Brar v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCA 1150

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:

  1. 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.

  2. The applicant relies on two grounds of review. The first is that the Tribunal acted on a misunderstanding…

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Details
AGLC
Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1150
Case
[2024] FCA 1150
Decision Date

CaseChat Overview and Summary

The applicant, Brar, sought judicial review of a decision made by the Tribunal regarding the cancellation of his visa under the Migration Act 1958 (Cth). The primary concern was whether the Tribunal had erred in its interpretation of the term "conviction" and whether any such error was material. Additionally, it was argued that the Tribunal failed to consider the known views of the child, as required by section 499(2A) of the Migration Act and clause 8.4(4)(f) of Direction 99. The Federal Court was tasked with determining these legal issues.

The court first addressed the applicant's contention that the Tribunal misunderstood the term "conviction". The applicant argued that "conviction" strictly meant a finding of guilt by a court, which was not evident in his criminal record. However, the court noted that the term "conviction" can have various meanings depending on context, as observed in prior case law. The court held that the Tribunal did not err in its interpretation of "conviction" because it can refer to being proved or deemed to have committed an offence, or admitting an offence and receiving punishment. The court further found that even if there was an error, it was not material to the overall decision.

Regarding the second issue, the court examined whether the Tribunal failed to consider the known views of the child. The applicant had submitted a document from his son expressing his affection for him. However, the court found that the Tribunal had considered the primary issue of the best interests of the minor children in Australia and that the omission to explicitly mention the child's views did not constitute a failure to consider the mandatory factor. The court concluded that the Tribunal's approach was reasonable and that the error, if any, was immaterial.

The court dismissed the application and ordered the applicant to pay the costs of the first respondent. The decision underscores the importance of context in interpreting legal terms and the Tribunal's discretion in weighing various factors in making decisions under the Migration Act.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 lawa.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

Ratio Decidendi

Legal Principle Established

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.