Luht v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 694
•2 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luht v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 694
File number: PEG 158 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 2 August 2024 Catchwords: MIGRATION – Student visa cancellation – decision of the Administrative Appeals Tribunal – whether the Tribunal denied the applicant procedural fairness by failing to warn her that she was not obliged to answer questions which might incriminate her – whether the Tribunal failed to properly consider evidence regarding the circumstances of the applicant’s offending – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth), ss 116, 348, 359AA, 424AA, 476 and Part 7
Migration Regulations 1994 (Cth), reg 2.43
Cases cited: BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Kohli v Minister for Immigration and Border Protection [2018] FCA 540
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of hearing: 11 April 2024 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Pty Ltd Counsel for the First Respondent: Ms H Cormann Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 158 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAISA LUHT
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent dated 3 July 2023.
3.A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
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
JUDGE KENDALL:
The applicant is a citizen of Estonia (Court Book (“CB”) 12, 32 & 37). She arrived in Australia in August 2015 as the holder of a Working Holiday (Class TZ) (Subclass 417) visa (CB 34).
The applicant was subsequently granted a number of visas, including, most relevantly, a Student (Class TU) (Subclass 500) visa (the “visa”) which was granted on 12 March 2021 (CB 34).
On 1 July 2022, the applicant was convicted in the Magistrates Court of Western Australia (Perth) of one count of each of the following (CB 12-13):
(a)Gains Benefit by Fraud; and
(b)(Att) Gains Benefit by Fraud.
On 4 November 2022, the Department of Home Affairs (the “Department”) wrote to the applicant (by email) asking for her current contact details (CB 14). Later that day, the applicant provided those details to the Department by reply email (CB 15-16).
On 8 November 2022, the Department sent the applicant a notice of intention to consider cancellation letter (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 18-21). The NOICC was sent to the applicant by email (CB 17). The NOICC referenced reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 18-19) and, relevantly, noted that the applicant had “been convicted of offences against a law of a State, namely Western Australia” (CB 19).
On 13 November 2022, the applicant sent a letter to the Department (via email) in response to the NOICC (CB 22-24). That letter read as follows (without alteration) (CB 24):
I deeply regret the acts I have committed and I promise never violate the law again. I haven’t had any previous law infringements in Australia or in Europe. This situation has affected me hard in emotionally and physically. I regret my previous decisions what have caused to other parties financial and emotional damage. I made a mistake when I helped the person who I tought was my friend to sell a vehicle. He offered me some money to use my name as a vehicle owner, clean and sell his vehicle. I wasn’t sure about the vehicle condition or that the odometer was dampered. As it seemed like reasonable offer for me I decided to help him. I didn’t know where or when the vehicle was purchased or what was the price he paid for it. I didn’t think how serious will be the consequences then but I have taken now full responsibility to pay the fine and to be responsible for my actions.
Past year and 8 months I’ve taken my studies very seriously. To finish advanced diploma of leadership and management next year would be my goal. It’ll be very useful to have diploma acquired in Australia for further job search in Europe.
Visa cancellation would affect me and my partner lives drastically. I’m 4 months pregnant and we´ll welcome our first child into this world next year end of April. I have found myself best doctors around me and already place where to give birth. Australia medicine is highly valuated and I feel safe to trust doctors in this amazing country. My visa cancellation also means that my partner will not finish his diploma and all his effort will be wasted.
I have also listed 3 references from my family members and friends to give you better understanding from the person I am.
The applicant also provided the Department with character reference letters from her older sister and her parents (CB 25-27).
On 22 November 2022, a delegate of the first respondent (the “Minister”) cancelled the applicant’s visa (the “cancellation decision”) (CB 32-37). The applicant was notified of that cancellation decision by way of a notification letter sent to her via email that same day (being on 22 November 2022) (CB 28-31).
On 28 November 2022, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the cancellation decision (CB 38-42). The applicant indicated in that application form that she was not appointing a representative to assist with her review application (CB 41).
On 13 March 2023, the Tribunal asked the Australian Border Force (the “ABF”) to provide a copy of the “Police Factsheet” in relation to the applicant’s criminal charges (from 1 July 2022) (CB 49-50).
On 15 March 2023, an officer from the ABF provided the Tribunal with a Statement of Material Facts (the “SMF”) relating to the applicant’s conduct (CB 49-54).
On 22 May 2023, the Tribunal invited the applicant (via email) to attend a hearing before it scheduled for 26 June 2023 (via video link) (CB 55-63).
On 26 June 2023, the applicant attended that Tribunal hearing to give evidence and present arguments relating to her review application (CB 68-70).
On 3 July 2023, the Tribunal affirmed the delegate’s decision cancelling the applicant’s visa (CB 73-79).
On 4 August 2023, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-7). An affidavit was also filed with that application, annexing a copy of the Tribunal’s decision (CB 8-11). That application is brought pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is seven pages long and spans 43 paragraphs (CB 73-79).
The Tribunal began by explaining that the applicant, a citizen of Estonia, was granted the visa the subject of the review in March 2021 and that, on 8 November 2022, the Department sent the applicant a NOICC. The Tribunal acknowledged that the applicant had responded to the NOICC on 13 November 2022 and that a delegate of the Minister had cancelled the applicant’s visa on 22 November 2022. The Tribunal noted that the visa had been cancelled under s 116(1)(g) of the Act on the basis that the applicant had been convicted of an offence against a law of the Commonwealth or a State or Territory (at [1]-[4]).
The Tribunal identified that the issue before it was whether the ground for cancellation was made out and, if so, whether the visa should be cancelled. The Tribunal confirmed that the applicant had appeared before it (via video link) on 26 June 2023 to give evidence and present arguments (at [4]-[5]).
The Tribunal summarised the relevant legislative provisions (in s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations) and explained that the delegate’s decision record and documents on the Department file indicated that the applicant had been convicted of the offences of “Gains Benefit by Fraud” and “(Att) Gains Benefit by Fraud” on 1 July 2022 at Perth Magistrates Court. The Tribunal noted that the records indicated that the applicant was fined $15,000 in total. However, the applicant (at the Tribunal hearing) had indicated that the fine was $7,500. The Tribunal accepted the applicant’s evidence in that regard and was satisfied that the ground for cancellation (in s 116(1)(g) of the Act) existed (at [7]-[11]).
The Tribunal noted that there were no matters specified in the Act or Regulations that it was required to consider in this case but confirmed that it had regard to the circumstances of the case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual. The Tribunal summarised the information contained in the SMF, detailed the applicant’s response to the NOICC letter and confirmed that the applicant had provided character references to the Tribunal from her parents and her younger sister (at [12]-[15]).
The Tribunal explained that it put the following information to the applicant:
16.The Tribunal put to the applicant in accordance with the procedural requirements of s 359AA of the Act information in the Western Australia Police Facts Sheet detailing the relevant allegations resulting in the charges. The Tribunal indicated to the applicant that the information was relevant because it indicates 4 instances of the applicant selling a vehicle where the odometer had been altered and the vehicles attempted to be sold at inflated prices. The Tribunal put to the applicant that the information was relevant because it indicated not insignificant criminal and fraudulent conduct. The Tribunal indicated that the information was relevant because the Facts Sheet indicates the applicant acknowledging to police her knowledge that the odometers had been tampered with. This is inconsistent with the applicant’s response to the NOICC that she was not aware that the odometers had been tampered with and she was helping a friend. The Tribunal indicated to the applicant that the consequence of the information could result in the Tribunal concluding that the applicant was knowingly engaged in criminal and fraudulent behaviour which has obviated her entitlement to stay in Australia with the privilege of holding a student visa.
The Tribunal noted that it would take into account the applicant’s response to the NOICC and information provided (including character references) and explained that the applicant was given the opportunity to make comments orally (at the hearing) or to respond in writing later. The Tribunal noted that the applicant elected to respond orally (at [17]).
The Tribunal continued:
18.In response, the applicant indicated that she knew that the readings on the odometers were low but she did not know that the odometers had been tampered with. The Tribunal was asked if she suspected they might have been tampered with. The applicant indicated that she did not suspect. The Tribunal noted that the claims not to know the odometers had been tampered with is inconsistent with the Facts Sheet which indicates her telling police on 2 occasions that she did know. The applicant maintained that she did not tell the police this. The Tribunal put to the applicant its doubts that police would state in the Facts Sheet that she did know when in fact she did not.
19.Later in the hearing, the Tribunal returned to questions regarding whether the applicant suspected alteration of the odometers. In response, the applicant changed her earlier evidence to state that she assumed the odometers had been tampered with. The Tribunal noted to the applicant that this was inconsistent with her initially telling the Tribunal that she did not suspect the odometers were tampered with. The applicant did not provide a meaningful explanation for this inconsistency.
…
21.Considering all of the evidence, particularly the applicant’s admissions to police and her acknowledgement at the end of the Tribunal hearing that she assumed that the odometers had been tampered with, and that she was knowingly involved in the criminal and fraudulent enterprise of seeking to sell the vehicles at inflated prices due to the odometers being tampered with, the Tribunal is therefore not satisfied that there are extenuating circumstances beyond the applicant’s control in relation to the ground of cancellation being made out on the basis that the applicant did not know of the fraudulent conduct and activity in tampering with the odometers. The Tribunal considers that the applicant had at least assumed or suspected the odometers were tampered with.
22.The Tribunal determines that the factual allegations in the Facts Sheet leading to the convictions and penalty are significantly adverse to the applicant in considering its discretion as to whether or not the visa should be cancelled.
The Tribunal accepted that the applicant had completed five units of an Advanced Diploma of Leadership and Management course and further accepted that the applicant would suffer a degree of hardship if she was not able to complete those studies or progress to the further studies she wished to complete in Australia. The Tribunal also explored with the applicant evidence in relation to her partner and their child, noting that the applicant had told the Tribunal that if the Tribunal affirmed the cancellation of her visa, her partner would remain in Australia (for work purposes) and would likely return to Estonia in March 2024 (at [23]-[27]).
The Tribunal acknowledged that the applicant might face difficulties in securing employment and would need to make arrangements for the care of her young child. The Tribunal also acknowledged that the applicant’s partner would remain in Australia and work here until March 2024. The Tribunal determined that any hardship to the applicant could be addressed because her partner could return to Estonia with the applicant and their child. The Tribunal did, however, accept that the applicant’s partner would face hardship if he had to leave Australia sooner than planned (at [28]-[30]).
The Tribunal was not satisfied that the time it would take to obtain documents for the applicant’s daughter was a hardship that weighed significantly against the Tribunal exercising its discretion to cancel the visa. In this regard, the Tribunal noted that a bridging visa would ordinarily allow a person to remain in Australia for the time needed for documents to be obtained as necessary to depart Australia. The Tribunal accepted that the applicant would experience hardship in terms of limitations on her ability to apply for other visas onshore if her visa remained cancelled. The Tribunal also accepted that there was a “theoretical hardship” in relation to the possibility of the applicant being an unlawful non-citizen if the visa remained cancelled but noted that the applicant would be eligible to obtain a bridging visa whilst necessary departure arrangements were made (at [31]-[32]).
The Tribunal determined that no claims for hardship were being made in relation to the fact that the applicant’s child would not be able to remain in Australia. The Tribunal also determined that Australia’s non-refoulment obligations were not relevant (at [33]-[34]).
The Tribunal accepted that the applicant’s relatives had provided references and noted that those had been taken into account in the applicant’s favour. Also in the applicant’s favour was the fact that she had completed a registered course of study in Australia and had made adequate progress in an additional course she was studying when the visa was cancelled. The Tribunal also noted that the applicant had a desire to stay in Australia to undertake further studies (at [35]-[37] & [40]).
The Tribunal continued:
38.Significantly adverse to the applicant are the factual circumstances leading to the convictions and the fact that the Tribunal considers the applicant had knowledge of or strongly suspected the fraudulent and criminal alteration of the odometers. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control explaining the convictions and circumstances leading to them.
The Tribunal considered that the key hardship that the applicant would face if the visa remained cancelled was “the truncating” of her partner’s desire to remain in Australia to work. The Tribunal was prepared to accept there may be some hardship to the applicant and her child if the applicant’s partner decided to remain in Australia working. However, the Tribunal considered that if that hardship was significant, the applicant’s partner could return to Estonia with the applicant (at [39]).
On balance, the Tribunal was not satisfied that the matters in the applicant’s favour, including the hardship that she would face, outweighed matters adverse to her – particularly the factual circumstances leading to her criminal convictions and the Tribunal’s determination that the applicant knew and understood the nature of that criminality (at [41]).
The Tribunal ultimately concluded that the applicant’s visa should be cancelled and affirmed the delegate’s decision to cancel the applicant’s visa (at [42]-[43]).
APPLICATION TO THIS COURT
On 21 March 2024, an amended application for judicial review was filed on behalf of the applicant. That amended application included three particularised grounds of review, as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by denying the Applicant procedural fairness by failing to warn her that she was not obliged to provide answers to questions which might tend to incriminate her.
Particulars
a.The Tribunal asked the Applicant questions about criminal activity which went beyond the scope of her convictions.
b.The Tribunal did not warn the Applicant that she was not obliged to provide answers to questions which might tend to incriminate her.
2.The Tribunal made a jurisdictional error by denying the Applicant procedural fairness by failing to comply with its obligation under s 359AA(1)(a) of the Migration Act 1958 (Cth) to give the Applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
Particulars
a.The Tribunal obtained a document under its own motion which it called a ‘Western Australia Police Facts Sheet’ (SMF).
b. The Tribunal did not provide a copy of this document to the Applicant.
c.The Tribunal failed to give the Applicant clear particulars of the factual allegations contained within the document.
3.The Tribunal made a jurisdictional error by failing to consider claims and evidence regarding the circumstances of the Applicant’s offending.
Particulars
a.The Tribunal overlooked, misconstrued and/or misunderstood the factual allegations in the SMF, namely that it contained allegations, when it did not, that:
i.The Applicant had purchased any vehicle which was then fraudulently altered (R [13]).
ii.The Applicant profited $3000 from the sale of a fraudulently altered vehicle (R [13]).
iii.There had been 4 instances of the Applicant selling or attempting to sell a vehicle where the odometer had been altered at an inflated price (R [16]).
iv.The Applicant had acknowledged to police that she knew the odometers had been tampered with (R [16]) and that on 2 occasions she did know the odometers had been tampered with (R [18]).
b.The Tribunal overlooked, misconstrued and/or misunderstood the Applicant’s evidence about the circumstances of her offending, namely that:
i.She had indicated in evidence that she did not suspect the odometers had been tampered with (R [18]).
ii.She had changed her evidence and given inconsistent evidence (R [19]).
The matter proceeded to a final hearing on 11 April 2024. The applicant was represented at that hearing by Mr Hamish Glenister (“Mr Glenister”) from William Gerard Legal Pty Ltd. The Minister was represented at the hearing by Ms Hayley Cormann (“Ms Cormann”) of counsel. The Court thanks both Mr Glenister and Ms Cormann for their considerable assistance with this matter. The quality of both the written and oral advocacy from both counsel in this matter was exceptional. Counsel treated each other with respect and greatly assisted the Court with what proved to be a jurisprudentially complex matter. Others would do well to emulate their efforts in this regard.
The materials before the Court include the amended application filed on behalf of the applicant on 21 March 2024, a Court Book numbering 79 pages (marked as Exhibit 1 at the hearing of this matter), the affidavit or Mr Glenister annexing a transcript of the Tribunal hearing affirmed and filed on 20 March 2024 (and taken as read and in evidence at the hearing of this matter) (the “Glenister affidavit”), written submissions filed on behalf of the applicant on 21 March 2024 and written submissions filed on behalf of the Minister on 8 April 2024.
CONSIDERATION
During the course of the hearing (before this Court on 11 April 2024) Mr Glenister withdrew ground two in its entirety. He also withdrew part of ground three (being particulars 3(a)(iv) and 3(b)).
Hence, the remaining grounds of review before the Court for consideration are as follows:
1.The Second Respondent (Tribunal) made a jurisdictional error by denying the Applicant procedural fairness by failing to warn her that she was not obliged to provide answers to questions which might tend to incriminate her.
Particulars
a.The Tribunal asked the Applicant questions about criminal activity which went beyond the scope of her convictions.
b.The Tribunal did not warn the Applicant that she was not obliged to provide answers to questions which might tend to incriminate her.
3.The Tribunal made a jurisdictional error by failing to consider claims and evidence regarding the circumstances of the Applicant’s offending.
Particulars
a.The Tribunal overlooked, misconstrued and/or misunderstood the factual allegations in the SMF, namely that it contained allegations, when it did not, that:
i.The Applicant had purchased any vehicle which was then fraudulently altered (R [13]).
ii.The Applicant profited $3000 from the sale of a fraudulently altered vehicle (R [13]).
iii.There had been 4 instances of the Applicant selling or attempting to sell a vehicle where the odometer had been altered at an inflated price (R [16]).
Ground one
Applicant’s written submissions in relation to ground one
Relevantly, in written submissions filed in this Court on 21 March 2024, Mr Glenister made the following submissions in relation to ground one:
(a)where a tribunal asks a question the answer to which may disclose matters the subject of the privilege against self-incrimination, it commits jurisdictional error if it does not warn the applicant that he or she is entitled to claim privilege or otherwise refuse to answer the question (citing BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 (“BWO19”) at [99]-[109]; Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 (“Promsopa”) at [36]-[37]);
(b)the Tribunal asked the applicant about four ‘instances of [her] being involved in selling a vehicle after the odometer on the purchased vehicles had been tampered with and attempts were made to sell the vehicle at inflated prices. The SMF and the applicant’s criminal history demonstrate that she was only convicted of two offences which each involved one vehicle. The Tribunal’s question went beyond the offences for which the applicant was convicted;
(c)the applicant admitted, in her evidence, that she knew that the kilometres were low and had assumed the odometers had been tampered with. She also admitted that she was paid by another person to sell the vehicles in her name and the amount that she would get would depended on the selling price. These admissions at least constitute a partial confession to an offence under s 558(1)(a) of the Criminal Code (WA), conspiracy to commit an indictable offence (citing Promsopa at [41]);
(d)the admissions demonstrate that the applicant had an agreement to sell vehicles provided by another person for financial gain. She suspected that odometers had been tampered with and knew that the kilometres were low. The result of the performance of this agreement would be fraud, an indictable offence (referencing s 3 of the Criminal Procedure Act 2004 (WA) (definition of indictable offence), to be read with s 409 of the Criminal Code (WA) (specifying that fraud is a crime)), on the purchaser of the vehicles. The Tribunal made an error by failing to warn the applicant that she was not required to answer questions about two of the four vehicles; and
(e)the Tribunal considered that the factual allegations in the SMF were significantly adverse to the applicant. In those circumstances, the admissions made in relation to the two vehicles not the subject of convictions may have formed part of the weight given to those allegations and may have led to the Tribunal determining that the discretion to cancel the applicant’s visa ought to be exercised. The error deprived the applicant of a realistic possibility of a different outcome (citing Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”) at [1]). The Tribunal’s failure to warn the applicant that she did not have to answer its inquiry in relation to two of the vehicles was a jurisdictional error.
Applicant’s oral submissions in relation to ground one
In oral submissions before this Court, Mr Glenister stated as follows:
(a)there were only two migration cases Mr Glenister could locate where the risk of further prosecution and failure to warn an applicant of the privilege against self-incrimination arose. Those cases are Promsopa and Kohli v Minister for Immigration and Border Protection [2018] FCA 540 (“Kohli”);
(b)in Kohli, Flick J said that there was “no continuing risk of being charged with an unlawful driving offence relating to the events described in the cross-examination” (at [37]). Mr Glenister noted that no reasons were given as to why that might be the case and he could only speculate on the point. However, it may have been that a statute of limitations applied;
(c)in Promsopa, however, Allsop CJ found that there was nothing before him “to suggest that Ms Promsopa was not under an ongoing risk of being charged with the offences referred to by the Tribunal in its questioning” (at [44]);
(d)Mr Glenister accepted that the Minister says that the applicant made some sort of admission in her interview to Police about other involvement in this sort of offending. However, in the SMF, it is noted that she specifically did not comment on the selling of the vehicle (the subject of the fraud offence) and the two other vehicles that were seized. Rather, she made that admission in the context of other vehicles;
(e)all that is before the Court is the short summary set out in the SMF of what the applicant said and it does not necessarily apply to the two vehicles that were seized at the time of the applicant’s arrest;
(f)the admissions made by the applicant were at least a “partial confession to a criminal offence” and, if that were the case, there is nothing before the Court to suggest that there was no risk that she would be prosecuted;
(g)even if the admissions made by the applicant to Police were “on all fours” with what the applicant said at the Tribunal, simply because the Police decide not to prosecute at one point does not mean that they will never do so in the future (ie, there is no bar to them prosecuting indictable offenses like fraud or conspiracy at any time);
(h)on that basis, it cannot be said that there was no practical injustice to the applicant;
(i)there was no material before the Tribunal about any findings made by the Magistrate or the facts that were relied upon by the prosecutor in relation to the applicant’s convictions;
(j)the Tribunal was required to warn the applicant about the privilege against self-incrimination;
(k)it did not do so;
(l)the applicant made admissions which she otherwise was not required to make; and
(m)the Tribunal repeatedly found that all of the circumstances of the offending weighed heavily in favour of cancelling the applicant’s visa.
Minister’s written submissions in relation to ground one
In written submissions (filed in this Court on 8 April 2024), Ms Cormann submitted as follows:
(a)the Tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination and the Tribunal does so without warning that person (citing Kohli);
(b)the Tribunal in this case was not required to give the applicant any warning about self-incrimination. As the Tribunal stated (see p 7 of the Glenister affidavit):
The information is the information in the police fact sheet in terms of the allegations of against you, which you were convicted of. [Minister’s emphasis];
(c)the information in the SMF detailed the facts upon which the applicant had already been convicted. The privilege against self-incrimination does not attract to those facts and circumstances upon which a person has already been convicted and sentenced;
(d)the reference to ‘four instances’ was merely a reference to information contained in the SMF, upon which the Tribunal was entitled to rely as having formed the basis for the convictions. The focus of the Tribunal’s inquiries was directed toward the circumstances and facts surrounding the applicant’s convictions. So much is clear from the passage above, where the Tribunal refers to the allegations the applicant was convicted of, and the fact that the visa was cancelled on account of the convictions;
(e)the ultimate conclusion made by the Tribunal was that it was the factual allegations contained in the SMF, ‘leading to the charges’ upon which the applicant was already convicted and punished, and, secondly, her evidence of being aware of, or suspecting, the vehicles had been altered, that was significantly adverse (see paragraphs [22] & [38] of the Tribunal’s written reasons);
(f)nothing in those conclusions, or the questions asked, required a warning against self-incrimination;
(g)even if the Court was to accept that the Tribunal should have given a warning against self-incrimination (which the Minister denies), the failure to give a warning heeded no practical injustice to the applicant; and
(h)this is so because the SMF reflects that the applicant made admissions in her police interview that she ‘often receives vehicles for sale from unnamed associates that have been altered and is tasked to arrange their sale’. However, despite this admission, no further charges were laid. Accordingly, the applicant was, and is, under no continuing risk of being charged with any offences (including offences relating to the other vehicles) by reason of anything stated in her evidence (citing Kohli).
Minister’s oral submissions in relation to ground one
In oral submissions before this Court, Ms Cormann stated as follows:
(a)it is not the case that the applicant was questioned during the Tribunal hearing about criminal activity that went beyond the scope of her convictions;
(b)information that was put to her regarding vehicles in her possession was contained within the SMF – which ultimately underpinned the convictions for which she was sentenced;
(c)counsel for the applicant relied on the decision in Promsopa; however, the circumstances in that case were very different to those in the present case;
(d)in Promsopa, the applicant’s visa was initially revoked because of non-compliance with immigration requirements or visa conditions. What was subsequently queried by the Tribunal in that matter related to further instances of non-compliance with immigration requirements; and
(e)in the present case, what was being put to the applicant was the facts that appeared in the SMF – which related to conduct that occurred previously (and which led to the applicant’s convictions). There was no talk about future conduct or behaviours which may risk future or ongoing prosecution.
Court’s consideration
The question before the Court in relation to ground one is whether the Tribunal failed to afford the applicant procedural fairness by failing to warn her that she was not obliged to answer questions which might incriminate her.
The privilege against self-incrimination is a fundamental common law right and is capable of triggering obligations on the part of the Tribunal. In this regard, the Court notes comments made by Allsop CJ in Promopa, as follows:
36.The privilege against self-incrimination is a fundamental common law right: Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ) and 311 (Murphy J); Reid v Howard [1995] HCA 40; 184 CLR 1 at 11–12 (Toohey, Gaudron, McHugh and Gummow JJ); and Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190; 273 FCR 638 at [85]–[87]. It is not merely a rule of evidence available in judicial proceedings but is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question: Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at [44]. The Tribunal is not bound by the rules of evidence, but this does not allow a Tribunal to require a witness to answer questions which exposes her or him to self-incrimination. The privilege against self-incrimination has also been recognised in statute, most particularly in ss 62(3) and 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth). Also, s 371(2)(c) of the Act provides that it is an offence for a witness to fail to answer a question of the Tribunal for the purposes of a review under Pt 5 of the Act. Section 371(3), however, provides an exception to this offence where “answering the question might tend to incriminate the person”.
37.The Tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person: Kohli v Minister for Immigration & Border Protection [2018] FCA 540; 74 AAR 433 per Flick J at [33]–[34], citing SZHWY v Minister for Immigration & Citizenship [2007] FCAFC 64; 159 FCR 1 at [74]–[77], [112] and [160]–[169] where the Full Court found that the Tribunal may deny an unrepresented party procedural fairness in circumstances where it fails to advise the party of the right to invoke client professional privilege. In Kohli, Flick J concluded that the Tribunal failed to advise the appellant of his right to invoke the privilege in respect of questioning about whether he had been driving unlawfully and his involvement in a possible theft. Nevertheless, his Honour held that the failure by the Tribunal occasioned the appellant no practical injustice because he was under no continuing risk of being charged with any unlawful driving offence relating to the events described in the cross-examination, and he denied any wrongdoing in respect of the theft. The evidence going to either or both of the matters also assumed little relevance in the ultimate reasoning and conclusion of the Tribunal. On that basis, Flick J at [39] dismissed the appeal ground, finding that the appellant (who was “well-educated (albeit unrepresented)”) was not deprived of any meaningful opportunity to be heard by reason of any failure to advise him as to his rights against self-incrimination. That description does not fit the appellant here.
The applicant in this matter was convicted of the following offences in the Magistrates Court of Western Australia (Perth) on 1 July 2022 (CB 12-13):
(a)Gains Benefit by Fraud; and
(b)(Att) Gains Benefit by Fraud.
As outlined above, the Tribunal requested (and was provided with) a copy of the SMF relating to those offences.
The Tribunal then asked the applicant questions relating to the information contained in that SMF and her convictions, as follows (without alteration) (see the Glenister affidavit, pp 7-10):
Member:
I have the allegations relating to the offences from the the the police fact sheet and I'm going to put that information to you in a certain way under Australian law that I'm required to because its adverse information. This is not this does not indicate I’ve made up my mind, but it’s to give you maximum opportunities to respond in a meaningful way and to put the adverse information clearly to you, I note that you’ve responded to the department into the on the notice of intention to cancel. You’ve provided supporting references so and I’ll be taking all of that into account, but I'm putting this to you and I will take that into account, but you’ll have the option as I indicate to either responding orally today or to provide any further written information, so I’ll go through this adverse information.
And you’ll have the opportunity to respond after I’ve gone through it. So I’m going to provide you with information that Tribunal considers would be the reason or part of the reason to affirm the decision under review. I’m providing this information and seeking comment from you in accordance with section 359AA of the Migration Act.
The information is the information in the police fact sheet in terms of the allegations of against you, which you were convicted of.
Applicant:
Yes.
Member:
It’s relevant because it indicates 4 instances of you being involved in selling a vehicle after the odometer on the purchased vehicles had been tampered with and attempts were made to sell the vehicle at inflated prices.
The information is relevant because it indicates not insignificant, criminal and fraudulent conduct. The information is relevant because it indicates that in one of the interviews, you acknowledged that you knew the odometer had been altered, altered, which is inconsistent with your response to the notice of intention to cancel, that you’re not aware of this and you were helping a friends, a friend. So the consequence of relying on all of this information could be to conclude in the light of the convictions that you have engaged in knowing criminal behaviour which removes your right to be in Australia on of the on the privilege of holding a student visa, so I’m seeking a response to this information and I can advise that you may seek additional time to comment or respond.
So you’re welcome to provide oral comments now. You also have the option to say no, I want to provide written responses later.
As I indicate, I will be taking into account the material that you’ve already provided in terms of the response of the notice of intention to cancel and other information you have provided to the Tribunal.
Applicant:
Yeah. The one thing was that I didn’t. I wasn’t sure that the odometers were tampered. That’s the thing. What I also said in in court, in Magistrate Court.
Because, yeah, I told police that.
That I only saw that the kilometres were low, but I didn’t know that it was tampered.
Member:
All right. But did you, did you
Applicant:
(inaudible)
Member:
You will. I’m sorry. Say that again.
Applicant:
So like.
I I didn’t know that it was tampered. I just knew that the kilometres were low and that's about it. Like like I didn’t know about the tampering or anything.
Member:
Or did you suspect?
Applicant:
No, I didn’t know that.
Member:
Well, I mean that’s inconsistent with what the fact sheet says that you told police that you did know.
Applicant:
No, I didn’t tell that. They done that.
Definitely like this. I told the that.
That just.
I saw that the kilometres were low.
And it was one of the lowest on the market.
Member:
Alright. And so you’re being paid by this person to sell the vehicles in your name.
Applicant:
Yep.
Member:
How much were you paid?
Applicant:
$500.
Member:
For each vehicle?
Applicant:
Yeah, like the second vehicle was attempt to sell. So I didn’t sell it, so.
Member:
Alright. So you sold three of them?
Applicant:
1
Member:
1 all right, but the the arrangement was for each vehicle that was sold. You’re going to get $500.
Applicant:
No, we didn’t have any arrangements just like.
Yeah, depended what was the vehicle selling price, so yeah.
At no point in the exchange above did the Tribunal warn the applicant that she could choose not to answer any of the questions. Rather, the applicant was simply told that she was “welcome to provide oral comments” at the hearing or she could instead choose to “provide written responses later”. There was no warning about self-incrimination and no regard by the Tribunal to the fact that the applicant had, in fact, only been charged and convicted of two offences in relation to two vehicles.
The Court notes comments made by the Full Court of the Federal Court in BWO19 as follows (relating to relevantly similar provision in Part 7 of the Act in relation to protection visa matters):
106.It is consistent with the requirements in Division 4 of Part 7 of the Migration Act relating to the conduct of a Review and, in particular, the provisions of s 424AA whereby a Tribunal may give to an applicant appearing before it the opportunity to comment or respond to information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It is also consistent with the fact that legal professional privilege has not been abrogated by s 433 of the Migration Act. It would be a curious result if it were “unlawful” for a tribunal to ask a question that might otherwise deprive a person of procedural fairness. The preferable view requires a tribunal to advise an applicant of his or her entitlement to maintain the privilege. An applicant might then decide to waive the privilege, but that will be a matter for the applicant. A tribunal that proceeds to exercise its inquisitorial power without affording an applicant the opportunity to claim privilege commits jurisdictional error, provided that the error is material.
107.It is important to be cognizant of the fact that in many review hearings before the Tribunal, neither the Tribunal member, nor an applicant’s representative may be legally trained. Thus, in many circumstances, the tribunal member, the applicant, and his or her migration agent may be wholly unaware of an applicant’s entitlement to claim legal professional privilege. That cannot be assumed to be the case in the present context where the Tribunal was constituted by a Judicial Member.
108.The context of the present case, however, tends to show how unlikely it may be that an applicant will be in a practical position to claim privilege. The appellant spoke limited English; the hearing before the Tribunal was conducted through an interpreter. The proceedings were being conducted by a Commonwealth official, who the appellant understood had the power to make a decision about whether the Department’s decision not to grant him a visa should stand or whether the matter would be sent back to the Department. The appellant was told that he must tell the truth and if he is discovered not to have told the truth, any visa granted can be cancelled and he could also be liable to criminal prosecution. He was informed that the Tribunal would make a decision based on the information that he provided. As was observed by Rares J in SZHWY at [168], an applicant for review of a claim for a protection visa will not have any idea or intuition that an official in the position of the tribunal would not be acting within his or her legal powers in asking questions or that an applicant would have the legal right to refuse to answer on the ground of legal professional privilege, or indeed the privilege against self-incrimination. By contrast, a tribunal could be expected to understand that the common law right of applicants to legal professional privilege is not abrogated by the provisions of Div 6 of Part 7 of the Migration Act.
Whilst the comments made by the Full Court (above) relate to information put to an applicant pursuant to s 424AA of the Act, the Court notes that the provisions in s 424AA of the Act are relevantly similar to those set out in s 359AA of the Act (used by the Tribunal in the present matter).
The Court also notes that the comments in BWO19 were made in relation to a failure to warn an applicant about the right to legal professional privilege.
In this regard, the Court also notes comments made by Justice Flick in Kohli as follows (emphasis added):
34.Contrary to the submissions advanced by Counsel on behalf of the Respondent Minister, there is no reason to distinguish between questioning on the part of the Tribunal seeking to elicit information otherwise the subject of a claim for legal professional privilege and information otherwise the subject of a claim for privilege against self-incrimination. Each of the privileges is a long-established common law right.
35.In the context of the present proceeding, the Tribunal at no stage advised Mr Kohli of his right to invoke the privilege against self-incrimination.
For the same reasons, there is no reason in the case before this Court to make a distinction when considering the comments (above) made by the Full Court in BWO19.
Importantly, it is highly unlikely that the applicant in the present case would have been in a practical position to claim privilege or to refuse to answer questions on the basis that she may further incriminate herself. The applicant is not legally trained, she did not have the assistance of a lawyer or migration agent at the Tribunal hearing and she is from Estonia (a non-English speaking country).
Context matters. Here, the Tribunal should have assisted the applicant by explaining to her that she had a legal right to refuse to answer any questions because she might further incriminate herself.
The questions and information referenced by the Tribunal in the extract of the transcript from the Tribunal proceeding (set out above) went beyond the two offences for which the applicant was ultimately convicted. In particular, the Court notes the Tribunal’s reference to “four instances of [the applicant] being involved in selling a vehicle after the odometer on the purchased vehicles had been tampered with and attempts were made to sell the vehicle at inflated prices” and the Tribunal’s questioning about whether the applicant “sold three of them” (noting that one was an “attempt to sell only”).
Counsel for the Minister argued that, because the applicant had already been charged with two offences, there was no ongoing risk of her being charged with any further offences
The Court disagrees.
As submitted by counsel for the applicant, the Court cannot rule out the possibility that further admissions made by the applicant in the context of the Tribunal’s questions regarding the four instances of fraud might be considered a partial confession to an offence of conspiracy.
As correctly submitted by counsel for the applicant, the Police can (and do) lay additional charges when further evidence comes to light in a matter and this is a matter of prosecutorial discretion. Without more, the Court cannot simply “assume” that that won’t happen here.
In this regard, the Court notes the reasoning of Allsop CJ in Promsopa when answering a similar question, as follows:
44.Further, contrary to the circumstances that faced Flick J in Kohli, there is nothing before me to suggest that Ms Promsopa was not under an ongoing risk of being charged with the offences referred to by the Tribunal in its questioning and, by line 335 of the transcript, after persistent questioning by the Tribunal Ms Promsopa admitted to her knowledge of having to inform Centrelink of changes in her circumstances.
There is, equally, nothing before the Court in this matter to suggest that the applicant in this case is not under an ongoing risk of being charged with additional offences relating to the other cars found in her possession (and in relation to which the Tribunal asked questions at the hearing).
On that basis, the Court determines that the Tribunal here ought to have warned the applicant that she did not have to answer questions and that doing so might lead her to incriminate herself further.
Contextually, the Tribunal did not do what was required if it. On that basis, it failed to afford the applicant procedural fairness.
The Court will also consider whether that failure was material.
The Court notes that a mere technical denial of procedural fairness alone will not be sufficient to set aside a decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [46]. However, the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPDT”) stressed that the appropriate test is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: LPDT at [14] (emphasis in original).
The High Court in LPDT also stated as follows in relation to judicial review cases (footnotes omitted):
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)
The Tribunal in this matter placed significant adverse weight on what the Tribunal considered were the “factual circumstances leading to the convictions” (at [22], [38] & [41] in the Tribunal’s reasons).
Had the applicant been appropriately warned of her right to refuse to answer questions about the offending and circumstances surrounding that offending, and had applicant availed herself of that right, the Tribunal’s decision could realistically have been very different.
On that basis, the Court is satisfied that the Tribunal failed to afford the applicant procedural fairness and that the Tribunal’s conduct resulted in a jurisdictional error.
Ground one is, accordingly, allowed.
Ground three
Applicant’s written submissions in relation to ground three
In relation to particular (a) of ground three (noting that particular (b) was withdrawn as outlined above), in written submissions filed in this Court on 21 March 2024, Mr Glenister submitted as follows:
(a)a failure by the Tribunal to consider a claim, evidence or submission is a failure by the Tribunal to complete the task required of it under s 348 of the Act (citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) at [55] & [63]; EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at [36]). If the Tribunal ignored, overlooked or misunderstood relevant facts or materials or misunderstood the case being made by the applicant, that may give rise to jurisdictional error (citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [27]);
(b)the Tribunal either overlooked, misconstrued or misunderstood the factual allegations set out in the SMF. This is plain from what it put to the applicant at the hearing – in essence, that she had committed four frauds; and
(c)the Tribunal considered that the factual circumstances leading to the applicant’s convictions were significantly adverse to her. Where it is clear that the Tribunal has not lawfully considered those circumstances, such an error may have deprived the applicant of a realistically possibility of a different outcome and constitutes a jurisdictional error (citing Nathanson at [1]).
Applicant’s oral submissions in relation to ground three
In oral submissions before this Court, Mr Glenister stated as follows (in relation to ground three (particulars (a)(i)-(iii))):
(a)there were three key facts (set out by the Tribunal at [13] & [16] in its written reasons) the Tribunal referenced as “facts of the offending or facts that were set out in the SMF” which were wrong;
(b)In particular, the Tribunal stated that;
(i)the applicant purchased the Qashqai vehicle and the Kluger vehicle. The SMF simply states that the Kluger was purchased privately and “transferred” into the name of the applicant and that a previous owner sold the Qashqai vehicle, not that the applicant purchased it;
(ii)the applicant profited $3,000 from the sale of the Kluger vehicle. The SMF simply stated that the sale of the car returned a $3,000 profit – not that the applicant personally profited; and
(iii)there were four instances of the applicant selling a vehicle where the odometer had been altered and the vehicles were sold at inflated prices. There were, in fact, only two instances of the applicant actually being involved in the sale of a vehicle – one was an attempt and the other was an actual sale. There were two other vehicles referenced in the SMF but they were simply vehicles that were seized from the applicant’s address;
(c)the last issue is the main issue (with the other two going to the nature of the applicant’s involvement in the offending);
(d)the Tribunal clearly made errors of fact in relation to each of the three issues and that relates to what is effectively a misunderstanding of the SMF (being the evidence before the Tribunal);
(e)it was clearly important evidence and a basis upon which the Tribunal made findings which resulted in it determining that the applicant’s visa ought to be cancelled;
(f)whilst there were four vehicles that were either in the applicant’s possession or seized from her home with altered odometers, the Tribunal found (at [16]) that there were four instances of the applicant selling a vehicle with an altered odometer or attempting to sell that vehicle at inflated prices (so it is not just the possessing of the vehicles with altered odometers which would have to be accepted as having occurred. It takes it one step further to selling or attempting to sell);
(g)with respect to the errors in the Tribunal’s “summary” of the SMF (at [13]), read together with the comments in the following paragraphs (at [16] with reference to “[c]onsidering all of the evidence”, which must include the SMF, the reference to the “factual allegations in the fact sheet leading to the convictions” being “significantly adverse” (at [22]) and similar comments made again at [38] and [41]) are cause for concern;
(h)the Tribunal does not detail the applicant’s offending anywhere in its reasons other than at [13] so it cannot just be said to be merely a summary which the Tribunal “got wrong” and has not relied on later in its reasons when according weight to whether or not to exercise its discretion to cancel the applicant’s visa; and
(i)each of the factual errors infect the ultimate finding made by the Tribunal and go beyond what was set out in the SMF.
