Brar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 1150
•18 October 2024
FEDERAL COURT OF AUSTRALIA
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1150
Review of: Administrative Appeals Tribunal decision of Senior Member Dr NA Manetta dated 22 May 2024 File number: QUD 290 of 2024 Judgment of: RANGIAH J Date of judgment: 18 October 2024 Catchwords: MIGRATION – application for judicial review – whether Tribunal erred in its understanding of “conviction” – whether any error was material – whether Tribunal failed to comply with para 8.4(4)(f) of Direction 99 and s 499(2) of the Migration Act 1958 (Cth) – application dismissed Legislation: Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(3A), 501(7)(c), 501(6)(a), 501CA and 501CA(4)
Crimes Act 1900 (NSW) s 394A
Justices Act 1886 (Qld) 142(1)
State Penalties Enforcement Act 1999 (Qld) ss 13, 22, 22(1), 25(1), 27(1) and sch 2
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) r 20
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15
Maxwell v The Queen (1996) 184 CLR 501
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 59 Date of hearing: 5 September 2024 Counsel for the Applicant: Mr E Vuu Solicitor for the Applicant: Milojkovic Visa & Migration Legal Services Counsel for the First Respondent: Mr JD Byrnes Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 290 of 2024 BETWEEN: MANPREET SINGH BRAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application is dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The Tribunal’s reasons
[4]
The legislative scheme
[13]
The grounds of the application
[20]
The submissions
[21]
Consideration
[30]
Ground 1 – Whether the Tribunal acted on a misunderstanding of the law in concluding that the applicant was “convicted” of exceeding the speed limit five times
[30]
Ground 2 – whether the Tribunal failed to comply with its obligation under s 499(2A) of the Act and para 8.4(4)(f) of Direction 99 to consider any known views of the child
[51]
RANGIAH J:
The applicant seeks judicial review of a decision of the second respondent (the Tribunal) refusing, under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), to revoke the cancellation, under s 501(3A), of the applicant’s visa.
The applicant relies on two grounds of review. The first is that the Tribunal acted on a misunderstanding of the law in concluding that the applicant had been “convicted” of exceeding the speed limit five times. The second is that the Tribunal failed to comply with its obligation under s 499(2A) of the Act and para 8.4(4)(f) of Direction No 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to consider “any known views of the child”.
I will summarise the Tribunal’s reasons, the legislative scheme and the parties’ submissions before considering the grounds of review.
The Tribunal’s reasons
The Tribunal described the offences which led to the cancellation of the applicant’s visa in the following way:
14.The date of 1 November 2020 is important. On this day, very serious criminal offending took place that I now describe. Mr Brar, who, as I say, was not permitted to drive under Queensland law, decided nevertheless to drive. He drove through an intersection in Kallangur, against a red light that had been red, according to the sentencing Court, for approximately five to eight seconds before Mr Brar entered the intersection. Mr Brar’s speed as he drove through the intersection was determined to be 85 km per hour in a 60 km per hour zone. He did not brake. Mr Brar’s car hit another car driven by a Ms Garcia, and it also struck two pedestrians, Mr and Ms Seibel, a married couple who were out walking their dog and who were lawfully crossing the intersection (since they were facing green pedestrian lights).
15.Mr Seibel was seriously injured in the collision, and he died, in fact, five days later. Ms Garcia suffered extensive injuries and one of these required surgery, without which she would most likely have died as well. Ms Seibel suffered extensive bruising to her body and a broken bone in her foot.
16.As a result of his conduct, Mr Brar was charged with, and pleaded guilty to, one count of the dangerous operation of a motor vehicle causing death and grievous bodily harm. He also pleaded guilty to one summary offence of unlicensed driving.
17.Mr Brar was sentenced on 11 August 2022 to five years’ imprisonment, which was to be suspended after 20 months. He was also sentenced to a further two months’ imprisonment for his unlicensed driving that day. He was disqualified absolutely from obtaining a licence in the future. The sentence was backdated to the day Mr Brar was taken into custody; namely, 25 February 2022.
(Footnotes omitted.)
The Tribunal made two references to the applicant’s earlier “convictions” of offences of exceeding the speed limit. The first was as follows:
10.The background circumstances of this offending should be noted. I take them from the sentencing remarks of the District Court of Queensland that were delivered in respect of Mr Brar’s most serious offending. I have read the remarks carefully and rely upon them.
11.Mr Brar had had his licence suspended after he was convicted of exceeding the speed limit five times. Mr Brar referred in his evidence to me to his having failed to pay certain speeding fines and toll charges. I assume that he was eventually prosecuted and convicted in absentia of having exceeded the speed limit.
(Footnotes omitted. Emphasis added.)
It may be noted that the word “convicted” in [11] was footnoted as follows:
The sentencing remarks refer to ‘convictions’ in this regard...
The Tribunal commenced its consideration of Direction 99. The Tribunal began by considering para 8.1.1(1), finding that the applicant’s offending was very serious. The Tribunal then made its second reference to “convictions” as follows:
28.I must have regard to the frequency of the non-citizen’s offending. This is the first and only instance of dangerous driving that appears in Mr Brar’s record. Although Mr Brar has convictions for speeding according to the sentencing Court, I do not equate these with dangerous driving. I know nothing about the circumstances of the speeding offences: this was not canvassed in evidence before me. Some speeding is dangerous but other speeding, whilst potentially elevating risk, may not pose any serious risk to other road users. It all depends on the precise facts. I do not have any information about Mr Brar’s five speeding convictions referred to by the District Court to make any informed judgment about their seriousness.
(Underlining added. Footnotes omitted.)
The Tribunal then considered para 8.1.2 of Direction 99 and the likelihood of the applicant re-engaging in dangerous driving. In that context, the Tribunal stated:
35.I do not attach much weight to Mr Brar’s speeding. There are five instances only over a number of years, and, as I have said, I know nothing about those instances.
The Tribunal found the risk of the applicant driving dangerously in the future to be, “low, but not nil”.
The Tribunal went on to consider paras 8.3 and 8.4 of Direction 99. The Tribunal found, relevantly:
50.Mr Brar’s children will also be severely impacted. He has two children aged five and nearly two, respectively. They have built a connection with him despite his residing either in jail or in immigration detention from February 2022 onwards. They have visited him. They will lose their father, and along with that, they will lose the practical support that he could be expected to provide as they grow older. I accept that Ms Kaur may have to sell the family home, which is subject to a mortgage, as a result of Mr Brar’s deportation so as to make ends meet. The impact of Mr Brar’s deportation will be very significant indeed for this family.
51.I accept also that the older child may feel the loss more intensely as he is about five years of age while the younger child is not yet two, and I weigh that separately; but both children individually will be heavily affected by the loss of their father. Psychological problems in a child’s development frequently follow the loss or absence of a parent. I attach substantial weight to the desirability of preserving stable family life.
…
54.I must also have regard to the best interests of minor children in Australia: paragraph 8.4. I have adverted to these earlier, but I acknowledge that the Direction requires me to have regard to them as a separate factor, thereby giving them additional emphasis. Their interests count very substantially. The relationship in question is a parental one. The children are still very young and need ongoing parental guidance and support, as I have said. As I have also said, both have a relationship with Mr Brar even though the second child is very young, indeed, not yet two years of age.
55.Ms Kaur proposes to remain in Australia if her husband is deported, and the children will stay with her. It is very substantially in the children’s interests to have one-on-one contact with their father. I do not place any weight on remote contact with him from India as a substitute. Given the financial circumstances of the family, I do not believe there will be any realistic opportunity for one-on-one contact between Mr Brar and his children for many years to come, if at all. Ms Kaur will also have to concentrate her energies on working full-time to support her young family, and so she will have commensurately less time to devote to the children as a parent.
56.I accept, therefore, that the children’s interests favour very substantially the revocation of the cancellation decision.
(Footnotes omitted.)
The Tribunal later found:
67.I turn now to weighing the various considerations I have identified. I must weigh all considerations I have identified. I am struck in this case by what the reality of deportation would mean for the Brar family, including for Mr Brar himself. The effect of my decision will be to destroy this family unit. I accept the evidence of Mr Brar’s spouse, Ms Kaur, that she would not follow him to India although she intends to remain married to him. She would lose day-to-day contact with her life partner, therefore. There are profound consequences for a family when one parent is no longer present. I accept that Mr Brar would face not only the loss of his wife and family but also substantial difficulties in re-establishing himself in India, including possible discrimination. These are enormous consequences for each member of the family and for the family considered as a unit.
68.The consequence of a decision to affirm the decision under review would be inevitably the fracturing of this family unit, and it would entail a very serious impact upon Mr Brar himself. I also note here expressly that children are very often the unfortunate victims of the poor choices one or other parent makes. In one sense, the Brar children, and Ms Kaur also, have had to endure so far the consequences of Mr Brar’s choice to drive his vehicle dangerously, and they would face further hardship and disruption to their lives if I affirmed the decision under review. The Brar children would grow up without the emotional support and affection of a father and without his contribution to their financial support if I affirmed the decision under review. Life would be very difficult for this family. It might mean at a practical level the loss of the family home. It will certainly entail more difficult financial circumstances and a very large degree of emotional turmoil. These are matters that I need to weigh most carefully as a stable family unit is fundamental to the wellbeing of individuals and to that of Australian society as a whole.
Ultimately, the Tribunal concluded that it was not satisfied there was “another reason” for the cancellation decision to be revoked under s 501CA(4)(b)(ii) of the Act.
The legislative scheme
Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the holder does not pass the character test because of the operation of para (6)(a) (substantial criminal record) on the basis of para (7)(c), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by para (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. As the applicant had been sentenced to imprisonment for a term in excess of 12 months, the Minister was satisfied he did not pass the character test.
Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to provide representations about revocation of the original decision. The applicant made representations in response to the invitation.
Section 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”.
At the time of the Tribunal’s decision, the Ministerial directions under s 499(1) of the Act for the making of decisions under s 501CA of the Act were contained in Direction 99.
Paragraph 8.4 of Direction 99 provided, relevantly:
8.4 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The grounds of the application
The applicant’s grounds of review are as follows:
1. The Tribunal acted on a misunderstanding of the law
a.First, the Tribunal concluded that the applicant was convicted of exceeding the speed limit five times: T[11], [28].
b.Second, the Tribunal acted on a misunderstanding of the law. The applicant’s official criminal record (GD34-35) does not disclose any criminal conviction for the five speeding offences. If the applicant was convicted of the impugned five speeding offences, it would have been reflected on his criminal record. It is not.
c.Third, the Tribunal’s [error] was material: T [11], [19], [36], [70]; LPDT [49].
2.The Tribunal failed to take into account a mandatory consideration.
a.First, the Tribunal was required to consider any known views of the child: Migration Act 1958 (Cth), s 499(2A); cl 8.4(4)(f) of Direction 99.
b.Second, the applicant lodged a document from the applicant’s son, [name deleted]. In that statement, the applicant’s son produced a document and stated: ‘DADDY I LOVE YOU’. The applicant’s son used different colours in producing the document.
c.Third, the Tribunal dealt with the primary consideration of the best interests of minor children in Australia at T [54]-[56]. There is no consideration of cl 8.4(4)(f) whatsoever. The clear inference is that the Tribunal failed to consider cl 8.4(4)(f): QHRY [44].
d.Fourth, the Tribunal’s failure was material: Seau [62]; LPDT [49].
The submissions
In respect of his first ground, the applicant submits that the Tribunal’s finding that the applicant was “convicted” of exceeding the speed limit on five occasions involved a misunderstanding of the law.
The applicant argues that a “conviction” under the criminal law requires that there have been a finding of guilt by a judicial body. The applicant submits that there is no evidence of any finding of guilt by a judicial body in respect of the applicant’s speeding offences and, accordingly, the Tribunal misunderstood the law in finding that the applicant had been “convicted” of the speeding offences.
The applicant observes that r 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) (the TORUM Regulation) provides that a driver, “must not drive over the speed limit applied to the driver for the length of the road where the driver is driving”, with a maximum penalty of a fine of 40 penalty units. If an offence against the regulation is alleged, an infringement notice can be served upon the alleged offender: s 13 and Sch 2 (definition of ‘infringement notice offence’) of the State Penalties Enforcement Act 1999 (Qld) (the SPER Act). The alleged offender must (relevantly) either pay the fine within 28 days or elect to have the matter determined by a Magistrates Court: s 22(1) of the SPER Act. If the notice is paid then any prosecution in a court is prohibited by s 25(1) of the SPER Act. It should also be noted that if an alleged offender takes no action under s 22, a proceeding for the offence may be started under the Justices Act 1886 (Qld): s 27(1) of the SPER Act.
The applicant submits that he was not “convicted” of the speeding offences, but dealt with by infringement notice which could not lead to prosecution and any determination of guilt by a court.
