Millbank v Minister for Immigration

[2014] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLBANK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 718

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether the Tribunal misconstrued condition 8528 of Schedule of the Migration Regulations 1994 (Cth) – jurisdictional error found – relief granted.

Legislation:

Acts Interpretation Act 1901 (Cth), s.15AB

Crimes Act 1914 (Cth), s.85ZZh

Migration Act 1958 (Cth), ss.476, 501

Migration Regulations 1994 (Cth), Sch.2, Sch.8

Rehabilitation Offender’s Act 1974 (UK), ss.4, 7, 8

VWOK v Minister for Immigration [2005] FCA 336
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138

Applicant: JEZ MILLBANK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 631 of 2013

Judgment of: Judge Nicholls

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 10 April 2014

REPRESENTATION

Counsel for the Applicant: Mr L J Karp

Solicitors for the Applicant: MurdockCheng Legal Practice

Counsel for the Respondents: Mr G Kennett SC with Ms B Tronson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. A writ in the nature of certiorari issue quashing the decision of the second respondent dated 7 March 2013 to affirm the decision of the delegate of the first respondent to refuse to grant the applicant a Temporary Business Entry (Class UC) visa.

3. A writ in the nature of mandamus issue remitting the matter to the Tribunal and requiring it to determine according to law the application made to it by the applicant for review of the delegate’s decision.

4. The first respondent pay the applicant’s costs set in the amount of $6,646.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 631 of 2013

JEZ MILLBANK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made by Mr Jez Millbank, the applicant in these proceedings, seeking relief pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 March 2013 in respect of the decision of the Migration Review Tribunal (“the Tribunal”) made on 7 March 2013 which affirmed the decision of the Minister’s delegate not to grant a “Temporary Business Entry (Class UC)” (“457”) visa (“the visa”) to him.

2. The issue raised in these proceedings involves the language, construction and application of condition 8528 (“condition 8528”) set out at Sch.8 of the Migration Regulations 1994 (“the Regulations”):

   “The holder must not have one or more criminal convictions, for which the sentence or sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia.”

Background

1. There is no dispute between the parties as to the following background as derived from the Court Book (“CB”), and the parties’ submissions. The applicant’s written submissions (filed on 6 February 2014) provide a helpful summary of the background, that I adopt for the purposes of this judgment ([2] – [6] of the applicant’s written submissions):

   “[2] Mr Millbank, a British citizen, made an electronic application for a Long Stay Temporary Business Visa on 6 September 2010 (CB 6-15). He sought to satisfy the criteria for sub class 457. Amongst these was cl. 457.221 of Schedule 2 of the Migration Regulations. This required the applicant, if he is in Australia, to have complied substantially with the conditions which applied to his last substantive visa. Mr Millbank’s last substantive visa was a subclass 977 visa, a condition of which was that in Sch. 8, Cl. 8528 of the Regulations…

   [3] In his Business Visa application Mr Millbank declared, in response to a question as to whether he had ever been convicted of a crime or offence including a conviction now removed from criminal records, that he had been sentenced to two years imprisonment for credit card fraud in 1982, and another two years for theft (CB 10). A UK Police Certificate, obtained later in connection with a submission dealing with the character test revealed a number of offences of that nature for which he was convicted in 1983 and 1986. He had received concurrent sentences of two years imprisonment on each occasion (CB 66-7).

   [4] On 15 November 2010 the Department invited comment on the question of whether Mr Millbank had in fact breached a condition of his Sub Class 977 visa (CB 85). The reply, on 10 December 2010, argued that he had complied substantially with the terms of that visa, and, that so far as Mr Millbank was aware, his past criminal convictions were ‘spent’ (CB 86-90).

   [5] On 17 December 2010 the delegate rejected the visa application (CB 95-99). She was not satisfied that Mr Millbank had complied substantially with the provisions of his last substantive visa (CB 97). The applicant to the Tribunal was lodged on 23 December 2010.

   [6] The subject of convictions being ‘spent’ pursuant to the Rehabilitation of Offenders Act 1974 (UK) (the ROA Act), was canvassed at the Tribunal hearing (CB 160 [25]-[26]). It was also the subject of pre and post hearing submissions by Mr Millbank’s new solicitor and migration agent, Brett Slater (CB 132-141 and CB 149-153 respectively). In his post hearing submissions Mr Slater also canvassed the effect of ss 85ZV, 85ZW and 85ZZH of the Commonwealth Crimes Act, 1914, and the judgment of Crennan J (when her Honour was a judge of the Federal Court) in VWOK v Minister for Immigration [2005] FCA 336.”

2. In its decision record the Tribunal recorded that the issue for it was ([10] at CB 157):

   “…whether the applicant satisfies cl.457.221, which states:

   457.221

   If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

   [Emphasis in the original.]

3. There is no dispute between the parties regarding the Tribunal’s understanding of the applicant’s claims and evidence ([15] at CB 158 to [32] at CB 161).

4. The Tribunal found that:

   1)The applicant must satisfy cl.457.221 of Sch.2 to the Regulations ([24] at CB 159).

   2)This clause requires compliance or substantial compliance with each condition attached to the last substantive visa held by the applicant ([39] at CB 165).

   3)Condition 8528 contains a “temporal reference”. The Tribunal identified that as being ([40] at CB 165):

   “…the applicant must not have one or more criminal convictions for which there has been a specified sentence ‘at the time of travel to and entry to Australia’…”

   4)The applicant entered Australia with a substantive visa on three occasions, to which condition 8528 attached ([40] at CB 165).

   5)The applicant had a number of convictions in the United Kingdom (“UK”) in 1983 and 1986 for which he was given concurrent sentences of 2 years imprisonment on both occasions ([41] at CB 165).

   6)It was satisfied that, given the relevant provisions of the Rehabilitation of Offender’s Act 1974 (UK) (“the UK ROA”), the applicant’s convictions were “spent” ([42] at CB 165 to CB 166). For the effect of “rehabilitation”, see s.4 of the UK ROA:

   “4. Effect of rehabilitation.

   (1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—

   (a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and

   (b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.

   (2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—

   (a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and

   (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.

   (3) Subject to the provisions of any order made under subsection (4) below,—

   (a) any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent conviction or any circumstances ancillary to a spent conviction (whether the conviction is his own or another’s); and

   (b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.

   (4) The Secretary of State may by order—

   (a) make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;

   (b) provide for such exceptions from the provisions of subsection (3) above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order.

   (5) For the purposes of this section and section 7 below any of the following are circumstances ancillary to a conviction, that is to say—

   (a) the offence or offences which were the subject of that conviction;

   (b) the conduct constituting that offence or those offences; and

   (c) any process or proceedings preliminary to that conviction, any sentence imposed in respect of that conviction, any proceedings (whether by way of appeal or otherwise) for reviewing that conviction or any such sentence, and anything done in pursuance of or undergone in compliance with any such sentence.

   (6) For the purposes of this section and section 7 below “proceedings before a judicial authority” includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power—

   (a) by virtue of any enactment, law, custom or practice;

   (b) under the rules governing any association, institution, profession, occupation or employment; or

   (c) under any provision of an agreement providing for arbitration with respect to questions arising thereunder; to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.”

   7)The Tribunal understood that under the relevant provisions of the UK ROA “the applicant is taken not to have any criminal convictions of the kind referred to in condition 8528” ([43] at CB 166).

   8)However, the Tribunal was of the view that the UK legislation was not the “sole determinative factor” relevant to its consideration of condition 8528 at the time of travel to and entry into Australia ([43] at CB 166).

   9)It took the view that, notwithstanding the effect of the UK legislation, it did not automatically mean that the applicant did not have a conviction for the purposes of condition 8528 ([43] at CB 166).

5. The Tribunal considered whether “other material” was available to it on the issue of “spent convictions”:

   1)It found there were no departmental policy guidelines as to what is a “conviction” for the purposes of condition 8528 ([44] at CB 166).

   2)However, it had regard to departmental policy guidelines in relation to the “character test” under s.501 of the Act ([44] at CB 166).

   3)Here it said it found some, albeit limited, commentary on “spent convictions”, in the “policy instructions” relevant to s.501 of the Act, and the “character test”. It set that instruction out in its decision record (see [44] at CB 166).

   4)It noted that ([45] at CB 166):

   “…the policy guidelines refer to relevant provisions of the Crimes Act relating to disclosure of information about a conviction that is spent. The Crimes Act provides for exemptions to the provisions allowing for certain convictions not to be disclosed after a specified period has elapsed and if other requirements are met. One of the exemptions set out in s.85ZZH(d) of the Crimes Act relates to a person who makes a decision under the Migration Act 1958, among others, for the purpose of making that decision.”

   5)Further, the Tribunal noted that “disclosure of a spent conviction is not the same as a person who has a conviction for the purposes of condition 8528” [emphasis in original] ([46] at CB 167).

   6)However, it went on to state that ([46] at CB 167):

   “…the provisions in the Crimes Act relating to exemptions or exclusions to the principle of non-disclosure, and the Department’s policy on that issue in the character test, supports a view that for the purposes of making a decision under the Migration Act, a person may be taken to have a conviction even though that conviction is spent, and in other circumstances is not required to be or may not be disclosed or taken into account.”

   7)It was of the view that VWOK v Minister for Immigration [2005] FCA 336 (per Crennan J, when her Honour was a Judge of the Federal Court) (“VWOK”) was “relevant to the consideration of whether the applicant had one or more convictions of a specified kind at the time of travel to and entry into Australia…” ([47] at CB 167).

   8)Further, that the terms of the UK ROA supported its view ([48] at CB 167).

   9)It also had regard to a Canadian Federal Court of Appeal case ([49] at CB 167 to CB 169). It considered that “it provides useful and relevant support for the Tribunal’s view” ([50] at CB 169).

   10)Further, it noted that the applicant’s representative had  provided copies of two Administrative Appeals Tribunal decisions which contained ([51] at CB 169):

   “…some discussion of the issue of spent convictions in terms of the character test, and in particular the issue of the reasons why an individual did not disclose or declare past convictions which were spent under their country’s legislation, in specific circumstances. Those decisions, while raising the issue of spent convictions, focus on the character test provisions and provide little further guidance on the issue of whether the applicant has or does not have a relevant conviction.”

6. In essence, the Tribunal found that for the purposes of the Act the applicant was the holder of a subclass 977 visa to which condition 8528 attached. Further, that the applicant on each of the three occasions of his travel to, and entry into, Australia had one or more criminal convictions for which the sentences were more than the specified period. It therefore found that the applicant had breached condition 8528 which attached to his last held visa ([52] at CB 169).

7. The Tribunal concluded as follows ([60] at CB 171):

   “Having regard to all the material before it therefore, the Tribunal finds that the applicant has not complied substantially with condition 8528 of his last held subclass 977 visa. The Tribunal accordingly finds that the applicant has not, at the time of the Tribunal’s decision, complied substantially with the conditions that applied to the last substantive visa held by the applicant. The Tribunal therefore finds that the applicant does not satisfy the requirements of cl.457.221.”

8. Given the pivotal nature of [43] (at CB 166) of the Tribunal’s decision record it must be noted:

   “The Tribunal is satisfied that the effect of s.4 of the UK ROA is that under that legislation, the applicant is, subject to certain limitations set out in ss.7 and 8 of the Act, treated as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offences that were the subject of the convictions referred to above. The Tribunal thus finds that the effect of the applicable UK legislation is that under the domestic laws of the UK, the applicant is taken not to have any criminal convictions of the kind referred to in condition 8528.

   However, the Tribunal is of the view that the effect of the relevant UK legislation in the applicant’s case is not the sole determinative factor in the consideration of whether the applicant has a criminal conviction of the kind specified in condition 8528 at the time of travel to and entry to Australia. The Tribunal is of the view that as its considerations are within the framework of Australia’s Migration Act 1958, the effect of the relevant UK legislation in the applicant’s circumstances is a relevant, but not the determining factor in those considerations. The Tribunal is not satisfied that the fact that the applicant’s past convictions are spent under UK legislation automatically or necessarily means that the applicant does not have a conviction for the purposes of a decision made under the Migration Act 1958.

   [For ease of application in the consideration below, [43] of the Tribunal’s decision record (at CB 166) has been reproduced separating its two constituent parts.]

Application Before the Court

1. The application to the Court, as further amended at the final hearing on 18 February 2014 (leave granted), is in the following terms:

   “1. The Tribunal misinterpreted and misapplied Condition 8528 (Cl. 8528 of Schedule 8 of the Migration Regulations).

   Particulars

   (a) The Tribunal erroneously failed to recognise that a precondition to the application of Condition 8528 was that the applicant had an existing conviction under the law of the United Kingdom.

   Further Particulars

   (i) Whether the applicant had a conviction in the United Kingdom for the purposes of Condition 8528 depended on the laws of the United Kingdom, and not on the laws of Australia.

   (b) The Tribunal erroneously applied Condition 8528 despite having found that pursuant to the relevant law of the United Kingdom the applicant was taken not to have a conviction at the time of his entry into Australia.

   (c) The Tribunal erroneously failed to apply the distinction, which it recognised, between the questions of whether a person has a conviction in a foreign country (which is a question of the law of the relevant country), and the question of whether he or she must disclose a conviction to an officer exercising power under the Migration Act.

   (d) The Tribunal erroneously relied on Departmental policy, Canadian case law, ss 7 and 8 of the Rehabilitation of Offender’s Act, 1974 (UK) in finding that that the applicant has convictions for the purposes of Condition 8528.”

2. At the final hearing, the applicant was represented by Mr L J Karp of counsel. The first respondent was represented by Mr G Kennett, Senior Counsel, and Ms B Tronson of counsel.

1. The evidence before the Court was contained in the Court Book filed by the Minister. The Minister also tendered a copy of the Rehabilitation of Offender’s Act 1974 (UK) (“RE1”).

Consideration

1. To be granted the visa the applicant was required to satisfy the requirements set out at cl.457 of the Regulations. Clause 457.221 of the Regulations required the applicant to have substantially complied with each condition attaching to the substantive visa already held by the applicant. In the current case that was a subclass 977 visa. Condition 8528 (as set out above) was attached to that visa.

2. The question for the Tribunal was whether the applicant had complied with that condition. While the Tribunal found that the effect of the UK ROA was that the applicant was taken not to have any convictions of the type contemplated in condition 8528, the applicant nonetheless had previously had convictions for the purposes of condition 8528 and refused the grant of the visa.

3. Central to the resolution of the dispute between the parties is the meaning of condition 8528. The applicant submitted that the condition was clear that the phrase “at the time travel to and entry into Australia” had a temporal quality (see further below).

4. The following must be noted. First, the Minister, fairly, submitted that the Tribunal’s chain of reasoning involving its understanding of the construction of condition 8528 and some of its factual findings were an “uneasy mixture of considerations” which produced a chain of reasoning “not easy to understand”.

5. Second, I agree with the Minister’s subsequent submission that the “critical point” of the question of “statutory” construction (in this case, “regulatory” – condition 8528) is one for the Court. The Minister also submitted that the Court could not be “wedded” to the Tribunal’s reasoning.

6. The relevance of this latter proposition was put for the purpose of submitting that if the Tribunal at some point of its reasoning pronounced the “right” construction of the condition, and applied this ultimately to the facts before it, then the Minister would not need to “defend” all of the particular line of reasoning adopted by the Tribunal.

7. In relation to the proper construction of the condition, the Minister’s preferred interpretation was that the condition referred to the “historical fact” of having been convicted of a relevant offence. Unless such a conviction is subsequently “quashed”, or the subject of a pardon, it continues in existence for the purposes of condition 8528.

8. The Minister sought to support this submission with reference to two matters. First that the laws of the country which gave rise to the conviction may not be clear, and that the situation may be further complicated in circumstances where the particular person may be the national of a country, resident in another and convicted in a third. This could lead to applications where the laws of a number of countries are involved on the matter of whether a conviction is “spent”.

9. Second, to “interpret” the condition with reference to the law of another country, rather than with reference to the historical fact of whether a person has ever been convicted of a relevant offence, could lead to inconsistent application to different individuals. For example, where laws in some countries may provide for convictions to be “spent”, while others may not such have such provisions.

10. I do not agree with the Minister’s central proposition, nor the reasons given in support.

11. First, I agree with the applicant that the starting point in any consideration here is the actual text and language of the condition (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] Hayne, Heydon, Crennan and Kiefel JJ (“Alcan”), Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6] per Gleeson CJ and see s.15AB(3) of the Acts Interpretation Act 1901 (Cth)).

12. The plain language of condition 8528, in my view, provides that the relevant time in the determination as to whether the visa holder does or does not have a relevant conviction is at the time of travel to and entry into Australia.

13. The Minister does not dispute this. However, he says that once a conviction is made, the “fact”, or existence, of the conviction remains “forever”, unless is it quashed or is the subject of a pardon. Plainly, an “overturn” of a conviction on appeal or a pardon are of different character to the operation of a provision that would render a conviction as “spent”.

14. However, whatever the differences, the possibility of a pardon, or even the actual overturn of a conviction, of themselves, provides some argument against the proposition that a conviction in the past remains a “live” conviction forever. While it may be said that the quashing of a conviction could be said to operate such as to say there was no conviction, the “fact” that there was a conviction at some time still remains. Further, any pardon also acknowledges that a conviction was made some time in the past. Similarly, a “rehabilitation” provision resulting in a “spent” conviction can be seen as imposing a temporal limitation not allowed for in the Minister’s initial proposition.

15. Second, and of far greater import, is that the plain language of the condition does not direct attention to whether the visa holder ever had a conviction, or did not ever have a conviction, but simply whether the visa holder does not have a conviction at the time of travel to and entry into Australia. The condition speaks of “must not have” [emphasis added], not, must not have had.

16. Third, the Minister, and the Tribunal, put some emphasis on the point that it is Australian law which should ultimately govern the disposition of the question posed by the condition. Plainly, that must be accepted. The question is, however, what is that Australian law in the circumstances of this case.

17. It must be noted, as set out above, the Tribunal accordingly quoted the requirement, including the temporal requirement, set out in the condition (see for example at [40] at CB 165). Subsequently, the Tribunal concluded that, because of UK law, at the relevant time (arrival and entry into Australia) the applicant was taken not to have any relevant convictions for the purposes of the condition (the first part of [43] at CB 166).

18. The Tribunal then expressed the view that this could not be the “sole” determinative factor in its consideration because it was not satisfied that “the fact that the applicant’s past convictions are spent under UK legislation automatically or necessarily means that the applicant does not have a conviction for the purpose of a decision made under” the Act (the second part of [43] at CB 166).

19. In my view the flaw in the Tribunal’s reasoning, and it must be said supported in the Minister’s submissions now, is the failure to acknowledge and understand the importance of the fact that in this case the applicant was convicted under UK, and not Australian, law in the first place.

20. What is central to the understanding and the application of condition 8528 is whether, at the relevant time, the visa holder does not “have” a conviction. This is the Australian law that must be applied. That is, the application of Australian law requires the determination of a simple fact: does the visa holder not have one or more criminal convictions “at the time of travel to and entry into Australia”.  In these circumstances, the use of the present tense and not the continuing past tense cannot be ignored.

