Jattan v Minister for Immigration, Citizenship and Multicultural Affairs

… With specific reference to sub-paragraph 8.1.1(b)(iii), I have had regard to the nature of the Applicant's conduct for which he was convicted and sentenced in August 2021. Such conduct could, to my mind, safely ground a finding pursuant to s 501(6)(c) of the Act that the Applicant's past and present criminal conduct would render him to be not of good character. I am of therefore of the view that this sub-paragraph facilitates a finding that his conduct has been at least 'serious' (as per the chapeau to paragraph 8.1.1(1)(b)) but more likely 'very serious'.

… The Applicant has a criminal history that, in sentencing terms, runs from January 2010 to August 2021. During this period he has convictions for 14 offences that were dealt with at six separate sentencing episodes. He has therefore offended at the rate of approximately 1.5 offences for the duration of his criminal history. He has appeared before lawful authority on at least six of the 11 years of his criminal history. I am satisfied that the Applicant's offending has been frequent.

Were the Applicant to recommit any of his offending around the possession of unauthorised firearms and to not otherwise safely store a weapon could place the wider community at risk of physical harm …

Materiality 153 The Tribunal took into account matters it was precluded from taking into account. As to materiality, the applicant submitted that the Tribunal's error infected its reasoning in regard to the nature and seriousness of the applicant's conduct, and therefore the weight to be afforded to primary considerations 1 and 5. 154 The Minister submitted the Tribunal's error did not make any difference to the outcome, because it was the applicant's conduct giving rise to his convictions that formed the substance of the material relied on for the Tribunal's reasoning. That is, it was the applicant's supply of drugs and possession of firearms (in relation to which he was convicted) that the Tribunal was ultimately concerned with and was determinative of the outcome. 155 In my view, the Tribunal's error crosses the threshold of materiality as described in LPDT. The extent of the Tribunal's error was significant, as evidenced by the table above at [152]. It is important to have regard to the decision made by the Tribunal and how the decision was made: LPDT at [10]. 156 The matters the subject of the error were taken into account by the Tribunal in making the Tribunal's findings with respect to primary considerations 1 and 5. Those considerations were described by the Tribunal as very heavily weighing against revocation, and so were apparently highly determinative of the Tribunal's final decision. In particular, however, in considering the materiality of the error, it is important to have regard to how the Tribunal's decision was made. 157 The Tribunal did not merely refer to conduct but referred to convictions and the (wrong) number of convictions. In contrast to Nguyen, where the Tribunal erroneously considered only one offence taken into account under the Form 1 scheme as a conviction, in this case the Tribunal made this mistake with respect to four further offences taken into account. Whilst the number of further offences wrongly considered is not of itself determinative, it is not insignificant. The Tribunal in this case commented on the number of convictions and calculated a rate of offending based on a number that included them. The Tribunal also included those further offences as convictions when referring to the applicant's 'most significant offending' the subject of the sentencing on 19 August 2021. The Tribunal expressly referred in that context to the number of offences committed. Even allowing for the fact that the applicant had been convicted of more serious principal offences, the process of reasoning by the Tribunal reveals a reliance on the (wrong) number of convictions on a number of occasions. Accordingly, I do not consider this to be a case where the possibility of a different outcome is to be described as fanciful or improbable.

Conclusion 158 Ground 3 is accordingly upheld.

Other matters 159 Costs should follow the event. The Court acknowledges that Mr Papalia represented the application on a pro bono basis. It is appropriate in the circumstances that, as requested, there be a costs order under r 4.19(3) of the Federal Court Rules 2011 (Cth). 160 I also note that it was junior counsel for the Minister who properly identified to the applicant's counsel at an earlier stage in this proceeding the potential for ground 3 to arise. This conduct by counsel on the Minister's behalf should also be acknowledged. I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Associate: Dated: 9 August 2024