Grounds three and four: significance of 8.1.1(1)(G) of Direction 90
68 It is convenient to address grounds three and four of the application simultaneously. They concern the extent to which the applicant was (or to which there was evidence before the Tribunal that he was) aware, in 2017 (when he was convicted again of drug trafficking), that further offending might sound in adverse migration consequences.
69 Paragraphs 85 to 91 of the Tribunal's Decision (above, [18]) address the consideration referred to in subparagraph 8.1.1(1)(g) of Direction 90. That analysis assumes what is by now a familiar structure. It begins with a restatement of subparagraph (g), which is then described as "directly relevant in this case". It records - and rejects - the applicant's assertion that, at the time of his sentencing in 2011, he was not made aware that his offending might result in his being deported. It then refers to other evidential material that was before the Tribunal that suggested, or might have suggested, an awareness on the applicant's part that his offending could visit adverse migration consequences upon him.
70 At [89] of its decision, the Tribunal refers to comments made by the Victorian Court of Appeal in the context of an appeal concerning the applicant's 2011 sentence. At [90], the Tribunal observes that the applicant "would have understood that his migration status was a relevant issue prior to his re-offending".
71 That analysis culminates (at [91]) in the conclusion with which the applicant takes issue: namely, that he reoffended after he was "formerly warned or [was] otherwise…made aware in writing about the [migration] consequences of further offending".
72 The applicant submits that, by that conclusion, the Tribunal erred in either or both of two ways, namely:
(1) first (expressed in ground four), by drawing a factual conclusion that the evidence did not support (namely, that the applicant had reoffended after he had been warned or made aware, in writing, that doing so might bring about adverse migration consequences); and
(2) second (expressed in ground three), by regarding the state of the applicant's knowledge (or the manner in which it had actually come to be formed) as a consideration of which subparagraph 8.1.1(1)(g) of Direction 90 required that it take account.
73 The Minister contends that, in truth, there was sufficient evidence before the Tribunal to ground its conclusion that the applicant had been made aware, in writing, that his offending (or further offending) might bring about adverse migration consequences; and that the Tribunal did not, therefore, err by drawing that conclusion. Even assuming that that contention were to be rejected, the Minister submits that the Tribunal nonetheless did not err in a way that should sound in the grant of prerogative relief because its factual finding was not material to the outcome of the application before it.
74 As with other aspects of the matter, the parties were agreed (or not obviously in dispute) regarding matters of legal principle. The Tribunal's finding that the applicant had reoffended after having received notice in writing that doing so might jeopardise his migration status was, on any view, one of fact. Such a finding, even if wrong, will rarely suffice by itself to stigmatise a discretionary administrative decision as the product of jurisdictional error: CRU18 v Minister for Home Affairs (2020) 277 FCR 493 ("CRU18"), 503 [29] (Wigney, Jackson and Snaden JJ); BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 26 ("BHD18"), 39 [29] (Allsop CJ, Collier and Colvin JJ).
75 In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
76 In CRU18, the full court observed (at 503 [31]) as follows:
A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ…)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).
Equivalent observations were made in BHD18 (at [29]; Allsop CJ, Collier and Colvin JJ).
77 Nevertheless, if a discretionary administrative decision were to proceed upon a factual premise for which there was no evidence, then it might be vulnerable to relief on judicial review. The observations of Moshinsky J in BSE17 v Minister for Home Affairs [2018] FCA 1926 are apposite. In considering a ground of judicial review based upon the absence of evidence, his Honour said at [33]:
The "no evidence" ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [39]- [41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 per Deane J.
78 In BHD18, the full court relevantly observed as follows (at [29]):
…A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647-648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker's ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA's ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]-[37].
79 Although not expressed as such, it is convenient to treat ground three as though pressed in the alternative to ground four. If, contrary to what the applicant submits by his fourth ground, the Tribunal did not err by finding that the applicant had been made aware in writing that further offending might bring about adverse migration consequences, it would necessarily follow that the Tribunal did not misconstrue subparagraph 8.1.1(1)(g) of Direction 90 in the way alleged by ground three.
80 To determine whether the Tribunal erred by concluding that the applicant had been made aware in writing, prior to his re-offending in 2017, that further offending might jeopardise his migration status, attention must turn to the evidence with which the Tribunal was furnished. Three aspects of it are of present relevance.
81 First, the Tribunal was supplied with the reasons given by the County Court of Victoria for the sentence that was imposed upon the applicant in 2011. Amongst other things, those reasons summarised the submissions that were advanced on his behalf. One such submission focused upon the possibility that the applicant might be deported in consequence of his conviction. That submission was the subject of analysis in the reasons that the court gave for the sentence that was imposed. That analysis ought not to be replicated here. It suffices to note that the court referred to a statement that had been received from an official of the Department of Immigration and Citizenship, which was said to have set out the various ways in which the department might consider deporting the applicant.
82 Second, the Tribunal was referred to the decision of the Victorian Court of Appeal that dismissed an appeal that the applicant brought against the sentence that the County Court imposed upon him. By that (appeal) decision (a citation for which was supplied but should not here be repeated), the Court of Appeal noted - and the Tribunal was told that it had noted - that the applicant would, throughout the period of his imprisonment, be subjected to at least some degree of stress borne of the possibility that he might be deported once released. The reasons of the Court of Appeal record that that notion of subjection to deportation-related stress was a circumstance to which the applicant pointed in support of his contention that the sentence that had been imposed upon him was manifestly excessive.
83 Third, the Tribunal was provided with some hand-written notes apparently prepared by prison officers during the applicant's incarceration. Amongst other things, those notes referred to the applicant's being "considered for deportation" and otherwise facing a "deportation issue [or issues]".
84 Insofar as it might serve as a basis for the Tribunal's belief that subparagraph 8.1.1(1)(g) of Direction 90 was, in this case, relevant (or "directly relevant"), the applicant attacks that evidence from two angles.
85 First, the applicant contends that the evidence did not suffice to establish that he had received any of what was referred to. At least insofar as concerns some of the relevant material, that appears to be a fair contention. It is not apparent that the sentencing remarks made by the County Court in 2011 were provided to him in writing (although it must surely be assumed - and indeed, it is apparent - that the applicant was present in court when they were made). Likewise, there is no evidence that directly establishes that he received either a copy of the Court of Appeal's written reasons for dismissing his appeal in 2012, or a copy of the hand-written notes apparently produced by prison officers during his time in jail.
86 Nonetheless, it could not be said that there was no evidence that the applicant had received written notice sufficient to support the conclusion to which the Tribunal was drawn. As has already been noted, the sentencing remarks of the County Court in 2011 referred, by way of summary of part of the submission that was advanced on the applicant's behalf, to its having received a written statement from an officer of the Department of Immigration and Citizenship. That statement, so those remarks recorded, identified that there was at least a possibility that the applicant might be deported in consequence of his offending. That possibility was one that the applicant's counsel had sought to introduce as a factor that should guide the court's assessment of an appropriate sentence; indeed, one that ought to serve to reduce what might otherwise have been considered appropriate. The statement that was tendered to establish that possibility was one that the Tribunal was entitled to infer had been given to (and, having been received, had been advanced on the instruction of) the applicant.
87 Second, the applicant contends that none of the relevant material that was before the Tribunal concerned the consequences of future offending. Because there was no reference in any of that material to the prospect that he might lose his visa (or be subjected to some other adverse migration consequence) if he were to offend again, none of it, he says, can be said to qualify as a warning or notice regarding what might happen to him if he were to reoffend. That being so, he says, there was no basis for the Tribunal to conclude that he was made aware in writing that further offending might bring about adverse migration consequences.
88 Respectfully, I do not accept that contention. Insofar as the applicant was told that adverse migration consequences might attach to the offending for which he was sentenced in 2011, he must, I think very plainly, be understood implicitly to have been told also that further offending would visit equivalent consequences: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1429, [17] (Bromwich J). The contrary suggestion - that he should be understood to have appreciated that his historical offending could jeopardise his migration status but not that future offending might also - is self-evidently unrealistic (if not absurd).
89 It follows that I do not accept the premise upon which ground four of the applicant's amended originating application was advanced. The Tribunal did not err, for want of evidence, by concluding that the applicant had reoffended after having been made aware, in writing, about the potential migration consequences of doing so. The account that the Tribunal took of that circumstances was taken consistently with the requirements of subparagraph 8.1.1(1)(g) of Direction 90 (which is to say that I also do not accept the premise inherent in the applicant's third ground of challenge).
90 But, even if I am wrong about that - that is to say, even if the Tribunal did err by drawing that conclusion without a proper evidential foundation and/or did err by misconstruing subparagraph 8.1.1(1)(g) of Direction 90 - it does not follow that any such error should sound in the grant of prerogative relief. As much is so because the conclusion that the Tribunal drew and the construction of Direction 90 upon which it thereafter proceeded could not realistically be described as critical to any of the Tribunal's findings (including its intermediate finding (expressed at [92] of its reasons) that the applicant's offending was "very serious", or its ultimate finding (or state of satisfaction) that there was not another reason why the Cancellation ought to be revoked).
91 At [90] of its reasons, the Tribunal concluded that the applicant "…would have understood that his migration status was a relevant issue prior to his reoffending". On the strength of the evidence that was before it (in particular, that which is summarised above at [81]-[83]), that conclusion appears to be unimpeachable (even if the awareness to which the finding refers was brought about otherwise than by written notice or warning). At the very least, it was plainly open to be drawn.
92 The Tribunal's finding as to what the applicant knew or understood at the time of reoffending was also a matter to which it was entitled to have regard in assessing the nature and seriousness of the applicant's criminal history. That is so regardless of whether the state of the applicant's awareness arose in the manner that subparagraph 8.1.1(1)(g) of Direction 90 contemplates. If it did so arise, then his knowledge or understanding was a matter of which Direction 90 obliged the Tribunal to take account. If it did not, then there was no such obligation; but the applicant's state of knowledge or understanding remained a relevant consideration to which the Tribunal was at liberty to have regard if it wished.
93 Even if the Tribunal had appreciated that the applicant had not received a written notice or warning concerning the consequences of future offending (if that be the true position), there is no reasonable prospect that it might thereafter have proceeded to reach any conclusion as to the nature and seriousness of his criminal history other than the one that it did (namely, that it was "very serious"). Given that it considered on the strength of the other criteria identified in paragraph 8.1.1(1) of Direction 90 that the applicant's criminal history was "very serious" or otherwise not such as might warrant revocation of the Cancellation; and having considered that the applicant had at least some awareness of the migration consequences that might potentially attach to any reoffending, it is, frankly, fanciful to suggest that the Tribunal might nonetheless have drawn a more lenient conclusion than it did simply because that state of awareness arose otherwise than by means of advice of the kind to which subparagraph (g) refers.
94 It follows that any error upon which the Tribunal's Decision proceeded (if there was one at all) was not one of jurisdiction. Neither of grounds three or four of the applicant's amended originating application is made out.