Moore v Minister for Immigration and Citizenship [2025] FedCFamC2G 723

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 210

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169

Wu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1091

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The name of the first respondent be amended to read 'Minister for Immigration and Citizenship'.
2. A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 31 January 2022.
3. A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant's review application according to law.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Mr Moore and Ms Fitzpatrick (the applicants) seek review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant them Regional Employer Nomination (Class RN) (subclass 187) visas (the visas). For the applicants to succeed in this Court, they must establish that the Tribunal's decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476). It is well established that this Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has found jurisdictional error in the Tribunal's decision. On that basis, the application has succeeded.

1. The first applicant (the applicant) is a British citizen (CB 24). The second applicant is the de facto partner of the applicant and is also a British citizen (CB 26). The applicants first arrived in Australia in 2015.
2. On 1 March 2018, the applicants applied for the visas (CB 23-46). In that application, the applicant indicated that he had been nominated for the position of Building Associate (CB 30) and disclosed that he had previously been convicted of driving under the influence in Australia in 2017 (CB 43). The applicants provided various documents in support of their application (CB 47-151, 166-180).
3. The applicants appointed a registered migration agent as their authorised recipient in their visa application (CB 29).
4. The applicant provided a National Police Certificate dated 28 May 2019 which discloses his 2017 conviction (CB 204), along with a statutory declaration dated 12 May 2018 which explains this conviction in more detail (CB 197). The applicant also provided a copy of a police certificate from the Association of Chief Police Officers Criminal Records Office (the UK police certificate) dated 17 May 2019, which details a number of historical offences (CB 200-202).
5. On 19 June 2019, a delegate of the Minister issued a natural justice letter to the applicant inviting him to comment on adverse information received, namely, that Public Interest Criterion 4020 (PIC 4020) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) may not be satisfied on the basis of his failure to provide details of his convictions in the United Kingdom in his visa application (CB 208-211).
6. At the time of the Tribunal's decision, PIC 4020 relevantly provided:

(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a) the application for the visa; or

(b) a visa that the applicant held in the period of 12 months before the application was made.

(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a) compelling circumstances that affect the interests of Australia; or

(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5) In this clause:

information that is false or misleading in a material particular means information that is:

(a) false or misleading at the time it is given; and

(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note: For the definition of bogus document, see subsection 5(1) of the Act.

1. The applicants provided various documents in response to this invitation, including another statutory declaration by the applicant where he accepted that the information provided in his application was not correct but that this was an honest mistake as these were spent convictions and he was unaware that they needed to be declared (CB 306-309).
2. On 23 July 2019, a delegate of the Minister refused to grant the applicants the visas (CB 233-238). The delegate found that the applicant provided false or misleading information with respect to his criminal history, namely, failing to disclose his convictions in the UK, and accordingly, did not satisfy PIC 4020 (CB 235).
3. On 7 August 2019, the applicants, through their agent, applied to the Tribunal for review of the delegate's decision (CB 239-241).
4. On 17 December 2021, the applicants were invited to attend a hearing scheduled for 31 January 2022 (CB 264-266).
5. The applicants' agent provided written submissions prior to the hearing (CB 280-295) and various documents in support of the review application (CB 296-512), including a letter from a UK solicitor dated 4 July 2019 (CB 314-315). This letter advised that three of the applicant's UK endorsements were not convictions and that two of them were spent convictions which ceased to be convictions at the end of a six-month and five-year imposition, respectively, where there is "effectively a clean slate" after the imposition period. The solicitor also emphasised that this area of law is "unnecessarily complex" and that "typically, many defendants tend to assume that a lapse of time necessarily means that it can never be cited or disclosed" (CB 314).
6. On 31 January 2022, the applicants and their migration agent attended the hearing (CB 552).
7. Following the hearing, on that same day, the applicants' agent provided further documentation in support of the review application (CB 515-541).
8. On 31 January 2022, the Tribunal affirmed the delegate's decision not to grant the applicants the visas (CB 551-560).
9. On 6 March 2022, the applicants lodged an application for judicial review in this Court. That application seeks review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal began by outlining the procedural history of the matter and confirmed that the applicants and their witnesses appeared before the Tribunal, via video, to give evidence and present arguments (at [1]-[3]). The applicants were represented in relation to the Tribunal review (at [4]).
3. The Tribunal outlined that the issue in this review was whether the applicant met PIC 4020 as required by cl 187.213 of the Regulations for the grant of the visa. The Tribunal summarised those legislative requirements (at [6]-[10]).
4. The Tribunal outlined the nature of the natural justice letter which was sent to the applicant on 19 June 2019, inviting him to respond within 28 days. The applicant was invited to comment on suspected false or misleading information supplied to the Department concerning his convictions for a series of offences in the UK (at [11]-[13]).
5. The Tribunal indicated that the applicant responded on 17 July 2019, providing information from friends, family and employers as to why they believe the visa should be granted (at [14]).
6. The Tribunal indicated that, in the course of the hearing, the applicant confirmed that the information put to him in that natural justice letter, and the information contained within his response, was correct (at [15]). The applicant confirmed that his UK police certificate dated 17 May 2019 was accurate (at [16]).
7. The Tribunal accepted that the applicant had disclosed a relevant Australian conviction for drink driving on his visa application and incoming passenger entry documents, however the applicant confirmed that he had not provided information about his UK convictions on the visa application or incoming passenger entry documents (at [17]-[18]). When asked why he did not disclose those convictions, the applicant said he was of the understanding that those records ceased to exist after a certain period of time and that, had he known they remained permanently on his record, he would have done differently and declared them (at [19]).
8. The Tribunal did not accept the applicant's explanation for not declaring his UK convictions and noted that the wording on the visa application and passenger entry cards is quite clear with respect to previous convictions and charges. The Tribunal concluded that the applicant knowingly provided false information in relation to past convictions on his visa application and incoming passenger cards (at [20]).
9. The Tribunal therefore found that the applicant had given information that is false or misleading in a material particular in relation to his previous visa (at [22]). The Tribunal therefore concluded that the applicant did not meet the requirements of PIC 4020(1) (at [23]).
10. The Tribunal then considered whether there were any compelling circumstances that affect the interests of Australia, or whether there were any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen such that PIC 4020(1) and (2) should be waived (at [24]-[45]).
11. The Tribunal considered all four statutory declarations provided by the applicant, as well as the statutory declaration of the second applicant, and the range of statements made by both applicants' employers and their friends. The Tribunal acknowledged the negative impact it would have on those businesses and communities if the applicants were not granted the visas (at [27]-[28]). The Tribunal accepted that the applicants were valued members of their organisations but did not find that losing them would impact the employer any more than losing an employee for any other reason (at [29]-[30]). Accordingly, the Tribunal did not find that the loss of the applicants to those businesses could be classified as compelling circumstances in relation to the interests of Australia (at [34]).
12. The Tribunal considered the statements of support from friends and community members, and acknowledged the relationships the applicant has in the Barossa Valley region (at [35]). The Tribunal accepted that the applicants provide support and assistance to a vulnerable member of the community and the applicant's family, and while recognising the importance and impact of that relationship, did not find that the evidence demonstrated their relationships were fundamentally different to the circumstances of others operating successfully in a cohesive and nurturing community (at [35]-[40]).
13. The Tribunal also considered the issue of compassionate or compelling circumstances in the context of the applicants' employers and found that the applicants were not operating at such a level that their loss could be classified as compassionate or compelling circumstances (at [41]).
14. Accordingly, the Tribunal did not find that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify waiving the requirements of PIC 4020(1) (at [42]-[43]).
15. The applicant therefore did not satisfy PIC 4020 for the purposes of cl 187.213 (at [44]).
16. The Tribunal affirmed the delegate's decision not to grant the applicants the visas (at [49]).

1. On 6 March 2022, the applicants filed an application for judicial review in this Court. Accompanying that application was an affidavit of the first applicant which provided further background information and annexed his UK police clearance certificate, a letter of advice from his UK lawyers, and a copy of the Tribunal's decision.
2. This matter was heard on 13 February 2025 and 27 March 2025, respectively.
3. At the first hearing date on 13 February 2025, the Court raised with the parties a number of issues that had not been addressed in written submissions, namely:

(1) the legal effect of the applicant's convictions and whether he was required to disclose spent convictions on his passenger entry arrival cards and his visa application; and

(2) whether the Tribunal failed to address a letter from the applicant's British solicitor regarding the nature of those convictions.

1. The applicants were granted leave to file an amended application addressing those matters, and both parties were granted leave to file further written submissions.
2. On 27 February 2025, the applicants filed an amended application for judicial review with the following two particularised grounds of review (without alteration):
   1. The Tribunal erred in its application of the waiver provision in PIC 4020 of Schedule 4 to the Migration Regulations 1994 (Cth) ("the Regulations"):

1.1 The Tribunal applied the wrong test and erred in its construction and application of PIC 4020(4)(a) of the Regulations by misapplying what constituted compelling circumstances affecting the interests of Australia in that:

1.1.1 The Tribunal treated as determinative (absent an evidentiary basis) that the employer's loss of the Applicant would be of no greater impact than the loss of any other employee: Decision, paras [29], [30], [31], [34].

1.1.2 The Tribunal treated as determinative (absent an evidentiary basis) that Australia's trade or business opportunities would not be significantly adversely affected and that Australia would not miss out on a significant benefit to its business or economic opportunities if the Applicants were not granted the visa: Decision, para [33].

1.2 The Tribunal applied the wrong test and erred in its construction and application of PIC 4020(4)(b) of the Regulations by misapplying what constituted compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen in that:

1.2.1 The Tribunal treated as determinative (absent an evidentiary basis) that the employer's loss of the First Applicant would be of no greater impact than the loss of any other employee: Decision, paras [29], [30], [31], [34].

1.2.2 The Tribunal treated as determinative (absent an evidentiary basis) in finding that the circumstances of the Applicants must be fundamentally different from those of "many others" in order for them to be compelling or compassionate: Decision, para [40].

1.2.3 The Tribunal erred in conflating the concepts of compelling and compassionate circumstances, rather than considering separately whether circumstances were compelling or compassionate and whether or not such circumstances, if they did exist, justified the grant of the visa to the Applicants.

1.3 The Tribunal's findings, in its reasons, are unreasonably coloured by and based on its approach that a circumstance must be unique or significantly different in order for it to be compelling or compassionate: Decision, paras [29], [30], [33], [40].

1. The Tribunal erred in finding that the First Applicant provided information in contravention of Public Interest Criterion (PIC) 4020(1) of Schedule 4 in that:

2.1 It was legally unreasonable for the Tribunal to conclude that the First Applicant provided false or misleading information on the evidence before it; and/or

2.2 There was no element of fraud or deception by the First Applicant to invoke the said provision: Decision, paras [8], [9], [10]; and/or

2.3 The Tribunal's process of reasoning in arriving at the finding that PIC 4020(1) had not been met involved the Tribunal taking into account irrelevant considerations and/or erroneous findings and/or was irrational:

2.3.1 At Decision [17], the Tribunal erred by taking into account in the non-disclosure by the First Applicant of all of the information contained in the UK Police Certificate dated 17 May 2019, including the offences with which the First Applicant was charged but not convicted;

2.3.2 At Decision [19], [20], the Tribunal erred by taking into account in the non-disclosure by the First Applicant of past convictions on the incoming passenger card in circumstances where:

2.3.2.1 the incoming passenger card does not call for the disclosure of convictions which are "spent" i.e. which no longer are to be regarded as "convictions"; and/or

2.3.2.2 the Tribunal did not identify that the completion by the First Applicant of the incoming passenger card(s) had resulted in a grant of or exercise of an existing visa which was current within the 12 months immediately preceding the date of the application for the subclass 187 visa.

2.4 These errors identified were material to the decision made by the Tribunal, in that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].

1. The materials before the Court include:
   • the amended application for judicial review filed on 27 February 2025;
   • the affidavit of the first applicant affirmed on 8 March 2022;
   • the amended Court Book filed on 20 December 2024, numbering 560 pages and marked as Exhibit 1;
   • written submissions filed on behalf of the applicants on 16 January 2025;
   • written submissions filed on behalf of the Minister on 30 January 2025;
   • the affidavit of Kazmer Ujvari affirmed on 6 February 2025, annexing a transcript of the Tribunal hearing held on 20 June 2018;
   • further written submissions filed on behalf of the applicants on 27 February 2025;
   • further written submissions filed on behalf of the Minister on 12 March 2025; and
   • the affidavit of Lily Joelle Butterfield affirmed on 2 April 2025, annexing a copy of the applicant's incoming passenger entry card dated 28 August 2018.

1. As outlined above, the amended application for judicial review contains two particularised grounds. Both grounds allege jurisdictional error in the Tribunal's reasons for determining that PIC 4020(1) was breached and that the conditions for waiver under PIC 4020(4) were not met.

Ground one - the Tribunal's consideration of compassionate or compelling circumstances

1. Ground one contends that the Tribunal erred in its construction and application of PIC 4020(4)(a) and (4)(b) in finding that there were not compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand, to justify waiving PIC 4020(1) for the grant of the visas.
2. The requirements of PIC 4020 may be waived if there are compassionate or compelling circumstances that justify the granting of the visa (PIC 4020(4)).
3. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 (Plaintiff M64/2015), the plurality of French CJ, and Bell, Keane and Gordon JJ, defined "compelling" circumstances as those which "'force or drive the decision-maker' 'irresistibly' to be satisfied that 'special consideration' should be given to granting the particular application" (at [31]). Gageler J (as his Honour then was), in separate reasons, considered the statutory requirement to be that "the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible" (at [64]).
4. The Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 (Kaur 2017) at [26] per Dowsett, Pagone and Burley JJ discussed the inquiry under PIC 4020(4) as follows:

Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are "compelling circumstances". Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants' argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist "compelling" (that is, "forceful"; Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants' submissions. We see no error in that approach.

1. This approach was applied by Judge Lucev in Wu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1091, who went on to say:

The appropriate inquiry under PIC 4020(4) (a) or (b) of Sch 4 to the Migration Regulations is a two-stage inquiry. The first stage of the inquiry through PIC 4020(4)(b) of Sch 4 to the Migration Regulations is to consider whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The word "or" is ordinarily treated as being disjunctive: Uddin v Associated Portland Cement Manufacturers, Ltd [1965] 2 QB 582; R v Surrey Quarter Sessions, ex parte Cmr of Metropolitan Police [1963] 1 QB 99. In this case that means that the circumstances identified by a decision-maker are not required to be both compassionate "and" compelling: Kaur v Minister for Immigration & Border Protection [2018] FCCA 1614; (2018) 334 FLR 281. The second stage is discretionary. It requires a decision-maker to consider whether the compassionate or compelling circumstances identified in the first step justify the grant of the Partner Visa.

1. There are a number of difficulties with the applicants' assertion that the Tribunal applied the wrong test in respect of what constitutes compelling and compassionate circumstances. To begin with, there is no difference between the elucidation of the construction of compelling and compassionate by the Tribunal and the applicants. The Tribunal correctly outlined the two-stage inquiry explained by Kaur 2017, its explanation of what constitutes "compelling" circumstances relying upon the definition of that term by the High Court in Plaintiff M64/2015, and it set out the ordinary meaning of "compassionate" as relating to feelings of "sympathy, sorrow, pity or concern for others". As pointed out by the Minister, there is no meaningful distinction between this elucidation of the test and that advanced by the applicant, which equally relies upon the same constructions in Kaur 2017 and Plaintiff M64/2015, and upon a definition of compassionate as "a feeling of sorrow or pity for the sufferings or misfortunes of another".
2. No error is demonstrated by the Tribunal's construction of the test. Nevertheless, it can be accepted that it does not necessarily follow that "recitations of the statutory phrase and its reference to authority and ordinary meaning...[mean] that the Tribunal in its consideration...then applied those meanings disjunctively as separate concepts" (Kaur v Minister for Immigration and Border Protection [2018] FCCA 1614; (2018) 334 FLR 281 at [33] per Judge Baird).
3. The Minister submitted that the applicants' complaint effectively takes issue with the outcome of the test employed by the Tribunal rather than with the test itself. In that sense, it identifies no jurisdictional error by the Tribunal and rises no higher than a request for the Court to engage in impermissible merits review. In the Court's view, the Minister's submission in this respect is properly made.
4. The Tribunal addressed the evidence with respect to the impact on the applicant's employer if they were to lose him, to which the Tribunal acknowledged the negative impact that would have on the business. There is nothing uncontroversial in respect of the Tribunal's finding that the impact of losing the applicant would not be any greater than the common experience of losing a valued member of a team for a number of reasons. Importantly, the Court accepts that the Tribunal properly engaged with the evidence before it in respect of this issue and did so specifically within the boundaries of what constitutes a compelling circumstance. As properly submitted by the Minister, the fact that the Tribunal accepted that the applicant's employer may suffer some detriment from the loss of the applicant does not inexorably lead to that being found to be a compelling circumstance which required waiver of PIC 4020. The Tribunal was required to engage with the merits of that claim and it did so.
5. The Court therefore accepts that it was within the Tribunal's proper scope of decisional freedom to consider and determine whether that threshold was crossed, such as to justify waiver of PIC 4020. As submitted by the Minister, the Court accepts that the Tribunal rationally reasoned such a threshold was not crossed.
6. With respect to compassionate circumstances, the applicants submitted that the Tribunal imported a requirement that the applicants demonstrate their relationships are "fundamentally different to the circumstances of many people operating successfully in a cohesive and nurturing community whilst providing support to others within a community", nothing of which, the applicants submit, is required by the definition of "compassionate". The applicants also submitted that the Tribunal (at [41] of its reasons) repeats the finding that the employer's loss cannot be classified as "compassionate or compelling circumstances" and, in so doing, impermissibly conflates the two distinct criteria.
7. Regarding the applicants' complaint that the Tribunal erred by importing into "compassionate or compelling circumstances" a requirement that those circumstances be unique or substantially different, the Minister submitted that this complaint is predicated on a misreading of the Tribunal's reasons. The Tribunal addressed (at [35]-[42] of its reasons) the large body of evidence presented by the applicants, and it acknowledged the significance of those relationships and the support provided by the applicants to others in the community, particularly a young person living with a disability. However, the Minister again submitted that whether those circumstances rise to the threshold level of "compassionate or compelling" is a matter of degree for the Tribunal to determine.
8. The Tribunal considered the applicants' evidence in assessing the nature of their relationships with the community and the consequence of their visa refusals. The Minister submitted it was appropriate for the Tribunal to consider whether there were any unusual features of those relationships that might have weighed in favour of exercising its power to waive PIC 4020. The Court agrees with the Minister's position that the Tribunal's consideration of these factors was not only orthodox, but that there is nothing in the Tribunal's reasons which suggests it imported a requirement for there to be unique or "fundamentally different" features such to enliven the waiver provision of PIC 4020. The Tribunal applied the correct test and simply observed the absence of any other factors that might have assisted the applicants. It was otherwise appropriate for the Tribunal to consider the facts and degree of the applicants' circumstances in determining whether they reached the threshold for "compelling circumstances" or "compassionate or compelling circumstances" that would enable it to exercise the waiver condition in PIC 4020. Contrary to the applicants' submission, there is nothing in the Tribunal's reasons to suggest that it conflated the two tests it was required to assess under PIC 4020(4).
9. The Court finds that there was no error in the Tribunal's consideration of PIC 4020(4). Accordingly, no jurisdictional error arises with respect to ground one.

Ground two - the Tribunal's consideration of whether the applicant purposely provided false and misleading information

1. Ground two contends that the Tribunal erred in finding that the applicant had provided information which contravened the criteria of PIC 4020(1), specifically with respect to the applicant's non-disclosure of his earlier UK convictions.
2. The applicants contend that the Tribunal made an irrational finding to the effect that the applicant purposely failed to disclose his UK convictions because of advice received from his UK solicitor (and supplied to the Minister).
3. At the initial hearing of this matter, the Court raised with the parties two issues:

(a) What was the legal effect of the applicant's UK convictions, and were they required to be disclosed having regard to the terms of the Crimes Act 1914 (Cth) (the Crimes Act) and the decisions of Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 (Frugtniet), Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 210 (Lesianawai)?

(b) Did the Tribunal fail to consider, or fail to properly engage with on an intellectual level, the letter from the UK solicitor addressing the legal effect of the applicant's convictions?

Was there a requirement to disclose the UK convictions?

1. The UK police certificate dated 17 May 2019 records the following matters pertaining to the applicant:
   • a property offence dealt with on 10 November 2001 resulting in a warning;
   • a property offence dealt with on 5 June 2006 resulting in a conditional discharge after six months and some pecuniary penalties;
   • a driving offence dealt with on 29 August 2008 ultimately resulting in a community order with curfew and electronic tagging requirements;
   • a breach of a community order offence dealt with on 20 January 2009 resulting in an amendment to the original order; and
   • a drug offence dealt with on 2 March 2012 resulting in a caution.
2. It is common ground that none of these offences were declared by the applicant in his visa application or his incoming passenger entry card. The specific question asked by the visa application was "Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?" (CB 43). In response, the applicant answered "Yes" and disclosed his Australian conviction for "DUI".
3. After the applicant's UK police record had been brought to his attention by the delegate on 19 June 2019, he provided the following explanation in a statutory declaration (CB 297):

In all of those forms, I have never declared convictions to Australian immigration, as at the time of completing the forms it was my belief that they were all either cautions or spent and no longer on my record. The way I understood was that if they were cautions they would be on my record for 5 years and convictions would remain for 10 years (This can be backed up from my lawyers letter from the UK)

In mid-2019 for the purposes of the subclass 187 visa application I was requested to provide a UK Police Clearance. On providing this clearance it was discovered that the cautions and convictions of several offences that I believed to no longer exist, were still on my record.

1. The letter from the UK solicitor is set out below (CB 314-315):

Following instructions received from the above father, [name], I set out the legal position of the five endorsements on the document Ref PC/19/057606 concerning the antecedent history of Dean Moore.

1. The endorsement on the 10th November 2001 is not a conviction.

2. The endorsement on the 5th January 2006 ceased to be a conviction at the end of six months from the date of imposition.

3. The endorsement on the 29th August 2008 ceased to be a conviction at the end of five years from the date of imposition.

4. The endorsement on the 2nd March 2012 is not a conviction.

5. The endorsement on the 20th January 2009 is not a conviction.

In a nutshell the endorsements in paragraphs 2 and 3 are spent convictions under the law. There is effectively a clean slate after the period of time stated above. The endorsements in paragraphs 1, 4 and 5 are not convictions.

The limitation of such conferment is that where a disclosure of spent conviction is expressly requested it would be disclosable.

This area of law is unnecessarily complex and typically many defendants tend to assume that a lapse of time necessarily means that it can never be cited or disclosed.

1. From this, it can be observed that three of the matters recorded on the UK police certificate were not convictions and the remaining two were spent convictions. Clearly, on the face of the question asked in the visa application form, there was a requirement for the applicant to declare the two spent convictions, being convictions which had been removed from the official record.
2. It was for this reason that the Court invited submissions from the parties addressing the provisions of the Crimes Act which govern the treatment of spent convictions under Commonwealth law. The parties were in agreement that those provisions did not apply, with the applicants accepting at the resumed hearing of this matter that the submissions made by the Minister in this respect were correct. Having reviewed the regime and relevant authorities, the Court also accepts that the explanation for the statutory regime advanced by the Minister is correct. The following summary of that regime is largely derived from the Minister's helpful outline.
3. Section 85ZV(2) of the Crimes Act relevantly provides:

Subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person's conviction of a State offence or a foreign offence is spent, the person is not required:

(a) in any Territory - to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence[.]

1. A spent conviction is defined in s 85ZM(2)(b) as one where "the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended". "Waiting period" is relevantly defined in s 85ZL as a period of 10 years beginning on the day on which the person was convicted of the offence.
2. Section 85ZV is expressed as being subject to Division 6 of the Crimes Act, which relevantly provides at s 85ZZH(d) that s 85ZV does not apply in relation to the disclosure of information to "a person who makes a decision under the Migration Act 1958...for the purpose of making that decision".
3. Section 85ZR deals with convictions which are deemed not to have been convictions, whether because of a pardon, a quashed conviction, or where a finding of guilt is expressly to be treated ab initio as not being a conviction. S 85ZR(2) relevantly provides as follows:

Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.

1. Operating alongside that provision, s 85ZS(1) then provides:

Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence:

(a) the person is not required, in those circumstances or for that purpose, to disclose the fact that the person was charged with, or convicted of, the offence[.]

1. Importantly, however, ss 85ZR and 85ZS are not subject to the exclusion prescribed by s 85ZZH(d) and so the effect is that if the applicant's convictions attracted the operation of s 85ZR, then he would not have been required to disclose them in his visa application. It would therefore follow that it would not be necessary to consider whether the applicant's failure to disclose those convictions would represent the provision of false or misleading information for the purpose of PIC 4020.
2. The parties mutually accepted that there were convictions which the applicant was required to disclose and that he was not excused from doing so by the provisions of the Crimes Act or any other Australian or British legislation. Counsel for the applicants accepted that the cases of Frugtniet, Thornton and Lesianawai do not assist their argument. In short compass, that is because Frugtniet did not involve a decision made under the Migration Act, and Thornton and Lesianawai considered the application of juvenile sentencing regimes in the Youth Justice Act 1992 (Qld) (Youth Justice Act) and the Children (Criminal Proceedings) Act 1987 (NSW) (Children (Criminal Proceedings) Act). Importantly, in Thornton, the High Court held that the Crimes Act precluded consideration of the child convictions of the applicant in that matter because the provisions of the Youth Justice Act expressly operated such that "a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose" (s 184(2) of the Youth Justice Act). In Lesianawai, the High Court found that the relevant provisions of the Children (Criminal Proceedings) Act were not materially different from those of the Youth Justice Act.
3. Accordingly, it is clear that the applicant was required to disclose his spent convictions in his visa application.

1. As observed, the applicant has consistently maintained that he believed that his earlier records of offences and convictions had ceased to exist. This was a claim which was rejected by the Tribunal as "challenging to believe as accurate".
2. It is useful to set out the Tribunal's understanding of the applicant's evidence and its findings in respect of this in full (at [19]-[20] of its reasons):

[19] When asked why he did not disclose the convictions on his visa applications or his incoming passenger card on his arrival into Australia, the visa applicant stated that he thought, based on his earlier experiences in the UK legal system that these records of offences and convictions ceased to exist after certain time periods had occurred, which varied depending on the type of offence. Had he known then that they didn't cease to be on his record but remained permanently, he would have done differently and declared them.

[20] The Tribunal finds the explanation proffered that he didn't understand that his convictions would be relevant as they had ceased to be convictions prior to arriving in Australia as they had expired, is challenging to believe as accurate. It also notes the wording on the visa applications and passenger entry card which are quite clear, including the issue of previous convictions and charges. The Tribunal has concluded that the visa applicant knowingly provided false information in relation to convictions on his visa applications and his incoming passenger card on his arrival into Australia.

1. It was, of course, a matter for the Tribunal to make an assessment of the credibility of the applicant's explanation in respect of his failure to disclose his convictions, provided that assessment was within the boundaries of legal reasonableness. The Tribunal's reasons for rejecting the applicant's explanation are internally cogent. That is, the Tribunal had regard to what it believed were clear statements on the visa application and passenger entry cards and reasoned that the applicant could not have believed he was not required to disclose those convictions. Absent any evidence to the contrary, that was an acceptable rationale for the Tribunal's finding.
2. However, the issue was not, in fact, absent any evidence to the contrary. The applicant had provided a letter from a UK solicitor which supported the applicant's explanation. That letter expressly states that the "area of law is unnecessarily complex and typically many defendants tend to assume that a lapse of time necessarily means that it can never be cited or disclosed".
3. There is no reference to the letter from the UK solicitor anywhere in the Tribunal's decision. Given the letter is direct evidence as to the legal position in respect of the applicant's convictions, explains that they are spent convictions, and importantly, goes directly to the critical issue of whether the applicant could have genuinely believed that he did not have to disclose the conviction, it cannot be said that the Tribunal was not required to consider this.
4. It is true, as submitted by the Minister, that the Tribunal was not required to refer to every piece of evidence it considers. However, the Tribunal's decision at [16] makes it clear that it is considering each of the matters recorded in the UK police certificate, including the three matters where there was clear and express evidence from the UK solicitor that they were not convictions. If the Tribunal had considered this evidence, it would either have limited its discussion to the relevant convictions or explained why it had rejected the evidence of the UK solicitor as to why the other matters were not convictions.
5. It is also true that the Tribunal was not required to uncritically accept the evidence of the UK solicitor. However, it was relevant evidence going to a central issue before it, and as such, the Tribunal was required to engage with it. The Tribunal does not mention the letter, does not mention that the applicant provided corroborative evidence, and does not grapple with the import of this evidence at all.
6. Accordingly, the Court is left with two possibilities. Either, the Tribunal overlooked the evidence from the UK solicitor and reached its conclusions erroneously believing the applicant had not provided any corroborative evidence of the reasonableness of his belief, in which case the Tribunal erred by failing to have regard to material which was relevant to its decision. Alternatively, the Tribunal reached a conclusion that the applicant's belief was "challenging to believe as accurate" notwithstanding there was direct evidence from a UK solicitor with expert knowledge and experience in this area that such a belief was "typical". That would have been a finding that was either illogical or unreasonable on the basis of having failed to intellectually engage with probative evidence.
7. The Court is inclined to find that the Tribunal overlooked the letter from the UK solicitor. Given that the letter went to the heart of the matter, the subject knowledge of its author, and that it set out the precise legal position in respect of the applicant's convictions, it is difficult to comprehend why else it would not have been referred to. Supporting this is the fact that the Tribunal appears to have erroneously assumed all of the offences which are listed on the UK police clearance certificate resulted in convictions, which is contrary to the advice from the UK solicitor that three of the recorded endorsements were not convictions. The Court accepts that the Tribunal's misunderstanding of the legal effect of three of the five matters recorded on the police clearance certificate would be an error of fact within jurisdiction, and in any event, not material. However, it is important in establishing that the Tribunal did not have regard to the evidence of the UK solicitor.
8. The Minister argued that the UK solicitor's evidence was not relevant because it said nothing about the applicant's own state of mind and did not stand as evidence that the applicant had misunderstood the nature of the UK spent conviction regime. The Minister submitted that it was therefore not relevant to the question the Tribunal was required to answer. However, the Tribunal was required to consider whether or not the applicant had purposely provided false or misleading information (Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169). The applicant's own evidence in this respect was that he had assumed that he did not have to disclose the spent convictions. The import of the UK solicitor's letter was that this view was typical of many defendants due to the complexity of the regime. It was not evidence as to what the applicant's belief was, but it was nevertheless evidence as to whether that belief was reasonably held. In the context of the Tribunal's task to determine whether the applicant had purposely provided false information, evidence going to the reasonableness of a stated view was clearly relevant.
9. The Minister further submitted that the evidence from the UK solicitor was nothing higher than "loose, general, background corroboration of a claim that was roundly rejected by the Tribunal by reference to the clear wording of the visa application". That submission, however, ignores that the evidence was from an expert in UK criminal law which was directed towards the specifics of the applicant's convictions, carefully explained the legal consequences of the statutory regime, and endorsed the reasonableness of the applicant's position in light of the UK solicitor's experience as an expert in this area. In relation to the Tribunal's rejection of the claim, it suffices to observe that this was done without recourse to the only objective evidence which went to that issue.
10. The failure to consider the UK solicitor's letter was material. Had the Tribunal considered and engaged with the gravamen of the letter, it may have considered the applicant's belief that he was not required to disclose his UK convictions was genuine and reasonable. It may then have found that the applicant did not purposely provide false and misleading information. It is quite clear that may have realistically altered the outcome.
11. Jurisdictional error is made out in respect of this ground, albeit for slightly different reasons than advanced in the application.

1. The applicants have succeeded on ground two of the amended application.
2. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.