21. In the current case it is difficult to see how any other Australian law, which is not referred to in the condition, can be said to determine the question of fact of whether the applicant did or did not have a conviction at the relevant time. Nor is a link apparent from the condition to any other Australian law

22. In my view, the fact of whether a person has a relevant conviction at the relevant time (as provided for in Australian law) must be determined with reference to the genesis of any conviction in the first place.

23. In the current case the applicant was not convicted of any offence under Australian law. Had he been, then any Australian law as to how that conviction should be regarded, or treated, at any future time would be relevant. That is not the case here.

24. In this sense, I agree with the applicant that whether the applicant did not, or did have, a relevant conviction at the relevant time must be determined according to the law of the country under which any conviction was pronounced in the first place. There is nothing in the terms of condition 8528 to distinguish between foreign or Australian convictions for the purpose of the application of the condition in this regard.

25. The Tribunal’s subsequent reasoning with its references to policy and foreign laws, and the like, was not directed to the understanding of the condition. Nor can it be said that its reasoning was related to the condition itself. It was directed, separately, to the character of the convictions of the applicant. In the circumstances, it is difficult to see how Australian law can be said to affect the ongoing character of a conviction emanating from a foreign jurisdiction. This is so in circumstances where there is nothing in the terms of condition 8528, or elsewhere in Australia law, to require any such application.

26. The Tribunal’s reasoning and finding up to, and including, the first part of [43] (at CB 166) was a consistent application of the facts, as found, to the requirements of condition 8528. The Tribunal’s subsequent reasoning, and its further findings, proceeded on an erroneous understanding of the requirements of condition 8528, and its application to the facts as found. Therefore, particulars (a) and (b) of the sole ground of the amended application are therefore made out. The sole ground of the amended application is therefore made out.

27. As referred to earlier, the Minister sought to describe the character of the Tribunal’s subsequent reasoning in his submissions. The Minister’s position was that whatever shortcomings were evident in that reasoning, the Tribunal’s ultimate conclusion revealed a “correct” application of the meaning of the condition.

28. I do not agree with this. The flaw in the Tribunal’s approach occurred at the point of its misunderstanding of what condition 8528 itself required, and the operation, and extent, of the requirement to apply Australian law to the understanding of condition 8528 and the disposition of the issue before it.

29. The subsequent reasoning (see the second part of [43] at CB 166 and following), also reveals that much, if not all, of what the Tribunal relied upon was either not relevant or reflected a misunderstanding of that material.

30. First, the Tribunal noted that there were no “departmental policy guidelines” as to what is a “conviction” for the purposes of condition 8528 ([44] at CB 166). The Tribunal, therefore, looked to other parts of the “departmental policy” for assistance. It referred to what it said was “limited” policy instruction in relation to “spent convictions” concerning the refusal and cancellation of visas under s.501 of the Act and the “character test”.

31. The Tribunal made reference to “7.10 of the policy instructions” which apparently was headed “Spent convictions” ([44] at CB 166). It extracted what appear to be two paragraphs from these instructions.

32. The first paragraph plainly deals with “disclosure” of “spent convictions”. That had no relevance to the case before the Tribunal. The plain terms of condition 8528 are directed to the fact of whether the visa holder, to which the condition attaches, does not have a certain conviction at certain times. The question of disclosure of any such convictions is not a matter raised by the condition.

33. The Tribunal itself subsequently recognised this at [46] (at CB 167) of its decision record. It failed however to understand the consequences of this distinction, and the absence of the relevance of “disclosure” to the proper application of the condition.

34. The second paragraph extracted from the policy statement in the Tribunal’s decision record at [44] (at CB 166) makes reference to certain parts of the (presumably Commonwealth) Crimes Act 1914 (Cth) (“the Crimes Act”). That paragraph makes specific reference to s.85ZZH of the Crimes Act, and states that “spent convictions schemes” do not apply to a person making a decision under the Act. The last sentence of that paragraph makes clear that, on request, an affected person must disclose any spent convictions and these can be taken into account for the purposes of s.501 of the Act.

35. At [45] (at CB 166), the Tribunal understood that the “Crimes Act provides for exemptions to the provisions allowing for certain convictions not to be disclosed after a specified period has elapsed”. The Tribunal referred to s.85ZZH(d) of the Crimes Act in this regard.

36. The Tribunal sought to draw an analogy between the provisions of the Crimes Act, the departmental policy, and condition 8528. It focused on the exemptions to the principle of non-disclosure of “spent convictions” in the Crimes Act and the departmental policy, and sought to apply this to condition 8528. Its purpose was to say that a person may be taken to have a conviction even though that conviction is “spent”.

37. The flaw in the Tribunal’s reasoning is that the relevant scheme in the Crimes Act is directed, as the departmental policy extracts make clear, to the matter of the disclosure of “spent convictions” upon request. The clear intention is that these “spent convictions”, as “spent convictions”, may be taken into account by a decision maker under the Act.

38. There is a clear distinction between a “conviction” and a “spent conviction”. In my view, what this statutory scheme creates, and as is recognised in the departmental policy, is that for certain purposes not only “convictions” but a different specified group of “spent convictions” may also be taken into account for the purposes, for example, of assessing the “character test” at s.501 of the Act.

39. Condition 8528 has, as set out above, a temporal focus. That is, whether at the time of travel to and entry into Australia, a person does not have a certain conviction. It does not, therefore, have a historical focus. The condition posits a simple factual test for a particular point in time. Section 501 of the Act is plainly far broader in scope. The matters to be decided at the relevant time have a broader temporal focus. For example, in determining whether a person has a “substantial criminal record” (see s.501(6) and s.501(7) of the Act), the word “record” explicitly directs attention to a period of time rather than a point in time. Further, in assessing whether a person meets the character test the question of whether a person has a “spent conviction” is relevant to such aspects of the meaning of the “character test” involving “the person’s past and present criminal conduct” (s.501(6)(c)(i) of the Act), and “the person’s past and present general conduct” (s.501(6)(c)(ii) of the Act).

40. The absence of any departmental policy statement linking condition 8528 to the character test, let alone any consonant statement in relation to condition 8528, as there is in relation to s.501 of the Act, only serves to underscore that the two provisions are separate and directed to different legislative or regulatory outcomes.

41. The Tribunal’s analogy is, with respect, simplistic and lacks understanding of the difference between s.501 of the Act and condition 8528, and the relevant statutory “scheme”. It should also be noted that as between s.501 of the Act and the relevant parts of the Crimes Act and condition 8528, the first are part of a statute, and the other a condition that may attach to a visa to be found in a Schedule to the Regulations to the Act. If the Minister had intended that they be read with the analogous view taken by the Tribunal, then some legislative intent to that effect should have been implemented. There is nothing before the Court, and nothing was submitted by the Minister, to indicate that this is the case.

42. The Tribunal also relied on what it said was the “reasoning” in VWOK. It found that this reasoning was “relevant to whether the applicant had one or more convictions of a specified kind” at the relevant time ([47] at CB 167) (see [7] above).

43. While the Tribunal recognised that that case dealt with a different clause in the Regulations, which was in different terms to condition 8528, and related to “spent convictions” under Western Australian legislation, it nonetheless said the “reasoning” was relevant to the task before it.

44. The immediate difficulty is that, in my respectful view, the reasoning in VWOK was not directed to any similar circumstances before the Tribunal or currently before this Court. In VWOK the Court considered two arguments made by the applicant in that case.

45. The first arose from the attempt by the applicant, in that case, to argue that he had not been “convicted” of a particular offence under relevant Western Australian legislation because he had pleaded guilty to the offence (see VWOK at [25]).

46. I respectfully understand the Court’s “reasoning”, as referred to by the Tribunal, to be that the applicant’s contention in that case, that a spent conviction meant that there had been no conviction at all, to be “untenable” (VWOK at [25] – [26]).

47. In the current case the circumstances are quite different. The applicant made no claim before the Tribunal, or the Court for that matter, that he had never been convicted. Rather, his position was, and is, that he did not have a relevant conviction at the times of travel to, and entry into, Australia.

48. The Tribunal’s understanding and purported application of the reasoning in VWOK to the circumstances before it are not only in conflict with the actual circumstances before it, but display the temporal flaw discussed above. That is, the Tribunal looked beyond the status of the applicant’s convictions, or lack thereof, at the time of travel to and entry into Australia.

49. The second argument in VWOK relied on by the applicant in that case was that the particular relevant clause of the Regulations was “invalid”. That is, that cl.866.222A of Schedule 2 of the Regulations (as it then was), was repugnant to the Act (VWOK at [27]). In particular, s.501 of the Act.

50. The Court’s reasoning in VWOK was directed to the question of whether cl.866.222A of Schedule 2 of the Regulations (as it then was) was “additional to or inconsistent with s.501” of the Act (VWOK at [30] and [33]) and with the “character test” under s.501 of the Act (VWOK at [30] – [32]). It is of note that, at [31] of VWOK, the Court specifically referred to the capacity of the relevant decision maker (in relation to s.501 of the Act and the “character test”) “to take into account ‘past and present conduct’ as well as ‘past and present criminal conduct’” (see at [52] above).

51. The Tribunal’s decision record in the current case does not explain how the reasoning in VWOK in this regard was relevant to the circumstances before it. The Tribunal’s unexplained assumption in this regard again, in my view, reveals the failure to understand the true meaning and nature of condition 8528 and the actual factual circumstances before it.

52. In making the finding at the conclusion of [47] (at CB 167), the Tribunal appears to have proceeded on the basis that because VWOK dealt with an aspect of s.501 of the Act and the “character test”, which in turn made some references to convictions, that this provided support to its preferred view of the disposition of the current case. The Tribunal did not explain how this was the case. Further, I note what is set out above at [52] – [54] regarding the “character test”.

