Ives v Minister for Immigration and Multicultural Affairs [2025] FCA 1033

1. The applicant relied on just one ground of review.
2. In making its decision, the Tribunal was required by s 499(2A) of the Migration Act to comply with a direction issued by the Minister under s 499(1). The Minister had issued such a direction, entitled: "Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA". It was the applicant's case that the Tribunal did not comply with that direction in one respect.
3. One of the "primary considerations" that Direction No. 110 required the Tribunal to take into account was the "protection of the Australian community from criminal or other serious conduct" (cl. 8(1)). In elaboration of that consideration, cl. 8.1(2)(a) obliged the Tribunal to consider "the nature and seriousness of the non-citizen's conduct to date"; and in relation to that topic, cl. 8.1.1(1)(a) provided as follows:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i. violent and/or sexual crimes;

ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.

1. For the purposes of its assessment of the nature and seriousness of the applicant's past conduct, the Tribunal held that his conviction for dangerous driving occasioning grievous bodily harm was a "violent crime" within the meaning of cl. 8.1.1(1)(a)(i). The applicant submits that it was not, and accordingly says that in so finding the Tribunal failed to comply with the Direction.

1. The offence of which the applicant was convicted is defined in s 52A(3)(c) of the Crimes Act in the following terms:

Dangerous driving occasioning grievous bodily harm A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle -

...

(c) in a manner dangerous to another person or persons.

1. There are three particular features of that offence that may be noted for present purposes.
2. First, the offence will only be established in circumstances where a person has suffered grievous bodily harm. That phrase is defined in s 4 of the Crimes Act to include "any permanent or serious disfiguring" of a person. It is a phrase which otherwise bears its ordinary and natural meaning, which is, in essence, really serious bodily harm: see, e.g., Director of Public Prosecutions v Smith [1961] AC 290 at 334; Swan v R [2016] NSWCCA 79 at [54]- [71].
3. Secondly, that grievous bodily harm must be occasioned by an impact involving a vehicle being driven by the defendant.
4. Thirdly, the offence does not require proof of any mental element. An earlier form of the offence (the differences being immaterial for present purposes) was considered by the High Court in Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29. Mason J there observed (at 490):

The misdemeanour created by s 52A is capable of being committed by a person who is the driver of a motor vehicle. The section was introduced because of the reluctance of juries to convict motorists of manslaughter in the factual circumstances which it envisages: Attorney-General (NSW) v Bindoff [(1953) 53 SR (NSW) 489 at 490]. However, it is apparent from the terms of the section that mens rea is not an essential element of the misdemeanour which it creates. In order to support a conviction under s 52A it is sufficient that death or grievous bodily harm to a person was occasioned through the specified means at a time when the defendant was driving ... in a manner dangerous to the public. It is well settled that the test for determining whether the defendant was driving "in a manner dangerous to the public" is an objective one which takes into account "all matters connected with the management and control of a car by a driver when it is being driven": R v Coventry [(1938) [1938] HCA 31; 59 CLR 633 at 639].

1. To similar effect, Wilson, Deane and Dawson JJ held (at 499):

The offence created by s 52A does not require the prosecution to prove any state of mind on the part of the driver, although his act of driving must be conscious and voluntary and he may have a defence of mistake of fact on reasonable grounds: R v Coventry [(1938) 59 CLR 522 at 638]. ... [T]he mental state of the driver is irrelevant, for the section imports an objective standard by which his driving is to be judged.

1. At about 5:10am on Wednesday 2 September 2020, the applicant was driving a Mitsubishi Pajero northwards on the Cumberland Highway approaching the intersection with Merrylands Road. He stopped at the traffic lights in order to turn right onto Merrylands Road, and waited for the red arrow to turn green. Traffic travelling in a southerly direction had a green light.
2. While the traffic light was still red, the applicant commenced to make a right-hand turn. As he crossed the opposite side of the Highway, he struck a motorcyclist travelling southwards who still had a green light. The collision caused the motorcyclist to be thrown from his bike onto the kerb, and he suffered very serious injuries, including multiple fractures and a spinal cord injury. Ultimately, he required a right below-knee amputation and spinal surgery.
3. The applicant said to a police officer who attended the scene: "I was waiting for the green light, I had stopped, I swore it turned green, I saw the other cars parked there, I was turning right onto Merrylands Road and a motorbike hit me, that was it I waited for police."
4. At the time of the accident the offender was tired (having just completed a night-shift at work), but he had not started to fall asleep. He was not using his phone. The sentencing judge found that the impact was as a result of a "significant level of inattention".

1. The critical reasoning of the Tribunal on this issue was brief. It held (at [31]):

On balance, acknowledging the violence done to the victim and the victim's immediately resulting injuries ..., the Tribunal considers that this crime can be considered to be violent and consequently that this offending should be viewed very seriously.

1. In other words, the Tribunal appeared to reason directly from the physical impact of the applicant's conduct on the victim to the conclusion of a violent crime. It did not rely on any subjective mental state of the applicant, any particular quality or feature of the applicant's conduct, or any other matter, in reaching that conclusion.

1. There was one question of construction upon which both parties were agreed. The term "violent crimes" might be used to describe the particular circumstances of an individual's criminal offending, or it may designate an inherent quality of certain offences. Here, it was common ground that the term was used in Direction No. 110 in the former, and not the latter, sense. In my view the parties were correct to proceed on that basis, having regard to the purpose of the inquiry in respect of which the Direction has been issued. That is to say, the determination of whether there is "another reason" to revoke the mandatory cancellation of a non-citizen's visa will necessarily proceed by reference to the "specific circumstances of the case" (cl. 5.1(3)), and any consideration of "the nature and seriousness of the non-citizen's conduct to date" (cl. 8.1(2)(a)) is naturally directed to the person's actual conduct, as opposed to the particular offence with which they happen, for whatever reason, to be charged. In the context of Direction No. 110, for example, a person who physically assaults another and steals their wallet has committed a violent crime, even if they are charged and convicted only of theft (and not robbery).
2. The parties were also agreed that contested questions of construction should be resolved by reference to the text and context of the Direction itself. Again, they were correct to do so. Indeed, it is important to keep that anchoring principle in mind, given that the question whether a particular crime is "violent" (or involves "violent conduct", or similar inquiries) has the potential to arise in a variety of different contexts. The parties referred to several cases in which questions of that kind had been considered, and sought to rely upon or distinguish them, as required, for their arguments. Some care, though, needs to be taken in identifying the assistance that may be obtained from considerations of similar issues in other settings. Whether or not a crime is properly regarded as a "violent crime" is capable of varying depending on the context in which, and the reason for which, the classification is demanded. It is important, in other words, to bear in mind that the question to be addressed is the meaning of the phrase "violent crime" as it is used in Direction No. 110, and not some broader quest to identify a unifying principle in accordance with which all crimes (let alone conduct) may be designated either violent or non-violent for all purposes.
3. In any event, as I have recorded, at the core of both parties' submissions was a focus on the text and context of Direction No. 110. In particular, both parties relied heavily on what they contended were the ordinary meaning of the disputed words. (It is perhaps a testament to the subtlety and flexibility of the English language that both submitted that the ordinary meaning of the words "violent crime" favoured their own case).
4. The applicant submitted that:

the ordinary meaning of a violent crime is a crime that involves the use of violence by the perpetrator. It is the violence of the offender that is relevant - even if the victim is unharmed physically - for example an armed robbery where money is taken under threat of violence. On the other hand people may be seriously injured or killed by a crime that involves no violence by a perpetrator. A workplace accident where an employee was injured because of a dangerous system of work would not be described as a violent crime by the employer.

1. The Minister, on the other hand, submitted that "where the outcome of a crime has caused injury or damage, it is ordinarily understood to be a violent crime". The Minister further relied upon the definition of "violence" in the Australian Legal Dictionary (2nd ed., Finkelstein et al eds, Lexis Nexis Butterworths, 2016):

Violence. Unjust, unwarranted, or unlawful use of force; violent conduct towards property or persons, whether or not that conduct was intended to cause injury or damage: for example, Crimes Act 1900 (NSW) s 93A; Summary Offences Act 1988 (NSW) s 11A.

1. I do not think that either party's position is capable of unqualified acceptance.
2. One difficulty with the applicant's definition is that it involved a degree of question begging. That is, to say that "a violent crime is a crime that involves the use of violence by the perpetrator" assumes the very thing in issue. Nor was any greater explanatory power provided by the attempt to define violence as "what is done by the person rather than focussing on the effect that that violence has". The fundamental question remained: what is meant by violence?
3. The applicant was plainly correct that a violent crime need not necessarily involve physical injury or damage. A person who commits armed robbery would obviously be regarded as having committed a violent crime even if the weapon they were carrying was never used to cause injury to the victim. In such a case, it is the threat of violence that renders it a violent crime: see, e.g., R v Butcher [1986] VicRp 4; [1986] VR 43 at 47-48, 50-51 and the authorities there cited.
4. Acceptance of the negative proposition that violence need not necessarily involve any actual physical injury or damage, does not advance very far, however, the positive endeavour to ascertain its meaning.
5. The Minister's submission, on the other hand, that one need only look to the "outcome" of a crime, with the presence of injury or damage being sufficient to mark the as crime violent, is plainly both under- and over-inclusive. It is under-inclusive, because it does not capture unrealised threats of physical harm (which, to be fair, the Minister agreed constituted violence). It is over-inclusive because it will pick up plainly non-violent crimes (the applicant's example of a failure to provide a safe system of work leading to injury is one such example).
6. The dictionary definition upon which the Minister relied, I think, comes closer to providing the answer. Consistently with the core of the applicant's submission, it directs primary attention to the conduct of the perpetrator. That is to say, it identifies violence as a quality of the "use of force" (with the relevant quality being that the use of force in question is "unjust, unwarranted, or unlawful"). It also makes plain that there is no necessary requirement for any subjective intention to cause injury or damage; it is enough that the use of force is unjust, unwarranted, or unlawful. It is still not a complete definition, however, in that it does not unambiguously encompass threats, and, more broadly, it does not clearly address whether an actual physical effect is or is not required.
7. In my opinion, the critical features of the concept of "violent crimes" in the ordinary meaning of that phrase are as follows:

(a) A necessary condition of the existence of violence is the actual or threatened use of physical force against a person or property. In some uses of language, and in some contexts, the term will be used by way of metaphor or analogy to include other forms of compulsion (what might be termed emotional violence, or economic violence, for example), but in this context I think it is plain that the concept is limited to physical force (or threatened uses of it). As was observed in R v Butcher at 53:

As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: "inherent overpowering force, whether physical or mental". In the Oxford English Dictionary violence is defined as follows: "(Law) unlawful exercise of physical force, intimidation by the exhibition of this."

(b) It is the requirement for the actual or threatened use of physical force that operates to exclude conduct such as the failure to provide a safe system of work from the concept of violence. In cases of that kind, a physical outcome is produced otherwise than by the use (or threatened use) of force by the wrongdoer. As always, at the boundary there may be cases that are difficult to classify, but it seems to me that conceptually the categories are quite distinct.

(c) I do not consider that there is some minimum quality of intensity, vigour, or magnitude required before a particular use (or threatened use) of force will be capable of constituting violence. There can plainly be degrees of violence, but the fact that some applications of physical force are comparatively mild does not seem to me to be capable of altering their fundamental character as violent. The degree of force involved may be relevant to answering the question whether its use was unlawful (the issue to which I will turn next), but that is a different aspect of the concept of violence. In and of themselves, the amount of energy expended by the perpetrator, or the size of the impact felt by the victim, do not serve to delineate violent from non-violent conduct.

(d) Daily life involves many physical interactions between people that are, on no view, violent. An actual or threatened use of force against a person or property must, therefore, have some additional quality before it will be regarded as violent. Although it is not a feature of all violence, I do consider that all unlawful uses (or threatened uses) of physical force are violent. Any use of force against another person, in circumstances where the law prohibits it, is inherently violent.

(e) Connected with the previous point, there is no inherent or invariable mental state required on the part of a perpetrator before conduct will be regarded as violent. It may be that a particular mental state is required in some cases in order to make the actual or threatened use of force unlawful, but in other cases there will be no requirement other than that the conduct in question is voluntary.

(f) It should not be thought that my present focus on unlawfulness as the fundamental criterion distinguishing between violent and non-violent applications (or threatened applications) of force means that I have overlooked that some of the clearest examples of violence in its ordinary sense are lawful: war perhaps being the obvious case. For the purposes of ascertaining the meaning of the term "violent crimes" in Direction No. 110, however, it seems to me that such examples can be put to one side. I am concerned only to identify the feature that distinguishes violent from non-violent crimes. And it seems to me that that boundary can only sensibly be drawn between those crimes that involve the unlawful use of force, and those that do not.

1. Applied to the circumstances of the present case, I consider that the result is that the applicant was convicted of a violent crime.
2. The conduct in respect of which the applicant was convicted plainly involved the use of force by the applicant against the rider of the motorcycle. That conclusion is not undermined by the fact that that there was no mental element for the offence of which he was convicted, and that his application of force to the motorcycle rider was due only to a "significant level of inattention". To say that the applicant didn't "use" force against the rider of the motorcycle seems to me to simply be another way of saying that the applicant didn't intend to cause him harm; but the relevant concept of "use of force" in the sense in which I consider the ordinary meaning of "violence" would be understood, is really saying no more than that force was "applied".
3. It may be accepted that driving a car is not ordinarily regarded as violent conduct. But that does not seem to me to answer the question. Driving a car plainly can be violent: to take an extreme example, surely no one would deny that intentionally driving a car into a crowd of people was violent (and I did not understand the applicant to contend otherwise). Once it is accepted, that an intention to cause harm is not the defining feature of violence, it must be accepted that the application of force to others is capable of being unlawful in a range of circumstances that will be accompanied by a range of different mental states. I can see no reason why the boundary should be drawn at some other mental state (recklessness, for example).
4. In Chandler v Director of Public Prosecutions (2000) 49 NSWLR 1; [2000] NSWCA 125, the issue before the NSW Court of Appeal was whether the offence created by s 52A(3)(c) was an "offence involving violent conduct" for the purposes of the Drug Court Act 1998 (NSW). I have already referred to the caution that should be exercised in making use of authorities that consider similar kinds of issues to the present but in different contexts. In particular, the questions whether particular offending constitutes a "violent crime", and whether a particular crime involves "violent conduct", seem to me to be capable of raising different considerations with potentially different answers. Nevertheless, while being mindful of the need for caution the following observations of Hodgson CJ in Eq (with whom Stein JA agreed) at [50] are instructive:

[S]o long as the conduct itself is voluntary, the circumstance that there may be no advertence to its dangerousness, and no intention of the violent outcome, does not prevent the conduct being called violent conduct. The elements of the offence in question here include voluntary conduct, which is objectively dangerous, and which does in fact do violence to a person. The conduct involves what can be regarded as a dangerous weapon; so it is not as if the objective dangerousness of the conduct, or the violent outcome, are matters that could be considered foreign to the voluntary conduct.

1. In cases (like the present) where actual physical harm is caused to another person by the application of force, the fact that it was caused by voluntary conduct in circumstances where the law prohibits it seems to me comfortably to bring it within the ordinary meaning of the word "violent". In other words, the unlawful use of force will, by definition, be a violent crime.
2. Nor can it make any difference that the force was applied via a motor vehicle. Once again, being mindful of the need for caution in having regard to authorities in different contexts, the observations of Hodgson CJ in Eq in Chandler at [49] have some relevance:

[T]he circumstance that violence is done to a person, not by vigorous physical activity, but through some instrument that may be activated without any vigorous physical activity, does not prevent the doing of violence to a person by those means being properly described as violent conduct. There is perhaps a latent conflict in ordinary usage here: the use of a weapon which does violence to a person would ordinarily be regarded as aggravating violent conduct, whereas on the other hand, it may be seen as negativing violent conduct because it reduces to near-inactivity the physical action required from the person causing the violence. Even though one must ultimately apply the ordinary meaning of words, I think this should be done with due consideration; and on the basis of my due consideration, my view is that the circumstance that violence is caused to a person by an instrument activated by minimal physical activity does not make that activity other than violent conduct.

1. The critical point being made by his Honour, with which I would agree, is perhaps twofold:

(a) First, there is no inherent quality of vigour or intensity required before conduct can be labelled violent. To take an obvious example, the physical effort required to pull the trigger on a gun is very low indeed; but the potential for that action to be violent is obvious. Thus, the fact that the physical activity of the driver of a car may be minimal, and in the abstract no different to that involved in the everyday ordinary operation of a vehicle, is beside the point. In relation to this aspect of the definition of violence, the question is only whether force is applied (or threatened to be applied) to another person.

(b) Secondly, the fact that force is applied by means of an instrument, rather than by direct human contact, can make no difference. Violence can obviously be carried out with a weapon. And the fact that the instrument is not intended to be used as a weapon, but is simply the means by which force was applied to another person, can make no difference (at least in relation to this aspect of the definition of the concept of violence).

1. Once it is acknowledged that the applicant applied force to the motorcycle rider, and did so in circumstances where that application of force was unlawful, then it seems to me to follow that he committed a violent crime.
2. At this point I should deal perhaps with the applicant's reliance on R v BXY [2023] QSC 42. That case concerned the sentencing of a child, who had been convicted of offences including manslaughter and dangerous operation of a vehicle causing grievous bodily harm. The aspect of relevance for present purposes concerned the construction of s 176(3)(b)(i) of the Youth Justice Act 1992 (Qld). In broad terms, where an offence carried a maximum penalty of life imprisonment, a child could be sentenced to no more than 10 years imprisonment unless, inter alia, the offence involved "the commission of violence against a person".
3. Chief Justice Bowskill held, at [74]:

Although the consequences of the offending are horrific, on the proper construction of the words used in s 176(3)(b)(i), in their context, I find that the offending in this case did not involve the commission of violence against a person. BXY is criminally responsible for causing the death of BS because of his substantial lack of care whilst in charge and control of the car he was driving; not because he used, or inflicted - committed - violence against BS.

1. I confess that it is not entirely clear to me what meaning her Honour found the concept of violence to have. At [68], she had said that "the commission of violence, in its ordinary meaning, refers to the use of violence, or the infliction of violence, against a person". It seems clear that the element that her Honour found lacking concerned the "use" of violence "against" a person necessary to amount to the "commission" of violence; in other words, I take it, it was necessary that there be some quality of direction or focussing of conduct towards a person (whether or not with the intention to cause them harm, I am not sure).
2. In any event, the authority of BXY appears doubtful in light of R v YTZ; Ex parte Attorney-General (Qld) [2023] QCA 87. That case concerned the sentencing of a child for driving offences that had resulted in the death of two people. The Court of Appeal noted that the parties had become aware of the decision in BXY before the hearing, but recorded that no reliance was placed on that decision "as the respondent concedes that the decision of the majority in Chandler v Director of Public Prosecutions ... supports the satisfaction of the condition in s 176(3)(b)(i) of the Act in respect of the respondent's offending".
3. It is enough for present purposes to note that while the issue in BXY and YTZ was similar to that which I am required to determine, it was not identical, and it arose in a very different context. The meaning of the phrase "commission of violence against a person", in the context of a statutory provision capable of dramatically increasing the penalty that may be imposed on a child, seems to me to raise potentially very different considerations from those applicable to the discernment of the meaning of the term "violent crimes" in Direction No. 110.
4. In any event, for the reasons I have already given, I do not consider that a "violent crime" necessarily requires a particular mental state, or any particular focussing or direction of conduct towards or against a particular individual.
5. As to whether there is anything else in the text of the Direction that sheds much light on the issue, I do not think that there is. The word "violent", and the phrases "violent crimes" and "crimes of a violent nature", are not defined. The term "family violence", however, is defined as follows:

violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a) an assault; or

b) a sexual assault or other sexually abusive behaviour; or

c) stalking; or

d) repeated derogatory taunts; or

e) intentionally damaging or destroying property; or

f) intentionally causing death or injury to an animal; or

g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

1. preventing the family member from making or keeping connections with his or her family, friends or culture; or

j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.

1. In one sense, that definition is plainly intended to define "family violence" in broader terms than might have been found if only the ordinary meaning of the words was relied upon. In another, the defined concept is potentially narrower in scope, to the extent that it is seeking to identify a particular sub-set of violent conduct defined, at least in part, by its effect on members of the perpetrator's family. The definition is also, for obvious reasons, focussed on the sorts of situations that might commonly arise in the context of relations between family members. It follows that I do not think it provides much assistance in ascertaining the ordinary meaning of the general term "violent crimes".
2. Finally, both parties invoked what they termed the "protective purpose" of Direction No. 110 in support of their respective constructions. By that, they were referring to the fact that cl. 8.1.1(1)(a)(i) is contained within cl. 8.1, which is concerned broadly with the "protection of the Australian community". The Direction there states that, in considering the protection of the Australian community, decision-makers should "keep in mind that the safety of the Australian community is the highest priority" of the Government. It goes on to provide that remaining in Australia is a privilege conferred upon non-citizens in the expectation that they "will not cause or threaten harm" to members of the Australian community.
3. The applicant argued, as I understood it, that people who do not act with an intention to cause harm to Australian citizens do not pose a risk against which the community needs to be protected, and thus that the Direction was naturally to be understood as concerned with "the sort of person who would harm Australian citizens rather than incidentally". The Minister, on the other hand, submitted that the focus on the protection of the Australian community directed attention to the impact of conduct, rather than the moral culpability of those engaging in it.
4. Ultimately, I do not think that these considerations shed much light on the meaning of the term "violent crimes". If anything, I think that they tend slightly in favour of the Minister's position. Harm to the Australian community may be caused by unintentional as much as intentional conduct, and the expectation that non-citizens will not "cause" harm does not seem to me to be limited to the intentional infliction of harm.
5. Exactly how a particular violent crime engages considerations relevant to the protection of the Australian community is, of course, another question. But the applicant's single ground of review was concerned only with the correctness of the conclusion that his conviction for dangerous driving occasioning grievous bodily harm was a "violent crime" within the meaning of the Direction. He did not contend that the Tribunal's reasoning was in error even if it had been correct to find that he had been convicted of a "violent crime" (cf, e.g., BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 307 FCR 150; [2025] FCAFC 14 at [107]).

1. For the above reasons, I find that the term "violent crime" as it is used in Direction No. 110 refers to the application (or threatened application) of physical force contrary to law. It follows that the Tribunal correctly concluded that the applicant had committed a "violent crime", and thus did not fail to follow the Direction. The application should be dismissed with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.