FEDERAL COURT OF AUSTRALIA Dalla v Minister for Immigration and Border Protection [2016] FCA 998 Appeal from: Dalla v Minister for Immigration and Anor [2016] FCCA 1341 File number: NSD 993 of 2016 Judge: LOGAN J Date of judgment: 18 August 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – where appellant provided incorrect information – cancellation of subclass 457 temporary work (skilled) visa – at time of review appellant charged with but not convicted of criminal offences – Tribunal drew adverse inference against appellant on basis of these charges – absence of lawful authority so to do – appeal allowed – Migration Act 1958 (Cth) s 109; Migration Regulations 1994 (Cth) reg 2.41 Legislation: Crimes Act 1990 (NSW) s 192J Migration Act 1958 (Cth) ss 102(b), 109 Migration Regulations 1994 (Cth) regs 2.41, 2.41(e), 2.41(j), 2.43(1)(p) Cases cited: C v T (1995) 58 FCR 1 COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Momcilovic v The Queen (2011) 245 CLR 1 Sorby v The Commonwealth (1983) 152 CLR 281 Stead v State Government Insurance Commission (1986) 161 CLR 141 Woolmington v Director of Public Prosecutions (1935) AC 462 Date of hearing: 18 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: Mr A Moutasellem (directly briefed) Counsel for the Respondent: Ms A Mitchelmore with Ms S Palaniappan ORDERS NSD 993 of 2016 BETWEEN: IMAD DALLA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 18 AUGUST 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court of Australia dated 2 June 2016 be set aside and in lieu thereof, it is ordered that: (a) The decision of the second respondent made on 28 October 2015 be quashed. (b) The matter is remitted to the second respondent for hearing and determination according to law. (c) The first respondent pay the applicant's costs of and incidental to the application, which are fixed in the sum of $5,381.25. 3. The first respondent pay the appellant's costs of and incidental to the appeal, which are fixed in the sum of $6,825. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 20 July 2015, Mr Imad Dalla, who is the appellant, attended at the international airport in Sydney for the purpose of boarding a flight to take him overseas. At that airport, and as part of the standard procedures for the departure overseas of a passenger, Mr Dalla completed what is known as an outgoing passenger card. One of the questions on that card asks: Are you taking out of Australia AUD$10,000 or more in Australian or foreign currency equivalent? If answered "Yes", you must complete a Cross-Border Movement – Physical Cash (AUD$10,000 or more) Report to present with this card. In response to this question, Mr Dalla chose to mark the box "No". 2 Also while at the airport, Mr Dalla was subjected to a routine baggage search by officers of the Australian Border Force. The result of that search was that Mr Dalla was found to be in possession of AUD$24,345.85 and US$506. 3 A delegate of the Minister for Immigration and Border Protection (the Minister), the only active respondent party, decided that Mr Dalla had provided an incorrect answer on his outgoing passenger card by selecting the "No" answer and thus had not complied with s 102(b) of the Migration Act 1958 (Cth) (the Act). As a sequel to this, Mr Dalla was invited to provide evidence to that delegate as to whether or not he believed he had complied with s 102(b) and whether, having regard to circumstances as prescribed in reg 2.41 of the Migration Regulations 1994 (Cth), his visa should be cancelled. 4 At the time when he attended at the international airport, Mr Dalla was the holder of that class of visa under the Act known as a Temporary Work (Skilled) visa (subclass 457). As a result of his possession of that visa, he had, prior to 20 July 2015, lawfully been engaged in building industry work and was, at the time, in ongoing employment. 5 On 30 September 2015, a delegate of the Minister decided that Mr Dalla had not complied with s 102(b) of the Act. Acting under s 109 of the Act, that delegate cancelled Mr Dalla's visa. Mr Dalla then sought the review of the Minister's delegate's decision by the Administrative Appeals Tribunal (the Tribunal). By that stage, and as a result of his becoming an unlawful non-citizen as a consequence of the cancellation of his visa and the absence of the grant to him of any other visa, for example a bridging visa, Mr Dalla was in immigration detention. 6 The Tribunal, probably as a result of Mr Dalla's being in detention, heard and determined his review application with truly commendable expedition. On 28 October 2015, and following a review hearing conducted the previous day, the Tribunal decided, for reasons published in writing that day, to affirm the decision of the Minister's delegate to cancel Mr Dalla's subclass 457 Temporary Work visa. 7 Mr Dalla then applied, on 23 November 2015, to the Federal Circuit Court of Australia for the judicial review of the Tribunal's decision. Notwithstanding Mr Dalla's then status as a person in immigration detention, it did not prove possible for his judicial review application to be listed for hearing before 19 April 2016. On 18 April 2016, and by consent, that hearing date was vacated and, instead, the judicial review application was listed for hearing on 2 June 2016. On that day, for reasons delivered ex tempore, the Federal Circuit Court (Street FCJ) dismissed with costs Mr Dalla's judicial review application. It is from that judgment that Mr Dalla now appeals to this Court. 8 The grounds of appeal are: 1. That the primary judge erred in finding at paragraph 25 of the written reasons for judgment that the Administrative Appeals Tribunal ("Tribunal") had not misconstrued regulation 2.41(j) of the Migration Regulations 1994. Particulars a) That the primary judge erred in rejecting the submission that regulation 2.41(j) meant that conduct, the subject of breaches of the law, must post-date the conduct of the non-compliance. b) Regulation 2.41(j) provided that one of the circumstances that the decision maker must take into account was any breaches of the law since the non-compliance and the seriousness of those breaches. c) The primary judge erred in holding at paragraph 26 that the reference to the word "since", is merely descriptive of conduct that is identified. 2. That the primary judge erred at paragraph 28 of the written reasons for judgement in rejecting the submission that in taking into account the fact that the appellant was charged with criminal offences the Tribunal had taken into account an irrelevant consideration. 3. That the primary judge erred at paragraph 32 of the written reasons for judgement in stating that the Tribunal was not required to make a finding of fact that there was or was not a breach of the law. Particulars a) Regulation 2.41(j) provided that one of the circumstances that the decision maker must take into account was any breaches of the law since the non-compliance and the seriousness of those breaches. b) Being charged with a criminal offence is not synonymous with a breach and in order for regulation 2.41(j) to be enlivened a finding that the appellant had in fact breached the law was required. 9 It is fair to say that the third of these grounds underwent something of a metamorphosis in the course of the presentation on the appeal of the appellant's case. I say that because it was, and quite properly so, conceded on behalf of Mr Dalla that, having regard to two judgments of the Full Court: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 and COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148, I was obliged to conclude that the circumstances prescribed for the purposes of s 109 of the Act by reg 2.41 are not exhaustive of the circumstances which the Minister or a delegate of the Minister might permissibly take into account for the purposes of exercising the discretion found in s 109. Rather, what was put, and this formed a feature of the presentation of submissions in relation to grounds 1 and 3, was that the Tribunal member had impermissibly drawn an adverse inference against Mr Dalla on the basis of his merely having been charged with particular offences. The Minister engaged fully with the appeal as so presented. 10 Before turning to the grounds of appeal, it is necessary to make some further reference to the provisions of the Act and the Regulations already mentioned in passing. Section 109 provides that: Cancellation of visa if information incorrect (1) The Minister, after: (a) deciding under section 108 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled. Regulation 2.41 provides: Whether to cancel visa – incorrect information or bogus document (Act, s 109(1)(c)) For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed: (a) the correct information; (b) the content of the genuine document (if any); (c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document; (d) the circumstances in which the non-compliance occurred; (e) the present circumstances of the visa holder; (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; (g) any other instances of non-compliance by the visa holder known to the Minister; (h) the time that has elapsed since the non-compliance; (j) any breaches of the law since the non-compliance and the seriousness of those breaches; (k) any contribution made by the holder to the community. Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa. 11 Having regard to submissions made on behalf of the appellant, reference ought also to be made to reg 2.43(1)(p): [I]n the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection (visa Applicant)) visa – that the Minister is satisfied that the holder: (i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or (ii) has been charged with an offence against a law of the Commonwealth, a State, A Territory or another country; or (iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or (iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder: (A) has committed an offence against a law of another country; and (B) is likely to commit a similar offence; or (v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety; 12 The Tribunal had before it some rather imprecise evidence from the departmental file that Mr Dalla had been charged with certain offences. As described by the Tribunal, those offences were credit card fraud and dealing with property suspected of being the proceeds of crime in contravention of s 192J of the Crimes Act 1990 (NSW). The material before the Tribunal indicated, and the Tribunal found, that this was a sequel to the confiscation of Mr Dalla's mobile phone on 20 July 2015, at the time when his baggage was searched at the international airport. The Tribunal member found that the Border Force officers had found receipts and photo IDs of other people on his phone and that these had seen Mr Dalla charged with "identity theft". The material before the Tribunal indicated that Mr Dalla had been granted bail by a Magistrate in respect of these charges and had been complying with his bail conditions prior to the cancellation of his visa on 30 September 2015, and resultant immigration detention. As at the time of the Tribunal hearing, those charges have yet to be heard and determined. 