wrong things, and I shouldn’t have done that. It was a very serious thing.

46    The Tribunal found at [184]:

His traffic history, over a short period of years, is poor. He has regularly committed multiple offences in the same calendar month and committed as many as five offences in one calendar month. The Applicant’s driving offences are crimes for the purposes of the Act. His offending includes disobeying the speed limit, unlicenced driving due to accumulation of demerit points and driving at high speed whilst his licence was suspended, with methylamphetamine in his system, and unlawful use of a motor vehicles. The Applicant has shown disrespect for the law by driving when he was not entitled to do so. Speeding and driving with drugs in one’s system are inherently dangerous to other road users, and these offences are viewed as very serious.

47    The Tribunal also found at [207] that, “[h]e has regularly exposed road users to unnecessary danger”.

48    There was evidence before the Tribunal showing that between May and October 2020 the applicant had committed various traffic offences, which had attracted penalties of between $177 and $444. There was also evidence that in April 2022 the applicant committed the offences of: speeding; unlicenced driving due to accumulation of demerit points; and driving whilst a drug was present in his system at the time of holding a learner, probationary or provisional licence. The applicant was convicted without further punishment on the first charge, and convicted and sentenced to one month’s imprisonment on each of the other charges. In May 2022, the applicant again committed the offence of driving with a demerit point suspension and was convicted and sentenced to one month’s imprisonment. The applicant submits that there was no evidence that the applicant was driving erratically.

49    In considering the nature and seriousness of the traffic offences, para 8.1.1(1)(c) of Direction 99 required the Tribunal to have regard to the sentences imposed for those offences. The applicant submits that the Tribunal failed to have regard to the sentences imposed by the Magistrates Court, which was a failure to comply with Direction 99. The applicant accepts that the penalties imposed in respect of the 2020 offences did not fall within the description of “sentences” in para 8.1.1(1)(c) of Direction 99, but submits that the dictates of reasonable decision-making required the Tribunal to have regard to those penalties when assessing the nature and seriousness of those offences. The applicant submits that the penalties imposed for particular conduct will ordinarily be the safest indicator of the nature and seriousness of an offence. The applicant submits that it was therefore illogical, irrational or unreasonable to fail to have regard to those penalties in characterising the nature and seriousness of those offences.

50    Paragraph 8.1.1(1)(c) of Direction 99 provides:

(1)     In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

…

c) …the sentence imposed by the courts for a crime or crimes;

…

51    The Tribunal did not expressly mention the sentences imposed by the courts and the regulatory penalties for the applicant’s traffic offences. The Court is entitled to, “infer that any matter not mentioned [in the statement of reasons] was not considered by the Tribunal to be material”: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69].

52    However, the Tribunal expressly referred at [177] to para 8.1.1(1)(c) of Direction 99. While a failure to expressly deal with an issue may indicate a failure to consider the issue, such an inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].

53    The Tribunal proceeded to give close consideration to the applicant’s traffic offending at [34], [93], [184], [207], [227] and [241]. For example, the Tribunal noted at [93] that the applicant had been, “taken through his traffic history which included offences of speeding, unlicenced driving, driving at high speed with methylamphetamine in his system whilst his licence was suspended, and unlawful use of a motor vehicle”. The applicant’s “traffic history”, including the sentences or penalties imposed, was before the Tribunal.

54    It may be noted that the applicant made no submission that the Tribunal should regard the sentences and penalties for his traffic offences as reflecting a low level of seriousness. There was therefore little basis to expect the Tribunal to have discussed those sentences and penalties: cf Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 at [42]–[43]; Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1849 at [17]; Singh v Minister for Home Affairs (2019) 267 FCR 200 at [37]; Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [7].

55    In these circumstances, I am unable to draw an inference that the Tribunal overlooked the sentences and penalties imposed for the applicant’s traffic offences.

56    The applicant next submits that the Tribunal erred in characterising the traffic offences as “very serious” and thereby misinterpreted or misapplied para 8.1.1(1)(a) of Direction 99, or applied that paragraph in a way that was illogical, irrational or unreasonable.

57    The applicant submits that the Tribunal’s characterisation of the applicant’s traffic offences as “very serious” in its purported application of para 8.1.1(1)(a) of Direction 99 involved drawing a parallel between the traffic offences and offences stipulated by the direction to be “very serious”, namely: violent and/or sexual crimes, crimes of a violent nature against women or children, and acts of family violence. The applicant submits that there was nothing about the very limited facts of the traffic offences that provided an evident and intelligible justification for characterising them as “very serious”.

58    Direction 99 does not purport to exhaustively prescribe the criminal offences that might reasonably be considered by the Tribunal to be “very serious”. The Tribunal had noted at [93] that the applicant had acknowledged that his using drugs and then driving could have led to “very serious” consequences in terms of someone else being injured. The applicant’s concession was obviously correct. The Tribunal found at [184] that, “[s]peeding and driving with drugs in one’s system are inherently dangerous to other road users, and these offences are viewed as very serious”. The Tribunal’s finding did not apply to all of the applicant’s traffic offending, but only to speeding and driving with drugs in his system. The Tribunal’s finding that these offences were “very serious” did not reflect any misunderstanding of para 8.1.1(1)(a) of Direction 99, nor lack an evident and intelligible justification.

59    The applicant next submits that there was “not a skerrick of evidence” (see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [17]) to support the Tribunal’s finding at [207] that he had, “regularly exposed road users to unnecessary danger”. However, there was ample evidence for that finding, including the applicant’s own evidence quoted at [93] of the Tribunal’s reasons and the sentences and penalties imposed for offences involving speeding and driving with drugs in his system.

Ground 3: Treatment of facts underlying the applicant’s convictions and sentences

60    The applicant’s third ground asserts that the Tribunal erred in understanding itself to be precluded from considering the facts underlying the applicant’s convictions and was thereby acting on a misunderstanding of the law and fettering its power under s 501CA(4) of the Act and/or s 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

61    The ground is concerned with the Tribunal’s opinion at [151] that, “it is not open to it to entertain evidence which seeks to impugn a court imposed conviction, or the facts underlying the sentence imposed”, citing HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (HZCP) at [78]–[79]. The applicant’s written submissions also assert that this approach affected the Tribunal’s consideration of the applicant’s evidence concerning his convictions and sentences for offences of breaching a domestic violence order and stealing by a clerk or servant, but do not identify the relevant parts of the applicant’s evidence that were not considered.

62    The applicant formally submits that HZCP was wrongly decided. The applicant also submits that the approach of the majority in HZCP only precludes contradiction of the facts underlying the particular convictions or sentences that provide the foundation for the exercise of power. The applicant argues that in this case the foundation for the exercise of power to cancel his visa was the 12 month sentences of imprisonment for fraud offences. He submits that as he was sentenced to one month’s imprisonment for the offence of a “contravention of domestic violence order” and six months’ imprisonment for “stealing by clerks or servants”, those sentences were not the foundation for the exercise of power.

63    The Minister submits that HZCP establishes that the Tribunal was also not permitted to go behind the convictions and sentences which gave rise to the Tribunal’s satisfaction that the first limb of s 501CA(4)(b)(i) of the Act was not met (“the person passes the character test”). The Minister argues that the Tribunal found that the character test was failed on the basis of both the ss 501(7)(c) and (d) limbs of the test and, accordingly, the Tribunal found that the applicant failed the character test, not only because of the 12 month sentences of imprisonment for fraud sentences that founded the cancellation decision under s 501(3A), but also because of convictions and sentences for the “breach of a domestic violence order” and “stealing by a clerk or servant” offences. The Minister submits that the majority in HZCP, held that in seeking to establish “another reason” for revocation, an applicant may not seek to undermine the convictions and sentences which founded the Tribunal’s satisfaction of failure of the character test.

64    I will consider the Minister’s submission first. The Tribunal considered s 501CA(4)(b)(i) of the Act at [20]–[21] of its reasons. It began by observing that, under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. It then observed that the phrase “a substantial criminal record” was relevantly defined in s 501(7)(c) (“the person has been sentenced to a term of imprisonment of 12 months or more”) and s 501(7)(d) (“the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”). The Tribunal also noted that s 501(7A) provided that, for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.

65    The Tribunal then noted that the applicant had conceded that he did not dispute the information contained in his Australian Criminal Intelligence Commission Check Results Report. The Tribunal went on to comment that the applicant did not dispute that he did not pass the character test, attaching to that comment the footnote, “Ex A2 pars 3-5”. The footnote seems to have been a reference to the applicant’s Statement of Facts, Issues and Contentions, where he had stated:

3.    A National Criminal History Check (the NCHC) released 20 December 2022 indicates that on 17 November 2022, the applicant was convicted of fraud (dishonestly obtains property from another) in the Magistrates Court of Queensland and sentenced to imprisonment of 12 months

4.     In the representations/documents that the applicant submitted, he does not dispute the information in the NCHC (released 20 December 2022) regarding his criminal convictions and sentences, or that he does not satisfy the character test.

5.    Accordingly, the Tribunal would not be satisfied that the applicant passes the character test (as defined by s 501) as required under s 501CA(4)(b)(i) of the Act.

66    The Tribunal said nothing further about the basis upon which it was not satisfied that the applicant did not pass the character test. It did not expressly make any finding that the applicant did not pass the character test by reasons of his convictions and sentences for the offences of “contravention of domestic violence order” and “stealing by clerks or servants”. Accordingly, it is necessary to examine whether any inference can be drawn to such effect.

67    On 17 November 2022, the applicant had been convicted in the Magistrates Court of Queensland of numerous offences, including two counts of, “fraud – dishonestly obtains property from another” (for which he was sentenced to concurrent terms of 12 months’ imprisonment); one count of “stealing by clerks and servants” (concurrent sentence of six months’ imprisonment); and “contravention of domestic violence order” (concurrent sentence of one month’s imprisonment).

68    The decision of the Minister’s delegate made on 14 December 2022 to cancel the applicant’s visa under s 501(3A) of the Act was expressly made on the basis of the delegate’s satisfaction that the applicant did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c). The delegate expressly relied on the applicant’s convictions of “fraud – dishonestly obtains property from another” in the Magistrates Court of Queensland on 17 November 2022, for which he had been sentenced to 12 months’ imprisonment. When making the cancellation decision, the delegate did not rely on any of the other sentences. Neither did the delegate refer to or rely upon s 501(7)(d).

69    The Minister’s delegate subsequently made a decision under s 501CA(4) of the Act not to revoke the cancellation decision. When considering s 501CA(4)(b)(ii) of the Act, the delegate also relied only upon the convictions of “fraud – dishonestly obtains property from another” and the consequent sentences of 12 months’ imprisonment.

70    In my opinion, given the history of decision-making, the applicant’s concession that the Tribunal would not be satisfied that the applicant passed the character test should be understood to have been based upon his convictions of “fraud – dishonestly obtains property from another” and sentences of imprisonment of 12 months’ imprisonment for those offences. The Tribunal’s subsequent finding that it was not satisfied that the applicant passed the character test should be understood to have been based on that concession. In other words, the Tribunal did not purport to make that finding relying on the “stealing by clerks and servants” and “contravention of domestic violence order” convictions and sentences. Neither did the Tribunal rely on s 501(7)(d). While the Tribunal mentioned s 501(7)(d), in my opinion it did so as a theoretical basis upon which the character test might be failed, but it did not proceed to apply that aspect of the test.

71    Accordingly, I reject the Minister’s submission that the Tribunal found that it was not satisfied that the applicant passed the character test by relying in part on the convictions and sentences for the “contravention of domestic violence order” and “stealing by clerks and servants” offences. For at least that reason, the Minister’s submission that the Tribunal was not permitted to go behind the convictions and sentences for those offences on the basis that they gave rise to the Tribunal’s satisfaction that the applicant did not pass the character test must fail.

72    I will turn to consider the applicant’s submission. In HZCP, the Full Court was concerned with an argument that in considering whether it was satisfied that there was “another reason” to revoke a cancellation decision, the Tribunal was entitled to consider evidence which was contrary to or inconsistent with the evidence on which the conviction founding the mandatory cancellation was based. Justice McKerracher (Colvin J agreeing) cited with approval at [56] the following passages from Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155:

42    The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

73    Justice McKerracher continued:

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

…

66     …In the present case, it was agreed and the Tribunal determined that the appellant did not pass the character test on the basis that he had been sentenced to a term of imprisonment greater than 12 months. The imposition of the sentence formed part of the essential underpinning for the consideration of the exercise of the power as conferred in s 501CA(4)(b)(ii).

