Federal Court of Australia

Nunez v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 964

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Mr Jorge Nunez, a citizen of Nicaragua, has resided in Australia since he lawfully arrived here almost 35 years ago. In August 2023, however, his visa was mandatorily cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth). While Mr Nunez made representations to the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, about the revocation of the cancellation of his visa, the Minister’s delegate decided not to revoke the cancellation pursuant to s 501CA(4) of the Migration Act. Mr Nunez unsuccessfully applied to the then Administrative Appeals Tribunal for a review of that decision. In this application, Mr Nunez sought judicial review of the Tribunal’s decision pursuant to s 476A of the Migration Act. He argued that the Tribunal’s exercise of its review jurisdiction miscarried because it misunderstood the applicable law and acted on that misunderstanding.

2    As explained in the reasons that follow, I am not persuaded that the Tribunal erred as contended by Mr Nunez. His application must accordingly be dismissed with costs.

Mr Nunez’s criminal history

3    Mr Nunez’s visa was cancelled essentially as a result of his criminal offending while in Australia. Mr Nunez was 24 years old when he arrived in Australia in September 1990. Unfortunately, within two years of his arrival, Mr Nunez began to break the law. It is unnecessary to provide a detailed account of his criminal history. Following is a short summary.

4    On 26 August 1992, Mr Nunez was convicted of the offences of failing to stop after an accident, driving whilst unlicensed, and driving under the influence of alcohol. He was fined and disqualified from driving for 2 years.

5    Between 1996 and 2001, Mr Nunez was convicted of multiple offences, including: being an unaccompanied learner driver; driving whilst disqualified; driving an unregistered vehicle; and driving under the influence of alcohol. The penalties imposed in respect of those convictions included: fines; licence disqualifications; community service orders; and various sentences of imprisonment, including periodic detention orders, a sentence of three-months’ imprisonment and a suspended sentence of two-years’ imprisonment.

6    Most significantly for the purposes of this application, on 20 February 2002, Mr Nunez was convicted of the following offences which were committed on 24 December 2001:

    Driving while disqualified from holding a licence, for which he was sentenced to 16-months’ imprisonment;

    Possessing goods suspected of being stolen, for which he was sentenced to six-months’ imprisonment;

    Driving a conveyance taken without the consent of the owner, for which he was sentenced to 12-months’ imprisonment;

    Negligent driving (not occasioning death or grievous bodily harm), for which he was fined; and

    Not giving particulars to the other driver [involved in an accident], for which he was fined.

7    It will be necessary in due course to provide some further detail in respect of these convictions and the facts upon which they were based given the nature of Mr Nunez’s arguments on this application. It suffices at this point to note that, while it is not entirely clear, it would appear that Mr Nunez pleaded guilty to each of the offences and a police “Facts Sheet” was tendered during the sentencing hearing.

8    On 21 March 2002, Mr Nunez was convicted of failing to comply with the good behaviour bond which was imposed as a condition of the suspension of the two-year sentence of imprisonment referred to earlier. He was sentenced to 16-months’ imprisonment.

9    Mr Nunez lodged an appeal against the severity of the sentences imposed on him on 20 February 2002 and 21 March 2002. His appeal was partially successful. The sentence for the offence of driving while disqualified was varied to 12-months’ imprisonment, the sentence for the offence of driving a conveyance without the consent of the owner was varied to four-months’ imprisonment, and the sentence imposed in respect of his failure to comply with the good behaviour bond was varied to four-months’ imprisonment.

10    In 2009, 2010, 2015 and 2018, Mr Nunez was convicted of multiple offences including negligent driving, driving whilst disqualified, driving whilst under the influence of illicit drugs, and stalking or intimidating with the intention of causing fear of physical or mental harm. On 2 December 2009, he was convicted of contravening an Apprehended Domestic Violence Order (AVO).

11    On 3 September 2021, Mr Nunez was convicted of two charges of common assault for which he was fined, sentenced to a 12-month community corrections order, and directed to attend domestic violence and mental health related counselling.

