Appeal: meaning of ‘conviction’

The Full Court of the Federal Court (FCAFC) summarised the matter as follows:

1    The appellant pleaded guilty in the District Court of Queensland to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm and one count of unlicensed driving. He was sentenced to a term of five years’ imprisonment which was to be suspended after 20 months. Because the sentence was for a term of imprisonment which exceeded 12 months in duration, this meant that the appellant was taken to have a ‘substantial criminal record’ by s 501(7) of the Migration Act 1958 (Cth) (the ‘Act’). By s‍ 501(CA), where a delegate of the Minister administering the Act (the ‘Minister’) is satisfied that a non-citizen who holds a visa has a substantial criminal record then the visa is automatically cancelled by force of s 501(3A).

2    Whilst the appellant was serving his time, a delegate of the Minister became aware that he had been sentenced to a term of imprisonment exceeding 12 months and the appellant’s visa was therefore automatically cancelled. Upon his release from gaol, he was taken into immigration detention since he no longer held a visa.

3    An application by the appellant to another delegate of the Minister under s 501CA(4) to reinstate his visa was unsuccessful. The appellant then sought a review of that decision in the Administrative Appeals Tribunal (the ‘Tribunal’) but the Tribunal affirmed the delegate’s decision: ...

4    A judicial review proceeding was then filed in this Court. That application was dismissed by the primary judge: ...

8    The evidence before the Tribunal pertinent to the frequency of the appellant’s offending included remarks made by the sentencing judge at the time that the appellant was sentenced to a term of imprisonment. Those remarks referred to the fact that the appellant was ‘convicted of exceeding the speed limit five times previously’. Under cross-examination before the Tribunal, the appellant was asked whether he agreed with that statement and he confirmed that he did.

9    In the course of assessing the frequency of the appellant’s offending, the Tribunal dealt with these five speeding offences but was disinclined to give them much weight (‘I do not attach much weight to Mr Brar’s speeding’: [35]). This was because the Tribunal did not have any information about the speeding convictions beyond the fact that they had been referred to by the sentencing court: [28]. In particular, whilst the District Court would appear to have had the appellant’s traffic record before it, that record was not before the Tribunal.

10    The appellant’s case before the primary judge was that there could not be a conviction without a judicial determination of guilt and there was no evidence before the Tribunal that the appellant had been judicially determined to be guilty of the speeding offences. Thus, whilst the appellant agreed under cross-examination in the Tribunal that he had been convicted of the five speeding offences, he nevertheless sought to persuade the primary judge that there was no evidence that this was so. There was no such evidence, so he submitted, because his evidence and the sentencing remarks of the District Court did not prove that there had been a judicial determination of the appellant’s guilt.

Some of the questions to the FCAFC were as follows:

Question 1: Can it be said that, "whether the appellant had been judicially determined to have committed those [speeding] offences or whether his guilt had been determined by some other procedural means was irrelevant to that purpose", as "what was involved in both instances was an assessment of wrongdoing and/or risk; it was not an adventure in legal taxonomy"?

Question 2: Was there any evidence before the Tribunal that the appellant had committed the five speeding offences?

Question 3: Para 8.4(4)(f) of Direction 99 provided that decision-makers, in considering the best interests of minor children, must consider where relevant "any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)". For the purpose of para 8.4(4)(f), was there "a material difference between the Tribunal knowing in some general sense that the appellant’s older son loved his father and reading the son’s document, written as it was in different colours, and saying ‘DADDY I LOVE YOU’"?

Question 4: Was the mandatory relevant consideration under para 8.4(4)(f) of Direction 99 the known view of the son that he loved his father, instead of the document which contained that statement?

Question 5: If a judgment discloses sufficiently the path of reasoning a court took in arriving at its decision, will the reasons be adequate even if the court did not refer to every authority to which a party took the court to?

Question 6: Should the High Court’s ruling in Plaintiff M1/2021 that the delegate in that case was obliged to read, identify, understand and evaluate the representations be distinguished, "because the mandatory relevant consideration under paragraph 8.4(4)(f) of the Direction is any ‘known views’ of the child rather than any ‘document’ in which such views are recorded"?

The FCAFC answered those questions as follows: