Consideration
59 The applicant's submissions variously characterise the asserted jurisdictional error as a failure to give genuine intellectual consideration to the applicant's evidence, representations and supporting documents with regard to the circumstances of her offending conduct and other conduct; a failure to give real and genuine consideration to a substantial or significant or clearly expressed claim made in her representations; a failure to give enough weight to the relevant evidence; and at one point as irrationality.
60 I am not persuaded that the Tribunal fell into error as alleged.
61 In relation to the consideration "protection of the Australian community", paragraph 13.1(1) of Direction 79 required the Tribunal to have regard to the principle that the federal government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, and will not cause or threaten harm to individuals or the Australian community.
62 The Tribunal was required to have regard to:
(a) the nature and seriousness of the applicant's criminal offending including, relevantly, the sentence imposed on the applicant by the court (paragraph 13.1.1(d)); and the frequency of the applicant's offending and whether there was a trend of increasing seriousness (paragraph 13.1.1(e)).
(b) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (paragraph 13.1.2) including, cumulatively:
(i) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct (paragraph 13.1.2(1)(a)); and
(ii) the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account the available information and evidence on that risk (paragraph 13.1.2(1)(b)).
63 On a fair reading of the reasons I consider the Tribunal reached its decision having regard to those matters.
64 First, the Tribunal summarised the circumstances of the applicant's offending conduct derived from:
(a) the sentencing remarks of Farr J (at [16]-[17]) and the judgment of the Queensland Court of Appeal (at [15] and [18]); and
(b) the applicant's evidence (at [25]-[32]).
65 The Tribunal also summarised the applicant's submissions (at [62]). This points away from concluding that the Tribunal did not treat the circumstances of the applicant's offending conduct as relevant to its task, and also from concluding that it failed to give real and genuine consideration to those circumstances.
66 Second, in considering the nature and seriousness of the applicant's offending conduct, the Tribunal had regard to:
(a) the sentence imposed on the applicant by the court (at [3] and [79]), as required by paragraph 13.1.1(d) of Direction 79; and
(b) the frequency of the applicant's offending and whether there was a trend of increasing seriousness as required by paragraph 13.1.1(e). The Tribunal found that the applicant had engaged in offending conduct over "a relatively brief and confined period" (at [79]); the extortion offences were the applicant's only offending conduct (at [89]); and that there was no indication of any prior or subsequent poor conduct, let alone criminal activity (at [83]).
67 I am not persuaded that the Tribunal failed to properly consider the matters under paragraph 13.1.1.
68 Third, there is little merit in the applicant's contention that the Tribunal conflated the seriousness of her offending conduct with the seriousness of the offence of extortion. It is undeniable that extortion is a serious offence, and the Tribunal did not err by noting that the maximum penalty was 14 years, while also noting that the sentence of a 15 month term of imprisonment (suspended after seven months), indicated extortion at the low end of that range.
69 The Tribunal's reasons show that:
(1) it likened the applicant's offending conduct to 'white-collar' crime but said that did not mean that it should be considered less serious than, for example, assault or drug offences; and that the seriousness of such conduct was clear from the available 14 year maximum sentence (at [79]);
(2) the 15 month term of imprisonment indicated that the applicant's "particular conduct" might be understood as having warranted a lower range penalty, but the sentencing judge had nevertheless been clear in stressing the importance of a custodial sentence (at [79]). There, the Tribunal was emphasising that the sentencing judge considered the offending conduct to be serious;
(3) the applicant submitted that she had limited culpability in the offending conduct and had appealed the convictions and sentence (at [80]). The Tribunal was, however, satisfied that Farr J and the Queensland Court of Appeal took account of matters such as the applicant's asserted misapprehension in relation to the English language ('warn' v 'punish'); and her apparent desire to interrupt the criminal scheme implemented by Mr Pisasale. The Tribunal said that those arguments were "front and centre" in the criminal proceeding and had been rejected by Farr J and the Queensland Court of Appeal (at [81]). As I later explain, in my view the Tribunal was bound to follow the essential findings in the criminal proceedings, and thus to reject the applicant's submissions as to her limited culpability. The Tribunal said that while circumstances and chance appear to have played an important and probably critical part in the applicant's offending conduct, in the criminal proceeding she had been found to be an active participant in the extortion enterprise, and appropriate weight should be placed "on the findings and outcome of the criminal process"(at [82]). There is no error in that; and
(4) it considered the applicant's responses to the Tribunal's questions, although slightly contradictory, indicated her "awareness of the nature of the [criminal] enterprise underway" (at [82]). In my view the Tribunal considered the applicant's evidence and submissions as to her limited culpability, but did not accept that her culpability was as limited as she contended.
70 In those circumstances the applicant did not establish that the Tribunal failed to give real and genuine consideration to the applicant's evidence and submissions regarding the nature and seriousness of her offending conduct.