12    On 13 December 2021, Mr Nunez was convicted and fined for possessing a prohibited drug.

13    On 10 March 2022, Mr Nunez was convicted of: two counts of stalking or intimidating with the intention of causing fear of physical or mental harm; one count of contravening an AVO; and one count of common assault (domestic violence). He was sentenced to imprisonment for an aggregate term of eight-months. The sentence imposed on Mr Nunez in respect of those offences was later confirmed by the District Court on appeal.

14    On 7 March 2023, Mr Nunez was convicted of stalking or intimidating with the intention of causing fear of physical or mental harm, contravening an AVO and destroying or damaging property (domestic violence). He was sentenced to an 18-month community corrections order.

15    On 18 May 2023, Mr Nunez was convicted of using a carriage service to menace, harass or offend and was sentenced to two-months’ imprisonment. He was also found to have breached his community corrections order and as a result resentenced to an aggregate term of imprisonment of seven-months. On appeal to the District Court, that sentence was set aside and in lieu thereof Mr Nunez was sentenced to an aggregate term of six-months’ imprisonment to be served by way of an intensive corrections order.

The 20 February 2002 convictions and the facts upon which they were based

16    As will be seen, Mr Nunez’s challenge to the Tribunal’s decision was based on the approach that the Tribunal took to Mr Nunez’s attempt to dispute some of the facts upon which the 20 February 2022 convictions were based. As noted earlier, it would appear that Mr Nunez pleaded guilty to the offences with which he was charged and that the police prosecutor tendered a Facts Sheet. The Facts Sheet recited the following facts:

At 6.45pm on the 24th Day of December, 2001 Motor vehicle registration AHL-36A was stationary at the intersection of Railway Pde & Canley Vale Road Canley Vale. At the time motor vehicle registration VPZ-052 confirmed stolen vehicle, collided with the rear of AHL-36A.

The defendant [Mr Nunez] has got out of the vehicle and ran in a [sic] east westly [sic] direction into Westacote Lane a second co-offender also ran from the vehicle.

Both the driver and passenger of the vehicle witnessed the defendant and co offender run from the vehicle and supplied attending police with a description. The description was broad casted via police radio. The defendant was seen by attending police only minutes before [r]unning accross [sic] Railway Pde at the intersection of Bartley St.

Police from the Cabrammatta [sic] Bike Squad saw the defendant and spoke to him. The defendant at the time was placed under arrest and conveyed to Cabramatta Police Station.

At the station the defendant was completely uncoperative [sic] with police and refused to answer any questions in relation to the maters [sic]. Upon being searched police located property on thedefendant [sic] in the name of Mark Christopher TUREK the defendant was asked who this person was, to which he replied “I found it you can charge me with it, I’ll see you in court”.

The defendant is the holder of a NSW learners licence colour green (DISQUALIFIED 6/9/00 to 7/7/04).

The vehicle which the defendant is alleged to have been driving is reported as stolen and is now the property of the NRMA Insurance company. Registration VPZ-052 a white cino [sic]. Both witness [sic] were escorted to the railway station where they identified the defendant as the driver they saw decamp from the vehicle.

At the time of the offence the traffic was medium to heavy, the roadway dry sealed bitumen and it was day light.

The defendant was charged with the offences of “Drive whilst disqualified” “Drive conveyance with out the consent of the owner” “Fail to supply particulars at an accident” and “Goods in personal custody”.

17    It should be noted that the facts recited in the Facts Sheet do not include any indication as to whether or not Mr Nunez knew that the car that he was driving had been taken without the consent of the owner. That is of some relevance to Mr Nunez’s arguments in support of this application. That said, the Facts Sheet does identify the charge of “[d]rive conveyance without the consent of the owner” as being a charge pursuant to s “154a(1)(B)” of the Crimes Act 1900 (NSW). That is presumably a reference to s 154A(1)(b) of the Crimes Act which provides as follows:

154A    Taking a conveyance without consent of owner

(1)    Any person who –

(a)    …

(b)    knowing that any conveyance has been taken without such consent, drives it or allows himself or herself to be carried in or on it,

shall be deemed to be guilty of larceny and liable to be indicted for that offence.