13 The Tribunal's reasons contain a number of bold type headings under the general heading "Should the visa be cancelled". Regard to the bold type headings under that general heading makes it pellucid that each of the headings, save for the final one "Other matters", has been cast, not coincidentally, by the Tribunal by reference to each criterion specified in reg 2.41. 14 It is, of course, axiomatic that the reasons of an administrator or an administrative tribunal must not be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. So the following excerpts from the Tribunal's reasons must necessarily be understood, and I have read them, in the context of the Tribunal's reasons as a whole. Having regard to the issues on the appeal, the following paragraphs are pertinent: 30. The Tribunal discussed with the applicant any breaches of the law since the non-compliance and the seriousness of those breaches. The Tribunal noted this included breaches of any law including migration law or criminal law. The Tribunal asked the applicant whether he had been charged with any offences. The applicant stated that at the time of his attempted departure from Australia in July 2015 Border Force officers confiscated his mobile phone. They allege that they found receipts and photo IDs of other people on his phone and charged the applicant with identity theft. The applicant stated that as a result of this he has criminal proceedings pending in the Downing Centre that he thinks will be dealt with in about one month's time. The applicant stated that after being charged with these offences he was granted bail by a Magistrate and had been complying with his bail conditions prior to the cancellation of his visa in September 2015 and his transportation to the Villawood Detention Centre on 30 September 2015. … Any breaches of the law since the non-compliance and the seriousness of those breaches: 46. On the basis of the evidence before the Tribunal the applicant has been charged with offences pertaining to identity theft as a result of the confiscation of his mobile phone on 20 July 2015 and recourse to the delegates cancellation decision record indicates that the applicant has also been charged with credit card fraud and dealing with property suspected of being the proceeds of crime in contravention of section 192J of the Crimes Act 1990. The Tribunal notes that these matters are currently before the court and have not yet been finally determined. However the Tribunal finds that the offences that the applicant has been charged with are of a serious nature and this factor has weighed heavily on the Tribunals mind with regard to the exercise of discretion. … Other matters: 48. On the evidence before the Tribunal there are no persons in Australia whose visas would or may be cancelled under section 140 of the Act as a result of the cancellation of the applicant's visa nor are there any children in Australia whose interest could be affected by the cancellation. The Tribunal accepts that upon the cancellation of his visa the applicant will become an unlawful noncitizen and will be liable to be detained and removed from Australia. For the reasons given above I consider that, the applicant when he was attempting to depart Australia on 20 July 2015 for Lebanon provided incorrect information in his outgoing passenger departure card to the effect that he did not have more than AUD$10,000.00 in his possession. The Tribunal finds on the basis of his evidence that the applicant did provide incorrect information. The Tribunal accepts that the applicant has undertaken study and has been able to secure work in Australia as the holder of a subclass 457 visa. However, as noted above the applicant has been charged by the Australian authorities with a range of serious offences pertaining to fraud, identity theft and being in possession of goods suspected of being obtained through the proceeds of crime. Despite the fact that these charges are yet to be determined in a court of law, they are nonetheless serious and as noted have weighed in the exercise of discretion with regard to whether the visa should be cancelled. The Tribunal has given consideration to all the relevant circumstances set out above and concludes that the applicant's visa should be cancelled. 15 In dismissing the judicial review application, the learned primary judge made these observations: 25. The Tribunal, under reg.2.41 of the Migration Regulations 1994 is required to take into account the prescribed circumstances in its discretionary consideration for the purposes of s.109(1)(c) of the Migration Act 1958. This is not a case where the Tribunal made a finding that there was, in fact, a breach of the law since the non-compliance. Rather, the Tribunal identified, very carefully, that there were charges outstanding and identified the seriousness of those charges and sought to weight in its discretion the seriousness of those charges in its decision. It was open to the Tribunal to do so under s.109. There is no substance in the proposition that the Tribunal misconstrued reg.2.41(j) of the Migration Regulations 1994. 