Tham v Minister for Immigration and Citizenship
[2012] FCA 234
•20 March 2012
FEDERAL COURT OF AUSTRALIA
Tham v Minister for Immigration and Citizenship
[2012] FCA 234
Citation: Tham v Minister for Immigration and Citizenship [2012] FCA 234 Appeal from: Tham and Minister for Immigration and Citizenship [2011] AATA 629 Parties: THO DUC THAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 1747 of 2011 Judge: BENNETT J Date of judgment: 20 March 2012 Catchwords: ADMINISTRATIVE LAW – Visa cancellation – review of decision to cancel visa pursuant to s 501 Migration Act 1958 (Cth) - application of primary and secondary considerations in Direction 41 issued under s 499(1) of the Migration Act 1958 (Cth) – whether Administrative Appeals Tribunal was required to and had made a finding on a previous criminal conviction for which the applicant maintained his innocence – distinction between fact of conviction and criminal conduct. Legislation: Migration Act 1958 (Cth) ss 476A, 499 and 501
Direction [no.41] - Visa refusal and cancellation under s501, clauses 5.1(2), 10 and 10.1.2Cases cited: Minister for Immigration and Ethnic Affairs v Daniele (1981) 3 FLR 354 cited
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 cited
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 considered
Re Chandra and Minister for Immigration and Citizenship (2010) 120 ALD 108 cited
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578 citedPlace: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: My Y Nguyen Solicitors Counsel for the First Respondent: Mr J Smith Solicitor for the First Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1747 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: THO DUC THAM
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
20 MARCH 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1747 of 2011
BETWEEN: THO DUC THAM
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE:
20 APRIL 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Mr Tham is a Canadian citizen who was born in Vietnam in 1959 and came to Australia in 2005. He was granted a Subclass 820 Spouse visa in October 2006 and a Subclass 801 Spouse visa in 2008. Mr Tham has served a prison sentence in Australia in respect of two charges concerning offences in connection with cannabis, with a non parole period of 1 year and 7 months and 1 year and 9 months respectively. Following his release from prison, he was placed in immigration detention. On 21 June 2011, the Minister determined to cancel Mr Tham’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) because Mr Tham did not pass the character test as set out in s 501(6) of the Act. Mr Tham applied for a review of the decision of the Minister and on 7 September 2011, the Administrative Appeals Tribunal (the Tribunal) affirmed the Minister’s decision. Mr Tham has applied to this court under s 476A of the Act for a review of the Tribunal’s decision. Mr Tham seeks an order that the Tribunal’s decision be set aside on the ground of jurisdictional error.
It is not in dispute that Mr Tham does not pass the character test as set out in s 501(6) of the Act by reason of the substantial criminal record within s 501(7)(c) of the Act. For that reason, pursuant to s 501(2) of the Act the Minister and, standing in his shoes, the Tribunal, has a discretion to cancel Mr Tham’s visa.
Pursuant to s 499 of the Act, Direction [no.41] – Visa refusal and cancellation under s 501 (Direction 41) specifies primary and secondary considerations that should be taken into account by the decision maker in exercising the discretion in s 501 of the Act.
Clause 5.1(2) of Direction 41 relevantly states that:
… in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
The relevant primary consideration for the present application as set out in clause 10(1)(a), is ‘the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence’.
As provided for in clause 10.1(2):
The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
(b)the risk that the conduct may be repeated.
Clause 10.1.2 sets out further detail of factor (b) above, namely the risk that the conduct may be repeated and relevantly provides:
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
…
The foundation of Mr Tham’s appeal concerns the Tribunal’s consideration of Mr Tham’s criminal conviction in Canada in 2004. The circumstances of that conviction were that the police caught Mr Tham with 40 marijuana plants in his van. Mr Tham pleaded guilty to possession of a Schedule II substance for the purpose of trafficking for which he received 90 days imprisonment, probation for 1 year and a firearms prohibition. The trial Judge rejected a joint submission from the parties for a fine of $5000. Mr Tham appealed. The Alberta Court of Appeal recognised that the Crown had favoured the joint submission because it had no evidence that Mr Tham was connected to cultivation and allowed the appeal, substituting a fine of $5000 instead of the imprisonment, but leaving the probation order and firearms prohibition in place.
In Australia, Mr Tham had maintained his innocence, including in a statutory declaration apparently made in support of his application for a spouse visa in 2006. He says that he had no knowledge of the presence of the marijuana trees in his truck and that actual knowledge of the presence of the substance was a prerequisite of guilt of the crime with which he was charged in Canada. He provided the Tribunal with a copy of the decision of the Alberta Court of Appeal.
Mr Tham says that he was entitled in this administrative proceeding to ‘go behind’ the criminal conviction. Mr Tham contends that the Tribunal failed to discharge its obligation to undertake a review of the Minister’s decision. Mr Tham contends that the Tribunal committed jurisdictional error in failing to make any finding on his claim that he was in fact innocent of a criminal offence for which he had pleaded guilty in Canada as part of a plea bargain.
The decision of the Tribunal
The Tribunal dealt with the fact of the conviction in Canada and of Mr Tham’s assertion of innocence when taking account of the primary considerations for the purposes of Direction 41. This was in the context of the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct and the risk that the conduct may be repeated. In its reasons, the Tribunal referred to :
·Its view that ‘[i]t is significant that only approximately three years after his arrival from Canada, Mr Tham was again convicted of offences in connection with marijuana, an illegal substance’ (at [19]).
·The need to ‘take into account the offences for which Mr Tham was convicted in Canada’ (at [29]).
·The fact that before the Tribunal ‘Mr Tham strenuously denied he knew what the load in the van he had provided to his client contained, and maintained that the client had loaded the van, and he was just driving it to a dump’ (at [29]).
The Tribunal said at [29] that ‘a priori this Tribunal cannot go behind a criminal conviction’. However, the Tribunal noted Mr Tham’s submissions about the relevance of his conviction in Canada concerning marijuana. It noted that Mr Tham submitted that it had been based on a plea bargain, that he maintained his innocence and that he referred to the decision of Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313.
At [31]-[34], the Tribunal considered Ali, observing that her Honour:
·Considered it to be clear that an administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.
·Stated that the Act should be construed as requiring a decision maker under s 200 to treat a conviction and sentence as strong prima facie evidence of the facts upon which it is necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts.
·Observed that the onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty rather than a contested hearing.
·Emphasised that a person’s previous convictions should be considered when considering the risk of recidivism.
The Tribunal then said:
35. … I am satisfied that I should give weight to the fact that at whatever level, Mr Tham was convicted of an offence relating to cannabis in Canada in 2004, followed by two further offences a mere three years later in Australia in 2008.
At [38], the Tribunal concluded that the prior Canadian conviction in 2004 for a cannabis related offence followed by serious convictions in Australia with accompanying prison sentences in 2008, accompanied by a gambling habit, weighed against Mr Tham remaining in Australia.
Turning to the risk of the conduct being repeated, the Tribunal repeated at [41] that Mr Tham had been convicted in 2004 for possession. The Tribunal then went into some detail in setting out Mr Tham’s position as to the Canadian conviction:
41. … Notwithstanding Mr Tham was represented by a Vietnamese lawyer, and notwithstanding the documentation indicates he pleaded guilty to the charge, Mr Tham maintained strenuously before me that he was innocent. He says he understood that his lawyer struck a deal with the police whereby he would be fined $5,000, but have no criminal record. He said that he was pulled over by the police because he was not licensed, (the implication being, to dump rubbish).
42. I noted that in response to the letter of DIMIA dated 3 March 2006 regarding his character, and in connection with his application for a visa, Mr Tham made a Statutory Declaration dated 14 March 2006 where he deposed at paragraph 9: When I appear in Court [in Canada] I had told the magistrate that I was innocent and he gave me a 1 year good behaviour bond. I was not happy with the outcome and appealed this sentence.
43. Mr Tham told me that in Canada, he did what he called a removalist job in addition to his day job in order to earn extra money. He told me that as part of a job he had provided a van to persons who engaged him, and who loaded the van the day before he collected it. Mr Tham said that he drove the van away, (it was not clear from the evidence whether it was to dump the load), and was stopped by police. He said that he did not know with what cargo his van had been loaded. The load turned out to be marijuana plants or waste from production or harvest of such plants
44. In considering the risk of Mr Tham re-offending, I am mindful of Judge Bozic’s remarks, being that Mr Tham has good prospects of rehabilitation and is not likely to reoffend in the future. I noted also that Judge Bozic found special circumstances, and imposed a longer than usual parole in order that Mr Tham might benefit from further supervision through parole.
The Tribunal also gave detailed consideration to various reports as to the risk of repeated conduct. However, the Tribunal said at [56] that ‘notwithstanding the positive reports, Mr Tham’s criminal convictions, his conduct in 2004 in Canada and 2008 in Australia, and therefore the risk of reoffending, weigh against him remaining in Australia’. The Tribunal again made reference at [80] to re-offending in relation to cannabis approximately three years after arriving in Australia, that is, three years after the Canadian conviction. The Tribunal was satisfied that all other considerations did not outweigh the primary consideration of the protection of the Australian community and affirmed the decision of the Minister to cancel Mr Tham’s visa.
It is clear that the Tribunal did take account of the Canadian conviction in 2004 in coming to its conclusion and that it regarded that conviction as significant.
The Appeal
Mr Tham submits that the Tribunal failed to make any finding on his claim that he was in fact innocent of the criminal offence for which he had pleaded guilty in Canada as part of a plea bargain. He says that if he could have been able to persuade the Tribunal that he had not committed the crime for which he was convicted in Canada, this would have ameliorated the seriousness of his overall criminal conduct and the risk that he might re-offend. Mr Tham says that the Tribunal should have gone behind the fact of the conviction, formed a view as to whether he had actually committed the offence and concluded that the facts supporting the conviction should not be accepted. He says that it was incumbent on the Tribunal to make a finding as to whether he had in fact committed the offence and that it was not sufficient to make references to the conviction without doing so.
In this way, Mr Tham contends that the Tribunal committed jurisdictional error in failing to discharge its obligation to review the decision of the delegate by assessing the entirety of his conduct in accordance with his evidence and submissions and in failing to address an integer of his claims.
The Minister submits that the Tribunal distinguished in its reasons between the conviction and the conduct and that it gave weight to the former and to the proximity of the conviction to the conduct in Australia. He says that the fact of a conviction is relevant to the nature of the later conduct, even if the conviction was wrongful. This, the Minister says, was also properly taken into account by the Tribunal in respect of the risk of recidivism. Further, the Minister says that a proper analysis of the Tribunal’s reasons and the distinctions drawn between the conviction and the underlying conduct demonstrates that the Tribunal did in fact make a finding in respect of the conduct which led to the conviction in Canada, which was that, contrary to Mr Tham’s evidence in the Tribunal, he had committed the crime of which he was convicted.
The relevant authorities
Mr Tham draws on the reasons in Ali where Branson J considered a decision of the Tribunal concerning a person’s record of criminal offences and the risk of recidivism. In that case, the Tribunal had taken into account three previous convictions as to which the applicant had variously stated that he had pleaded guilty when he was innocent and that he was wrongly convicted. The Minister had contended that the Tribunal erred in law by taking into account evidence that he had not committed the offences and that the Tribunal was not entitled to go behind the facts upon which the applicant had previously been convicted of criminal offences and upon which his sentences for such offences had been based. Her Honour noted that a distinction should be drawn between a conviction that enlivened the power to deport and another conviction. Her Honour said that in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, Fisher and Lockhart JJ observed at 358 that a Tribunal may examine the circumstances surrounding the commission of an offence for the purpose of enabling it to make its own assessment of the nature and gravity of the criminal conduct but cannot ‘ignore the conviction or seek to set it at nought’.
Justice Branson (at [22] and following) then turned to the circumstance where the criminal proceeding in issue was not the one which resulted in the conviction and sentence that enlivened the power to make the deportation order. At [26] Branson J cited what had been said by Davies J in the Full Court in Saffronv Commissioner of Taxation (Cth) (No 2) (1991) 30 CR 578 at (581), inter alia that ‘a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction’.
Justice Branson observed at [38] and [39] that, while proof of a conviction is highly probative of the truth of factual matters essential to a conviction, there are circumstances in which an individual, for various reasons, may plead guilty although a defence to the charge might be available. Accordingly, her Honour said at [41] that an administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which that conviction and sentence were necessarily based. Her Honour accepted, at [42], that where the conviction and sentence are the foundation of the exercise of the power vested in the Minister under the Act, the Tribunal, when reviewing that decision, may not impugne or go behind either the conviction or the sentence.
However, her Honour continued at [43] to state that in her view there was ‘no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based’. Her Honour observed that such a conviction is strong prima facie evidence of the facts upon which the conviction is necessarily based so as to throw ‘a heavy onus’ on a person who seeks to challenge such facts and show why they should not be accepted. Her Honour also observed at [43] that this heavy onus:
… will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
It followed, her Honour said, that a Tribunal was entitled to have regard to the conduct and the significance of such conduct so far as the risk of recidivism is concerned but is not entitled to reach or express a view that the person was wrongly convicted.
In Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49, Davies J acknowledged at 50 that no challenge could be made to the fact of the conviction or the essential facts on which it was based where that conviction was the foundation for the exercise of the discretionary power. However, his Honour also observed at 50–51 that in considering the risk of recidivism, the Tribunal was not bound by or limited to the findings of fact made by a sentencing judge in the course of giving his reasons for sentence and that the Tribunal is entitled to receive evidence explaining the circumstances of the committed crime. That is, as stated by Sheppard J in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 469, ‘the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it’ in deportation cases in order to make its own assessment of the seriousness of the conduct which has led to the conviction.
Consideration
In this appeal, Mr Tham is not seeking to challenge the fact of the conviction or assert that he was wrongly convicted. He submits that the Tribunal absolved itself of the responsibility of making a finding as to the conduct that gave rise to his conviction in Canada in circumstances where, in Australia, he maintained his innocence. Mr Tham submits that in such circumstances, it was incumbent on the Tribunal to form a view as to whether or not he had actually committed the offence.
There is no issue between the parties about the principles to be applied in the present case. That is, that the Tribunal was entitled to look behind the Canadian conviction to the circumstances leading to that conviction. The Minister does not dispute that the Tribunal was entitled to take Mr Tham’s conduct into account. He accepts that Mr Tham framed his case before the Tribunal so as to submit that the conviction was irrelevant because he was actually innocent. However, he also submits that the Tribunal was not expressly obliged by reason of s 501 or Direction 41 to determine guilt or innocence. He accepts that the Tribunal may make such a finding, as was the case in Re Chandra and Minister for Immigration and Citizenship (2010) 120 ALD 108 but, he says, it does not follow that such an obligation exists.
Before the Tribunal, Mr Tham clearly disclosed the Canadian offences and presented submissions on them under the heading “Protection of the Australian Community – pars 10(1)(a) and 10.1”. Mr Tham submitted that in considering the seriousness and nature of the conduct, the Tribunal should take into account the fact that he had:
·maintained his innocence before the magistrate;
·negotiated a plea bargain which was rejected by the Court but restored by the Court of Appeal; and
·continues to maintain his innocence.
Mr Tham submitted before the Tribunal that it would be ‘extremely difficult for the Tribunal to give any weight to this conviction’ and that there had been no ‘testing of the evidence’ (cf Ali). Mr Tham submitted to the Tribunal that it ought to accept that he did not actually commit the offence of possessing a substance for the purposes of trafficking and that the only relevant offences were those for which he was sentenced in Australia. Mr Tham does not press this last contention in this appeal and presently accepts that the conviction in Canada was a relevant consideration.
Mr Tham also submitted to the Tribunal that he ‘does not have a relevant criminal history prior to the most recent offences, since he maintains his innocence of the only relevant Canadian offence’. This meant, he contended, that he was in effect a first offender with a very limited criminal history and that this was a relevant consideration in considering the risk that the conduct may be repeated.
The basis of Mr Tham’s application is not a contention that the Tribunal did not give sufficient reasons for its conclusion, nor that if the Tribunal made a finding as to his conduct in Canada that the finding was not open to it. His submission is that jurisdictional error arose by reason of the failure on the part of the Tribunal to make a finding on his protested innocence as to his conduct in considering the likelihood of reoffending.
It is necessary to look at the structure of the Tribunal’s reasons and to examine the context of the way Mr Tham framed his case before the Tribunal. It is important also to bear in mind the caution expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at [31] to the effect that the reasons of an administrative decision-maker are ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.
The Tribunal first turned to the primary consideration of the protection of the Australian community which, as it observed, has been broken down into consideration of the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated (at [21]). Turning to the seriousness and nature of the conduct, the Tribunal stated at [29] that it must take into account the offences for which Mr Tham was convicted. It then turned to Mr Tham’s submissions about the relevance of his convictions in Canada and set out in some detail the reasoning of Branson J in Ali as set out at [13] above. In the course of that discussion the Tribunal cited the submissions made by the parties and her Honour’s reasons. The Tribunal observed that:
·There was no error in the Tribunal taking into account evidence going behind convictions where there has been a plea of guilty.
·The Minister submitted that there was no onus on his part to prove a criminal offence and that the Alberta Court of Appeal had not overturned the conviction on appeal.
The Tribunal commented that it was mindful of the points mad by Brandon J in Ali including her Honour’s emphasis that ‘the Tribunal in considering the risk of recidivism in Ali properly gave consideration to the person’s previous convictions. I must similarly do so’. The Tribunal concluded that it was entitled to treat the conviction as probative of the factual matters on which it was necessarily based.
The Tribunal noted at [35] what had occurred at the Alberta Court of Appeal, including the statement: ‘We do not say what the sentencing judge should have done had there been no joint submission’. As was quoted above at [12], The Tribunal said that it should ‘give weight to the fact that at whatever level, Mr Tham was convicted of an offence relating to cannabis in Canada in 2004 …’.
The Tribunal was entitled to take the Canadian conviction into account. Mr Tham maintained that he was in fact innocent of the charge for which he pleaded guilty. The Tribunal was entitled to and was required to take account of the fact that this formed part of Mr Tham’s case, that is that he accepted that he had pleaded guilty but that he maintained that he was in fact innocent. It did so. However, the Tribunal was not obliged to make findings of guilt or innocence of that charge in circumstances where there was simply no sufficient basis for such a finding or such an inquiry. The Tribunal made reference to Mr Tham’s assertions and such material as was before it and took it into account. The reference in [12] to ‘at whatever level’ the conviction occurred was a recognition, in Mr Tham’s favour, that the conduct that give rise to the conviction was in question. At that stage of the Tribunal’s reasons, it took account of the fact of the conviction rather than the conduct behind it. However, it is apparent that Mr Tham did not satisfy the Tribunal of his innocence.
It was under the heading “Risk of the conduct being repeated” that the Tribunal said at [39]: ‘I next moved to consider the risk of the conduct being repeated’. The Tribunal then said at [41]:
As already stated, Mr Tham’s history of criminal convictions commenced in Canada in 1990 where he was first convicted for a theft of under $1,000. This was followed by a conviction in 2004, as noted above, for possession of a Schedule II substance for the purpose of trafficking.
The Tribunal commented that Mr Tham had been legally represented in Canada and that Mr Tham said that he had entered into a plea bargain.
The Tribunal then again noted that Mr Tham had maintained his innocence both in a letter to the Department in 2006 and also before the Tribunal. The Tribunal recorded the nature of that evidence. The Tribunal made no express finding as to guilt or innocence and turned to other evidence in support of Mr Tham’s prospects of rehabilitation. In its conclusion at [56] the Tribunal said:
In considering the risk that Mr Tham’s conduct may be repeated, I am mindful of his previous criminal history, his good conduct in prison, and the encouraging reports of Judge Bozic and the psychologists who assessed him. I am mindful also that Matthews J, then President of the AAT stated in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that: Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. Notwithstanding the positive reports, Mr Tham’s criminal convictions, his conduct in 2004 in Canada, and 2008 in Australia, and therefore the risk of re-offending, weigh against him remaining in Australia.
I am satisfied that the Tribunal had regard to and took into account that part of Mr Tham’s claim concerning his protestation of innocence of the charge upon which he was convicted in Canada. I am also satisfied that in considering the likelihood of the risk of Mr Tham’s conduct being repeated, the Tribunal took account not only of the fact of his criminal conviction in Canada but also his conduct in 2004 in Canada and in 2008 in Australia. In making a finding that it was entitled to take his conduct into account in circumstances where it recorded in some detail Mr Tham’s assertion of innocence, the Tribunal did not accept that assertion. The Tribunal did not make an actual finding of knowledge on Mr Tham’s part that there had been marijuana in the back of the truck in Canada. The Minister submits that this does not constitute jurisdictional error and Mr Tham did not contend to the contrary.
That is, the Tribunal considered Mr Tham’s claim and the evidence in relation to it and came to a conclusion that was open to it. It is not suggested that the Tribunal was disentitled from having regard to that conduct in its consideration of the risk of repetition of the conduct for the purposes of Direction 41.
The Tribunal did not, as Mr Tham maintained in his application, fail to make an assessment of the entirety of his conduct in relation to the Canadian drug offence as it was presented to the Tribunal. The Tribunal was not obliged to make an assessment of the nature and seriousness of that conduct beyond its determination (at [56]) that, together with the conduct that followed in Australia, it was a factor to be taken into account in determining the risk of reoffending and that it weighed against Mr Tham remaining in Australia.
Conclusion
Mr Tham has not established that the Tribunal’s decision was infected with jurisdictional error. The application should be dismissed with costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 20 March 2012
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