18    As can be seen, knowledge that the conveyance was taken without the consent of the owner is an element of the offence under s 154A(1)(b) of the Crimes Act.

MR NUNEZ’S VISA IS CANCELLED

19    On 4 August 2023, Mr Nunez’s visa was cancelled pursuant to s 501(3A) of the Migration Act, which relevantly provides as follows:

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test

because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     …; and

(b)     the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

20    Subsection 501(6)(a) of the Migration Act relevantly provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Subsection 501(7)(c) of the Migration Act provides that, for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12-months or more.

21    As the facts relating to Mr Nunez’s criminal history indicate, Mr Nunez did not pass the character test because he had a substantial criminal record. That is because he had been sentenced to imprisonment for 12-months for the offence committed on 24 December 2001 of driving while disqualified. Mr Nunez was also serving a sentence of imprisonment on 4 August 2023 as a result of the offence in respect of which he was convicted in May 2023.

THE MINISTER’S DELEGATE RFUSES TO REVOKE THE CANCELLATION

22    Section 501CA of the Migration Act applies where the Minister has made a decision (referred to as the “original decision”) under s 501(3A) to cancel a visa that has been granted to a person. Subsection 501CA(3)(b) of the Migration Act provides that the Minister must invite the person to make “representations … about revocation of the original decision”. Subsection 501CA(4) provides as follows:

(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.

23    Mr Nunez was invited to and made representations to the Minister about the revocation of the decision to cancel his visa. On 25 January 2024, the Minister’s delegate decided not to revoke the cancellation. It is unnecessary to refer to the reasons given by the delegate.

THE TRIBUNAL’S REVIEW OF THE DECISION NOT TO REVOKE THE CANCELLATION

24    Mr Nunez applied to the Tribunal for a review of the delegate’s decision not to revoke the cancellation of his visa. Mr Nunez was initially represented by a solicitor who filed a Statement of Facts, Issues and Contentions on his behalf. That statement advanced a number of arguments in favour of the revocation of the cancellation decision. It is of some relevance to note that the statement did not dispute that Mr Nunez did not pass the character test and did not indicate that there was any issue or dispute in respect of Mr Nunez’s convictions or the facts upon which they were based.

25    The Tribunal convened a hearing on 8 April 2024. Mr Nunez was not represented by a lawyer or migration agent at the hearing. Various documents were tendered, including the Statement of Facts, Issues and Contentions that had been filed on Mr Nunez’s behalf, and evidence was given by Mr Nunez, as well as by his mother, brother and son. Mr Nunez was cross-examined by the Minister’s legal representative, in particular about his criminal convictions.

26    During the course of his cross-examination, Mr Nunez gave some evidence which related to the facts and circumstances relevant to two of the offences which he committed on 24 January 2001 and was convicted of on 20 February 2002. In relation to the offence of driving a conveyance without the consent of the owner, Mr Nunez said in his evidence that he did not know that the car he was driving was stolen and that he did not steal it. In relation to the offence of goods in custody, Mr Nunez said that he did not know the person referred to as “Mark”, that he did not remember having anything in his bag when he was arrested and that he was not a thief. In response, the Tribunal told Mr Nunez that the Tribunal had to “accept the findings of the courts” and said:

DEPUTY PRESIDENT: I can’t question the courts findings, so I have to accept those convictions even though you may disagree with aspects of the facts. You understand that.

(Emphasis added)

27    Later during the cross-examination, Mr Nunez took exception to the Minister’s solicitor’s questioning and asserted that there was no point in proceeding if the Tribunal was not going to accept what he said. The following exchange occurred in that context.

DEPUTY PRESIDENT: As I’ve said earlier, the tribunal has to accept the findings of the court. That doesn’t mean I don’t listen to what you’re [sic] are saying.

MR NUNEZ [THROUGH INTERPRETER]: I know. I know that you’re going to listen to me, but you’re going to accept what the court says, not what I’m saying. What’s happening is that psychologically you are – I don’t know how to say it.

28    Shortly after that exchange, Mr Nunez said that he wanted to “cancel everything” and left the Tribunal hearing. While he returned to the Tribunal hearing the following day, he refused to give any further evidence and be subjected to cross-examination.

THE TRIBUNAL’S DECISION

29    The Tribunal affirmed the decision under review: Decision and Reasons for Decision dated 22 April 2024. It is unnecessary to give a detailed account of the Tribunal’s reasons given the fairly narrow focus of Mr Nunez’s grounds of challenge to the Tribunal’s decision. It suffices to emphasise three aspects of the Tribunal’s reasoning.

30    First, the Tribunal noted that there was no dispute that Mr Nunez failed to meet the character test as a matter of law. The Tribunal stated, in that regard, that Mr Nunez’s visa “was mandatorily cancelled because [Mr Nunez] did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions, and at the time of the cancellation, he was serving a sentence of imprisonment on a full-time basis for the 2023 family violence offences”: Reasons at [22]. As will be seen, Mr Nunez’s grounds of challenge to the Tribunal’s Reasons focusses on the Tribunal’s statement that Mr Nunez had been sentenced to 12-months’ imprisonment for the “2002 driving convictions”.

31    Second, one of the key findings that the Tribunal made was that the nature and seriousness of Mr Nunez’s criminal offending weighed heavily against revocation: Reasons at [46]. The Tribunal’s Reasons in that regard focussed to a large extent on the fact that Mr Nunez’s offending had included “violent crimes against female members of his family, including his now former partner, his child and his elderly mother” (Reasons at [42]), that his “violent offences against his family have become increasingly serious over time despite the imposition of AVOs and other Court-imposed measures” and that he had “caused fear to the victims, including his elderly mother, and child”: Reasons at [43]. The Tribunal did, however, also refer to the fact that Mr Nunez had been “convicted of significant driving offences, demonstrating disregard for road rules and traffic laws” (Reasons at [44]) and noted that it gave “significant weight to the Court’s imposition of a custodial sentence, which is an objective reflection of the seriousness of [Mr Nunez’s] offending”: Reasons at [45].

32    Third, the Tribunal recounted that, in relation to the offences that Mr Nunez had committed on 24 December 2001 (in respect of which he was convicted on 20 February 2002), Mr Nunez had “challenged some aspects of the Facts Sheet, such as that he did not know that the car was stolen”: Reasons at [31]. The Tribunal referred, in that context, to the decision in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, which the Tribunal viewed as being authority for the following principles (Reasons at [32]):

(1)    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2)    Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

(Italics removed, footnote omitted.)

33    Having referred to those principles, the Tribunal stated (Reasons at [33]):

It is evident that in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus. The Applicant’s visa was mandatorily cancelled because among other things, the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions. In such a case, the Applicant cannot challenge or impugn the essential facts of the conviction.

(Footnote omitted.)

34    That statement was the focus of Mr Nunez’s challenge to the Tribunal’s decision and provided the basis for his contention that the Tribunal misunderstood the applicable law and acted on that misunderstanding.

35    Putting those aspects of the Tribunal’s decision to one side, the Tribunal essentially followed the dictates of Ministerial Direction No. 99. It found that: the protection of the Australian community weighed heavily against revocation of the visa cancellation decision; Mr Nunez’s offending conduct constituted family violence and that consideration weighed heavily against revocation of the cancellation decision; Mr Nunez’s ties to Australia weighed in favour of revocation; the best interests of minor children in Australia weighed in favour of revocation but did not outweigh the considerations weighing against revocation; the expectations of the Australian community weighed against revocation; the extent of the impediments likely to be faced by Mr Nunez significantly weighed in favour of revocation, but did not outweigh the primary considerations weighing against revocation; and the impact on victims weighed in favour of revocation, though only to a limited extent.

36    The Tribunal concluded as follows (Reasons at [122]-[124]):

Although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community (moderated), weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of his minor child, impact on victims, and the extent of impediments if removed, are to a varying degree, in the Applicant’s favour. However, the cumulative weight of these considerations does not outweigh the significant cumulative weight of the considerations weighing against revocation.