…

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

…

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

71    The difficulty with this argument is that the foundation or genesis of the power for the second limb is still the conviction or sentence in that, without such conviction or sentence, the visa cancellation power under consideration could not have been exercised in the first place. The conviction or sentence is the immediate source of the power for the cancellation under s 501(3A) which, in turn, is a precondition to the revocation power under consideration. Without the conviction or sentence there could be no consideration of the second limb. There will be other cases in which a conviction or sentence can be part of the facts forming a broad range of considerations for the Minister’s evaluation, but in those circumstances, the conviction or sentence is not the trigger to enliven the Minister’s power to conduct that evaluation. In such cases, it is conceivable that evidence could be adduced as to facts which depart from those upon which a conviction was based. However, as indicated in the authorities, including Ali, in this second category of case the onus on someone wishing to prove such facts would be heavy. ...

74    In summary, the majority in HZCP held that:

(a)    Where a decision is made under s 501(3A) of the Act to cancel a visa on the ground that the visa holder does not pass the “character test” on the basis of ss 501(6)(a) (substantial criminal record) and (7)(c) (sentence of at least 12 months’ imprisonment), the basis for the Tribunal’s jurisdiction to review the cancellation decision is that sentence. In such a case, when the Tribunal is considering under s 501CA(4)(b)(ii) whether it is satisfied that there is “another reason” to revoke the cancellation decision, the essential factual basis of the conviction or the sentence may not be challenged, but the circumstances of the conviction may be challenged for a purpose other than impugning the conviction itself.

(b)    Where a previous conviction or sentence does not form the basis for the Tribunal’s jurisdiction to review the cancellation decision, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

75    In this case, in the context of considering the credibility of the applicant’s evidence, the Tribunal proceeded to discuss the applicant’s evidence in respect of his conviction for “stealing by clerks or servants”. The applicant claimed that he had not worked for the company from which cash had been stolen. The applicant had pleaded guilty to the offence, thereby acknowledging that he had stolen as a clerk or servant. The Tribunal found that the applicant’s evidence that he was not employed by the company could not be accepted, as to do so would impugn judicial findings as to both guilt and sentence.

76    The applicant’s convictions and sentences for “stealing by clerks or servants” were not a basis for the cancellation decision made under s 501(3A) and did not found the Tribunal’s jurisdiction to review the cancellation decision. Accordingly, those convictions and sentences fell within the second category of cases identified in HZCP, and the essential facts underlying the conviction were not immune from challenge. The Tribunal erred in its understanding that HZCP required a contrary conclusion, and consequently erred in its construction of s 501CA(4).

77    However, that is not enough to establish jurisdictional error. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7], the High Court observed that, “an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”.

78    Notwithstanding the Tribunal’s understanding of HZCP as preventing the applicant from challenging judicial findings as to guilt or sentence in respect of his convictions and sentences for “stealing by clerks or servants”, it went on to find that, by reason of the applicant’s admissions and the facts recorded by police there was, “more than sufficient evidence of his guilt on the basis of employment”, and that the applicant was not a credible witness. Accordingly, the Tribunal’s error made no difference to the outcome.

79    In respect of his conviction for “contravention of domestic violence order”, the applicant had claimed to have been unaware of the Domestic Violence Protection Order (DVO) issued to protect his ex-wife at the time that he breached it. However, the Tribunal found that there was credible evidence that the DVO had in fact been served on him before he breached it and rejected the applicant’s evidence that he was unaware of the DVO at the time of his offending. In view of the Tribunal’s approach, its misunderstanding of HZCP was ultimately immaterial.

80    The applicant’s third ground must be rejected.

Conclusion

81    I have held that the applicant succeeds on the first ground of his application, but not the second and third.

82    I will order that a writ of certiorari issue to quash the Tribunal’s decision and that a writ of mandamus issue directed to the Tribunal requiring it to determine the applicant's request for revocation according to law.

83    I will order that the Minister pay the applicant’s costs of the proceeding.

Associate:    

Dated:    7 November 2024