the blog of Sentry Law

The one where the murder victim rocked up to the Tribunal hearing: HZCP v Minister for Immigration and Border Protection [2019] FCFCA 202

Joel McComber
joel@sentrylaw.com.au
4 March 2020

This post is part case review, part account of my experiences advocating in character-related migration matters over recent years. A lot of people claim to have experience in complex migration matters, but you can check out my experience in the Administrative Appeals Tribunal here and in judicial review matters here.

The Case

The question put before the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCFCA 202 can be shortly put:

Can a Tribunal exercising an administrative power make findings of fact inconsistent with those made by a Court when convicting and/or sentencing a person?

The context for that question in HZCP was this: a non-citizen’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he had been sentenced to a single term of imprisonment of twelve months or more. He requested revocation under s 501CA(4), but a delegate of the Minister decided not to revoke the mandatory cancellation.

The non-citizen then applied to the Administrative Appeal Tribunal (AAT) for review of the non-revocation decision. Before the AAT, the non-citizen sought to convince the Tribunal that the facts upon which he was convicted and sentenced were not accurate and sought to advance a factual position that was more beneficial for his request for revocation.

The Tribunal rejected the non-citizen’s attempts and found that it was bound to accept the facts found by the Court in convicting and sentencing the non-citizen. The Tribunal’s approach was affirmed by Justice Bromberg in the Federal Court and the the question ended up being taken to the Full Court.

The majority of the Full Court (McKerracher and Colvin JJ) dismissed the non-citizen’s appeal. However, attention must be paid to the specificity of the principle endorsed by the majority. Justice Colvin offered a relatively simple summary of the position of the majority at [195] of his reasons:

In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.

However, as we will see, the simplicity of that explanation is undone by the complexity of identify ‘the relevant convictions and sentences.’

The consequence of the majority’s reasons, as was identified by Justice Derrington in his dissenting judgement, is that a Tribunal considering whether to revoke the cancellation of a visa held by a non-citizen convicted of murder will be forced to proceed on the basis that the non-citizen committed the offence even if the victim were to walk into the hearing room and give oral evidence.  

Issue 1 – Administrative law does not recognise the transactional elements of criminal law

What the majority’s decision in HZCP brings to the forefront is the public law’s indifference to the transactional elements of criminal law. I have acted for many clients who plead guilty to offences they maintain they did not commit. Their reasons for doing so are varied, but have included:

  1. receiving legal advice that their risk of conviction is significant;
  2. receiving advice that state-funded legal aid services will not fund the matter to trial;
  3. receiving advice that entering a plea of guilty will result in receiving a ‘time-served’ sentenced, which taking a matter to trial will mean a many month wait in remand (that is, even if they are found not guilty, they will end up spending more time in prison); and
  4. having an immediate family member diagnosed with a terminal condition and preferring to spend time with them before they pass rather than prove their innocence.

All that is to say that, from my anecdotal experience, defendants sometimes plead guilty to criminal offence for reasons unrelated to their culpability.

Even putting aside the Full Court’s decision in HZCP, these contextual elements are not readily adapted into the world of public and administrative law. Decision makers charged with making complex decisions have an understandable preference to gravitate to simplicity where they can find it. Keeping open the possibility that a person convicted of an offence did not actually commit the offence only makes considering character-related decision exponentially more complex and taxing.

Issue 2—The contents of Agreed Schedules of Facts (or similar) really matter

The major consequence of the Court’s decision in HZCP for migration lawyers is that, to at least some degree, we are stuck with the facts we inherit from a client’s criminal matter. If a conviction and sentence enliven a cancellation (or revocation) power, then the decision maker is bound to accept the facts on which the conviction was made and the sentence imposed.

This brings into focus the process by which sentencing Courts make factual findings. Putting to one side matters resolved via criminal trial (in my experience, a small minority of cases), sentencing Courts draw the factual basis of their sentences, as reflected in their sentencing remarks, from either an Agreed Statement of Facts tendered to the Court, or from the description of the offence filed by the prosecutor.

This leads me to another significant point: A non-citizen may accept that they are guilty of having committed an offence but disagree with the factual description of their offending provided to the Court. From discussions I have had with criminal lawyers, the importance of that disparity is often limited in the context of criminal sentencing, but in the context of migration-related processes, it is significant. When it comes to discretionary decision-making under the Migration Act 1958, the importance of the precise nature of the offending (and corresponding degree of seriousness and culpability) is such that a disparity between a non-citizen’s recollection of the offending and the facts recorded by a Court in sentencing may be the difference between a positive and adverse decision.

It would be easy to reprimand criminal lawyers for encouraging non-citizens to agree to inaccurate Statements of Agreed Facts, or failing to consider the migration law consequences when advising clients that the contents of those statements will not mean that much at the end of the day. But to do so would ignore another transactional element of the criminal law: a prosecutor may well be unwilling to accept a plea of guilty based on a less adverse Statement of Agreed Facts. Indeed, even if a prosecutor were to eventually agree to such a revised Statement, it may well take months to do so—months the defendant may well be left lingering in remand.

Ultimately, many of the criminal lawyers I speak to are aware of the potential adverse migration law outcomes that may be precipitated by a charge, conviction or sentence. The best any of us can do is advise clients of all the potential outcomes that may attach to pleading guilty and accepting certain facts and let them decide how they wish to proceed.

Issue 3 – What do you do if your client will destroy their credibility if they comply with their obligations to give true and accurate evidence?

I’m going to share with you a vexing issue of professional ethics that has kept me up at night, even before HZCP was handed down. Consider the following:

You act for a client who has applied to the AAT for review of a non-revocation decision made under s 501CA(4). The Applicant has been convicted of a single offence in respect of which he was sentenced to 18 months’ imprisonment (to serve six).

Your client accepts that he is guilty of the offence (say, grievous bodily harm), but denies certain aspects of the offending recorded by the sentencing judge (e.g. that he struck the victim more than once, including after the victim lost consciousness).

Your client has actively participated in rehabilitation while on bail and while imprisoned. His non-offending related history is all positive.

On the one hand, you’re obliged to advise your client that he must comply with his obligation to give true and accurate evidence while under oath or affirmation. On the other, you know that if your client does give true and accurate evidence the Tribunal will have no choice but to make an adverse credibility finding against him (because his description of the incident is inconsistent with the facts the Tribunal must accept). That adverse credibility finding may well diminish the weigh given to the balance of his evidence, which would otherwise have swayed the decision maker in his favour.

So what advice do you give your client?

Issue 5—Left unchecked, the Minister’s lawyers will extend the principle beyond its scope

Legal representatives of the Minister have quickly jumped on the Full Court’s decision in HZCP to endorse a simple contention:

It is not open to non-citizens facing refusal or cancellation to advance a factual position inconsistent with the findings of a Court exercising criminal jurisdiction.

Though it would certainly make life more straightforward if that were an accurate statement the principle endorsed by the majority in HZCP, it is not. The Full Court’s principle was far more confined. A non-citizen is only restricted from advancing a factual position inconsistent with the finding of a criminal Court if the conviction recorded, or sentenced imposed, by the Court is what enlivened the decision-makers discretion to make a cancellation, revocation or refusal decision.

This more restricted approach has some practical difficulties. For example, mandatory cancellation under s 501(3A) has two independent elements:

  1. the non-citizen has been sentenced to a term of imprisonment of 12 months or more; and
  2. the non-citizen is serving a sentence of imprisonment on a full-time basis.

The two elements operate independently; the sentence being served does not need to be the sentence that is twelve months or greater. A wholly suspended sentence from a decade ago will lead to mandatory cancellation if a non-citizen has to serve one month of a three-month head sentence imposed today. In line with the Court’s decision in HZCP, the non-citizen could not advance a factual position inconsistent with the findings made by the court in imposing the 12 month sentence 10 years ago.

But what if our non-citizen had previously been sentence to two sentences of imprisonment of 12 months or more in respect of completely different incidents? Only one of those offences is necessary to enliven the mandatory cancellation power and, by implication, the discretionary revocation power conferred by s 501CA(4), as was the case in HZCP. Is it open to the non-citizen to pick which offence, and associated factual findings, to submit to and which offence he intends to dispute?

At the moment that is an unanswered question, but the approach I have been taking to date is that it is open to the non-citizen to do so. The same issue, albeit in a more complication form, is posed when a non-citizen is being considered for cancellation under s 501(2) because they have been sentenced to multiple sentences of imprisonment adding to 12 months or more. If a non-citizen has many sentences which cumulative add to, say, 4 years, is it open to them to accept the findings in relation to a certain number of offences whose combined sentences add to twelve months or more and lead evidence to dispute the factual findings of the balance?

Issue 6—The other edge of the murder weapon s 501(6); s 116(1)(e)

Another issue to consider is the role of HZCP in cancellation decisions where the power is not enlivened in consequence of a conviction and sentence (or multiple convictions and sentences).

For example, the power of cancellation under s 501(2) can be enlivened if the decision maker considers that having regard to a non-citizen’s past conduct they are not of good character. Similarly, the cancellation power conferred by s 116(1)(e) is enlivened if a decision maker is satisfied that a non-citizen’s ongoing presence in Australia is or might be a risk to the health and safety of the Australian community.

In the above circumstances it cannot be said that any conviction or sentence imposed by a Court was a necessary condition of the cancellation power being enlivened and, in those circumstances, I’d contend that the non-citizen is not precluded from advancing a factual position inconsistent with that found by a sentencing Court.

Issue 7—Even if the issue is open, you still have an uphill battle

That being said, even if it is open to a non-citizen to advance a contrary factual position to a decision maker, extreme caution should be exercised before doing so. That is because, as the Court said in HZCP, there must be a very good reason for a decision maker to depart from the findings of a sentencing Court (even if they technically have the jurisdiction to do so).

A non-citizen advancing an inconsistent factual position exposes themselves to the risk of adverse credibility findings that can diminish the persuasiveness of all aspects of their case. The risk may well not be worth the reward. Just because it is open to your client to do so doesn’t mean that you should encourage them to take the opportunity. Having said that, I think we’re under an obligation to advise our clients that it is open to them and give them comprehensive advice about the risks that doing so may post to their overall prospects of achieving a positive outcome.

Conclusion

In my view, the Court’s decision in HZCP raised more questions than it answered. I have no doubt that the principle endorsed by the majority of the Full Court will be re-examined in the near future. In the meantime, I think HZCP also emphasises the importance of criminal and migration lawyers working closely together from the earliest possible stage in order to protect the interests of non-citizens in Australia facing the prospect of visa cancellation and removal.

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