Seddon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The applicant's amended application filed on 6 March 2020 be dismissed.
2. The applicant pay the first respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicant, Mr Seddon, seeks judicial review of the decision of the second respondent (the Tribunal), which affirmed a decision by a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of his visa. The non-revocation decision was made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). 2 Mr Seddon is a citizen of New Zealand. He has a "substantial criminal record" as defined in s 501(7) of the Act and does not pass the character test as a result of a conviction in 2005 for which he was sentenced to two years' imprisonment. In 2018 he was convicted on another criminal offence and imprisoned for three months, as a result of which his visa was mandatorily cancelled under s 501(3A) of the Act. 3 The amended originating application raised three grounds of review but only ground two was pressed at the hearing. That ground is that the Tribunal failed to act on correct legal principles in finding that Mr Seddon had been sentenced "leniently" by the courts, rather than accepting those sentences as appropriate. That finding was made at paragraph 38(d) where the Tribunal said, in the context of considering paragraph 13.1.1(1)(d) of Ministerial Direction 79: Imprisonment is the last resort in the Court's available sentencing options. Mr Seddon has been sentenced to periods of imprisonment in 2005 and 2018, reflecting the objective seriousness of his offending. As has more often been the case, however, Mr Seddon's offending has been dealt with leniently by the courts, which have imposed Community Correction Order's (CCO's) [sic], bonds, fines, or other conditional liberty arrangements. Mr Seddon has not taken advantage of that leniency, as reflected by convictions such as: 'Commit indictable offence whilst on bail', 'Contravene a conduct condition of bail' in 2018, and 'Fail to comply with bail agreement' in 2016. 4 Paragraph 13.1.1(1)(d) of Ministerial Direction 79 provides that in considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the sentence imposed by the courts for a crime or crimes. It was submitted that the Tribunal fell into error in that consideration. 5 First it was argued that the Tribunal erred by applying its own subjective view as to what the appropriate sentence for the non-custodial offences should have been. It was submitted that paragraph 13.1.1(1)(d) requires the decision-maker to accept a sentence imposed by the courts as appropriate, consistent with the principle that an administrative tribunal will not go behind a criminal conviction or sentence. It was submitted that the task required by paragraph 13.1.1(1)(d) is to use the sentence as an objective factor by which to assess the seriousness of the non-citizen's offending. In doing so, the Tribunal may consider a judge's sentencing comments to understand how different factors were relevant to the court's determination of sentence. However, a decision-maker fails properly to apply paragraph 13.1.1(1)(d) if it seeks to look behind the sentence and forms its own subjective view as to what the appropriate sentence should have been. Characterising a sentence as "lenient" was said to go behind the actual sentence implicitly by suggesting the sentence is less severe than would be expected for the relevant offending. 6 Secondly it was argued that it was apparent the Tribunal applied a different methodology in considering custodial and non-custodial sentences to assess the seriousness of Mr Seddon's offending in that a sentence of imprisonment was accepted at face value (and found to reflect "the objective seriousness of his offending") whereas non-custodial sentences were not accepted as evidence that the offending was less serious, but evidence that the courts had treated the offending less severely by being lenient. It was submitted that this inconsistent manner in which the Tribunal had regard to Mr Seddon's sentences at paragraph 38(d) was illogical, irrational or unreasonable. 7 Thirdly it was argued there was no evidence before the Tribunal on which it could find that the non-custodial sentences imposed on Mr Seddon were "lenient". 8 The reasons of the Tribunal should be viewed as a whole (AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184; [2019] FCAFC 48 at [56], BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515; [2018] FCAFC 76 at [12]) and read as a whole, the Tribunal did not fall into the errors alleged. It is clear from a fair reading of the Tribunal's decision that the Tribunal was not expressing its own subjective view about the appropriateness of the actual non-custodial sentences but, rather, as submitted by the Minister, the Tribunal was observing that the non-custodial sentences had afforded Mr Seddon opportunities for rehabilitation or to refrain from offending, which the Tribunal considered he had not embraced, having regard to his breaches of conditional liberty. The Tribunal applied a similar reasoning in: (a) its consideration of the "Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct", where at paragraph 75 the Tribunal stated: The Tribunal considers Mr Seddon's best intentions would again be sorely tested if he was at liberty in the community. It cannot be reliably concluded that Mr Seddon will not relapse into substance abuse or reoffend. The evidence discloses multiple but unsuccessful past opportunities to break the repetitive cycle of relapse and offending. That is despite consistently lenient treatment by the courts and frequent rehabilitative opportunities. The nature and seriousness of Mr Seddon's past offending, the risk of harm posed by any recidivism, and the likelihood of him committing further offences is considered unacceptable. This primary consideration weighs very strongly against visa revocation. (b) its consideration of the "expectations of the Australian community", where at paragraph 98 the Tribunal stated: Given the specific circumstances of this case, the community would have some sympathy for the circumstances of Mr Seddon's early life and as a long-term resident of Australia. They would also have considerable sympathy for the interests of Mr Seddon's children and the women he has committed domestic violence against. While potentially prepared to overlook Mr Seddon's early offending, which on its own may have reflected immaturity, poor decision-making, or impulsiveness, the community would be particularly concerned about the persistence of his offending well into adulthood. That includes multiple family violence incidents, offences against police, breaches of conditional liberty, and failure to take advantage of the court's lenient treatment and rehabilitative opportunities. The community would be concerned by the repetitive cycle of relapse and recidivism, and Mr Seddon's prolonged inability to change the course of his life despite numerous opportunities. (c) and at paragraph 125 in the "conclusion" that "the persistence of [Mr Seddon's] offending, failure to respond to the court's leniency, and inability to take advantage of numerous rehabilitative opportunities, has exhausted the community's sympathy and tolerance". 9 Read fairly and as a whole, it is sufficiently clear that the Tribunal did not engage in a task of forming its own view as to what the appropriate sentences should have been in relation to those offences for which non-custodial sentences were imposed. To find otherwise would reflect an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]. 10 It follows that I also reject the contention that by considering the expectations of the Australian community by reference to the Tribunal's earlier consideration that the sentences imposed on Mr Seddon had been lenient, the Tribunal failed to properly apply paragraph 13.3 of Ministerial Direction 79. 11 For the sake of completeness, the error, if there was one, was not material. As submitted for the Minister, to constitute jurisdictional error, the error must be material to the decision in the sense that the error, if not made, could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]-[46]. Counsel for Mr Seddon urged the Court to reach that conclusion on the basis that the question for the Tribunal was whether there was "another reason" why the visa cancellation should be revoked and there were several considerations favourable to Mr Seddon's case, namely the best interests of Mr Seddon's minor children, which is a primary consideration, the strength, nature and duration of Mr Seddon's ties to Australia, the impact on victims, and the extent of impediments that Mr Seddon may face if removed from Australia. Counsel accepted that the Tribunal found two primary considerations weighed against revoking the visa cancellation but submitted that one of those primary considerations was the protection of the Australian community from criminal or other serious conduct and, in the assessment, the Tribunal wrongly formed its own views about the appropriateness of the non-custodial sentences. It was submitted that the Tribunal could possibly have reached a different conclusion, if the Tribunal had accepted that offending which was punished by non-custodial sentences ought to be treated as objectively less serious than offending that was punished by a greater sentence such as imprisonment. I reject that submission. 12 The finding of the Tribunal that Mr Seddon's offending is objectively very serious was based not just upon its view that the non-custodial sentences were lenient (if that be the proper characterisation, which I have rejected) but also upon the following matters set out by the Tribunal at paragraph 38, : (a) that Mr Seddon has multiple convictions for offences involving violence or the threat of violence, most recently in 2018, which the Tribunal said "are viewed very seriously"; (b) that Mr Seddon has been convicted of violent crimes against two women, including at times in the presence of some of his children, which the Tribunal also said "are viewed very seriously"; and (c) that Mr Seddon has been convicted of offences against police officers performing their duties, which the Tribunal said "are viewed seriously". 13 In light of those other findings, not sought to be impugned, and on the counterfactual that the Tribunal accepted that all sentences imposed on Mr Seddon were "appropriate", it has not been demonstrated how there is a realistic possibility the Tribunal could have reached a different conclusion about the seriousness of Mr Seddon's offending or could have possibly reached a different decision on the review of the visa cancellation. The Tribunal found that the primary considerations of protection of the Australian community and the expectations of the Australian community weighed very strongly against revocation and considerably outweighed the other considerations which favoured revocation, including the best interests of minor children in Australia (a primary consideration) which the Tribunal at paragraph 88 found weighed in favour of visa cancellation revocation, "but only slightly so". Tellingly the fact that Mr Seddon's offending for which he received non-custodial sentences ought to be treated as objectively less serious than the offending for which he was imprisoned does not gainsay the weight which the Tribunal attributed to his very serious offending in its overall consideration and assessment of the factors bearing upon whether the visa cancellation decision should be revoked. 14 Accordingly the application must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.