71 Fourth, nor am I persuaded that the Tribunal failed to engage in a real and genuine consideration of the applicant's evidence and submissions regarding the risk to the Australian community should the applicant engage in further criminal or other serious conduct. The reasons show that the Tribunal considered the applicant's offending conduct to be serious "based on the findings made and outcome reached in the criminal process", and on that basis considered the impact of any future offending by the applicant could also be serious, as adverse financial consequences and serious inconvenience is a foreseeable outcome for victims of extortion (at [89]).
72 In relation to the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal noted that in written submissions the applicant said she had "a very low risk" of reoffending, while in oral submissions she argued that there was a "zero risk" of her reoffending" (at [87]). The Tribunal's reasons show that it:
(a) took account of the applicant's evidence and submissions with regard to the nature and circumstances of her offending conduct, to the extent that they spoke to the risk of further offending by her (at [83]);
(a) accepted that the applicant had expressed contrition, and that there was no indication of any prior or subsequent poor conduct by her but did not accept that the applicant had "a zero chance" of reoffending (at (83]); and
(b) accepted that the applicant has expressed remorse and that she became involved in an enterprise not entirely of her making. However, in the Tribunal's view there was a "troubling ambiguity" in the applicant's case in that she expressed remorse and contrition but at the same time contended that her culpability was limited and was pursuing an appeal in relation to her conviction (at [90]).
73 In the circumstances, I am not persuaded that the Tribunal failed to give active intellectual consideration to the applicant's evidence and submissions on this issue.
74 Fifth, the applicant's real complaint is that the Tribunal did not accept her evidence and submissions as to the lower seriousness of her offending conduct and her limited criminal consciousness and culpability in that conduct, and instead relied on the observations of Farr J and the Queensland Court of Appeal. The difficulty for the applicant in this regard is that the foundation of the Tribunal's exercise of power was the criminal conviction for offences of extortion and the imposition of a sentence of more than 12 months imprisonment. The authorities provide that where a criminal conviction or sentence is a precondition for an administrative decision-maker's power to cancel a visa, the decision-maker or a tribunal on review will fall into error if it impugns or 'goes behind' the "essential factual findings" underpinning the conviction or sentence: see Minister for Immigration and Multicultural Affairs v "SRT" [1999] FCA 1197; (1999) 92 FCR 560 at [39]-[48] (Branson, Lindgren and Emmett JJ); LLF at [42]-[43]; HZCP at [77] (McKerracher J), at [181]-[182] (Colvin J).
75 In SRT at [40] the Full Court explained what is meant by the Tribunal impugning a sentence:
The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
(Emphasis added.)
76 In HZCP (at [77]) McKerracher J explained:
As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of "another reason" on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function. The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker's power.
(Citations omitted and emphasis added.)
77 To similar effect Colvin J said (at [181]-[182]):
In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others). The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. …
In all such instances, the legislature itself has acted upon the basis of the confidence that can be entrusted to decisions in criminal cases. It has formed the view that the fact of the conviction or sentence shall provide the foundation for the exercise of the power. The form of legislation itself demonstrates that Parliament intended the decision-maker to act on the basis of the correctness of the conviction or sentence. Where the legislative provision takes such a form, there is no opportunity to go behind the conviction or sentence and urge the administrative decision-maker to take a different view. Usually, the legislative context will also require the further conclusion that the decision-maker is not entrusted with power to contradict the necessary factual basis for the conviction or the sentence. However, the extent to which the foundation for the power constrains the fact finding process of the decision-maker will depend upon a proper consideration of the legislative provision in each case.
(Emphasis added.)
78 In deciding whether there is 'another reason' to revoke the visa cancellation decision the Tribunal was not permitted to make factual findings about the circumstances of the applicant's offending conduct which were inconsistent with the essential findings made by the judge sentencing the applicant for those offences: Mayes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1036 at [39] (McKerracher J), citing HZCP. Moreover, "a convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings": HZCP at [191] (Colvin J).
79 The following paragraphs of the Tribunal's decision show how it sought to grapple with the applicant's submissions contesting her culpability for the offending conduct:
[81] My reading of the material arising from the criminal process, nonetheless, demonstrates to my satisfaction that the sentencing judge and the appeal court took account of arguments raised on Ms Li's behalf relating to her culpability. That is, matters such as Ms Li's misapprehension about language ('warn' v 'punish') and her apparent desire to interrupt the scheme implemented by Mr Pisasale, were front and centre in the criminal process and these arguments, in particular, were rejected.
[82] It is appropriate to take account of the fact that circumstances and chance appear to have played an important, and probably critical, part in bringing Ms Li to the situation in which she currently finds herself. She was, however, found to be an active participant in the extortion enterprise, and I consider that I should place appropriate weight on the findings and outcome of the criminal process. I also take account of her evidence at [57] above. While slightly contradictory, Ms Li's response to my direct question indicates awareness of the nature of the enterprise underway. That is, notwithstanding her particular fate, fate alone cannot be seen as explaining her involvement in the scheme.
[83] I take account of the evidence advanced on her behalf with respect to the nature and circumstances of the offending, to the extent that they speak to the risk and impact of further offending. As part of this consideration I also accept that Ms Li has expressed contrition and that there is no indication of any prior or subsequent poor conduct, let alone criminal activity. I am not able to accept the oral submission at the hearing, however, that Ms Li has a zero chance of reoffending.