Minister’s written submissions in relation to ground three
In written submissions filed in this Court on 8 April 2024, Ms Cormann submitted as follows in relation to particular (a) of ground three:
(a)the Tribunal makes no jurisdictional error if it merely misunderstands the evidence or makes an incorrect finding of fact. However, if the Tribunal fails to understand the claim and address the evidence with respect to that claim, it may make a jurisdictional error (citing Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]). No jurisdictional error will arise if a decision-maker makes an error of fact, unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision (citing NABE at [52]-[54] & [68]);
(b)any error in referring to four instances of engaging in fraudulent conduct rises no higher than an error of fact. The ‘claim’ that the Tribunal was considering was the circumstances in which the ground for cancellation (ie, the convictions) arose, and whether there were extenuating circumstances outside of the applicant’s control. The circumstances, including the additional vehicles, were part of the factual matrix in which the convictions arose. That the Tribunal may have misapprehended them rises no higher than an error of fact;
(c)the reference to the applicant purchasing the vehicles herself and profiting $3,000 are also no higher than errors of fact. The Tribunal questioned the applicant about the money she made from the sale, which she confirmed to be only $500 (see p 10 of the Glenister affidavit). The Tribunal made no reference to this response being untruthful or inconsistent. This is in circumstances where it pointed to inconsistencies in her evidence to the Tribunal and as stated in the SMF. If the Tribunal was concerned by this, or considered these matters of any relevance, it would be assumed to have included reference in its reasons;
(d)the reference to ‘odometers’ in the plural is the applicant taking an eye keenly attuned to error (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The SMF reflects that the applicant had admitted to being tasked with selling vehicles which had been altered (CB 53) and to knowing that the odometer of the vehicle she was trying to sell had been tampered with (CB 54). Read fairly, the reference to acknowledging that she ‘knew on two occasions that the odometers had been tampered with’ and that the ‘odometers’ had been tampered with is a reference to these admissions and were matters which the Tribunal was entitled to refer to. They were not ‘incorrect’, when read in this light;
(e)regardless of any purported errors, the Tribunal concluded that on the basis of the ‘factual allegations in the [SMF] leading to the convictions and penalty’ and the fact that she admitted to the Tribunal (and the Tribunal found) that she was aware of the tampering, significant adverse weight should be afforded;
(f)the applicant has not claimed that the factual allegations set out in the SMF are incorrect. She has stated that the way in which the Tribunal construed them was incorrect; and
(g)regardless, on a counter-factual analysis (ie., based on what the Tribunal had found) the Tribunal could not have realistically reached a different outcome. The circumstances still were that the applicant had been in possession of vehicles with an altered odometers and she had admitted to the police “that she often receives vehicles from unnamed associates that have been altered and is tasked to arrange their sale”.
Minister’s oral submissions in relation to ground three
In oral submissions before this Court, Ms Cormann stated as follows (in relation to ground three (particulars (a)(i)-(iii))):
(a)insofar as the applicant suggests that the errors appear at [13] of the Tribunal’s reasons in the Tribunal’s “summary” of the SMF, the Minister says that the applicant “overstates” the significance of the Tribunal’s account of the SMF;
(b)the Minister concedes that the Member did misstate a couple of factual matters (in relation to the applicant being the original purchaser of any vehicle herself and in relation to the profit of $3,000 from the sale of one of those vehicles), however, this raises no higher than an error of fact which does not feature when you consider the Tribunal’s decision as a whole or the Tribunal’s ultimate findings at [21], where the Tribunal references the applicant’s “admissions to police and her acknowledgement at the end of the Tribunal hearing that she assumed the odometers had been tampered with”;
(c)the misstatement of facts at [13] are minor errors of fact and do not in any significant way feature in the ultimate rationale or reasons as to why there are no extenuating factors for the applicant in this case;
(d)the third error, being the statement that there had been four instances rather than two, appears a couple of times in the Tribunal’s reasons, including at [16];
(e)the Minister disputes whether this is even an error;
(f)it is never suggested that there were four separate convictions for the vehicles that were in the applicant’s possession. Instead, as outlined in the SMF, the applicant admitted that she often receives vehicles from unnamed associates which have been altered and she is tasked with arranging their sale. Further, in addition to the first charge relating to the Kluger, two other vehicles were seized with altered odometers along with a device capable of making such alterations;
(g)it was put to the applicant that there were four instances of her either being in possession of a vehicle with one case of a vehicle being sold and one case of the vehicle attempting to be sold;
(h)on that basis, the Minister is not satisfied this is an error;
(i)what was critical to the Tribunal’s findings were the applicant’s admissions to police and what she said at the hearing in relation to assuming that the odometers had been tampered with;
(j)the Minister does not consider that, had any reference to four vehicles in fact been a reference to two vehicles, the Tribunal’s decision would realistically have been any different; and
(k)the matters were appropriately put to the applicant at the Tribunal hearing, the applicant was given the option of providing written responses later but ultimately wanted to tell the Tribunal that she “wasn’t sure that the odometers were tampered with” (as seen in the Glenister affidavit).
Court’s consideration
The question before the Court in relation to ground three is whether the Tribunal overlooked, misconstrued or misunderstood factual allegations in the SMF and, by doing so, failed to properly consider the evidence regarding the circumstances of the applicant’s offending.
In this matter, the applicant’s visa was cancelled by a delegate of the Minister (pursuant to s 116(1)(g) of the Act) on the basis that she had been convicted of an offence against a law of the Commonwealth, a State or Territory (CB 32-37).
The Tribunal’s task on review was two-pronged.
It was first required to assess whether the ground for cancellation arose and, if it was satisfied that the ground did arise, it needed to consider whether the visa should be cancelled (noting that the ground did not require a mandatory cancellation under s 116(3) of the Act).
Here, the Tribunal was satisfied that the ground for cancellation arose (see [11] of its written reasons) and was thus required to consider whether the visa should be cancelled.