53. The Tribunal also said that “its view” was “supported by the provision of the UK ROA itself” ([48] at CB 167). The Tribunal set out what it said were relevant parts of the UK ROA (see [36] at CB 162 to CB 164).

54. Before the Court, the Minister went to some lengths to examine various provisions of the UK ROA. The thrust of these submissions (relevant to the Tribunal’s finding at [48] at CB 167), was variously as follows.

1. First, as stated above, the fact of a “conviction” remains unlimited as to time unless the conviction has been the subject of a pardon, or quashed by an appellate Court. The answer to that argument is dealt with elsewhere in this judgment and derives from the nature of condition 8528 and the temporal requirement explained above.

2. Second, the existence of a conviction for the purposes of condition 8528 is to be determined by reference to the relevant foreign law. In this regard the Minister agrees with the applicant’s position which I have accepted. The Minister, however, goes on to put this proposition to a different purpose in the disposition of this case. The Minister’s position is that such a reference required consideration of the operation of that law as a whole and not just to one part.

3. That is that, relevant to the current circumstances, regard should not only be had to that part of the UK ROA which deals with the notion of “rehabilitation” and “spent convictions”, but also those parts of that Act that set out “limitations on rehabilitation” under that Act (see s.7 of the UK ROA). One example illustrates this submission. At s.7(2)(a) of the UK ROA “spent convictions” are nonetheless admissible (in the UK) in “any criminal proceedings before a Court in Great Britain…”. The Minister submitted that this means that where a person is convicted of an offence, and that offence is subsequently “spent”, it may nonetheless be used in certain circumstances. For example, in any sentencing consideration where there has been a conviction for some subsequent offence.

4. The starting point for the understanding of the Minister’s proposition and its consideration is the Tribunal’s own reasoning. There are a number of elements here.

5. There is a tension in the two key findings made by the Tribunal. At [43] (at CB 166), the Tribunal found that under the UK ROA “the applicant is taken not to have any criminal convictions of the kind referred to in condition 8528”. In arriving at this finding as to the “effect of the appropriate UK legislation”, the Tribunal did not just have regard, at that point of [43] (at CB 166), to s.4 of the UK ROA. It plainly referred to the “certain limitations” as set out at ss.7 and 8 of the UK ROA. The subsequent critical finding in the middle of [43] (at CB 166) can only be read, even on a fair reading, as having been made with reference also to those latter two sections of the UK ROA. Yet despite this latter reference, the Tribunal still found at [43] (at CB 166) that under the UK ROA the applicant was taken not have any relevant convictions.

6. At [48] (at CB 167), the Tribunal then makes reference, in a general way, to “the provisions of the UK ROA itself”. It does not say which provisions. However, in context, it could only be that it sought to refer to ss. 7 and 8 of the UK ROA. The Tribunal used this to say, in contradiction to what it found at [43] (at CB 166), that in some circumstances spent convictions “must be declared and taken into account” ([48] at CB 167).

7. According to the Tribunal’s own reasoning, the essence of the support for its “view” is that the UK ROA provides circumstances where otherwise spent convictions “must be declared and taken into account” ([48] at CB 167). As set out elsewhere in this judgment, condition 8528 says nothing about declaring convictions. It is simply focussed on the fact of the existence, or rather the non-existence, at a particular point in time, of certain convictions.

8. As to these provisions being “taken into account”, the Tribunal does not say how this is the case in relation to the consideration pursuant to condition 8528. For example, there is nothing in the Tribunal’s reasoning, nor beyond mere reference in the Minister’s submissions, to explain how the references in ss.7(1)(b) and (c) of the UK ROA (a UK Statute) to “any process or proceedings” in the UK extends their application to the consideration of a condition attaching to a visa created under Australian law.

9. I agree with the applicant’s submissions that the Tribunal’s finding at the first half of [43] (at CB 166) is “unequivocal” in its reference to the consequences of the UK ROA (including ss.7 and 8). There is nothing in the Tribunal’s analysis beyond mere and general assertion to say, let alone show, which of the “consequences” or “limitations” in ss.7 and 8 of the UK ROA apply to the applicant’s circumstances, or how, in the absence of any such link, ss.7 and 8 of the UK ROA can assist, first in the understanding of the meaning of condition 8528, and second in its application to the matter before the Tribunal.

10. It was the applicant’s, it must be said colourful, submission that at [48] (at CB 167), the Tribunal was seeking to use the provisions of the UK ROA “in support of a proposition that under some undefined ethereal Australian law, an offence which was a spent offence had some corporeal existence”. I agree with the thrust of that submission.

11. The Tribunal also relied on the fact that the applicant’s UK police certificate set out the applicant’s “spent convictions” (see at CB 66 to CB 67). What the Tribunal did not explain was how an entry on a UK police certificate can assist in the interpretation and meaning of Australian law. This remained an unexplained assumption on the part of the Tribunal.