80 The applicant contends that the Tribunal erred by placing little or no weight on her following assertions:
(a) she did not intentionally break the law: - It was not, however, open to the Tribunal to accept the applicant's evidence and submissions in this regard; doing so would be inconsistent with Farr J's findings that the applicant "knowingly aided or assisted in the commission of each offence by providing Pisasale with [her] name and [Mr X's] phone number and address"; that she encouraged Mr Pisasale to punish Mr X, and that the applicant and Mr Pisasale "formed a common intention to unlawfully obtain money from [Mr X]". It is also inconsistent with the findings of the Court of Appeal (at [168]) where Morrison JA (with whom Philippides JA and Mullins AJA agreed) said that the evidence of the applicant's involvement in the extortion scheme was "considerable" and (at [168(f)]) that at the time of the offending conduct the applicant "knew (at least) the essential ingredients of the offence, or alternatively that there was a plan to unlawfully obtain money from [Mr X]".
(b) she had only very basic English language ability; could not clearly understand what Mr Pisasale was saying; and that in her communications with Mr Pisasale she used the Baidu app to translate the mandarin word for 'warn' into English, and it wrongly provided the translation as 'punish': - It was not, however, open to the Tribunal to accept the applicant's evidence and submissions in this regard; doing so would be inconsistent with Farr J's finding that, "I do not have any doubt that you understood the correct meaning of [punish], and that this notion of punishment…was the catalyst for this offending conduct….You wanted him punished for the way he treated you, either financially or, alternatively, by causing his wife to find out about his relationship with you."
(c) she placed trust in the principal offenders, Mr Pisasale who was the mayor of Ipswich, and a solicitor, both of whom believed that what they were doing to assist her was lawful: - The Tribunal accepted that the applicant was not the principal offender and that "circumstances and chance appear to have played an important, and probably critical, part in bringing Ms Li to the situation in which she currently finds herself" (at [82]). But, again, it was not open to the Tribunal to accept that Mr Pisasale and the solicitor co-accused both believed what they were doing was lawful; that would be inconsistent with the findings of Farr J and the Queensland Court of Appeal that the applicant and Mr Pisasale "formed a common intention to unlawfully obtain money from [Mr X]."
(d) she had no idea that what she did was unlawful until she was charged many months after the event: - Again, it was not open to the Tribunal to accept the applicant's evidence and submissions in this regard when the Queensland Court of Appeal found that at the time of the first count of extortion the applicant "knew (at least) the essential ingredients of the offence, or alternatively that there was a plan to unlawfully obtain money from the complainant";
(e) she cooperated with the police by answering all questions and allowing the police to download the contents of her mobile telephone despite the police having no warrant to seize and search it: - The applicant did not take the Court to evidence before the Tribunal which might establish this. On the assumption there was such evidence it may have been open to the Tribunal to treat that as indicating some minor degree of lessened culpability. However, had the Tribunal reached that view, in my opinion there is no realistic possibility that it could have resulted in a different outcome and any such error would not be 'material': see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ); and
(f) Mr X did not instigate a complaint to the police: - Again, the applicant did not take the Court to evidence before the Tribunal which might establish this. The materials seem to indicate that the offences came to light because Mr Pisasale's telephone was under police surveillance, rather than through a complaint by Mr X. Even so, in my view, in light of the threats of harm that were made to him, the fact (if it be so) that Mr X did not report the extortion attempt to the police is quite unlikely to have altered the Tribunal's view as to the seriousness of the applicant's offending conduct and her culpability in that conduct. Mr X might have chosen not to go to the police because of the threats of harm made and the risk of exposure of his extra-marital activities. In my opinion there is no realistic possibility that the fact that Mr X did not instigate a police complaint could have resulted in a different outcome before the Tribunal. Again, any such error is not 'material'.
(g) Mr X suffered no loss or harm: - It appears that Mr X did not hand over any money in response to the extortion attempt, but that misses the point in relation to the seriousness of the applicant's offending conduct. Her conduct involved attempted extortion with threats of harm. In my opinion it was not open to the Tribunal to make a finding that there was no loss or harm when Farr J found that "[t]he threat of harm in this matter was not trivial. [Mr X] was threatened with litigation that could cost him up to $200,000, plus $20,000 to $30,000 in costs, plus adverse publicity about his extra-marital affair and the risk of a criminal prosecution."
81 Sixth, there is no force in the applicant's contention that the Tribunal erred by failing to take into consideration the "other conduct" of the applicant, which was that of an honest law-abiding person in China, Singapore and in Australia. The Tribunal accepted that the evidence did not indicate any prior or subsequent poor conduct by the applicant (at [83]), but noted that she had only been in Australia for three and a half years, 12 months of which she had spent in prison or detention; and that the offending conduct had occurred within an extremely short period of time after her arrival in Australia (at [97]). The Tribunal took her clean record into consideration, but did not give it great weight. That does not show jurisdictional error.
82 It is appropriate to dismiss ground one of the application.