In doing so, the Tribunal considered the applicant’s offending and the SMF (provided to it by the ABF) and made the following observations (emphasis added):
13.The following is a summary of the Statement of Material Facts from Western Australia Police, which outlines the allegations leading to the charges against the applicant. On 27 August 2021 a 2008 Toyota Kluger was purchased privately for $8,000 with an odometer reading of approximately 235,000 kilometres by the applicant. The applicant then privately sold the same vehicle for $11,000 with an odometer reading of 125,000 kilometres. The applicant profited $3,000 from that sale. The applicant had a search warrant issued against her and was arrested. When taken to Cannington Police Station, an interview was conducted, and the applicant did not make any comment on the matter. However, the applicant admitted she often receives vehicles for sale from unnamed associates that have been altered and is tasked to sell them. The applicant was released on bail for that matter. On 23 March 2022 the applicant purchased a 2016 Nissan Qashqai for $9,500 with an odometer reading of 254,000 kilometres. The applicant had attempted to list that vehicle for sale on Gumtree for $17,900 with an odometer reading of 134,000 kilometres. On 22 April 2022 the applicant attempted to sell the vehicle, however, she was unsuccessful. She returned to her home where she was arrested, and the vehicle was seized. In an interview at Cannington Police Station, the applicant stated a person dropped off the vehicle to her and she was required to sell it. The applicant also stated that she knew the vehicle had a tampered odometer.
…
16.The Tribunal put to the applicant in accordance with the procedural requirements of s 359AA of the Act information in the Western Australia Police Facts Sheet detailing the relevant allegations resulting in the charges. The Tribunal indicated to the applicant that the information was relevant because it indicates 4 instances of the applicant selling a vehicle where the odometer had been altered and the vehicles attempted to be sold at inflated prices. The Tribunal put to the applicant that the information was relevant because it indicated not insignificant criminal and fraudulent conduct. The Tribunal indicated that the information was relevant because the Facts Sheet indicates the applicant acknowledging to police her knowledge that the odometers had been tampered with. This is inconsistent with the applicant’s response to the NOICC that she was not aware that the odometers had been tampered with and she was helping a friend. The Tribunal indicated to the applicant that the consequence of the information could result in the Tribunal concluding that the applicant was knowingly engaged in criminal and fraudulent behaviour which has obviated her entitlement to stay in Australia with the privilege of holding a student visa.
The Court notes that the emphasised portions of the Tribunal’s statements above differ to the information contained in the SMF.
Relevantly, the SMF provided as follows (emphasis added) (CB 53-54):
On 27 August 2021, a 2008 Silver Toyota Kluger, registration [omitted] was purchased privately for $8,000 with an odometer reading of approximately 235,000 kilometres. The vehicle was transferred into the name of the accused. The accused then went on to privately sell this vehicle on Facebook marketplace to a [victim] an odometer reading of 125,000 for $11,000, returning a profit of $3,000.
…Two other vehicles with altered odometers were seized from the address, along with a device capable of making the alterations.
…
On 23 March 2022 a previous owner sold a 2016 Red Nissan Qashqai for the value of $9,500 with an odometer reading of 254,000 kilometres; the vehicle was registered in a false name and found to be in possession of the accused, who advertised it for sale on gumtree for $17,900.
On Friday 22 April 2022, at 9:30 am, the accused met with a male in an attempt to sell the vehicle, the odometer reading was now 134,000 kilometres. The male did not purchase the vehicle…
As can be seen from the passages above, contrary to statements made by the Tribunal, the SMF does not convey the following information:
(a)that the applicant in fact purchased either of the vehicles (simply stating that the Kluger “vehicle was transferred into the name of the [applicant]”);
(b)that the Qashqai was “registered in a false name and found to be in possession of the [applicant]”;
(c)that the applicant herself collected a $3,000 profit from the sale of the Kluger vehicle (rather, simply stating that the sale “return[ed] a profit of $3,000”); and
(d)that there were four instances of the applicant “selling a vehicle where the odometer had been altered and the vehicles attempted to be sold at inflated prices”. Instead, it simply states that the applicant sold the Kluger vehicle, attempted to sell the Qashqai vehicle and a further two vehicles “with altered odometers were seized from the [applicant’s] address”.
The Court notes comments made by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 regarding a decision-maker misunderstanding relevant facts, as follows (footnotes omitted):
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
In this matter, having made the errors outlined above in its description of and reference to the information contained in the SMF, the Tribunal found as follows (emphasis added):
21.Considering all of the evidence, particularly the applicant’s admissions to police and her acknowledgement at the end of the Tribunal hearing that she assumed that the odometers had been tampered with, and that she was knowingly involved in the criminal and fraudulent enterprise of seeking to sell the vehicles at inflated prices due to the odometers being tampered with, the Tribunal is therefore not satisfied that there are extenuating circumstances beyond the applicant’s control in relation to the ground of cancellation being made out on the basis that the applicant did not know of the fraudulent conduct and activity in tampering with the odometers. The Tribunal considers that the applicant had at least assumed or suspected the odometers were tampered with.
22.The Tribunal determines that the factual allegations in the Facts Sheet leading to the convictions and penalty are significantly adverse to the applicant in considering its discretion as to whether or not the visa should be cancelled.
…
38.Significantly adverse to the applicant are the factual circumstances leading to the convictions and the fact that the Tribunal considers the applicant had knowledge of or strongly suspected the fraudulent and criminal alteration of the odometers. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control explaining the convictions and circumstances leading to them.
…
41.The Tribunal is not satisfied that these or other matters in the applicant’s favour, including the hardship that she will face, are outweighed by matters adverse to her, particularly the factual circumstances leading to the convictions and the belief by the Tribunal that the applicant had knowledge of the criminality.
It is clear from the passages outlined below (after assessing the information contained in the SMF) that the Tribunal made errors in relation to the circumstances that lead to the applicant’s offending.
In particular, the Court is conscious of the fact that the Tribunal made reference to four instances where the applicant sold a vehicle with an altered odometer.
Here, the Tribunal effectively (and erroneously) doubled the applicant’s offending and made findings on that basis.
The Tribunal erred by doing so and, in effect, failed to properly consider the evidence before it regarding the applicant’s offending.
Errors of this sort risk “infecting” the Tribunal’s entire reasoning process. It allows a “negative” (incorrectly determined) to, in effect, tarnish any assessment that follows that incorrect finding.
In the circumstances of this matter, where the Tribunal initially outlined what it considered to be the circumstances of the applicant’s offending and then continuously referenced that offending in its findings as being “significantly adverse” and of particular concern, the Court is of the view that, had the Tribunal correctly read and understood the information contained in the SMF (being the evidence regarding the applicant’s offending), the Tribunal’s ultimate findings regarding the applicant’s conduct and the circumstances of the applicant’s offending could realistically have been quite different: LPDT at [14].
Ground three is, accordingly, allowed.
CONCLUSION
For the reasons outlined above, the applicant’s amended judicial review application has identified jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for reconsideration.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 August 2024
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