12. The Tribunal said it also took into account information provided to it in relation to certain Canadian case law (see [49] at CB 167 to CB 169). The Tribunal found that this information provided “useful and relevant support for the Tribunal’s view expressed above” ([50] at CB 169). In context, that appears to be a reference to its “view” that it was ([43] at CB 166):

    “…not satisfied that the fact that the applicant’s past convictions are spent under UK legislation automatically or necessarily means that the applicant does not have a conviction for the purposes of a decision made under the Migration Act 1958.”

13. The Canadian “information” referred to in the Tribunal’s decision record makes reference to “foreign legislation… expunging of a conviction should be accorded respect in considerations under Canadian law” ([49] at CB 167). I note that the information does go onto say that such provisions “are not binding on Canada in the consideration of a matter under Canadian law” ([49] at CB 167).

14. That may well be the case in Canada in certain circumstances, or even generally. However, to have any relevance to the understanding of the meaning and application of condition 8528 in Australia more is needed than just mere reliance and general reference to some “Canadian cases”, even if they deal with the “expunging of a conviction” (see [49] at CB 167).

15. I agree with the applicant that it was not reasonably open to the Tribunal to rely on a principle said to have been taken from a foreign Court’s consideration without at least knowing the legislative basis on which it arose, and the specific circumstances in which the consideration took place. This is another example of the Tribunal’s consideration dealing with general assumptions whose direct connection, and reference, to the Tribunal’s stated view of condition 8528, and the actual circumstances before the Tribunal remained unexplained (see as the applicant submits, Alcan at [47]).

16. Finally the Tribunal dealt with “copies of two AAT decisions” which it said were provided to it by the applicant’s representatives and contained “discussion of the issue of spent convictions” ([51] at CB 169).

17. At [51] the Tribunal said (CB 169):

    “The applicant’s representative has also provided copies of two AAT decision which contain some discussion of the issue of spent convictions in terms of the character test, and in particular the issue of the reasons why an individual did not disclose or declare part convictions which were spent under their country’s legislation, in specific circumstances. Those decisions, while raising the issue of spent convictions, focus on the character test provisions and provide little further guidance on the issue of whether the applicant has or does not have a relevant conviction.”

18. What remained unexplained is if the Tribunal saw that the AAT decisions were of little use to it because they focused on the “character test” (s.501 of the Act), why it felt no reticence in relying on s.501 of the Act and the character test elsewhere in its consideration (see at [44] at CB 166 and see above at [43]).

19. The Tribunal is bound to apply Australian law. It is a fair reading of its decision record to say that what sits behind its finding that the UK legislation is not the “sole determinative factor in the consideration of whether the applicant has a criminal conviction”, in part, is that it saw the ultimate determinative factor of that question as being Australian law. Its subsequent and immediate references to s.501 of the Act and s.8ZZH(d) of the Crimes Act support that view (see at [44] – [45] at CB 166).

20. The Tribunal’s error, however, springs from, amongst other things, its failure to understand what Australian law it was obliged to apply, and separately, the role of the UK ROA.

21. As to the first question, the answer is condition 8528. As set out elsewhere in this judgment, the wording of that condition is clear. As to the second question, the use of the UK ROA should not be directed to any consideration of the understanding of the relevant Australian law (that is, condition 8528).

22. Rather, in the circumstances of this case, the UK ROA is directed to a question of fact before the Tribunal that arises as a result of the “Australian law” and the applicant’s personal circumstances. In this case, the applicant was convicted of certain criminal offences in 1983 and 1986 in the UK. This was some time earlier to the three occasions of his “travel to and entry into Australia”. 

23. The terms of the UK ROA were relevant, and available, to the Tribunal to determine the nature, or existence, of these convictions at these relevant times. The Tribunal made such a determination when it found that, in effect, given the provisions of the UK ROA, the applicant did not have any relevant convictions at the relevant times.

24. In light of the above, the Tribunal’s finding that the UK ROA is not the “sole determinative factor in the consideration of whether the applicant has a criminal conviction of the kind specified in condition 8528” is not correct in circumstances where it was directed to the meaning, or understanding, of an Australian law (here, condition 8528). As set out above, the UK ROA should have been directed to the question of fact posed by the Australian law.

25. As stated above, the only other Australian laws referred to by the Tribunal are s.501 of the Act and s.85ZZH(d) of the Crimes Act. These do not assist in the understanding of the meaning of condition 8528. Nor, as set out above, do they assist in determining the answer to the factual question posed by condition 8528. In this light, and further to what is found at [39] above, this provides additional support for the finding that particulars (a) and (b) of the sole ground of the application are made out. What is set out subsequent to [40] above reveals that particulars (c) and (d) of the sole ground of the application are also made out.

Conclusion

1. The sole ground of the application to the Court, as amended, is made out. For the reasons set out above, the Tribunal misinterpreted, misunderstood and misapplied condition 8528. The applicant should be given the relief he seeks. I will make the orders accordingly.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 10 April 2014