26. Insofar as the submission was developed that reg.2.41(j) meant that any conduct, the subject of breaches of the law, must post-date the conduct of the non-compliance, I reject that construction. Taking into account s.4 of the Migration Act 1958, on its ordinary and natural construction, reg.2.41(j) of the Migration Regulations 1994, in its reference to "since", is merely descriptive of conduct that is identified. It does not require the conduct, the subject of the breach, to have occurred post the non-compliance. 27. In any event, there was no erroneous interpretation of reg.2.41(j). The Tribunal was entitled to take into account that charges in respect of serious offences had been brought and it was appropriate and lawful for the Tribunal to take that consideration into account in determining its discretion under s.109 of the Migration Act 1958. No jurisdictional error of the kind identified in ground 1 is made out. 28. In relation to ground 2, it was suggested that the charges which the applicant had and currently has outstanding were irrelevant considerations in relation to s.109. I reject that submission. The Tribunal was not confined in relation to its discretion under s.109. The purpose of the Migration Act is to protect the Australian society and it was clearly appropriate for the Tribunal to take into account that the applicant is currently the subject of serious charges. 29. It was open to the Tribunal to take that fact into account in the exercise of its discretion. No jurisdictional error is made out in relation to ground 2. 30. In relation to ground 3 it is asserted that the Tribunal misapplied reg.2.41 of the Migration Act 1958 by reason of its failure to make findings of fact about whether a breach of the law had occurred. It was not necessary for the purpose of s.109(1)(c) of the Migration Act 1958 for the Tribunal to make findings of fact in relation to the prescribed matters. 31. Rather, it was mandatory for the Tribunal to take into account the prescribed circumstances insofar as it found them to exist. By referring to the fact of charges outstanding the Tribunal carefully distinguished between the finding of the fact of a breach of the law and a discretionary consideration in performing its function under s.109 of the Migration Act 1958. 32. It is not the case that the Tribunal had to make findings of fact that there was or was not a breach of the law and in circumstances where there are charges presently outstanding it was open to the Tribunal not to engage in any such fact finding exercise so long as the Tribunal had regard to the relevant prescribed circumstance insofar as it may have found it to exist. When charges are outstanding it is not necessary for the Tribunal under reg.2.41(j) of the Migration Regulations 1994 to engage in a pre-trial determination of the breach of law. 33. there was no identification of the wrong issue or wrong question by the Tribunal or any misapplication of reg.2.41 for not making findings of fact as to whether there was or was not a breach of the law within reg.2.41(j). No jurisdictional error is made out in relation to ground 3. 16 That Mr Dalla had, at the time of the Tribunal's decision, been charged with particular offences was but part of his "present circumstances" in terms of reg 2.41(e). That being so, it could not be said that the mere fact of his being charged was not a relevant consideration. But the Tribunal did not advert to the mere fact of Mr Dalla's having been charged as but part of his present circumstances. Rather, the Tribunal adverted to the charges he faced under the heading which related to the prescribed consideration found in reg 2.41(j). Whether there is any error in the use which the Tribunal made of the fact of Mr Dalla's having been charged requires, first, a determination of what is meant in reg 2.41(j) by: any breaches of the law since the non-compliance and the seriousness of those breaches. 17 The conjunction of breaches and seriousness in this consideration will be noted. There were competing submissions as to the meaning of reg 2.41(j) of the Regulations. It was common ground though that the word "since" meant "after". With this, I agree. What was not common ground was whether the reference in reg 2.41(j) to "breach" was a reference to conduct which had occurred after the non-compliance, in this case, materially, the incorrect answer given on 20 July 2015, or whether it meant a conviction in respect of conduct which may or may not have occurred prior to the non-compliance. 18 The focus and evident purpose of reg 2.41(j) is on particular unlawful conduct and its seriousness after a non-complying event. The breach itself would occur at the time when the conduct happened. It is just that an act of State, such as a conviction, would offer evidence of a breach in administrative decision making. That breach, for the purposes of administrative decision making, need not be shown by a conviction. It would be possible for the purposes of administrative decision making to reach satisfaction that particular conduct in breach of the law had occurred even in the absence of an entry of a conviction as a sequel either to a conclusion of a court of summary jurisdiction or a jury verdict or as a result of a consequential appeal. Further, that paragraph is not confined in its application to the criminal law, but rather to the law generally and the seriousness of the breaches of the law generally. 19 The upshot of that construction is that, in the circumstances of this case, where the conduct which gave rise to criminal charges and thus alleged breaches of the law, necessarily antedated the non-compliance, reg 2.41(j) was just not engaged at all. To the extent that the construction I have adopted of that paragraph differs from that of the primary judge, I respectfully disagree with his Honour. 20 So far as the Tribunal's reasons are concerned, and in the context of the challenge Mr Dalla makes, the question really becomes whether, on a fair reading of its reasons, the Tribunal is doing anything other than, in effect, putting "not applicable" under this particular heading. 21 Is what the Tribunal has stated of any practical moment? The first two sentences in [46] of the Tribunal's reasons would suggest that it was of no practical moment. By that I mean that the Tribunal has found, having made reference, albeit erroneously if one is considering reg 2.41(j), to charges which concern conduct before non-compliance, but noted that they are currently before the Court and have not been finally determined. 22 The difficulty is that the Tribunal has not just done this. Had it just so done, it would merely be a case where the Tribunal had adverted, albeit under a misconception as to the meaning of reg 2.41(j), to a consideration which was relevant in any event, namely, Mr Dalla's present circumstances. 23 What the Tribunal has done though is, in context, rather more than that. The Tribunal has stated that the charges are of a serious nature and that this has weighed heavily with regard to the exercise of discretion. There is a repetition of the reference to seriousness in [48]. 24 It was put on behalf of the Minister that, even assuming that there was an erroneous pigeon holing of the fact of being charged, this was nothing more than what was nonetheless, a permissible reference to a relevant consideration and a weighing up of that consideration in the context of an evaluative judgment consigned to the Tribunal, standing as it did in the shoes of the Minister and his delegates. 25 Were it just that then it would not be open either on judicial review or in the exercise of appellate jurisdiction to disturb a considered, administrative value judgment as to the weight to give a particular relevant consideration unless, truly exceptionally, one could reach a conclusion that the result was unreasonable. The difficulty about that is that this Tribunal member, in expressing these reasons, has cast them, in my view, on the basis that it was legitimate not just to advert, as part of present circumstances to Mr Dalla's having been charged, but to count that adversely against him. That is how I read the reference to the fact of being charged under the heading "any breaches of the law since the non-compliance and the seriousness of those breaches" in conjunction to the reference to "weighed heavily" and the "serious nature" of the charges. 26 The reasons are noteworthy, reference having been made to seriousness and "weighed heavily", for the absence of the Tribunal member's reminding himself of something of a quite fundamental feature of the arrangements for the constitutional governance of Australia by each branch of government. That is the principle of legality. In Momcilovic v The Queen (2011) 245 CLR 1, at 46-47, [43], French CJ observed: The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed where constructional choices are open, to avoid or minimise their encroachments upon rights and freedoms at common law. The range of rights and freedoms governed by the principle has frequently been qualified by the adjective "fundamental". There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limited, commonly accepted "rights" and "freedoms". It applies to the rules of procedural fairness and the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be written down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations. The Chief Justice continued, pertinently, at [44]: The common law "presumption of innocence" in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection in the interpretation of statutes which may affect it as the language of the statute will allow. A statute which, on one construction can encroach upon the presumption of innocence is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings would ordinarily be construed as imposing the evidential burden. 27 In Woolmington v Director of Public Prosecutions (1935) AC 462 at 481, Viscount Sankey LC famously observed of the principle that it is for the prosecution to prove the guilt of the accused that it was "the golden thread" of English criminal law. That golden thread still extends to Australia: see, for example, Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 501 per Mason CJ and Toohey J where it is there described as a "fundamental principle of the common law" and at 527 per Deane, Dawson and Gaudron JJ, adopting the descriptions of it by Gibbs CJ in Sorby v The Commonwealth (1983) 152 CLR 281 at 309 as a "cardinal principle of our system of justice". 28 In respect of administrative decision making, it has been held by this Court that it is an error of law to draw an adverse inference against a person on the basis that that person has declined to answer a question or otherwise exercised a privilege on the basis of self-incrimination: see Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206 (Dolan v Australian & Overseas Telecommunications Corporation) at 215 per Spender J and C v T (1995) 58 FCR 1 at 16 - 17 per Burchett J. To do anything other than note the fact of conviction and afford it no weight as opposed to, in context, noting the seriousness and weighing that heavily was to subvert a cardinal feature of our system of justice and basic freedom. That freedom is not just enjoyed by a subject, but also others who are present in Australia. There are circumstances in migration law and reg 2.43(1)(p) offers one, where the mere fact of being charged can have an adverse consequence, but there is nothing in reg 2.41, much less s 109, which authorises any such adverse consequence to be visited on a person merely because they have been charged. 29 At the heart of the challenge made by Mr Dalla, is that one factor which was counted adversely against him was the fact of his being charged. What this Tribunal member ought to have done, was to remind himself that, unless and until Mr Dalla was convicted or unless and until the Tribunal member made an affirmative finding on the basis of material reasonably probative of the fact that Mr Dalla had breached our law, he was entitled to the presumption of innocence. This, the Tribunal member did not do. It is that use which was not lawful. The use made was a subversion of our system of governance. To the extent that the primary judge concluded otherwise, I respectfully disagree. 30 The Full Court authorities mentioned above settled that reg 2.41 is not exhaustive of considerations which may be taken into account in the exercise of the discretion conferred by s 109 of the Act. But to take into account conduct which had occurred before non-compliance and which amounted to a breach of the law and which was to be regarded as serious, it was necessary for the Tribunal to have before it material probative of such a conclusion and to make such a conclusion. The Tribunal had no such material and did not do that. Instead, it just acted on the fact of Mr Dalla's having been charged. That was not the only factor which the Tribunal took into account adversely to Mr Dalla. It is also patent from other passages in the Tribunal's reasons that the Tribunal member formed an adverse view as to Mr Dalla's credibility with respect to the account which he gave in respect of his knowledge of the funds which were found in his possession at the international airport on 20 July 2015. That particular finding has not been challenged. It is necessary to record that findings such as that, if logically made, and they are logically made in these reasons, are not to be overturned either on over-zealous judicial review or, for that matter, in the exercise of appellate jurisdiction. 31 Necessarily, that raises a question, and this was put on behalf of the Minister in submissions, as to whether the case was one which should, nonetheless, not be remitted, because there was a basis for an adverse conclusion in any event. The difficulty about that, and this was canvassed with counsel for the Minister, is that that particular adverse conclusion interplayed with what I found to be another adverse conclusion. The extent of that interplay is not revealed in [48] of the Tribunal's reasons, only that there was an interplay. 32 That being so, the case is one where an impermissible inference has intruded in the decision-making process the exclusion of which might make a difference in respect of a lawful evaluation of relevant considerations. The case is therefore one of the kind of which Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead v State Government Insurance Commission) is an example. To try on appeal to evaluate the outcome of excluding the impermissible would be, in effect, to conduct merits review on the appeal. Instead, the appropriate course as it was, in the application of Stead v State Government Insurance Commission, in Dolan v Australian & Overseas Telecommunications Corporation, is to leave the evaluation to the body tasked with that role of making determinations on the merits, in other words, the Tribunal. 33 The result, then, is that the appeal must be allowed. The orders of the Federal Circuit Court made on 2 June 2016, must be set aside and the matter must be remitted to the Tribunal for hearing and determination according to law. 34 It is for the President of the Tribunal to administer the Tribunal. The President will, in that administration, doubtless take into account that the Tribunal member who heard the review made particular adverse findings as to credit in deciding how the Tribunal should be constituted following the remitter. I do not propose to make any specific direction in that regard. There will be orders accordingly. 35 For the avoidance of doubt, I should also record that the allowing of the appeal does not mean that Mr Dalla must be released from his present immigration detention. The visa cancellation decision made by the Minister's delegate remains in place. All that the orders made as a consequence of allowing the appeal do is to require that that decision be considered afresh by the Tribunal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 24 August 2016