Consideration
78 The Minister's response to the applicant's case under ground 2 turned in part on the proposition that the Tribunal did not treat the incidents involving the applicant at nine years of age as instances of criminal offending. Rather, so the Minister submitted, the Tribunal treated them merely as incidents of poor conduct to be considered as part of the applicant's history in Australia.
79 It must be accepted that the Tribunal recognised that under the criminal law of Queensland and of Victoria, criminal responsibility could not attach to a child under 10 years of age. The Tribunal also recognised that the relevant statutory provisions were essentially restatements of the common law presumption of doli incapax, although both provisions raised the age of criminal responsibility from the common law age of 7 to 10. This might have led the Tribunal to avoid attributing a criminal dimension to the incidents in which the then nine-year-old applicant was said to be involved. As the Minister noted, the Tribunal's description of "the offences and incidents", including in 2003 when the applicant was nine, were given under the relatively neutral heading "Reports to police regarding [the applicant's] behaviour as a child".
80 Seeking to read the Tribunal's reasons fairly and as a whole, and in conformity with the approach approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, I am unable to accept the Minister's submission. It seems to me that, when read as a whole, it is apparent that the Tribunal had regard to the incidents involving the then nine-year-old applicant as instances of offending, or transgressions of the criminal law, even though the events had not, and could not, be the subject of a charge and criminal proceeding. The considerations that lead me to this conclusion are set out below.
81 First, there was the Tribunal's discussion of the applicant's submission on this topic, which was in fact headed "Offences or alleged offences committed as a child".
82 Also indicative of the Tribunal's characterisation of the applicant's nine-year-old conduct as criminal offending was the fact that, when the Tribunal specifically asked itself about the relevance and weight that it could attach to the applicant's behaviour as a child, it referred to this behaviour as "uncharged acts". Even acknowledging that under the criminal law not all uncharged acts may "be sufficiently specific to found a charge" (see HML v The Queen [2008] HCA 16; 235 CLR 334 at [129] (Hayne J); Johnson v The Queen [2018] HCA 48; 360 ALR 246; 92 ALJR 1018 at [20]), the Tribunal's question would imply that, subject perhaps to a limitation of that kind, the conduct with which the Tribunal was concerned was of a kind capable of supporting a charge for a criminal offence: compare Johnson v The Queen at [20], where the High Court commented that "uncharged act evidence adduced as propensity evidence … is seldom of a kind … radically different from charged act evidence". This impression is confirmed by the fact that, immediately after this, the Tribunal went on to mention the evidentiary use of uncharged acts in the context of trials for criminal offences.
83 Further, although the Tribunal did not say that the criminal law notion of "uncharged acts" was directly relevant to its own task, nonetheless its discussion of uncharged acts can be seen to feed into the way the Tribunal framed its own reasoning. This may be discerned in part from the Tribunal's statement to the effect that, while it was not its place "to make findings of fact regarding the culpability of a child in circumstances in which the courts are not permitted to do so in the criminal context", it "can have regard to a person's behaviour when it is relevant to do so", as it considered it was in the applicant's case. The Tribunal's rationale for taking into account "uncharged acts" in administrative decision-making was effectively the same as the rationale it had identified in relation to the use of uncharged acts in sentencing: that an administrative decision, like a sentence, should not be determined on a limited basis that had regard only to the conviction and the events leading to it.
84 As noted already, the applicant argued that there was jurisdictional error because of the Tribunal's consideration of the applicant's supposed conduct as a nine-year-old since this was not a matter that it was open to the Tribunal to consider as it did. To assess this argument, it is necessary to look at the statutory basis for the Tribunal's decision.
85 The decision under review raised the question whether or not there was "another reason" why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Migration Act. Save for the operation of s 499 of the Migration Act, this was an otherwise very general question, the ambit of which would only have been confined by limitations to be implied from the scope and purpose of the Act and the subject-matter to be decided: compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). As already stated, however, Direction No 65, made pursuant to s 499, further controlled the decision-making under s 501CA(4)(b)(ii), including on the Tribunal's review. A former visa-holder's present and past conduct was of relevance to at least some of the considerations to which Direction No 65 directed the decision-maker's attention.
86 As noted above, by virtue of paragraph 13(2) of Direction No 65, a primary consideration in deciding whether to revoke a visa cancellation decision was the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) required decision-makers, in considering the protection of the Australian community, to give consideration to: (a) the nature and seriousness of the non-citizen's conduct to date; and (b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
87 Relevantly, paragraph 13.1.1(1), headed "The nature and seriousness of the conduct", provided that the decision-maker was to have regard to a number of factors in considering the nature and seriousness of the non-citizen's criminal offending or other conduct. These factors included:
…
d) The frequency of the non-citizens offending and whether there is any trend of increasing seriousness; [and]
e) The cumulative effect of repeated offending;
…
Paragraph 13.1.2(2)(b) further provided that, in considering the risk to the Australian community, decision-makers were required to have regard to "[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending".
88 Neither paragraph 13.1.1(1) nor paragraph 13.1.2(2) confined its attention to criminal conduct; "other serious conduct" was also relevant. This might suggest that there was no jurisdictional error of the kind for which the applicant contended.
89 The difficulty with the Tribunal's analysis in this case is not that it determined to place some weight on the applicant's conduct as a nine-year-old child but that it ultimately treated the two incidents involving the applicant as a nine-year-old as if part of a pattern of criminal offences, a matter of potential relevance to paragraphs 13.1.1(1)(d) and (e), as well as paragraph 13.1.2(2)(b). In neither case could the applicant have borne criminal responsibility for what he did, however; and, in consequence, neither incident could properly be seen as part of a pattern of criminal offending.
90 When the Tribunal turned to consider the nature and seriousness of the applicant's conduct, as required by Direction No 65, it not only considered the offence that had precipitated the cancellation of his visa, but also "the reports of [the applicant] having exhibited violent behaviour begin[ning] with an offence of assault against another child when he was nine years of age" (at [83]; emphasis added). The "offence of assault" was a reference to the childish dispute about borrowing a bike, set out at [67] above, in which the then nine-year-old applicant had purportedly hit another boy after the other boy had taken a "swing" at him.
91 Subsequently, in considering the risk to the Australian community, the Tribunal referred to the incident that gave rise to his conviction leading to visa cancellation as "part of a pattern that started when he was a child" and which "reflect[ed] a pattern of aggression" (at [86]; emphasis added). The Tribunal emphasised its finding that there was such a pattern with its comment immediately thereafter (at [87]) that:
When he was nine years of age, [the applicant] was involved in what could be ignored as a spat with another boy had it been an isolated incident. It was followed, however, by an incident when he was 15 years when he had threatened to kill both his mother and his stepfather and assaulted his mother.
92 At [97] the Tribunal distinguished the applicant's "offences, or alleged offences, and incidents" as a child from those as a 17-year-old, in its statement that "[h]aving regard only to those that have been reported since he attained the age of 17 years, [the applicant's] behaviour has shown a trend of behaviour that is uncontrolled in its outcome whether that is directed at people or property". Yet in its conclusion at [120], in relation to the likelihood of further criminal conduct, the Tribunal emphasised that:
[The applicant's] history of offending began when he was only nine years of age and had only been in Australia for two years or so. Therefore, while it can be said that most of his formative years have been spent in Australia, it can also be said that he brought the foundations of his offending behaviour with him. … The risk of his repeating his behaviour is at an unacceptable level given the serious consequences that would follow should he repeat it.
(Emphasis added)
93 In the result, the Tribunal referred to the applicant's "offences" at nine years of age, a "pattern … that started when he was a child" (at [86]) and, in concluding, stated (at [120]) that the applicant's "history of offending began when he was only nine years of age". The Tribunal's characterisation of his involvement with the police at nine years of age as criminal "offending" is further supported by the Tribunal's statement (at [120]) that the applicant "brought the foundations of his offending behaviour with him" from New Zealand when he arrived in Australia as a child.
94 Having regard to the language used by the Tribunal in its reasons, and to its analysis and reasoning overall, the Tribunal's references to the applicant's "offending" as a child cannot be read as simply references to "unsatisfactory" conduct, as the Minister would have it. "Offending" in the Tribunal's reasons signified transgressions of a criminal nature, even though, as the Tribunal acknowledged, the applicant had been too young to bear criminal responsibility. This is consistent with the Tribunal's reference (at [54]) to "behaviour for which a child either may not or cannot be charged" as "uncharged acts" and to the accompanying discussion in its reasons (at [55]-[56]) about the relevance and admissibility of uncharged acts, referred to earlier.
95 The Tribunal's consideration of the incidents involving the applicant as a child was irrelevant to any escalating seriousness of offending because the applicant could not have been relevantly "offending" as a nine-year-old child. In treating the applicant's conduct as a nine-year-old, described in its reasons at [36]-[37] as "Burglary with breaking" and "Common Assault", the Tribunal failed to have regard to the fundamental policy of the criminal law regarding the criminal responsibility of young children, who under the age of 10 are deemed not to be responsible for any criminal act, regardless of its seriousness. In RP v The Queen at [8], Kiefel, Bell, Keane and Gordon JJ explained that:
The rationale for the presumption of doli incapax is the view that a child aged under fourteen years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.
(Citation omitted)
96 Generally speaking, to disregard in administrative decision-making such a long-established and fundamental common law presumption, mediated today by statute and based on an entrenched and accepted rationale, would be bad as a matter of public policy: compare R v Whitty (1993) 66 A Crim R 462 at 462-463 (Harper J); R v L (1994) 16 Qld Lawyer Reps 27 at 28 (Judge McGuire); R v ALH [2003] VSCA 129; 6 VR 276 at [72] (Cummins AJA, with whom Batt JA relevantly agreed); BP v The Queen [2006] NSWCCA 172 at [27] (Hodgson JA, with whom Adams J and Johnson JA agreed); R v Cheng [2015] SASCFC 189 at [14] (Sulan and Peek JJ); Bronitt S and McSherry B, Principles of Criminal Law (3rd ed, 2010) at 171; Freckelton I and Andrewartha D, Indictable Offences in Victoria (5th ed, 2010) at 23; Crofts T, "The Criminal Responsibility of Children" in Young L, Kenny M A and Monahan G (eds), Children and the Law in Australia (2nd ed, 2017) at 157-158. It is improbable that, without specifically indicating such an intention, the legislature intended that this long-accepted presumption of the criminal law should be set at nought by an administrative tribunal in its appraisal of a person's criminal offending, since this would have the tendency to undermine the policy which it protects: compare Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; 91 FCR 234 at [40]-[45].
97 The position is different where the language, context and purpose of legislation shows that the presumption is not intended to affect the operation of the Act in question. Field v Gent (1996) 67 SASR 122, which was mentioned by the Minister, is distinguishable because the governing statute in that case (the Criminal Injuries Compensation Act 1978 (SA)), specifically showed, by its definition of "offence", that the legislative policy under that Act was to allow compensation to victims of certain behaviours even though the perpetrator, then aged 10 years, was subject to the (rebuttable) presumption that he could not commit an offence: see Field v Gent at 128. BNB v Victims of Crime Assistance Tribunal [2010] VSC 57; 27 VR 425, also mentioned by the Minister, is another example where the legislation (the Victims of Crime Assistance Act 1996 (Vic)) evidenced an intention, there by its definition of "criminal act", to require courts and tribunals to disregard the principle of doli incapax and its associated presumption: see BNB at [35]. This case is also clearly distinguishable from the present.
98 Further, the alleged incidents of "Burglary with breaking" and "Common Assault" were never contested before a court: no plea was ever entered, no witnesses were called, and no conviction was recorded. The material on which the Tribunal relied in relation to these incidents was apparently drawn from police service files from 2003. ST1 and ST2 were documents entitled the "Solicitors Office Report Details", which appeared to contain police reports or records of some description. The applicant suggested, and the Minister did not deny, that the documents were obtained by the Minister's legal representatives under subpoena, and provided to the Tribunal as the documents were not before the decision-maker who made the decision under review. The identity of the person or persons compiling the material was not disclosed; and, given that the matter could not proceed to court, the reliability of its contents was unascertained. Although some of the material referred to "admissions" made by the then nine-year-old applicant, it is generally accepted that such purported admissions should be treated cautiously as they may not be reliable. In its Report No 84, the Australian Law Reform Commission stated that it should not be assumed that statements made, or recorded as made, by young children in the presence of police and parents are reliable: see Australian Law Reform Commission, Report No 84: Seen and heard: priority for children in the legal process (1997) at 14.21, 14.25-14.26, 14.30. In such circumstances, there was error in treating the material in these records as if it established that the applicant had committed the criminal offences of "Burglary with breaking" and "Common Assault", since there was "no logical connection between the evidence and the inferences or conclusions drawn": see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135]. This further supports the finding of jurisdictional error set out below: see SZMDS at [132].
99 I reject the Minister's submission that the applicant's conduct as a nine-year-old child was not a significant part of the Tribunal's decision. This argument is difficult to reconcile with the prominence of the references to this conduct in the Tribunal's reasons, including in the Tribunal's conclusion. As already stated, by commencing its consideration of the escalating pattern of seriousness of offending at a time when the applicant could not, by law, be attributed with criminal responsibility, the Tribunal focussed on a consideration that was irrelevant to that supposed pattern. Evidence of the conduct of the applicant at nine years of age was, for the same reason, incapable of providing a logical basis for the Tribunal's statement that the applicant's "history of offending" began at this young age. Yet the Tribunal's conclusion at [120] indicated that the identification of such a pattern and history of offending was an important element in the Tribunal's decision-making. This is borne out by the fact that such an approach was in apparent conformity with Direction No 65: see [86]-[89] above.
100 This does not mean that, on review of a decision not to revoke a visa cancellation decision under s 501CA(4)(b)(ii), the Tribunal cannot take into account evidence about a former visa holder's conduct as a child. Rather, it is to say no more than that evidence of that conduct must have some relevance to an issue that properly arises in the course of the Tribunal's decision-making and that there must be some logical connection with the inferences or conclusions that the Tribunal then draws from that evidence. It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.
101 For the reasons stated above, however, in this case, in elevating the applicant's conduct as a nine-year-old child to criminal offending, the Tribunal took into account a consideration that was irrelevant to his supposed pattern and history of offending, and provided no logical connection with the findings and conclusions the Tribunal made in that regard. Jurisdictional error was thereby disclosed, whether viewed as the consideration of irrelevant matters (as the applicant argued) or as an aspect of legal unreasonableness: compare SZMDS at [132], [135]; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [64].
102 For the reasons stated, ground 2 is not only of sufficient merit to justify the extension of time sought by the applicant, it also discloses jurisdictional error.