Consideration
23 On this occasion, I shall not summarise the parties' submissions. These submissions will appear sufficiently in the following discussion. It suffices to say that essentially Mr Boyes' case was that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations, and asked itself the wrong question. Referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351, and Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 per Black CJ at 360, counsel for Mr Boyes submitted that the Tribunal's decision was vitiated by jurisdictional error and that the applicant was entitled to relief. In the alternative, counsel contended that there had been a failure on the Tribunal's part to comply with s 499(2A) of the Act. Referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 376-377 and 388-390 per McHugh, Gummow, Kirby and Hayne JJ, counsel argued that failure to do what is compelled to be done by s 499(2A) invalidates anything done or purporting to be done under Direction 21.
24 For reasons that appear below, I would reject Mr Boyes' submission that the Tribunal's decision was vitiated by jurisdictional error, as well as his alternative submission that there was a failure on the Tribunal's part to comply with s 499(2A) of the Act. I set out each of Mr Boyes' grounds of appeal and consider them in turn.
25 The first set of grounds were as follows:
(a) The decision of the Tribunal should be set aside as it erred in applying the primary considerations contained in Part 2 of Direction No 21 particularly in failing to distinguish between essential and non-essential facts found by a sentencing judge and thereby considered irrelevant material.
(b) The decision of the Tribunal should be set aside as it erred in misconstruing the requirement contained in Part 2 of Direction No 21, that it consider the protection of the Australian community, by apparently deciding that any consideration of the seriousness of the applicant's conduct required it to find the same facts as those found by the sentencing judge and thereby considered irrelevant material.
(c) The decision of the Tribunal should be set aside as it erred by considering irrelevant material in considering that the protection of the Australian community required it to -
(i) adopt the remarks of a sentencing judge;
(ii) substitute the remarks of a sentencing judge for the exercise of its own discretion;
(iii) consider the remarks of a sentencing judge in a context other than that in which they were made.
26 In the course of argument in relation to these grounds, counsel for Mr Boyes submitted that the Tribunal should have noted that Mr Boyes pleaded guilty to the charges he faced. Further, according to counsel, a "complete examination of the seriousness of the Applicant's conduct should also involve considering the possible maximum sentence available to the sentencing judge". The applicant also challenged the Tribunal's finding concerning the repugnance of the crime, on the basis that the fraud involved in Mr Boyes' offending was not the same kind of fraud as that referred to in par 2.7(b) of Direction 21. Additionally, so counsel submitted, the Tribunal misapplied certain observation of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 ("SRT"). The Tribunal failed to place the remarks of the sentencing judge in proper context and treat them as the law required.
27 In SRT, a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT at 244 per Branson, Lindgren and Emmett JJ; also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ. It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. Moreover, so the Court said in SRT at 243, "accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight".
28 The Tribunal was entitled to consider the sentencing remarks of Judge Wood of the County Court and the other curial material to which it referred. Paragraph 2.7 of Direction 21 directed attention to such factors as criminal record and the repugnance of the crime. The sentencing remarks provided evidence relevant to these factors and also bore on Mr Boyes' testimony about the circumstances of his offending. The Tribunal's finding that the level of Mr Boyes' dishonesty was "very serious" flowed out of its proper consideration of the material before it, as the Tribunal's subsequent explanation of its finding emphasizes. The Tribunal was entitled to make the finding that it did as to the repugnance of the crimes of which Mr Boyes had been convicted.
29 Moreover, there is nothing in the complaint the applicant makes about the Tribunal's finding about the repugnance of Mr Boyes' crimes. Paragraph 2.7(b) requires the decision-maker to consider "the repugnance of the crime", as the Tribunal did. The Tribunal did not fall into error when it made its own assessment of the crimes that had been committed by Mr Boyes.
30 The Tribunal specifically considered the training and skills acquisition programs that Mr Boyes had undertaken whilst in prison and the letters of support that it had before it. Its determination to place considerable weight on the risk of recidivism flowed out of its consideration of Mr Boyes' past behaviour and convictions, but, at the same time, the Tribunal gave weight to Mr Boyes' involvement in these programs and the favourable comments concerning him that were in evidence before it.
31 There is nothing in the Tribunal's reasons to support the submission that it misapplied SRT, and misused the sentencing judges' findings and observations in reaching its decision. Further, I would not infer from the Tribunal's reasons that the Tribunal did not take into account the fact that Mr Boyes had entered a guilty plea in the County Court. Certainly, the fact was specifically referred to in the Tribunal's reasons for decision. In this circumstance, it is unnecessary to decide whether the Tribunal was bound to consider the fact that Mr Boyes had pleaded guilty in the earlier criminal proceeding, although I doubt that it was. The consideration of this factor is not mandated by the Act alone and not mandated, directly at least, by the combination of s 499(2A) and Direction 21. There is, moreover, no basis in the Act, even when read with Direction 21, to support the proposition that, in considering the seriousness of Mr Boyes' conduct for the purpose of determining whether to cancel his visa, the Tribunal was bound to consider the maximum sentence that Mr Boyes' offences might have attracted under the criminal law.
32 There is no jurisdictional error shown in grounds (a), (b) or (c).
(d) The decision of the Tribunal should be set aside as it misapplied paragraph 2.7(b) of Direction No 21 when it referred to but apparently failed to give due regard to "the repugnance of the crime", thereby failing to consider relevant material or considering irrelevant material.
33 Under this ground, counsel for Mr Boyes submitted that the Tribunal erred in likening the crimes committed by Mr Boyes to the crimes referred to in par 2.7(b) of Direction 21. I reject this submission for the reasons set out at [28]-[29] above.
(e) The decision of the Tribunal should be set aside as it failed to exercise its discretion or failed to consider relevant material when it purported to consider the likelihood that the applicant's conduct may be repeated by merely repeating the words contained in part of paragraph 2.10 of Direction No 21 without apparently making its own findings.
34 Counsel for Mr Boyes submitted that "there [was] an unhealthy and unnecessary preoccupation in the mind of the Tribunal…with the concept of remorse". This was, so counsel said, an irrelevant consideration in the context of par 2.10 of Direction 21. I reject this submission for the reasons stated at [43]. Additionally, I note that par 2.8 directed attention, amongst other things, to "any relevant factors provided by the non-citizen as mitigating factors". Mr Boyes gave evidence at the hearing about his attitude to his offending conduct and the Tribunal was entitled to consider the effect of this evidence on its assessment, as it did.
35 I would reject ground (e) as not disclosing error.
(f) The decision of the Tribunal should be set aside as it erred when it failed to consider a relevant fact, namely whether the applicant received a warning about the risk of visa cancellation as contemplated by paragraph 2.10(a) of Direction No 21.
36 Under the rubric of protection of the Australian community, which includes the "likelihood that the conduct may be repeated", par 2.10 of Direction 21 states that it is "the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism". Amongst the factors that Direction 21 lists as relevant to this assessment is the non-citizen's commission of a further offence after having been previously warned about the risk of visa refusal or cancellation.
37 Counsel for Mr Boyes submitted that the reference in par 2.10(a) of Direction 21 to the commission by a non-citizen of a further offence after having been warned previously about the risk of visa refusal or cancellation was a reference to "a complete concept". The applicant had not received a previous warning. In the context of considering the protection of the Australian community, this factor was, so counsel for Mr Boyes said, a crucial consideration. In failing to address this consideration, the Tribunal failed to apply Direction 21 as required by the Act.
38 I accept the respondent's submission that, under Direction 21, if a person committed further crimes after being warned of the risk of deportation, then this would be a separate factor weighing against that person. Since Mr Boyes had not been previously warned, this aggravating factor did not apply. It did not weigh against Mr Boyes and there was no occasion for the Tribunal to refer to it. There was no need for the Tribunal to list every factor referred to in Direction 21, including those factors which plainly did not apply. This ground does not disclose error.
(g) The decision of the Tribunal should be set aside as it erred when it failed to take into account a relevant consideration namely the prospect of further rehabilitation and the positive contribution to the community the applicant may reasonably be expected to make as contemplated by paragraph 2.10(c) of Direction No 21.
39 Direction 21 also provides that "the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably expected to make" are relevant to the assessment to be made under par 2.10. Under this ground, the applicant contended that the Tribunal failed to consider the prospects of further rehabilitation and the positive contribution that Mr Boyes may reasonably be expected to make, as par 2.10 of Direction 21 required. Had the Tribunal done so, it would have acknowledged the effect of the passage of time. The applicant argued that the Tribunal misapplied SRT when it did not refer to the passage of time.
40 Counsel for Mr Boyes also submitted that the Tribunal erred when it combined consideration of rehabilitation with consideration of remorse, which were two different things. Counsel added that "the Tribunal went too far when it allowed those explanations by the self-represented represented applicant to colour its consideration of these requirements under the direction".
41 As already noted, in SRT, the Full Court noted that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter.
42 In the present case, the Tribunal did not limit its consideration of rehabilitation prospects and risk of recidivism to the sentencing remarks of Judge Wood in the County Court. On the contrary, the Tribunal made a comprehensive review of the curial material in its possession and the evidence of Mr Boyes' rehabilitation. It referred to this latter evidence in some detail and noted that it was to Mr Boyes' credit. The Tribunal plainly took account of the matters relevant to the passage of time between sentencing and its decision-making, when it said that it was prepared to view favourably his undertakings to achieve qualifications and personal skills and that it gave some weight to the favourable comments of others about him.
43 Clearly enough, the Tribunal considered the prospects of rehabilitation and the risk of recidivism. In considering the broad question of whether the offending conduct might be repeated, it was open to the Tribunal to consider Mr Boyes' evidence about his attitude to his offending and his understanding of why it was wrong, more particularly as Mr Boyes had apparently made an assertion to the Tribunal in this regard.
44 Ground 4(g) discloses no error.
(h) The decision of the Tribunal should be set aside as it erred when it took account of an irrelevant consideration when purporting to apply paragraph 2.11 of Direction No 21 by hypothesising on the effect on non-citizens of not cancelling the applicant's visa.
45 Paragraph 2.11 of Direction 2.11 relevantly states that "[g]eneral deterrence aims to deter other people from committing the same or a similar offence". It also states that the "general deterrence factor" may be relevant in a number of ways, indicating what these ways may be.
46 After referring to par 2.11 of Direction 21, counsel for Mr Boyes submitted that the Tribunal considered an irrelevant matter when it observed that failure to cancel Mr Boyes visa might "send an undesirable message to other non-citizens". This, so counsel said, was to approach "the issue of general deterrence from a negative perspective rather than the positively worded perspective contained in paragraph 2.11 of Direction 21". He added that paragraph 2.11 deals with visa cancellation as a tool to discourage criminality in others, which is the reverse of what the Tribunal has considered".
47 I reject this submission. When the relevant paragraph in the Tribunal's reasons is read as a whole, the paragraph discloses not error. The Tribunal specifically stated that "cancellation of the applicant's visa may prevent or discourage similar conduct by other persons in an equivalent position". This finding was plainly made in conformity with Direction 21. On one view, as the respondent said, the Tribunal's observation that a failure to cancel may send an "undesirable message" is a natural corollary of this primary finding. In any event, as the respondent noted, under par 2.2 of Direction 21, a decision-maker is to "adopt a balancing process which takes into account all relevant considerations". This would extend to the contested observation.
48 Ground (h) discloses no error.
(i) The decision of the Tribunal should be set aside as it erred when it failed to consider relevant matters concerning the reasons for the limited contact between the applicant and his son … such as the difficulty of travel by [his son] and his mother to the prison where the applicant was detained and the significance of recent contact between the applicant and [his son].
49 Under this ground, counsel for Mr Boyes submitted that the Tribunal had failed to identify what the best interests of Mr Boyes' son involved and thus to consider the child's best interests in the requisite manner. Counsel submitted that the Tribunal was "distracted by considering how the child's interest would be affected by a decision to cancel the visa", and that this "was a different question". Counsel added that the Tribunal focused unduly on the relationship between Mr Boyes and the mother of his son, and failed to consider the best interests of the child as a separate issue. Counsel contended that the Tribunal gave no "sensible consideration to the reasons" why Mr Boyes was separated from his son and gave no consideration to the prospect of Mr Boyes developing a relationship with him in the future. Counsel argued that the Tribunal did not consider the likely effect that separation from Mr Boyes would have on his son.
50 Direction 21 required the Tribunal in the circumstances of this case to make the best interests of Mr Boyes' son a primary consideration in its decision-making. In its reasons, the Tribunal specifically referred to par 2.15 and noted that it stated that "[i]n general terms, the child's best interests will be served if the child remains with its parents".
51 Paragraph 2.16 also directed the decision-maker to have regard to various factors "when considering the best interests of the child", including "the nature of the relationship between the child and the non-citizen", its duration, "the hypothetical prospect for developing a better/stronger relationship in future", the child's age and Australian citizenship, the likely effect that any separation from the non-citizen would have on the child, and the circumstances of the child in any probable receiving country.
52 Examination of the Tribunal's reasons shows that it was mindful of the matters set out in par 2.16. The likely impact on the child of the visa cancellation was relevant to consideration of the effect of separation from Mr Boyes, which the Tribunal was directed to consider. The Tribunal specifically referred to the child's age and citizenship. It plainly considered the nature of the relevant relationship and the prospect for developing a stronger relationship in the future as best it could on the evidence before it.
53 As the respondent noted, the evidence as to the best interests of the child was very limited. The statements by Mr Boyes concerning his son before the Tribunal were generally tied to statements about his desire to re-establish a relationship with the child's mother. There was, however, no evidence from the mother corroborating Mr Boyes' statements in this regard. Since no such statement was forthcoming, the Tribunal inferred, as it might, that the mother was not prepared to support Mr Boyes and there was no relevant "romantic" relationship, as Mr Boyes had alleged, and that the mother would be unlikely to take the child to live with Mr Boyes in New Zealand. The Tribunal was, in effect, rejecting the case put by Mr Boyes when it found that it was unlikely that the child would ever be cared for by his mother and Mr Boyes in "a stable, caring and loving environment". This finding necessarily involved consideration of the future prospects of the relationship between father and son.
54 A significant part of the case that Mr Boyes put to the Tribunal turned on his assertion that he wanted to re-establish his relationship with the mother of his son. It was in this context that the absence of evidence from the mother concerned the Tribunal and led it to adjourn the hearing in order that she might make a statement. When no statement from her was forthcoming, the Tribunal did not have an obligation to make further inquiries concerning the child. There was nothing to create such an obligation: compare Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 314 per Tamberlin, Sackville and Stone JJ; and Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 208 at [19] per Marshall, Mansfield and Siopis JJ. Instead it was bound to decide the case on the evidence and other material before it. Upon this basis, it made the specific findings that the child's best interests would be achieved if he remained in Australia with his mother and that his interests would not necessarily be affected if Mr Boyes' visa were cancelled. The applicant has not made out jurisdictional error under ground (i).
55 This case is distinguishable from Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, which was relied on by the applicant. In Mr Boyes' case, in contrast to Wan, the Tribunal clearly stated what the best interests of the child indicated that it should decide. The Tribunal in Wan limited its consideration to how the children's interests would be affected by a decision to refuse to grant their father a visa. That is not this case. Further, in Wan, in contrast to this case, the Tribunal did not treat the best interests of the children as a primary consideration.
56 Ground (i) discloses no error.
57 Counsel for Mr Boyes did not address the other grounds stated in the initiating documents and it is unnecessary to refer to them here. None of them disclosed a tenable ground upon which a finding of jurisdictional error might be made. Nor could they disclose contravention of s 499(2A).
Disposition
58 In this case the Tribunal correctly identified the statutory question and applied Direction 21 as it was required to do, having regard to the evidence before it. The assessment of evidence, facts and weight were essentially for the Tribunal. Mr Boyes has failed to make out his case that the Tribunal had no regard to relevant considerations, relied on irrelevant considerations and asked itself the wrong question. I would therefore dismiss the application, with costs.
59 Mr Boyes was ably assisted by pro bono counsel. The Court acknowledges the very great service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as counsel (or solicitor) in the presentation of argument and preparation of a case.