XRXL v Minister for Immigration, Citizenship, Migrant Services and... [2020] FCA 813 | Case summary

Consideration 17 While it is a well-established sentencing principle that it is not essential that there be an identification of the precise nature of an offender's involvement in an act of importation of prohibited imports, it is also recognised that endeavouring to do so, when the evidence permits that to happen, can be a means of advancing the objective of consistency in sentencing between co-offenders and consistency in sentencing for like offences more generally: R v Olbrich [1999] HCA 54; 199 CLR 270 at [13]-[14]. This was such a case, especially following a trial by jury. Thus the findings of the sentencing judge summarised at [3] above formed an important part of the process in deciding upon the appropriate sentences to impose on the applicant. On the authority of HZCP, it was not open to the Tribunal to make contrary findings about the applicant's role in the criminal importation organisation in Australia, or indeed take into account evidence to that effect. 18 The applicant does not challenge the correctness of the majority finding in HZCP, because he contends that he did not seek to have any such impugning of those sentence findings take place. Instead he contends that the Tribunal went too far in the application of the HZCP proscription, and thereby fell into vitiating jurisdictional error. 19 It is necessary to consider the totality of the material about the threats that was before the Tribunal to which the Court's attention was directed, and to endeavour to interpret and understand the Tribunal's reasons in context. It is common ground that, following HZCP, the applicant could not impugn the sentence finding that he was the most senior person involved in the importations in Australia. The substance of the applicant's case is that he did not do so, but that in trying to avoid that proscription, the Tribunal did not consider evidence that did not traverse this forbidden territory and therefore was required to be considered. The substance of the Minister's response is that none of applicant's evidence was overlooked, but that the findings the Tribunal made about threats were suitably confined so as not to clash with the essential findings made by the sentencing judge. 20 The Tribunal was not precluded by HZCP from having regard to evidence of threats being made to the applicant, because that was not material before the sentencing judge and did not, without more, represent anything that was contrary to a sentencing finding. But the Tribunal was not entitled to have regard to any aspect of those alleged threats that was inconsistent with the sentence finding that the applicant was the most senior person in Australia involved in the importations. 21 The first sentence of the Tribunal's reasons at [21] - "The following represent my findings of fact" - unavoidably means that [31] was a part of the Tribunal's factual findings. I reject the applicant's submission that this was merely a recording of claims made by him. Thus the Tribunal relevantly found, by express reference to [5] of the applicant's pre-hearing statement, that the applicant "has never given the police information about others involved in organising the importation due to threats after his arrest which he understood may involve harm to his family". Addressed in this way, the claim of threats being made was considered, and accepted, by the Tribunal, without addressing who had made the threats, and thereby avoiding any issue as to who in the hierarchy of the criminal organisation had made the threats. The remaining question is whether the Tribunal was entitled or even required to stop short in this way. 22 The applicant's evidence before the Tribunal was capable of being understood as being somewhat internally inconsistent unless it is read in a particular way. On a fair reading of [5] of the applicant's further statement, reproduced above at [5], the applicant was referring to the organisers in Australia for the importation as being criminals of Chinese background, who had connections with other criminals in China. Read in that way, it was plainly contrary to the sentence finding in issue because it attributed an organisational role to people in Australia other than the applicant, thereby giving him subordinate status. In that paragraph of his statement, the applicant was describing "them" as dangerous "people", not referring to a single person. He said that when he was on bail after he was arrested "they" spoke to him and told him to keep quiet about who was involved, or else there would be trouble. He understood that to mean that "they" would harm him and possibly his family. For that reason he had never given any information to the police about "them". 23 By contrast, in the extracts of the applicant's evidence before the Tribunal reproduced above, he referred to acting according to the requirements not of those organising the importation in Australia who were criminals of Chinese background, but rather according to the requirements and instructions of the tenant/friend. He was asked whether it was his evidence that he was really under the direction by this "other person" when he was committing the offences to which he said he was really receiving directions from "someone" else. The applicant in his oral submissions at the hearing suggested that the reference to "receiving directions" was the mere transmission of directions by somebody else in China who was senior in the criminal organisation to the applicant. That is certainly one way in which that could have been understood, but it was not the only way it had to be understood by the Tribunal. Indeed the further written submissions for the applicant quite properly went no further than suggesting (at [9], reproduced above) that it was "also open to the Tribunal to surmise that the people making the threats may have been acting on behalf of the higher elements in China". 24 A little later in his evidence before the Tribunal, the applicant agreed with the proposition put to him through an interpreter that, while he was on bail, he was "contacted by your friend not to tell the police about this person". It is difficult to know whether this was a true inconsistency with his earlier evidence summarised in the previous paragraph, or whether the inconsistency only arose from the way in which the question was put. I tend to think it was the latter because, on the following page of the transcript, he was asked whether the reason why he did not tell the police about the threat was because he was afraid that he or his wife or child may be harmed, to which he responded that if he told the police about "them" and about "their" involvement, then he would be in trouble. That may or may not be a plural use of "them" and "their". 25 The Tribunal was entitled to assess the evidence of the applicant in a holistic way. It was open to the Tribunal to understand the overall effect of his evidence on this issue as being to convey that the tenant/friend was one of the organisers of the importation in Australia who had connections with other criminals in China and that the threat, whether conveyed by the tenant/friend, or by him and/or others among the organisers in Australia, was made in a capacity of seniority to the applicant, rather than as a mere agent or go-between for the "bosses in China". Viewed in that way, as was open to the Tribunal, the applicant's evidence was inconsistent with the finding of the sentencing judge as to his seniority at the Australian end of the importations. That way of reading the applicant's evidence readily explains the way in which the Tribunal made the finding of fact at [31] that the applicant had never given police information about others involved in organising the importation due to threats made after his arrest which he understood may involve harm to his family, but made no reference to, or finding about, who had made the threats. 26 In this way, the Tribunal deftly made a finding that threats had been made and took that into account as part of the factual matrix in deciding whether or not to make a different visa cancellation revocation decision, whilst avoiding a reference and thus any inconsistent finding as to the role of the person or persons who made the threats. This inevitably did not encompass any notion of threats being made locally on behalf of more senior participants in the importations overseas. However, the latter was only required if the evidence of the applicant had to be read in that way. The Tribunal was not obliged to regard the effect of the applicant's evidence in this way. 27 I can see nothing wrong with the approach taken by the Tribunal, especially as it took things as far as they could be in favour of the applicant in relation to the threats, without traversing the finding made by the sentencing judge that the applicant was the most senior participant in Australia. It follows that it has not been established that the Tribunal failed to have regard to any material put before it by the applicant other than material that it was entitled to regard as being precluded from consideration due to being inconsistent with an important factual finding on sentence. Even absent HZCP, it would have been open to the Tribunal to decline to reach a contrary view as to the applicant's role to that formed by a judge imposing sentence after a jury trial and verdict. 28 The applicant has not established any jurisdictional error on the part of the Tribunal, including no failure by way of jurisdictional error to consider the relevant evidence before it that it was required to take into account, as asserted by the applicant. For completeness, I can find no more pedestrian error on this issue either.

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

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