FCA once again on whether decision makers can look behind convictions

Federal Court: In Sharma, FCA had held that: if "a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence)" in the context of s 501(6)(d)(i); otherwise, "the essential facts underlying the conviction are not immune from challenge", although there is a "heavy onus on a person seeking to challenge" them. Was Sharma wrongly decided? Does Sharma apply to s 116(1)(e)? Further, are the considerations set out in Direction 65 or Direction 79 exhaustive?

To oversimplify the facts, the Appellant was charged with 1 count of stalking and 4 counts of indecent act with a child under 16. 3 of those counts were withdrawn, but he pleaded guilty to the other 2 counts and was convicted.

As a result, his visa was cancelled by the Minister under s 116(1)(e) of the Migration Act 1958 (Cth), which read as follows:

Section 116    Power to cancel 

(1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: 

...

(e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)  the health or safety of an individual or individuals; or ...

The Appellant applied to the Tribunal for merits review of the Minister's decision, but the Tribunal affirmed that decision.

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application.

The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).

Before a single judge of the FCA made a decision on this case, another single judge of the FCA had made the decision in Sharma, which held as follows:

(1)    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2)    Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

The questions to the FCA in this case were as follows:

Question 1: Was the Tribunal allowed to take into consideration the 3 withdrawn charges in assessing whether the Appellant posed a risk to the victim pursuant to s 116(1)(e) of the Act?

Question 2: If the answer to Question 1 is "no", did the Tribunal take into consideration those 3 withdrawn charges?

Question 3: Was the Tribunal allowed to impugn the conviction for the purposes of the assessment under s 116(1)(e)?

Question 4: Was Sharma correctly decided and should it be applied in the context of decisions made under s 116(1)(e)?

Question 5: Are the considerations set out in Direction 65 (now replaced by Direction 79) exhaustive?

The FCA answered the above questions as follows:

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