4.2 Grounds 2 and 3: Alleged errors relating to the Tribunal's reliance upon the breach of bail for which no conviction was recorded
46 It is not in issue that the Tribunal was required to take into account the primary considerations in Part C of Direction 79 and that these, as I have earlier explained, included "the nature and seriousness of the non-citizen's conduct to date" and "the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness" (CB469-470). Nor was it in issue that the making of a significant finding in the absence of evidence can amount to jurisdictional error: SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133 at [7]-[10] (Tamberlin J); Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5]-[13] (Wilcox, French and Finkelstein JJ); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [18]-[30] (Mansfield, Selway and Bennett JJ).
47 The applicant contended that in discharging that obligation, the Tribunal was required to correctly construe the "nature and seriousness of the non-citizen's conduct to date" relying upon the decisions in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 and SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909.
48 The applicant submitted that:
22. In the present case, the position established by the National Police Certificate (CB28-29) and the Applicant's Victoria Police Criminal History Report (CB166) was as follows:
(a) on 14 March 2013, the Applicant was fined $500 with no conviction recorded by the Melbourne Magistrates Court for a failure to answer bail in connection with a robbery offence (CB28);
(b) on 14 March 2013, the Melbourne Magistrates Court adjourned a robbery charge without conviction to 12 September 2014 (CB28). It was subsequently dismissed (CB166); and
(c) on 22 May 2017, the Applicant was sentenced by the NSW District Court in connection with the identity offences in 2014-2015 that led to his imprisonment (CB28).
23. The Tribunal, however, first, wrongly proceeded on the basis that the Applicant had been convicted in 2013 when in fact he was not convicted. At CB522 [35], for example, the Tribunal referred to the Applicant's conduct as (emphasis added) "involving an initial conviction for breaching his bail followed by his dealing with identity information to commit indictable offences." As noted above, the National Police Certificate plainly records that the Applicant was not convicted for this offence; it does not provide any basis on which it could have [been] found that the Applicant had been convicted in 2013 for this or any other offence. In the circumstances, the Tribunal engaged in jurisdictional error by:
(a) failing to take into account a relevant consideration (namely, the fact of no conviction recorded in the National Police Certificate);
(b) making a significant finding in the absence of evidence (there was no evidence to support its finding that the Applicant had been convicted for breaching bail); and or alternatively,
(c) misconstruing and, therefore, constructively failing to take into account, the nature and seriousness of the Applicant's conduct (being a mandatory consideration).
(original emphasis)
49 The passages in the Tribunal's reasons said to demonstrate the errors identified in grounds 2 and 3 are as follows:
32. Subparagraph (e) of the paragraph 13.1.1(1) of the Direction concerns itself with the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness.
33. The Applicant arrived in this country in 2008 and commenced offending in 2013 in Melbourne. As mentioned earlier, the reference to "Robbery" in his criminal history appears to have been adjourned "Without conviction". He committed the identity fraud offences in Sydney between 17 December 2014 and 10 February 2015. On any reasonable view, a comparative analysis of his offending in Melbourne in 2013 and Sydney in 2014 and 2015, is clearly indicative of a significant escalation in the seriousness of the Applicant's offending.
34. In terms of the frequency of his offending, one ought have regard to the remarks of Judge Toner SC, who observed that "These offences were committed between 17 December 2014 and 10 February 2015, which is about two months but clearly the activities of this offender and those who were in effect "employed" by him was intense."
35. I am satisfied that the Applicant's offending is demonstrative of a trend of increasing seriousness. I am further satisfied of the frequency or intensity evident in his conduct involving an initial conviction for breaching his bail followed by his dealing with identity information to commit indictable offences. Subparagraph (d) of paragraph 13.1.1(1) of the Direction thus strongly militates in favour of a finding that the Applicant's offending conduct is very serious.
(emphasis added)
50 Grounds 2 and 3 are also not established for the following reasons.
51 First, while at [35] the Tribunal referred to a "conviction" for breaching bail, it is clear that the Tribunal was well aware that no conviction was recorded for this offence, as it expressly recognised at the outset of its reasons at [4]. Nonetheless, it is clear that the offence was found to have been proved because, as the Tribunal also found at [4], the Melbourne Magistrates Court imposed a fine of $500 for the offence. The applicant also admitted the commission of the offence under cross-examination before the Tribunal (Tribunal transcript at pp. 14-15). In this regard, while I note that Toner J found that the applicant had no criminal record (CB58), that was in the context of delivering sentencing remarks. That finding is irrelevant in light of the evidence before the Tribunal as to the commission of the earlier offence in the context of determining whether to revoke the mandatory visa cancellation decision under the Act.
52 In these circumstances, the reference at [35] of the Tribunal's reasons to the applicant's "conviction" for breaching bail is fairly read as no more than a loose way of describing the outcome of the criminal prosecution. In this regard, it is well established that "a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker" and therefore, the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (quoting with approval the approach adopted in Collector of Customs v Pozzolanic [1993] FCA 322; (1993) 43 FCR 280 at 287).
53 Secondly, in these circumstances no error is revealed in the Tribunal's rejection at [54] of the applicant's submission that he had no criminal record before the 11 convictions of identity fraud on the basis that the submission was "plainly incorrect and misleading". To the contrary, the National Police Certificate in evidence before the Tribunal cited the Victoria Police Criminal History Report as recording "MELBOURNE MAGISTRATES COURT 14/03/2013 FAIL TO ANSWER BAIL Without conviction, fined $500.00" (CB166).
54 Thirdly, no jurisdictional error is apparent in the Tribunal's incorrect finding that the robbery charge against the applicant was unresolved (at [54]) despite the National Police Certificate recording that the charge was "Dismissed COMPLIANCE WITH BOND/UNDERTAKING" on 12 September 2014 (CB166). It is apparent that the Tribunal overlooked this notation, and took account only of the earlier notation on 14 March 2013 that the robbery charge had been adjourned to 12 September 2014 without conviction. The short point is that the Tribunal's error was not material because the Tribunal did not take that erroneous finding into account but merely noted it: Hossain v Minister for Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [31]; Minister for Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]. Further, the notation on the National Police Certificate effectively means that, while it was accepted that the applicant had committed the offence, no conviction was entered upon his complying with the undertaking. As such, even if the Tribunal had correctly read the National Police Certificate, it could not have assisted the applicant's case before the Tribunal and led to any different decision. It follows that the error made by the Tribunal was not material for this reason also.
55 Fourthly, it might be thought somewhat inapt to find at [35] that the applicant's offending demonstrated a "trend of increasing seriousness" when the Tribunal found that there was only one prior offence. However, that does not establish a jurisdictional error. Rather, as the Minister submitted, the important point is that these were integers taken into account by the Tribunal in assessing the seriousness of the applicant's offending conduct. In this regard, objectively speaking there could be no doubt but that the applicant's conduct in the last 11 offences was "very serious" as the Tribunal found at [35]. Equally, there can be no doubt that the 11 offences were objectively more serious than the earlier offence of breaching bail and therefore that the seriousness of the applicant's offending had escalated.