The first respondent (the Minister) submits, principally, that there was an evidentiary basis for the Tribunal’s conclusion that the applicant had been “convicted” of exceeding the speed limit on five occasions. The Minister observes that the expression “convicted” in relation to the speeding offences appears in the sentencing remarks of the District Court judge who sentenced the applicant for the dangerous driving offences. In addition, the Minister notes that the applicant admitted that he had been “convicted” of the speeding offences under cross-examination.
The Minister also submits that even if the Tribunal misunderstood the word “convicted”, that error was immaterial to the decision made by the Tribunal.
As to his second ground, the applicant submits that the Tribunal failed to comply with the requirement of para 8.4(4)(f) of Direction 99 to consider any known views of a child of the applicant. The material before the Tribunal included a handwritten note from the applicant’s five-year-old son saying, “DADDY I LOVE YOU”. The Tribunal did not expressly refer to that note. The applicant submits that the clear inference is that the Tribunal failed to consider the known views of the child.
The Minister submits that the Tribunal’s reasons at [50]–[51] demonstrate an awareness that the applicant’s child loved his father, and that it should not be inferred that the Tribunal failed to consider the views of the applicant’s son in that respect.
The Minister also submits that even if the Tribunal overlooked para 8.4(4)(f) of Direction 99, the error was immaterial because considering that matter could not have realistically resulted in a different decision.
Consideration
Ground 1 – Whether the Tribunal acted on a misunderstanding of the law in concluding that the applicant was “convicted” of exceeding the speed limit five times
The applicant’s argument that the Tribunal “acted on a misunderstanding of the law” is based upon a premise that under the law, the word “conviction” can only have one meaning, requiring a finding of guilt by a court or judicial body. The applicant submits that there is no evidence of any finding of guilt in respect of the applicant’s speeding offences and, therefore, the Tribunal must have misunderstood the law when finding that the applicant had been “convicted”.
For his submission that there is only one meaning of “convicted’, the applicant relies upon Maxwell v The Queen (1996) 184 CLR 501, where the High Court considered the meaning of “convicted on such indictment” under s 394A of the Crimes Act 1900 (NSW), which was informed by the meaning of “convicted” under the common law. However, contrary to the applicant’s argument, Dawson and McHugh JJ observed at 507:
The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.
(See also at 519 (Toohey J); 529–530 (Gaudron and Gummow JJ).)
In respect of the meaning of “conviction” in the particular context, their Honours went on to hold at 509:
Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court.
(See also at 520–522 (Toohey J); 530-532 (Gaudron and Gummow JJ).)
It can be accepted that when the word “convicted” is used by a court exercising criminal jurisdiction, it is generally used to refer to a determination of guilt by a court. But that is not always so. The word does not have an immutable meaning. As Gageler CJ and Jagot J observed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136 at [27]:
Like all words, the meaning of “conviction” will depend on its context…
The word “convict” can be used to express a variety of meanings. For example, the Oxford English Dictionary Online defines “convict” as including: “To prove (a person) guilty of an offence which makes him or her liable to legal punishment”; “To prove or declare guilty of reprehensible conduct, error, etc”; and, “To prove, establish by proof, as against assertions to the contrary”. Accordingly, the word “convicted” may be used to refer to a person who has been proved or who has been deemed by force of statute to have committed an offence, or who, having admitted an offence, receives a punishment.
The District Court judge’s sentencing remarks included the following:
The offending occurred on the 1ˢᵗ of November 2020. You were aged 31 at the time, with a relevant traffic history for speeding and unlicensed driving. You were convicted of exceeding the speed limit fives time [sic] previously. You have been driving unlicensed, essentially since 2016, up until the time of the offence. You also continued to do so after you were charged with these offences.
…
Aggravating factors here do include the fact that you were driving unlicensed, your traffic history, which I have earlier referred to, the significant excess in your speed above the speed limit and the prior recent drug use.
In the context, the sentencing judge must be understood to have used the word “convicted” to indicate that the applicant had in fact committed five previous speeding offences that were recorded on his traffic history. The sentencing judge is unlikely to have paused to consider whether the applicant had been determined by a court to have committed the speeding offences or whether he had instead admitted the offence by paying the amounts stated in the infringement notices. What was significant for her Honour is that the applicant had committed the speeding offences. It may be noted that the record of the traffic history that was apparently before the District Court was not in the material before the Tribunal.
The Tribunal’s reasons commenced by setting out the circumstances of the dangerous operation of a motor vehicle offence, which the Tribunal expressly said were taken, “from the sentencing remarks of the District Court Judge of Queensland”. The Tribunal then stated that, “Mr Brar had his licence suspended after he was convicted of exceeding the speed limit five times”. The footnote attached to the word “convicted” was, “the sentencing remarks refer to ‘convictions’ in this regard”.
The footnote makes it clear that the phrase used by the Tribunal “convicted of exceeding the speeding limit five times” was taken from the sentencing remarks of the District Court judge. That is also made clear from the Tribunal’s later observation that, “Mr Brar has convictions for speeding according to the sentencing Court…”. Since the Tribunal adopted the word “convicted” from the sentencing remarks of the District Court judge, the Tribunal should be understood to have used the word in the same sense.
I do not accept the applicant’s submission that the Tribunal misunderstood the meaning of the word “convicted”. The submission assumes that the word can only have one meaning, requiring determination of guilt by a court. That is not so. The Tribunal was not interpreting a word used in a statute. The Tribunal was entitled to use the word to convey what it wanted to convey. The Tribunal (as had the District Court) used the word “conviction” to indicate that the applicant had committed five speeding offences that were apparently recorded on his traffic history. That use of the word did not involve any legal error.
Even if I were wrong in ruling that the word “convicted” can refer to something other than a determination of guilt by a court, I would not accept that the applicant has demonstrated any error on the part of the Tribunal. That is because a fundamental premise of the applicant’s argument – that there was no evidence before the Tribunal of any finding of guilt by a court in respect of the speeding offences – must be rejected for the following reasons.
First, the Tribunal was entitled to rely upon the finding by the sentencing judge that the applicant had been “convicted” of speeding on five occasions. It was open to the Tribunal to infer that the sentencing judge had, on the material before her Honour, found that the applicant had been determined by a court to have exceeded the speed limit on five occasions.
Second, in the course of cross-examination, the applicant was asked the following questions about the sentencing remarks and gave the following answers:
… [The transcript] refers to the fact that you had a relevant traffic history for speeding and unlicenced driving. Is that right?
--- Yes. I had a few speeding tickets, and – yes.
…
She goes on to say you were convicted of exceeding the speed limit five times previously; would you agree with that?
--- Yes. I would.
In the context of the exchanges, the applicant can be taken to have admitted not only that he had been fined for the five speeding offences, but that he had been “convicted” of the offences.
Third, the Tribunal assumed that the applicant, “was eventually prosecuted and convicted in absentia of having exceeded the speed limit”. A footnote attached to the words “in absentia” stated that, “Mr Brar gave evidence that he has no recollection of attending court in relation to the speeding offences”. The Tribunal also noted that the applicant had given evidence of, “his having failed to pay certain speeding fines”. Under s 27(1) of the SPER Act, if an alleged offender does not, relevantly, pay the fine within 28 days after the date of an infringement notice, a proceeding for the offence may be started under the JusticesAct 1886. Under s 142(1) of the Justices Act 1886, if the defendant does not appear when called, the court may proceed ex parte to hear and determine the case as if the defendant had personally appeared. In view of the applicant’s evidence that he had not paid certain fines (which the Tribunal inferred included speeding fines), and that he had no recollection of attending court in relation to the speeding offences, it was open to the Tribunal to infer that a court had determined the applicant’s guilt in his absence.
As there was evidence allowing an inference to be drawn that the applicant had been “prosecuted and convicted in absentia”, even if the word “convicted” were interpreted as necessarily requiring a determination of guilt by a court, I would not be satisfied that the applicant has proved that the Tribunal misunderstood the meaning of the word.
In any event, even if it were accepted that the Tribunal misunderstood “convicted” as referring to something other than a determination of guilt by a court, that error would be immaterial to the decision made by the Tribunal for two reasons.
First, what was relevant was not whether a court had determined that the applicant had committed speeding offences on five previous occasions, but that he had in fact driven in excess of the speed limit on five previous occasions in contravention of r 20 of the TORUM Regulation. It is apparent that the Tribunal inferred that the applicant admitted having done so. Such an inference was plainly available when the applicant made no challenge under cross-examination to the proposition that he had been convicted of the speeding offences and it was found by the sentencing judge that the applicant had a traffic history that included the speeding offences.
Second, it is apparent that the Tribunal placed very little weight upon the applicant’s previous speeding offences. The Tribunal, after having made the assumption at [11] that the applicant was eventually prosecuted and convicted in absentia of having exceeded the speed limit, continued by saying, “Whether that assumption is correct or not, what is of importance is that Mr Brar lost his right to drive under Queensland law, however that loss arose. At that point he attempted to gain a second licence dishonestly”. In this passage, the Tribunal was contrasting the important issues of the applicant having driven while his licence was suspended and having attempted to gain a second licence dishonestly with the lack of importance it placed on the offending that caused him to lose his licence.
The absence of significance placed by the Tribunal upon the applicant’s history of speeding offences was also demonstrated by the Tribunal’s findings at [28] and [29], which I have set out above. The Tribunal’s indication at [35] that it did not “attach much weight to Mr Brar’s speeding” must be understood in the context of [28] in which the Tribunal emphasised that it did not have any information about the speeding convictions to make an informed judgement about their seriousness. The Tribunal must be understood as indicating that the speeding offences did not affect the issue it was then considering, namely the future risk the applicant may pose to the Australian community.
Although the applicant submits that the Tribunal regarded a conviction in the sense of a determination by a court of his guilt as more serious than a mere commission of the offences, that is not borne out by the Tribunal’s discussion of the speeding offences. An appreciation by the Tribunal that the applicant had not been adjudged by a court to be guilty of the speeding offences (assuming that to be true) could not realistically have made any difference when the applicant had admitted to committing the offences.
Any error by the Tribunal in misunderstanding the word “convicted” as referring to the commission of an offence rather than a determination of guilt by a court, could not have made any realistic difference to the outcome.
Ground 2 – whether the Tribunal failed to comply with its obligation under s 499(2A) of the Act and para 8.4(4)(f) of Direction 99 to consider any known views of the child
The applicant’s second ground alleges that the Tribunal failed to comply with s 499(2A) of the Act by failing to consider “any known views of the child” as it was required to do under para 8.4(4)(f) of Direction 99 in respect of the applicant’s five-year-old son. The applicant’s contention is that the applicant’s son made his views known by writing, “DADDY I LOVE YOU”.
Paragraph 8.4 of Direction 99 dealt with the “Best interests of minor children in Australia affected by the decision”. Under para 8.4(1), a decision-maker was required to make a determination about whether non-revocation under s 501CA of the Act, was, or was not, in the best interests of the child affected by the decision. Paragraph 8.4(4) required that in considering the best interests of the child, “the following factors must be considered where relevant”, followed by eight enumerated matters including “any known views of the child”.
It can be accepted that the applicant’s son did express his own view, namely that he loved his father. The Tribunal could not reasonably have considered that view to be irrelevant to the best interests of the child. Accordingly, the Tribunal was required to consider the child’s view that he loved the applicant. The requirement to consider the known views of the child required the Tribunal member to have regard to those views and to bring their mind to bear upon those views: cf Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24].
The Tribunal did not expressly refer to the view expressed by the child that he loved his father. A failure by the Tribunal to deal with an issue in its reasons may lead to an inference that there was a failure to consider the issue, but such an inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. A conclusion that a decision maker has not engaged in an active intellectual process in respect of a matter will not be lightly made: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15 at [47].
As I have discussed, the view expressed by the child was that he loved his father. It is necessary to examine the reasons to determine whether an inference should be drawn that the Tribunal failed to consider the child’s expressed view that he loved his father.
I am unable to draw such an inference. The Tribunal conducted a thorough analysis of the best interests of the applicant’s children. The Tribunal indicated at [50]–[51] of its reasons that the applicant’s children had “built a connection with him”; that they would “lose their father”; that “the older child may feel the loss more intensely”; and that, “both children individually will be heavily affected by the loss of their father”. The Tribunal found at [54] that, “both have a relationship with Mr Brar” and at [55] that, “it is very substantially in the children’s interests to have one-on-one contact with their father”. The Tribunal accepted at [67] that the effect of the decision, “will be to destroy this family unit”.
It is improbable that when the Tribunal member made his extensive findings concerning the profound and devastating impact upon the children of Mr Brar’s removal from Australia, particularly the older child, the member did not have in mind the older son’s expression of love for his father. I am unable to infer that the Tribunal failed to consider the child’s views.
The applicant has not demonstrated that the Tribunal failed to consider para 8.4(4)(f) of Direction 99.
The applicant has not established either of his grounds of review. The application must be dismissed with costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 18 October 2024
0
6
5