Federal Court (Full Court): Where a conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts on which the conviction or sentence was based? If not, is the position different in the context of s 501CA(4)? Should AAT have considered "evidence that went beyond the essential facts underpinning his conviction and sentence"? Can a decision-maker, for the purposes of s 501CA(4), refuse to accept a non-citizen's challenge to a fact on which a sentence is based, on the one hand, and use that challenge against the non-citizen in the context of assessing remorse, on the other hand? Can the difference between sentence & conviction play any role in answering whether the facts on which they were based might be challenged? Subsequent FCA decision seems to have impliedly distinguished this decision.
The Tribunal was required to determine, pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), whether there were "another reason" to revoke the mandatory cancellation of the Appellant's visa under s 501(3A).
In summary, the Appellant presented two types of evidence to the Tribunal. One type involved challenges to the factual basis which underpinned the conviction and sentence that led to the visa cancellation. The other type, the Appellant claimed, "went beyond the essential facts underpinning his conviction and sentence", namely:
(a) the appellant’s contention that the offences were committed in the context of a Sri Lankan faction dispute in which he became involved while trying to support his friends;
(b) the appellant’s contention that his lack of communication skills and difficulty integrating into Australian society played a significant factor in his committal of the offence as he did not understand the serious consequences of his actions at the time; and
(c) the fact there was a fight between quarrelling factions in the house.
The Tribunal's decision record included the following paragraphs (emphasis in the Federal Court's decision):
42 In oral evidence before this Tribunal, [the appellant] indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acted in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did not use the metal bar, as found by the judge).
43 The Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Re Mlinar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] to [45]. However, that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction: Re Du Pont v Minister for Immigration and Ethnic Affairs [1983] AATA 180.
Relevantly, Colvin J said the following:
199 The Tribunal set out the sentencing remarks of the magistrate in its reasons (para 41). Relevantly for present purposes, they included the following:
There is clear evidence that, so far as [MT] was concerned, the first blow, being a blow to the back of the head, was struck by [HZCP] with the bar from the gymnasium equipment.
It does seem to me to be clear on the evidence that it was [HZCP] who wielded that piece of gymnasium equipment as a weapon …
There is no evidence that either of the complainants said or did anything which might have provoked the attack upon them. There is evidence to the effect that all four men went to the house on that afternoon with the specific intent of inflicting harm on [MT].
…
It does appear that [NS] was struck to take him out of the action, so to speak. What was not clear during the trial, and remains unclear to the present time, is the motivation of those involved in these attacks.
…
Beyond those circumstances to which I've just referred, there doesn't appear to be any obvious cause or factor giving rise to the events of the late afternoon of [the day of the offending].
The questions to the Federal Court (FCA) were as follows:
Question 1: Where a previous conviction or sentence is the foundation for the exercise of power by a decision-maker, can a challenge be made to the essential facts which provide the basis for the conviction or sentence?
Question 2: If the answer to Question 1 is "no", is the position "different in substance in the present situation where the jurisdictional facts that underpin the power of revocation under s 501CA(4) of the Migration Act are, first, the legally effective cancellation decision and, secondly, representations by the former visa holder in response to an invitation made under s 501CA(3)(b)"?
Question 3: Should the Tribunal have considered what the Appellant described as "evidence that went beyond the essential facts underpinning his conviction and sentence" and, if that was not considered, did that constitute a jurisdictional error?
Question 4: For the purposes of s 501CA(4), can a decision-maker, on the one hand, refuse to accept a non-citizen's challenge to a fact on which a sentence is based and, on the other hand, use that challenge against that non-citizen in the context of assessing remorse?
Question 5: Can the difference between sentence & conviction play any role in answering whether the facts on which they were based can be challenged?
The FCA answered those questions as follows: