Case: Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234
Outcome: referred to
In the course of argument in relation to these grounds, counsel for Mr Boyes submitted that the Tribunal should have noted that Mr Boyes pleaded guilty to the charges he faced. Further, according to counsel, a "complete examination of the seriousness of the Applicant's conduct should also involve considering the possible maximum sentence available to the sentencing judge". The applicant also challenged the Tribunal's finding concerning the repugnance of the crime, on the basis that the fraud involved in Mr Boyes' offending was not the same kind of fraud as that referred to in par 2.7(b) of Direction 21. Additionally, so counsel submitted, the Tribunal misapplied certain observation of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 (" SRT "). The Tribunal failed to place the remarks of the sentencing judge in proper context and treat them as the law required. 27 In SRT , a Full Court held that it was not open to the Tribunal, in such a case as this, to impugn either the sentence or the essential facts found by the sentencing judge in sentencing: see SRT at 244 per Branson, Lindgren and Emmett JJ; also Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 per Fisher and Lockhart JJ. It was to be borne in mind, however, that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. Moreover, so the Court said in SRT at 243, "accepting the findings of the sentencing judge does not prevent the Tribunal from distinguishing between those findings in terms of weight". 31 There is nothing in the Tribunal's reasons to support the submission that it misapplied SRT , and misused the sentencing judges' findings and observations in reaching its decision. Further, I would not infer from the Tribunal's reasons that the Tribunal did not take into account the fact that Mr Boyes had entered a guilty plea in the County Court. Certainly, the fact was specifically referred to in the Tribunal's reasons for decision. In this circumstance, it is unnecessary to decide whether the Tribunal was bound to consider the fact that Mr Boyes had pleaded guilty in the earlier criminal proceeding, although I doubt that it was. The consideration of this factor is not mandated by the Act alone and not mandated, directly at least, by the combination of s 499(2A) and Direction 21. There is, moreover, no basis in the Act , even when read with Direction 21, to support the proposition that, in considering the seriousness of Mr Boyes' conduct for the purpose of determining whether to cancel his visa, the Tribunal was bound to consider the maximum sentence that Mr Boyes' offences might have attracted under the criminal law. 32 There is no jurisdictional error shown in grounds (a), (b) or (c). (d) The decision of the Tribunal should be set aside as it misapplied paragraph 2.7(b) of Direction No 21 when it referred to but apparently failed to give due regard to "the repugnance of the crime", thereby failing to consider relevant material or considering irrelevant material. 33 Under this ground, counsel for Mr Boyes submitted that the Tribunal erred in likening the crimes committed by Mr Boyes to the crimes referred to in par 2.7(b) of Direction 21. I reject this submission for the reasons set out at [28]-[29] above. (e) The decision of the Tribunal should be set aside as it failed to exercise its discretion or failed to consider relevant material when it purported to consider the likelihood that the applicant's conduct may be repeated by merely repeating the words contained in part of paragraph 2.10 of Direction No 21 without apparently making its own findings. 39 Direction 21 also provides that "the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may be reasonably expected to make" are relevant to the assessment to be made under par 2.10. Under this ground, the applicant contended that the Tribunal failed to consider the prospects of further rehabilitation and the positive contribution that Mr Boyes may reasonably be expected to make, as par 2.10 of Direction 21 required. Had the Tribunal done so, it would have acknowledged the effect of the passage of time. The applicant argued that the Tribunal misapplied SRT when it did not refer to the passage of time. 40 Counsel for Mr Boyes also submitted that the Tribunal erred when it combined consideration of rehabilitation with consideration of remorse, which were two different things. Counsel added that "the Tribunal went too far when it allowed those explanations by the self-represented represented applicant to colour its consideration of these requirements under the direction". 41 As already noted, in SRT , the Full Court noted that the Tribunal considered matters at a time different from the sentencing judge and that the Tribunal may be required to give consideration to the fact that some relevant circumstances had changed between the sentencing and the Tribunal's consideration of the matter. 42 In the present case, the Tribunal did not limit its consideration of rehabilitation prospects and risk of recidivism to the sentencing remarks of Judge Wood in the County Court. On the contrary, the Tribunal made a comprehensive review of the curial material in its possession and the evidence of Mr Boyes' rehabilitation. It referred to this latter evidence in some detail and noted that it was to Mr Boyes' credit. The Tribunal plainly took account of the matters relevant to the passage of time between sentencing and its decision-making, when it said that it was prepared to view favourably his undertakings to achieve qualifications and personal skills and that it gave some weight to the favourable comments of others about him. 43 Clearly enough, the Tribunal considered the prospects of rehabilitation and the risk of recidivism. In considering the broad question of whether the offending conduct might be repeated, it was open to the Tribunal to consider Mr Boyes' evidence about his attitude to his offending and his understanding of why it was wrong, more particularly as Mr Boyes had apparently made an assertion to the Tribunal in this regard. 44 Ground 4(g) discloses no error. (h) The decision of the Tribunal should be set aside as it erred when it took account of an irrelevant consideration when purporting to apply paragraph 2.11 of Direction No 21 by hypothesising on the effect on non-citizens of not cancelling the applicant's visa. 45 Paragraph 2.11 of Direction 2.11 relevantly states that "[g]eneral deterrence aims to deter other people from committing the same or a similar offence". It also states that the "general deterrence factor" may be relevant in a number of ways, indicating what these ways may be.