Federal Court (Full Court). Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
Paragraph 8.1.1(1) of Direction 90 provided:
8.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, … or an offence against section 197A of the Act, which prohibits escape from immigration detention;
...
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
Paragraphs [69] to [71] of the Tribunal's reasons ('T') read (original emphasis):
The Applicant claims that he became involved in the drug trade to pay back debts which he had accumulated borrowing large sums of money to fund a gambling problem. Additionally, the Applicant claims that he trafficked drugs to pay for his family expenses, including his son’s private school fees.
The Applicant states that he is remorseful for his actions and that he has learnt that trafficking drugs is the worst mistake I have ever made in my life.
Taking into account all of the evidence, the Tribunal finds that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
The primary judge denied the existence of jurisdictional error in the Tribunal having applied the principles set out under para 8.1.1(1)(a) to offending that was neither sexual nor violence-related:
In any event, I do not accept that [the consideration recorded in sub-paragraph (a)] was irrelevant to the Tribunal’s task here. The seriousness with which the Australian government or community views sexual or violent crimes is a consideration that might rationally inform an assessment as to the nature and seriousness of other crimes, including those of the kind of which the applicant had been convicted. Criminality can sensibly be adjudged along a spectrum: some crimes, assessed by reference to various factors (such as their impacts upon victims, the costs that they impose upon the community or their capacity to inspire public outrage) can rightly be considered more serious than others. There is nothing untoward about the Tribunal making its assessment in this case relatively; that is, by reference to the seriousness that might be thought to attach to other criminal conduct, including sexual and violent criminality.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Must the Tribunal’s reasons as a whole must be considered in addressing arguments on materiality? In other words, should materiality be assessed in the aggregate?
Question 2: May an administrative decision-maker form its own view as to whether criminal conduct of a kind that is not mentioned in para 8.1.1(1)(a) of Direction 90 is “very serious”?
Question 3: Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
Question 4: Did the primary judge err in rejecting the Appellant’s contentions of jurisdictional error based on a combination of analogical reasoning and recourse to the proposition that the Appellant bore not only the onus of proving that an error occurred, but also of proving how the error occurred?
Question 5: Can it be said that, although courts should not construe administrative reasons with an eye keenly attuned to the perception of error, it should not "fill in gaps in the path of reasoning"?
Question 6: Is it an irrelevant consideration for the Tribunal to take into account the seriousness of particular offending before it by reference to the view taken by the Australian government and community of different offending?
Question 7: Can it be said that "the analogical form of reasoning posited by the primary judge would have involved the Tribunal reaching conclusions about how the Australian government and community would regard the seriousness of the offending before the Tribunal, as distinct from reaching its own view on the nature and seriousness of the offending, having regard to the deemed views of the Australian government and community as regards other types of offending"?
Question 8: Can it be said that, although the threshold for establishing materiality has been described as “undemanding” and “not onerous”, "that does not mean that the exercise in which a court is required to engage in assessing materiality is to be undertaken by adopting an approach that is driven by formalism, which fixes on nuances said to arise from a fine-grained parsing of the decision-maker’s language, or which focuses on possibilities that are theoretical rather than real"?
Question 9: Is the assessment of whether the realistic possibility of a different outcome in the absence of error has been established "to be undertaken by merely excising specific reasoning which involves error without assessing the impact of the error on the decision-maker’s reasoning and the reconstructive exercise required"?
Question 10: Does para 8.1.1(1)(b) of Direction 90 require that there be an identified victim who is vulnerable?
Question 11: Was it an error for the Tribunal to fail to "elucidate any reasoning as to why or how a deemed view that the Australian government and community view certain kinds of criminal conduct as “serious” (as distinct from “very serious”) “militates in favour of” a finding that the Appellant’s criminal conduct was of a “very serious nature”"?
Question 12: Was it an error for the Tribunal to fail to "elucidate any reasoning as to why or how a deemed view that the Australian government and community view certain kinds of criminal conduct as “serious” (as distinct from “very serious”) “militates in favour of” a finding that the Appellant’s criminal conduct was of a “very serious nature”"?
Question 13: Are warnings which ought to have caused the Appellant to be aware that further criminal offending would jeopardise his migration status but which do not satisfy para 8.1.1(1)(g) of Direction 90 a relevant non-mandatory consideration?
Question 14: Are warnings which ought to have caused the Appellant to be aware that further criminal offending would jeopardise his migration status but which do not satisfy para 8.1.1(1)(g) of Direction 90 a relevant non-mandatory consideration?
Question 15: Is the mandatory consideration presented by para 8.1.1(1)(g) engaged by warnings which do not directly address the consequences of further offending?
Question 16: If the answer to Question 15 is 'yes', does it follow that a warning may fall within para 8.1.1(1)(g) where it relates to the consequences of prior offending but ought to cause a non-citizen to appreciate the consequences of future offending?
The FCAFC answered those questions as follows: