AMA16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 976
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 976
File number: MLG 2034 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 4 October 2024 Catchwords: MIGRATION LAW – application for judicial review –applicant’s subclass 050 (Bridging (General)) visa – cancellation of visa under section 116(1)(g) of the Migration Act 1958 (Cth) – review of delegate’s decision to cancel visa by the Administrative Appeals Tribunal – whether Tribunal made an error in considering the applicant’s criminal convictions – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal erroneously applied Direction 63 – where Tribunal considered it appropriate to rely on the convictions and sentencing – applicant seeking impermissible merits review – application dismissed Legislation: Migration Act 1958 (Cth) ss 116(1)(g) and 499
Migration Regulations 1994 (Cth) r 2.43
Cases cited: HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of last submissions: 20 August 2024 Date of hearing: 20 August 2024 Place: Melbourne (by videoconference) Counsel for the Applicant: Appeared in person Counsel for the First Respondent: Mr Hibbard Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 2034 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMA16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 13 October 2023. In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to cancel the applicant’s subclass 050 (Bridging (General)) visa under section 116(1)(g) of the Migration Act 1958 (Cth) (‘the Act’).
The applicant was previously legally represented. Indeed, the application filed in this matter was prepared and filed on the applicant’s behalf by the applicant’s legal representative at the time.
On 9 July 2024, the applicant’s representative filed a Notice of Withdrawal as a lawyer.
On 17 July 2024, the first respondent served on the applicant a copy of the court book in this matter, which had previously been served upon his then legal representative.
On 6 August 2024, the first respondent served a copy of their outline of submissions on the applicant by sending it to the applicant at the detention centre in which he was being held, a copy of which was printed and provided to the applicant.
At the commencement of the hearing before me, the applicant confirmed that although he had previously been legally represented, he was now appearing on his own behalf and also that he had received a copy of the documents sent to him by the Minister’s representative although he also said that he had thrown them out and had not read the documents.
The applicant did not seek an adjournment and in circumstances where the Minister conceded that an extension of time ought be granted, I determined that it was appropriate to proceed to deal with the judicial review application before me.
The applicant raised four grounds of review in his initial application.
BACKGROUND
The applicant applied for a protection visa on 30 June 2015. That application was refused and remains the subject of review proceedings.
On 17 November 2017, the applicant applied for a Bridging Visa, and one was granted on 14 December 2017 (‘the visa’).[1] I note that the applicant had been granted previous bridging visas since his arrival in Australia in October 2012.
[1] Court book at pages 6 to 10.
On 10 August 2022, a delegate of the Minister issued a notice of intention to consider cancellation (‘the Notice’) of the applicant’s visa under s 116 of the Act.[2] The Notice set out the possible grounds for cancellation which related to the applicant appearing to have been convicted of several offences. These matters will be discussed in more detail shortly.
[2] Court book at pages 12 to 13.
The Notice invited the applicant to provide comments at an interview, and following that interview, the delegate cancelled the applicant’s visa. The applicant sought a review of the delegate’s decision before the Tribunal by application dated 12 August 2022.[3]
[3] Court book at pages 46 to 53.
On 26 August 2022, the Tribunal affirmed the delegate’s decision. However, that decision was set aside by a decision of this court on 23 May 2023. The applicant’s review application was remitted to the Tribunal (differently constituted) for reconsideration according to law.
The Tribunal, differently constituted, invited the applicant and his representative to a case management hearing on 11 July 2023, which was ultimately adjourned to 1 September 2023.[4] On 25 August 2023, the applicant’s representative lodged submissions (‘applicant’s August 2023 submissions’) and supporting documentation (‘applicant’s supporting documentation’).[5]
[4] Court book at page 353 and 549.
[5] Court book at page 554.
Applicant’s criminal history
On 17 July 2015, the applicant was charged by Victoria Police with one count of indecent assault. The charge was ultimately dismissed on 8 March 2016 although, as a result of these charges, the applicant’s visa was cancelled and he was placed in immigration detention. The 2015 charge was dismissed in circumstances where the prosecution declined to lead any further evidence after its first witness, or otherwise prosecute the matter. On 1 August 2016, the Minister exercised his discretion to grant the applicant a further bridging visa allowing him back into the community.
On 10 August 2022, the applicant was convicted of a series of offences, which occurred in Perth in the period between January and April 2022. He was sentenced to a suspended term of 16 months and received a fine of $484.50.[6] In the applicant’s August 2023 submissions, the applicant’s then legal representative stated:
9.On 10 August 2022, the Applicant was convicted in the Western Australian Magistrates Court of a series of offences, which were found to have been committed between 29 January 2022 and 23 April 2022. The offences the Applicant was convicted of took place across four separate incidents, and include:
a.on 29 January 2022, charges for criminal damage and unlawful assault, in the context of an intimate partner relationship;
b.on 28 February 2022, a single charge of breaching a family violence restraining order, which was in place to protect the victim of the alleged offending of 29 January 2022;
c.on 30 March 2022, a single charge of breaching an undertaking of bail by not attending a court date; and
d.on 23 April 2022, charges for common assault in circumstances of aggravation, stealing, criminal damage, and make threat to unlawfully do an act, in the context of a subsequent intimate partner relationship.
[6] Court book at page 559, being the applicant’s August 2023 submissions at paragraph [2(l)].
Within the applicant’s supporting documentation is a statutory declaration made by the applicant, wherein he provides more detail about his offending in August 2022. Relevantly, he clarified answers earlier provided to the Tribunal about this offending. Further, he stated that at about the time of his offending in early 2022, he was ‘in a very bad place’ and that he ‘accept(s) completely that [he] did some terrible things in those months, and that [his] behaviour had the effect of making two separate people feel incredibly upset and unsafe’.[7]
[7] Court book at page 576.
The applicant further explains why he pleaded guilty and importantly that he thought that he would be able to explain what happened to the Magistrate but that he was not given much opportunity to speak.[8] Relevantly in his statutory declaration, the applicant said:
43.As I explained earlier, I really struggle to think about these incidents because I am so ashamed, and I was in a really bad situation when everything happened. What I do know, however, is that the extreme level of violence which the police said I committed against my second partner in April 2022 did not happen. I am not someone who would kick and punch a person while they are on their knees on the floor, over and over.
…
45.I do not want to downplay my offending, and I accept that I did a lot of things wrong, which is why my visa was cancelled. The level of violence which the police say I committed, however, is just not something I would do. In considering whether to give my visa back, I ask that the Tribunal takes all of this into account.[9]
[8] Court book at page 577.
[9] Court book at pages 577 to 578.
The applicant’s representative also submitted that at about this time, the applicant’s mental health was deteriorating, leading him to turn to alcohol as a means of self-medication.[10]
[10] Court book at 565, being the applicant’s August 2023 submissions at paragraph [37].
It was further submitted that the applicant’s guilty plea and acceptance of the underlying facts of the offending, must be viewed in the context in which the hearing before the Magistrates’ court occurred. Relevantly, at paragraph [43] of the applicant’s August 2023 submissions to the Tribunal, the applicant’s representative said:
… a reading of the proceedings which is open to the Tribunal is that the Applicant tended to simply agree to things which were put to him, with a view to resolving the matters and securing his release. This is supported by Dr Jenkins’s observations that the Applicant has a desire to please, and a tendency to passively agree with suggestions which are put to him.[11]
[11] Court book at 566 to 567.
In this context, the applicant submitted that the Tribunal could review the circumstances of the convictions when considering whether to affirm the decision to cancel his visa.
The Tribunal conducted a hearing on 1 September 2023, attended by the applicant and his representative. The applicant was assisted at that hearing by an interpreter.[12] Subsequently, on 8 September 2023, the applicant’s representative provided further written submissions to the Tribunal (‘applicant’s September 2023 submissions’). In the applicant’s September 2023 submissions, the applicant’s representative indicated that, as anticipated at the Tribunal hearing, the applicant was seeking to obtain further relevant information in support of his review application.[13]
[12] Court book at page 648.
[13] Court book at page 695, being the applicant’s September 2023 submissions at paragraph [1].
The applicant’s representative confirmed that the victim of the applicant’s offending of 23 April 2022, had successfully applied to have the Family Violence Restraining order, which had been granted in her favour against the applicant, set aside.[14] The applicant’s representative submitted a copy of the transcript of the proceedings before the Magistrates’ Court of Western Australia in which the relevant order was set aside.
[14] Court book at page 695, being the applicant’s September 2023 submissions at paragraph [2].
The applicant’s representative submitted:
4.The evidence is compelling, and largely speaks for itself. [The victim] provided sworn evidence bearing on the reliability of witness statements relating to the events of 23 April 2023, namely that the witness was intoxicated at the time of the incident and that “she wasn’t sure about a few things but this is after the fact – well, after he had been charged”. [The victim] confirmed, again under oath, that she had not been threatened to come into Court that day to cancel the FVRO.[15]
[15] Court book at page 696.
After an analysis of the relevant and applicable case law, the applicant’s representative then went on to submit to the Tribunal:
65.Bearing all of this in mind, we urge the Tribunal to closely consider the Applicant’s evidence with a view from departing from the police prosecution summaries in favour of what the Applicant has stated actually occurred. The applicant has, throughout the proceedings, and before the previously constituted Tribunal, accepted a reasonable degree of wrongdoing on his part. What he does not accept is those more egregious aspects of the summaries, suggesting in particular that he inflicted a sustained physical attack on the victim in the offending of 23 April 2023.
66.The elements of the offence with respect to the Applicant wielding a knife form part of his conviction which is the jurisdictional basis of the power to cancel his visa. Accordingly, notwithstanding the Applicant’s own evidence with respect to this point, as well as the content of the hearing on 3 October 2022, we concede that the weight of the case law would not permit the Tribunal to impugn that conviction in any way. Nevertheless, in line with our submissions thus far, the Tribunal is not bound to accept the police summaries in their entirety, … Indeed, we submit that the weight of the evidence already referred to provides a probative basis for the Tribunal to substantially depart from those facts relied on by the police, and referred to for the purpose of formulating a sentence.
…
68.Finally, the Applicant’s account of having breached the FVRO on 28 February 2022 is likewise open to the Tribunal to accept, without the conviction itself being impugned. The content of the charge says nothing of the duration of a breach, … the plea of guilty to that charge does not admit of any aggravating circumstances alleged. Accordingly, the Applicant’s account that he did in fact breach the order, but only did so for a brief period and for the purpose of collecting his possessions is open to the Tribunal to accept.
69.This submission does not seek to downplay the seriousness of any such breach – it is accepted that such behaviour in all circumstances warrants denunciation – but rather the aggravating fact referred to in sentencing of the Applicant having sat there for an hour is not, in these circumstances, unimpeachable. We submit that the Applicant’s acceptance of the breach generally, his acknowledgement that it was wrong, the inherent plausibility of his own account, and the overall absence of any other behaviour like this from him outside of a roughly three-month period of his life are all in favour of departing from what was relied on by the sentencing judge.[16]
[16] Court book at pages 708 to 709.
After receiving this further information, the Tribunal reconvened the hearing and the applicant and his representative attended.[17]
[17] Court book at page 728.
On 16 October 2023, the Tribunal notified the applicant of its decision to affirm the delegate’s cancellation decision dated 13 October 2023.
TRIBUNAL’S DECISION
The Tribunal’s decision record is located at pages 739 to 767 of the court book.
After setting out the background to the proceeding and the manner in which the matter had proceeded before the Tribunal, at paragraphs [5] to [29], the Tribunal set out its consideration of the applicant’s claims and the evidence before it.
Relevantly, at paragraphs [30] to [41], the Tribunal set out the applicable statutory framework and considered the applicant’s circumstances.
At paragraphs [42] to [43], the Tribunal set out the relevant statutory basis upon which the Minister may cancel a visa. Relevant for present purposes, a prescribed ground for cancellation is where the Minister is satisfied that the applicant has been convicted of a criminal offence. At paragraph [44], the Tribunal noted the applicant’s concession that a ground for cancellation existed in this case. However, the Tribunal further noted that as the relevant ground did not require mandatory cancellation, the Tribunal must consider whether the visa should be cancelled.
The Tribunal then went on to set out the statutory framework regulating how the discretion is to be exercised at paragraphs [47] to [57]. Relevantly, at paragraph [53], the Tribunal identified the primary considerations, and at paragraph [54] the secondary considerations to which the Tribunal must have regard. At paragraph [57], the Tribunal also noted that it had regard to the particular circumstances of this case raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal then set out its consideration of each of these matters. It determined that:
(a)the government’s view regarding the prescribed grounds, and in particular the principal that the Australian government has a low tolerance for criminal behaviour of any kind by a person in the community who does not hold a substantive visa, weighed in favour of cancellation;
(b)in the circumstances of this matter, where the applicant did not identify any children in Australia who would be affected by the cancellation decision, the ‘best interests of the children’ consideration weighed neither in favour of nor against the cancellation;
(c)in the circumstances of this matter, the Tribunal found that the secondary consideration ‘impact of a decision to cancel on the family unit’, weighed neither in favour of nor against cancellation;
(d)the Tribunal found that the ‘degree of hardship that may be experienced if the visa is cancelled’ and the ‘possible consequences of cancellation’ consideration both weighed against cancellation; and
(e)the Tribunal found that the ‘circumstances in which the ground for cancellation arose’ weighed in favour of cancellation.
In considering the degree of hardship consideration, the Tribunal had regard to the applicant’s claim of the impact of ongoing detention on the his mental health. It also had regard to the report prepared by Dr Jenkins about the impact that ongoing detention has had on the applicant’s mental health.
In considering the circumstances in which the ground for cancellation arose, the Tribunal considered whether there were mitigating factors, as well as the seriousness of the offences. The Tribunal set out in some detail the factual basis for the offences based on the court records and based on the facts as admitted to by the applicant at the time. The Tribunal also noted that the applicant sought to challenge significant details of the offences before the Tribunal, including denying some of them entirely. The Tribunal put to the applicant the facts as included in the sentencing material and provided the applicant with an opportunity to respond to those matters. It set out the applicant’s responses in summary at paragraph [103].
The Tribunal also considered various other issues which the applicant raised in his evidence and submissions as factors which weighed against cancellation, including that he had been of ‘good behaviour’ whilst in detention, the purpose of his stay in Australia, namely to obtain asylum, and the extent to which the applicant had complied with his visa conditions. The Tribunal also considered that the level of remorse shown (or not shown) by the applicant was a factor weighing in favour of cancellation. The Tribunal considered the issue of proportionality and the potential breach of Australia’s international obligations as considerations which neither weighed in favour of or against cancellation.
The Tribunal, as noted above, provided the applicant an opportunity to provide further information about the steps taken by one of the victims of his offending to have the restraining order cancelled. It noted the further information provided by the applicant, which confirmed that the second victim indeed did have the restraining order made in her favour cancelled. After discussing the applicant’s evidence, submissions and further information, the Tribunal said, at paragraph [114]:
The applicant’s denial of the offences raised the issue of the extent to which it was open to the Tribunal to ‘go behind’ the convictions or accept the applicant’s alternate account of the events surrounding them.
After considering the various authorities to which the Tribunal was directed, the Tribunal noted at paragraph [120]:
Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the applicant where they seek to challenge the facts upon which those convictions are based.
The Tribunal, whilst accepting that it was permitted to examine the circumstances around the offending, ultimately was not satisfied that the applicant had led evidence sufficient to discharge the heavy onus he bore to convince the Tribunal to accept an alternative version of events or characterisation of the facts for the offences in respect of which he pleaded guilty.
The Tribunal considered the submission that the applicant felt under pressure at the sentencing hearing but noted that he was legally represented and the magistrate repeatedly asked him to confirm that he understood the charges and that he accepted the facts.
In addition, the Tribunal also considered the comments by Dr Jenkins that the applicant’s desire to please may have affected his ability to challenge the factual matters before the court. However, the Tribunal did not accept that ‘[the applicant’s] desire to please would have resulted in him pleading guilty to offences he did not commit or agree to a version of events which did not take place’.[18] Consequently, the Tribunal concluded having regard to all the circumstances that it accepted the ‘facts of the offences contained in the sentencing transcript’.[19]
[18] Tribunal’s decision record dated 13 October 2023 at paragraph [126].
[19] Tribunal’s decision record dated 13 October 2023 at paragraph [127].
At paragraph [129], the Tribunal went on to say:
The applicant’s denials before the Tribunal went well beyond those represented in the submissions. The applicant claimed in effect that he did not commit many of the offences, including the assaults, theft, threatening with a weapon and elements of the destruction of property offences. That is not a finding open to the Tribunal. Moreover, it causes the Tribunal to have serious concerns about his insight, remorse and the credibility of his evidence. It also calls into question whether earlier expressions of remorse were genuine.
As stated, the Tribunal concluded, having regard to these matters, that the circumstances in which the offending occurred, weigh in favour of cancellation.
Commencing at paragraph [160], the Tribunal also considered a range of other matters raised by the applicant’s representative. Relevantly, the Tribunal considered:
(a)the purpose of the applicant’s travel to Australia and the fact that he was in Australia on a bridging visa to allow his application for a protection visa to be determined;
(b)the applicant’s compliance with visa conditions (aside from the criminal conviction) and his behaviour towards the Department;
(c)submissions made regarding proportionality having regard to the intent and purpose of s 116(1)(g) of the Act and regulation 2.43(p)(i) of the Migration Regulations 1994 (Cth) (‘the Regulations’);
(d)the impact on the applicant of ongoing detention pending the determination of his protection visa application; and
(e)the applicant’s submission that ongoing detention would constitute a breach of Australia’s obligations under article 9(1) of the International Covenant on Civil and Political Rights.
Ultimately, after considering and weighing all of these matters, the Tribunal concluded that the ‘factors weighing in favour of exercising the discretion to cancel the visa outweigh those weighing against cancellation’ and therefore the applicant’s visa should be cancelled.[20]
[20] Tribunal’s decision record dated 13 October 2023 at paragraphs [180] and [181].
The Tribunal therefore affirmed the delegate’s decision.
GROUND OF REVIEW
The applicant raised four grounds of review.
Grounds 1 and 3 relate to the way in which the Tribunal dealt with the facts and circumstances relating to the criminal offending which gave rise to the right to cancel the visa. In particular, grounds 1 and 3 bring into question the extent to which the Tribunal may revisit the facts or circumstances relating to the criminal conviction or sentence. I will deal with them together.
Ground 2 claims that the Tribunal failed to give consideration to material evidence.
Ground 4 claims that the Tribunal misapplied Direction 63.
I will deal with the grounds in this order.
Grounds 1 and 3
Grounds 1 and 3 of the application read as follows:
1.The Tribunal erred in construing the law, in conflating the essential elements of an offence for which a person has been convicted, with the charge-specific facts presented to the court which convicted the person of the offence …
2.…
3.The Tribunal erred by imposing a ‘heavy onus’ on the Applicant to ‘challenge the facts upon which a conviction is necessarily based’, when at law there is no such onus …
For the following reasons, I do not find that the Tribunal erred in the manner alleged in either ground 1 or ground 3.
The applicant submitted to the Tribunal both in the applicant’s August 2023 submissions and the applicant’s September 2023 submissions, that in considering whether to exercise its discretion to cancel the applicant’s bridging visa, the Tribunal could examine the circumstances surrounding the conviction which gave rise to the jurisdiction to consider cancelling the visa in the first place.
Section 116 of the Act relevantly provides:
(1)… the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
Regulation 2.43 of the Regulations relevantly provides:
(1)For the purposes of paragraph 116(g) of the Act … the grounds prescribed are the following:
…
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country …
Section 499 of the Act permits the Minister to issue directions to a decision maker in the exercise of particular powers under that Act. On 1 September 2014, the Minister issued Direction No. 63 which sets out the considerations that a decision maker must take into account in determining whether to exercise a discretion to cancel a visa under s 116(1)(g) and regulation 2.43(1)(p).
It is not in dispute that the applicant has been convicted of relevant offences. The issue before the Tribunal was the extent to which the Tribunal in determining whether to exercise the discretion to cancel the visa, could and should have had regard to the circumstances of the conviction and whether in considering those circumstances, the Tribunal erred.
Relevantly, the applicant disputed the police summaries of his conduct and gave alternative accounts of the circumstances in which his offending occurred.
The Tribunal dealt with this issue at paragraphs [83] to [134] of its reasons for decision. Relevantly, the Tribunal summarised the applicant’s evidence and then at paragraphs [116] to [122] set out the relevant law. At paragraph [123], the Tribunal accepted the applicant’s submission that it was not entitled to question the fact of a conviction but, that there was some scope to determine the circumstances surrounding the offending. At paragraphs [124] to [126], the Tribunal considered the applicant’s evidence and submissions as to why the Tribunal should consider his alternative version of events.
The Tribunal then said:
127.Having regard to the offences and to the authorities, and the information before it the Tribunal considers it appropriate to accept the facts of the offences contained in the sentencing transcript.
128.Having regard to all the evidence, the Tribunal is unable to accept the applicant’s alternate version of events as credible, even to the limited extent it is open to the Tribunal to do so.
The Tribunal then considered the applicant’s evidence and submissions, but concluded at paragraph [133] that the applicant had committed serious offences and that his ‘attempts to minimise the seriousness of his offences suggested a lack of insight into his offending suggesting an ongoing risk of reoffending noting his convictions for violent offending against two female partners’.
The Tribunal then concluded at paragraph [134] that:
Having regard to all the circumstances, the Tribunal finds the circumstances of the offences were serious and weighs in favour of cancelling the visa.
There are different circumstances in which a decision maker may be called upon to make factual findings regarding a conviction or sentence imposed in a criminal proceedings.
In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (‘HZCP’), the Full Court of the Federal Court recently considered the authorities relevant to this issue. HZCP concerned an application to revoke a cancellation decision. The question in HZCP was whether the Tribunal’s reasoning in that case, regarding the seriousness of the applicant’s prior conduct and the risk he posed to the Australian community demonstrated error. It was common ground that the Tribunal could have regard to those matters in determining whether to revoke the cancellation. The issue was the manner in which the Tribunal considered these matters.
In HZCP, the Tribunal noted that the applicant had expressed deep remorse for his conduct but strongly denied that what had happened was as described by the trial judge in their sentencing remarks. The Tribunal went on to say that it could not go behind a conviction and examine the facts upon which it was based. It was that finding which was the subject of an application for judicial review to the Court. Relevantly, the applicant challenged the Tribunal’s statement at paragraph [43] that it could not ‘contradict or go behind a conviction and examine the facts upon which it was based’.
Justice Bromberg at first instance,[21] after considering the various relevant authorities on this issue said, at [78]:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(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.
[21] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
In these reasons, I will refer to these categories of cases as Category 1 and Category 2 respectively.
His Honour Justice Bromberg went on to say:
[89] As already stated, the present case falls within the first principle as the conviction is the foundation for the exercise of power by the Tribunal. Accordingly, the Tribunal was entitled to review the circumstances of the conviction for a purpose other than impugning the conviction itself. The Tribunal was not entitled to review the essential facts upon which the applicant’s conviction or his sentence were based.
…
[95]Given that the applicant’s evidence was evidence that sought to challenge facts essential to the conviction and sentence, the Tribunal was neither permitted nor required to assess the truth or falsity of that evidence. It did not fail to exercise its jurisdiction by not undertaking that assessment as the applicant contended. The Tribunal was entitled to treat the applicant’s evidence as false because that evidence was inconsistent with facts that the Tribunal was required to treat as true. That exercise involved no irrationality or illogicality. Contrary to the applicant’s contention, the Tribunal’s engagement with that evidence for the purpose of demonstrating a lack of contrition or remorse involved no error. …
On appeal to the Full Court, the majority (McKerracher J with Colvin J agreeing) held that where a previous conviction or sentence is the foundation for the exercise of power by a decision maker, the decision maker cannot impugn or question the essential factual findings that underpin the conviction or sentence on which the power depends. McKerracher J identified the issue arising on appeal in the following way:
[4]The distinction the appellant draws is that as a matter of law the Tribunal was not entitled to go behind the conviction itself, but in considering revocation the Tribunal was entitled to receive evidence and to give such weight as it considered appropriate, which was contrary to or inconsistent with the evidence on which the conviction was based. …
Colvin J further noted:
[180]The procedure that must be followed in criminal proceedings requires a high standard of proof after a clear statement of the nature of the charges brought against an accused person. There are many protections for the accused in the criminal trial process. Therefore, a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for a criminal conviction or the imposition of a sentence. It follows that it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.
[181]In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. … In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed … The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. Other statutory powers may require the fact of the conviction or sentence to be accepted and given effect in the course of the decision-making process.
…
[183]In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision-maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision-maker would do so. The reason why that is so is due to the high degree of confidence that in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.
…
[191]However, unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose. In this case, such questions do not arise because, for the reasons given by McKerracher J, the facts that provided the foundation for the criminal conviction and sentence of the appellant were part of the foundation for the power to revoke.
(Emphasis added)
The majority did not take issue with Justice Bromberg’s characterisation of the principles which apply to cases such as the one presently before the court. In this case, it is common ground that the applicant was convicted of an offence and therefore grounds for cancellation arose. As such, the present case, as was the case in HZCP, falls within Category 1 identified by Justice Bromberg. As such, ‘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’.
The issue is whether, in considering the circumstances surrounding the conviction, the Tribunal erred in the manner claimed by the applicant.
For the following reasons, I find that it did not.
The Tribunal understood and correctly stated the applicable legal principles. It understood and considered the circumstances surrounding the conviction for the purpose of determining whether to exercise its discretion to cancel or not to cancel the visa.
The Tribunal accepted the factual findings of the offences contained in the sentencing transcript as noted at paragraph [127] of its reasons. That finding was reasonably open and does not disclose error.
There is no basis on which to conclude that the Tribunal conflated the elements of the offences of which the applicant was convicted and the charge-specific facts as claimed. Rather, the Tribunal considered but did not accept the applicant’s alternative version of events as credible. That finding was reasonably open to the Tribunal.
For these reasons, ground 1 is not made out.
In relation to ground 3, the Minister concedes that the term ‘heavy onus’ comes from the authorities dealing with Category 2, as identified by Justice Bromberg in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803. However, I agree with the submissions made on behalf of the Minister that this phrase is not indicative of the imposition of a ‘legal onus’ per se. Rather, it is reflective of the need in cases which fall within Category 1 to provide compelling reasons or a compelling explanation for the Tribunal to accept a version of events that is inconsistent with the version of events upon which the conviction lies.
This is a reflection of the fact that in recording a conviction and imposing a sentence, a court will have formed a view about the factual basis upon which the conviction and sentence rests. When the Tribunal’s reasons are read as a whole and fairly, it is clear that it understood that it could have regard to the applicant’s evidence about the circumstances in which the offending occurred for the purpose of determining whether or not to exercise its discretion to cancel, or not to cancel, the applicant’s visa.
The conclusion reached by the Tribunal was reasonably open to it and disclosed no error.
Ultimately, grounds 1 and 3 take issue with the way in which the Tribunal exercised its discretion in this case and invites impermissible merits review.
For these reasons, I find that grounds 1 and 3 are not made out.
Ground 2
By ground 2, the applicant contends that:
2. The Tribunal failed or constructively failed to consider material evidence, namely, the Applicant’s evidence that he pleaded guilty to various offences on advice that doing so would avoid prolongation of being held on remand and avoid a custodial sentence …
This ground is also not made out for the following reasons.
The Tribunal expressly identified the applicant’s evidence in this regard at paragraph [102]. It then repeated this at paragraph [103] when summarising the applicant’s evidence in response to the facts contained in the sentencing material to which the Tribunal had regard. It is clear from these references that the Tribunal was aware of and understood that the applicant’s version of events should be accepted in circumstances where he pleaded guilty on advice that this would result in a quicker release from jail and that he now regrets pleading guilty.
At paragraph [110], the Tribunal records that it put to the applicant that it appeared from comments made in the mental health screening that ‘he was saying that he made a mistake pleading guilty and that he regretted that. He said in response, ‘yes I have already said that a few times but for something I haven’t done why should I regret’. This is further evidence that the Tribunal was considering the applicant’s evidence about the circumstances in which he entered a guilty plea.
Read fairly, there is no basis upon which it could be said that the Tribunal did not consider the applicant’s evidence in relation to the circumstances in which he entered a guilty plea.
Ground 2 is therefore not made out.
Ground 4
Ground 4 of the applicant’s application reads as follows:
4. The Tribunal erred in applying Direction 63 by conflating the mandatory consideration of the degree of hardship that may be experienced by the visa holder if their visa is cancelled with ‘the principle in the Direction that Bridging visa E holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging visa E while they await the resolution of their immigration status.’ …
This ground takes issue with the Tribunal’s findings at paragraph [81], where the Tribunal said:
In weighing this consideration, the Tribunal has also had regard to the principle in the Direction that Bridging visa E holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging visa E while they await the resolution of their immigration status.
In order to understand the context of this statement by the Tribunal, one must have regard to the terms of Direction 63 and what the Tribunal was considering when it made this statement at paragraph [81] of its reasons.
The Tribunal’s consideration of Direction 63 commences at paragraph [47] of its reasons. It summarises the principles and framework within which decision makers are to consider cancellation decisions at paragraph [49]. It then summarises other relevant aspects of Direction 63, including setting out the primary and secondary considerations that the decision maker is to have regard to and how those considerations are generally to be weighed. At paragraphs [58] to [70], the Tribunal sets out its detailed analysis of the two primary considerations. From paragraphs [71] to [152], it sets out its detailed consideration of the secondary considerations. In this context, from paragraphs [73] to [82], the Tribunal sets out its consideration of ‘the degree of hardship that may be experienced if the visa is cancelled’.
It is in this context that the Tribunal says at paragraph [81] that in considering the degree of hardship to the applicant if the visa is cancelled, the Tribunal has also considered another principle under the Direction, namely that holders of a Bridging visa E, who have been found guilty of engaging in criminal conduct should expect to be denied that privilege whilst awaiting the determination of their immigration status. This was in the context of much of the applicant’s evidence about the impact on him of his continued detention if his bridging visa is cancelled.
Direction 63 is divided into two Parts, as follows:[22]
Part one
Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel a non-citizen’s visa …
Part two
Identifies considerations relevant to Bridging E visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa under s 116(1)(g) and regulation 2.43(1)(p) or (q).
[22] See court book at page 14.
At 4.1(3) under the heading ‘Objectives’, Direction 63 contains the following:
The purpose of this Direction is to guide decision-makers who are delegated to perform functions or exercise powers under the Act to cancel the visa of a non-citizen under section 116(1)(g) and regulation 2.43(1)(p) … This Direction also applies to Tribunal members reviewing visa cancellation decisions made under section 116(1)(g) and regulation 2.43(1)(p) …
At 4.2(2), Direction 63 further contains:
The Principles in this Direction provide a framework within which decision-makers should approach their task of deciding whether to cancel a non-citizen’s Bridging E visa under section 116(1)(g) because a prescribed ground at regulation 2.43(1)(p) … applies to the holder. The relevant factors that must be considered in making such decisions are identified in Part Two of this Direction.
Part two of Direction 63 then sets out the primary and secondary considerations and deals with how those considerations are to be assessed. Relevantly, at 5.1(1), Direction 63 states:
Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.
In circumstances where the Direction itself requires a decision maker to weigh all primary and secondary considerations, with greater weight to be given to primary considerations, there is no error in the approach taken by the Tribunal. It considered the relevant secondary consideration by reference to the principles in paragraph 4.3, namely principle 4.3(5):
Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. …
In these circumstances, ground 4 is not made out.
CONCLUSION
As none of the grounds of review are made out, the application ought be dismissed with costs.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 4 October 2024
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