The Applicant has repeatedly committed violence against female members of his family, including his vulnerable mother and child. The evidence before the Tribunal demonstrates that the Applicant has a longstanding and serious drug and alcohol abuse problem, as well as mental health issues which have been associated with his violent behaviour. For the stated reasons, the Tribunal has found that there is a risk of re-offending, which is unacceptable given its seriousness.

Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.

REVIEW GROUNDS AND SUBMISSIONS

37    Mr Nunez contended that the Tribunal erred in a jurisdictional respect in two ways.

38    First, Mr Nunez contended that the Tribunal misunderstood the applicable law because it treated the basis for the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act as including his conviction of the offence of driving a conveyance taken without the consent of the owner, whereas the mandatory cancellation was in fact solely based upon the 12 month term of imprisonment imposed on him for the offence of driving while disqualified from holding a licence. This contention was based on the Tribunal’s statement at [22] of the Reasons that Mr Nunez’s visa was mandatorily cancelled because he “did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions, and at the time of the cancellation, he was serving a sentence of imprisonment on a full-time basis for the 2023 family violence offences”. In Mr Nunez’s submission, the reference to the “2002 driving convictions” clearly included the conviction for the offence of driving a conveyance taken without the consent of the owner.

39    Second, Mr Nunez contended that the Tribunal acted on that misunderstanding of the law by precluding itself from considering the evidence that he gave concerning the circumstances in which he committed the offence of driving a conveyance taken without the consent of the owner. In Mr Nunez’s submission, because the Tribunal believed that his conviction for that offence was the basis of the mandatory cancellation of his visa, the Tribunal considered that the principles in HZCP precluded Mr Nunez from challenging both the fact of that conviction and the essential facts on which it was based, which included his evidence that he did not know that the car he was driving had been stolen.

40    Mr Nunez submitted that those jurisdictional errors were material errors because, if the Tribunal had not effectively disregarded his evidence that he did not know that the car was stolen, it might have made a different finding concerning the nature and seriousness of his offending conduct. That may in turn have tilted the overall weighing exercise in favour of revocation.

DID THE TRIBUNAL MISUNDERSTAND THE APPLICABLE LAW?

41    I am not persuaded that the Tribunal misunderstood the applicable law. The Tribunal’s employment of the shorthand expression “the 2002 driving convictions” at [22] of its Reasons to describe the several offences for which Mr Nunez was convicted on 20 February 2002 was somewhat unfortunate and productive of some confusion. When the Reasons are read fairly and as a whole, however, it is tolerably clear that the Tribunal proceeded on the correct basis that Mr Nunez did not pass the character test because he had been sentenced to imprisonment for 12-months in respect of his conviction for the offence of driving while disqualified. The Tribunal did not, as contended by Mr Nunez, proceed on the basis that his failure to meet the character test was a result of all of the convictions that were entered against him on 20 February 2002, including for the offence of driving a conveyance taken without the consent of the owner.

42    There are several textual and contextual indications that point to the fact that the Tribunal correctly understood the basis upon which Mr Nunez failed to meet the character test.

43    First, the Tribunal correctly identified the relevant statutory provisions upon which the mandatory cancellation of Mr Nunez’s visa was based, including ss 501(3A), 501(6)(a) and 501(7) of the Migration Act: Reasons at [6]-[8].

44    Second, the Tribunal correctly stated, and was clearly aware, that the only offence in respect of which Mr Nunez was convicted and sentenced to 12 months’ imprisonment was the offence of driving while disqualified: Reasons at [29] (third and fifth dot points). Similarly, the Tribunal correctly stated, and was clearly aware, that the sentence imposed on Mr Nunez in respect of his conviction for the offence of driving a conveyance taken without the consent of the owner was four-months imprisonment: Reasons at [29] (fifth dot point).

45    Third, when the Tribunal identified the basis upon which Mr Nunez failed to meet the character test as being “the sentence of 12 months’ imprisonment for the 2002 driving convictions” (emphasis added), it twice used the definite article (“the”) and singular form (“sentence”): Reasons at [22] and [33]. That indicates that, while the Tribunal used the shorthand expression “2002 driving convictions” to describe the various offences for which Mr Nunez was convicted on 20 February 2002, it nevertheless understood that only one of those convictions – the conviction for the offence of driving while disqualified – resulted in a sentence of 12-months’ imprisonment, and that it was that conviction that resulted in Mr Nunez failing to meet the character test.

46    Fourth, when applying the principles derived from HZCP to Mr Nunez’s case (Reasons at [33]), the Tribunal returned to the definite article and singular form when it stated that the result was that Mr Nunez could not “impugn the essential facts of the conviction” (emphasis added).

47    Mr Nunez’s contention that the Tribunal misunderstood the applicable law was entirely based on the fact that, when describing Mr Nunez’s failure to meet the character test, the Tribunal twice used the plural form (“2002 driving convictions”) when referring to the sentence of 12-months’ imprisonment. In my view, when read fairly and in context, that was no more than a “verbal slip” (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24] per Kirby J) that does not warrant the inference of any error of law or jurisdictional error on the part of the Tribunal.

48    It should also be emphasised that if, contrary to the finding I have made, the Tribunal did misunderstand the basis upon which Mr Nunez failed to meet the character test, that error alone could not possibly be said to have been a material error. That is because there was never any dispute that Mr Nunez did not meet the character test: see Reasons at [22]. The error, if there was one, could only be said to be material to the extent that it led the Tribunal to misapply the principles in HZCP, which was the subject of Mr Nunez’s second review ground.

DID THE TRIBUNAL “ACT ON” ITS MISUNDERSTANDING OF THE LAW?

49    The Tribunal’s summary of the principles identified in HZCP (Reasons at [32]), referred to earlier, was entirely accurate. The summary effectively reproduced the statement of the principles by the primary judge in HZCP at [78]. That statement of the applicable principles was effectively endorsed by the Full Court in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 (HZCP Full Court). Justice McKerracher (with whom Colvin J agreed at [179]) observed (at [55]) that a visa cancellation under s 501(3A) of the Migration Act must have, as its foundation, a conviction or a sentence of one of the kinds referred to in ss 501(7)(a)-(c) and that the cancellation power would not arise “without the prior foundation of the requisite conviction or the sentence”. His Honour went on to state (at [63]) that “[w]here 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”. Similarly, his Honour said (at [68]) that “where the foundation for the jurisdiction [exercised] 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”.

50    Mr Nunez contended, in effect, that the Tribunal’s misunderstanding about the conviction or sentence which provided the foundation for the jurisdiction to cancel his visa caused it to misapply the principles in HZCP (and HZCP Full Court). His submission was that, because the Tribunal misunderstood that it was Mr Nunez’s conviction for the offence of driving a conveyance taken without the consent of the owner which provided the foundation for the jurisdiction to cancel his visa, the Tribunal’s application of the principles in HZCP caused it to preclude itself from considering Mr Nunez’s evidence that he did not know that the car that he was driving had been stolen.

51    Mr Nunez’s contention in that regard must fail given my finding that the Tribunal did not proceed on the basis that it was Mr Nunez’s conviction or sentence for the offence of driving a conveyance taken without the consent of the owner which provided the foundation for the jurisdiction to cancel his visa. When read fairly and in context, it is tolerably clear that, when the Tribunal stated that Mr Nunez “cannot challenge or impugn the essential facts of the conviction” (Reasons at [33]), it was saying no more than that Mr Nunez could not challenge the essential facts of his conviction for the offence of driving while disqualified.

52    Having referred to the principles in HZCP, the Tribunal also observed that “in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus” (Reasons at [33]). It is clear that the “certain circumstances” to which the Tribunal was referring included where the exercise of the visa cancellation power was not founded on the conviction in question. That was the case in respect of Mr Nunez’s conviction in respect of the offence of driving a conveyance taken without the consent of the owner. A fair reading of the Tribunal’s Reasons as a whole would suggest that the Tribunal proceeded on the basis that, while it was open to Mr Nunez to seek to impugn the essential facts underlying his conviction for the offence of driving a conveyance taken without the consent of the owner, he bore a heavy onus. For the reasons that follow, it is difficult to see how Mr Nunez could possibly be said to have discharged that heavy onus.

MATERIALITY

53    It is strictly unnecessary for me to consider the question of materiality given that I have found that the Tribunal did not err as contended by Mr Nunez. I should nonetheless briefly address that issue given the Minister’s contention that, if it was found that the Tribunal did preclude itself from considering Mr Nunez’s evidence that he did not know that the car he was driving was stolen, that error was not a relevantly material error.

54    The applicable principles in respect of materiality in this context are now settled and clear. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321, the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing in respect of the applicable principles) drew a distinction between cases, on the one hand, which involve errors which are jurisdictional irrespective of any effect that the error might or might not have had on the decision (for example apprehended bias), or errors where the potential for an effect on the decision is inherent from the nature of the error (for example unreasonableness in the final result) (LPDT at [6]) and, on the other hand, errors which 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”: LPDT at [6] and [7] (emphasis in original). Other than in potentially one respect, discussed later, the error or errors that Mr Nunez contended were made by the Tribunal fell into the latter category of error.

55    In the latter category of case, the question “whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application”: LPDT at [13] and the following principles apply (LPDT 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.

(Emphasis in original; footnotes omitted)

56    It is important that “a court called upon to determine whether the threshold has been met must be careful not to assume the function of decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained”: LPDT at [15]. The plurality summarised the circumstances in which the threshold of materiality will, or will likely, be met as follows (LPDT at [16]):

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

57    Had I been required to determine whether the errors that Mr Nunez contended were made by the Tribunal were material in the sense explained by the High Court in LPDT, I would likely have concluded that the errors were not material. When the Tribunal’s reasons are closely considered, it is exceptionally difficult to see how it could be concluded that the decision could realistically have been different had the Tribunal not precluded itself from considering his evidence, in respect of his conviction for driving a conveyance taken without the consent of the owner, that he did not know that the car he was driving was stolen. The possibility of a different decision in my view could fairly be described as, at best, fanciful or improbable. It is difficult to avoid the conclusion that the outcome would inevitably have been the same. There are several features of the Tribunal’s reasoning that compel that conclusion.

58    First, Mr Nunez’s knowledge that the car he was driving was stolen was an essential fact underlying his conviction for the offence in question. While the Facts Sheet that was before the court that convicted Mr Nunez did not state that Mr Nunez knew that the car was stolen, as noted earlier that fact was an essential element of the offence with which Mr Nunez was charged and convicted. The assertion by Mr Nunez that the did not know that the car was stolen amounted to a traversal of his plea of guilty. It would not have been open to the court to accept Mr Nunez’s plea and convict him in those circumstances.

59    Second, having regard to the principles enunciated in HZCP, Mr Nunez bore a heavy onus in attempting to impugn his conviction for the offence in question. The suggestion that Mr Nunez could be found to have discharged that heavy onus is, at best, fanciful. Mr Nunez pleaded guilty to an offence an essential element of which was that he knew that the car was stolen. While the Facts Sheet did not expressly refer to that fact, the inference to be drawn from the facts stated in the Facts Sheet is inescapable. Mr Nunez’s evidence before the Tribunal amounted to little more than a bare denial and, in the circumstances explained earlier, while under cross-examination he left the hearing room. While he attended the hearing the following day, he refused to give any further evidence. The transcript of the hearing records that, after the Minister’s legal representative made submissions concerning the principles in HZCP, Mr Nunez stated (through an interpreter): “I accept responsibility, and I … I am not denying the charges that I have on my record. I accept responsibility … That’s why, every time that I went to court for each matter, I always pleaded guilty”.

60    Third, while the Tribunal found that “the nature and seriousness of [Mr Nunez’s] criminal offending weigh heavily against revocation” (Reasons at [46]), it is, at best, fanciful to suggest that his evidence, in the context of his conviction for the offence of driving a conveyance taken without the consent of the owner, could have had any impact whatsoever on that finding. The criminal offending which was the particular focus of the Tribunal’s finding in that regard was his offending that involved “violent crimes against female members of his family”: Reasons at [42].

61    While the Tribunal also observed (at [44]) that Mr Nunez had been convicted of “significant driving offences, demonstrating [a] disregard for road rules and traffic laws”, it is by no means apparent that the Tribunal considered that the offence of driving a conveyance taken without the consent of the owner was one of those offences. It is not an offence which involves any disregard for road rules and traffic laws. In any event, it is entirely fanciful to suggest that Mr Nunez’s bare assertion that, in respect of that one offence among the very large number of significant driving offences committed by Mr Nunez over the years, he did not know that the car he was driving was stolen, could have had any bearing on the Tribunal’s finding concerning the overall seriousness of those offences. There is no indication whatsoever in the Tribunal’s reasons that it regarded the fact that Mr Nunez knew the car to be stolen was a relevant consideration in determining the seriousness of that offence, let alone the overall seriousness of Mr Nunez’s criminal offending as a whole. Indeed, aside from the very brief mention that Mr Nunez had claimed that he did not know that the car was stolen (at Reasons [31]), the question whether or not he knew the car was stolen does not rate a mention in the Tribunal’s Reasons.

62    As adverted to earlier, Mr Nunez did, albeit somewhat belatedly, characterise the errors that he contended the Tribunal made as errors which were jurisdictional irrespective of any effect they may have had on the decision, or as errors where the effect on the decision was inherent in the nature of the errors. I say belatedly because this was not how the errors were framed in either the originating application or Mr Nunez’s written submissions. In any event, the essence of the argument was that it was the Tribunal’s erroneous belief that Mr Nunez could not impugn the essential facts of his conviction of driving a conveyance taken without the consent of the owner which ultimately caused Mr Nunez to leave the hearing and then refuse to give any further evidence. Mr Nunez submitted that the transcript of the hearing before the Tribunal revealed that he left the hearing shortly after the Tribunal told him that it “accept[ed] those convictions”, though he could “disagree with aspects of the facts”.

63    I reject Mr Nunez’s contention that it was the Tribunal’s (alleged) misunderstanding of the law that led him to leave the hearing and subsequently refuse to give further evidence. Mr Nunez did not give any evidence in support of that contention. The only evidence he relied on was the hearing transcript. A fair reading of the hearing transcript does not support his contention about his reasons for leaving the hearing and refusing to give further evidence. Rather, the transcript indicates that Mr Nunez became agitated during his cross-examination in respect of his domestic violence offences. It is true that he expressed concern about the Tribunal’s statement that it had to accept the findings of the courts in respect of his convictions, however the Tribunal fairly explained that he could challenge “aspects of the facts” and that it would entertain his evidence in that regard. Perhaps more significantly, the exchanges between the Tribunal and Mr Nunez on the following day indicated that his departure from the hearing had more to do with his mental health issues, and that his decision not to give any further evidence was based on the fact that he did not want to go over his convictions again, that he accepted responsibility for his crimes, and that he wanted the Tribunal to make a decision based on the information the Tribunal already had about him.

64    I accept that one must generally be cautious not to assume the function of the decision-maker, the Tribunal, in determining the question of materiality. It must also be acknowledged that meeting the threshold of materiality is generally not demanding or onerous. There must, however, be cases where the possibility that the decision could have been different had there been no error is so fanciful or improbable that the threshold is not met. This would appear to be such a case. While it is unnecessary for me to reach a concluded view given that I have found that the Tribunal did not err as contended, if it had come to it, I would have been inclined to find that the errors said to have been made by the Tribunal were not material in the requisite sense.

CONCLUSION AND DISPOSITION

65    I am not persuaded that the Tribunal erred jurisdictionally as contended by Mr Nunez. His application must accordingly be dismissed. Mr Nunez did not submit that, if he was unsuccessful, he should not be ordered to pay the Minister’s costs. Nor am I able to see any reason why costs should not follow the event. Accordingly, Mr Nunez should pay the Minister’s costs of his unsuccessful application.

Associate:

Dated:    14 August 2025