Consideration
22 In the present case, the applicant was, as a juvenile, charged with four offences, namely: (a) unauthorised dealing with shop goods (maximum $150); (b) stealing; (c) stealing; and (d) receiving tainted property. The charge in (a) was dealt with by the Brisbane Childrens Court in November 2017. No conviction was recorded and the applicant was reprimanded (CB 48). Charges (b), (c) and (d) were dealt with by the Richlands Childrens Court in February 2019. On all charges, no conviction was recorded. It is also recorded: "Restorative justice order within 12 months" (AB 48). The Minister accepts that these dispositions must have proceeded on the basis that there was a finding of guilt (T30). The Minister accepts that the effect of Thornton HC is that the Tribunal could not have regard to the findings of guilt in making the decision under s 501CA (T30). As already noted, the Minister accepts that the Tribunal did take into account those findings of guilt and therefore erred. In my view, those concessions are correctly made.
23 The remaining issue is whether the applicant has established that the error was material in the sense that there was a realistic possibility that the decision could have been different had the error not occurred: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [2], [51] per Kiefel CJ, Gageler, Keane and Gleeson JJ; Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32] per Kiefel CJ, Keane and Gleeson JJ, [45]-[46] per Gageler J.
24 In my view, considering the reasons of the Tribunal as a whole, the error was material in that sense.
25 At [2] of the Tribunal's reasons, the Tribunal stated:
[The applicant] has compiled a not-insignificant history of offending in Australia. As a juvenile he was convicted of four offences, all of which were punished by non-custodial sentences. As an adult he has convictions for eight offences that attracted a cumulative head custodial term of six and a half years. His offending history can be summarised as follows: …
(Emphasis added).
26 Immediately after that passage, the Tribunal set out two tables. The first was headed "Convictions as a juvenile" and the second headed "Convictions as an Adult". In the first table, the Tribunal set out details of the four instances of juvenile offending referred to above, in respect of which no conviction was recorded. It should be noted that the Tribunal's statement in [2] that, as a juvenile, the applicant was "convicted of four offences" is factually inaccurate. In fact, as detailed above, no conviction was recorded in respect of these charges. Likewise, the heading to the first table ("Convictions as a juvenile") is inaccurate.
27 At [20]-[22], the Tribunal discussed the judgment in Thornton FFC, which was decided before the Tribunal's decision. (At the time of the Tribunal decision, there had been a grant of special leave to appeal to the High Court from that decision, but the appeal had not yet been heard.) The Tribunal stated at [21]-[22]:
21. In assessing the extent to which Thornton [FFC] binds this Tribunal, it must be understood Thornton [FFC] specifically stands for the proposition that s 184 of the Youth Justice Act 1992 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) engage the provisions of s 85ZR(2) of the Crimes Act 1914 (Cth). That said, I will, out of an abundance of caution proceed on the basis that (1) Thornton [FFC] binds this Tribunal such that it cannot consider the fact of a conviction and that (2) it does not preclude consideration of the underlying conduct giving rise to the subject offending in circumstances where there is independent evidence of that conduct before this Tribunal.
22. The Respondent contends that Thornton [FFC] was wrongly decided. That issue remains to be determined by the High Court of Australia in respect of which there has been a successful application for special leave and the matter is otherwise pending. My primary focus in these Reasons in assessing the nature and seriousness of the Applicant's unlawful conduct will be on his convictions as an adult. Those convictions were for eight specific offences that came before the Brisbane Children's Court of Queensland on 13 September 2019 when the Applicant was aged 18 years and two months.
(Emphasis added.)
28 The Tribunal's reasons are structured on the basis of the primary and other considerations outlined in Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). I note that primary consideration 1 is protection of the Australian community from criminal or other serious conduct.
29 At [32]-[36] of the Tribunal's reasons, which formed part of the Tribunal's consideration of primary consideration 1, the Tribunal addressed paragraph 8.1.1(1)(d) of Direction 90. In that context, the Tribunal stated:
32. This paragraph [i.e. 8.1.1(1)(d)] deals with (1) the frequency of a person's offending and (2) whether there is any trend of increasing seriousness in that offending. First, in terms of frequency, the Applicant has committed twelve offences that have been dealt with across three sentencing episodes. His first four offences were committed as a juvenile and he was sentenced for them as a juvenile. His remaining eight offences were committed as a juvenile and he was sentenced for them as an adult.
33. The totality of his offending history runs (in terms of sentencing episodes) from November 2017 to September 2019. The commission of 12 offences during an approximate two year period is surely frequent offending. Likewise, if we only look at the offending for which he was convicted as an adult, (i.e on 13 September 2019) we are [talking] about the commission of eight offences in a period of well under a year. On either metric, the Applicant's offending has been frequent.
(Emphasis added.)
30 In the above passage, the Tribunal stated that the applicant had committed twelve offences. That number includes the four instances of juvenile offending referred to above, in respect of which no conviction was recorded. (This is apparent from [32], and also from [2], set out earlier in these reasons.) Insofar as the Tribunal stated that the applicant's offending history ran from November 2017, this is the month of the first instance of juvenile offending, in respect of which no conviction was recorded.
31 At [34] of its reasons, the Tribunal had regard to the "totality of the offending", including his juvenile offending, in considering whether there had been an increase in seriousness, concluding that there had been.
32 At [35], the Tribunal stated that, "[i]f viewed through the lens of the Applicant's offences for which he was convicted as an adult", the offending was very serious from the outset.
33 At [36], the Tribunal stated that it was satisfied that the applicant's offending "has been frequent" and "when viewed through the lens of his entire history, there is an obvious trend of increasing seriousness". It is apparent that, in that sentence, the Tribunal was relying on the applicant's juvenile offending. The Tribunal also added (with reference to the applicant's adult offending): "Otherwise, his offending punished on 13 September 2019, was serious from the outset."
34 The Tribunal addressed paragraph 8.1.1(1)(e) of Direction 90 at [37]-[41] of its reasons. The Tribunal referred, at [37], to the applicant's "pattern of offending" and made three observations about the effect of that offending. The first of these (at [37]) was that "his offences for which he was convicted as a juvenile demonstrate a failure to respect the rights of others to own and enjoy the property they have acquired". Again, this statement is factually inaccurate, in that the applicant was not convicted; no conviction was recorded. Further, it is another instance of the Tribunal relying on the applicant's juvenile offending.
35 At [46]-[47], the Tribunal dealt with the issue of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct. In this context, the Tribunal referred to and relied on the applicant's juvenile offending. This point was repeated at [80(b)] of the Tribunal's reasons, forming part of its conclusion in relation to primary consideration 1.
36 At [172] of the Tribunal's reasons, in the context of considering links to the Australian community, the Tribunal stated that the applicant "committed his first offence in Australia in October 2017 and was convicted of that offence in November of that year". Again, this is inaccurate as the applicant was not convicted.
37 At [188], the Tribunal summarised its conclusions in relation to the various considerations identified in Direction 90. The Tribunal concluded that: primary consideration 1 carried a very heavy level of weight against revocation; primary consideration 2 was not relevant; primary consideration 3 weighed moderately in favour of revocation; and primary consideration 4 weighed heavily against revocation. Further, all but one of the other considerations weighed in favour of revocation of the cancellation decision.
38 At [189], the Tribunal stated that a "holistic view of the evidence" relevant to the primary and other considerations did not favour revocation of the delegate's decision not to revoke the cancellation decision.
39 The summary set out above demonstrates that, notwithstanding the Tribunal's outline of its approach at [21]-[22] of its reasons, the Tribunal placed considerable emphasis on the findings of guilt in respect of the applicant's juvenile offending. The Tribunal referred to it repeatedly through its consideration of primary consideration 1. I am satisfied that, had the Tribunal not had regard to the applicant's juvenile offending, its conclusion in relation to primary consideration 1 may have been calibrated differently, and this could have affected its overall assessment of whether there was "another reason" for the purposes of s 501CA(4). Accordingly, I am satisfied that the error was material in the sense set out above, and therefore that the Tribunal's decision is affected by jurisdictional error.