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Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
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Cases

MIGRATION – character test under s 501(7)(d) – substantial criminal record – concurrent sentences – term of each sentence imposed or term of imprisonment for which the sentence or sentences were imposed

MIGRATION – s 503A and the Minster’s natural justice obligations in relation to protected information when the Minister personally makes a decision under s 501 – are reasonable steps required to divest the information of the protection accorded by s 503A – is the Minister required to divulge protected information

Minister for Immigration & Multicultural & Indigenous Affairsv Ball [2004]

Minister for Immigration & Multicultural & Indigenous Affairsv Ball [2004] FCAFC 91 (22 April 2004)
Last Updated: 22 April 2004

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Ball
[2004] FCAFC 91


MIGRATION – character test under s 501(7)(d) – substantial criminal record – concurrent sentences – term of each sentence imposed or term of imprisonment for which the sentence or sentences were imposed

MIGRATION – s 503A and the Minster’s natural justice obligations in relation to protected information when the Minister personally makes a decision under s 501 – are reasonable steps required to divest the information of the protection accorded by s 503A – is the Minister required to divulge protected information

MIGRATION – notice of intention to consider cancelling a visa – natural justice – what steps are reasonable when attempting to bring the notice to the attention of an applicant

WORDS AND PHRASES – ‘substantial criminal record’ – ‘sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more’

Migration Act 1958 (Cth) ss 32(2), 201(c), 501, 501C(3)(a)(ii), 503A
Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 reg 2.55(7)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill (No. 2) 1998 (Cth)
Migration Amendment Bill (No 2) 1992 (Cth)

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 considered
Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 203 ALR 320 followed
George v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 38 cited
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 considered
Mill v The Queen (1988) 166 CLR 59 cited
Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 followed
Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 followed
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 applied
R H McL v The Queen (2000) 203 CLR 452 cited
R v Melville (1956) 73 WN (NSW) 579 referred to
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 applied
Te v Minister for Immigration and Ethnic Affairs [1999] 88 FCR 264 cited
Winsor v Boaden (1953) 90 CLR 345 followed
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 not followed

Oxford English Dictionary

































MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v AMANDA BALL

V585 OF 2003




DOWSETT, JACOBSON & BENNETT JJ
22 APRIL 2004
SYDNEY (VIA VIDEO LINK) (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 585 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: AMANDA BALL
RESPONDENT
JUDGES: DOWSETT, JACOBSON & BENNETT JJ
DATE OF ORDER: 22 APRIL 2004
WHERE MADE: SYDNEY (VIA VIDEO LINK) (HEARD IN MELBOURNE)


THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The notice of contention is dismissed.

3. The appellant is to pay fifty percent of the respondent’s costs.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 585 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: AMANDA BALL
RESPONDENT


JUDGES: DOWSETT, JACOBSON AND BENNETT JJ
DATE: 22 APRIL 2004
PLACE: SYDNEY (VIA VIDEO LINK) (HEARD IN MELBOURNE)


REASONS FOR JUDGMENT

DOWSETT J:

1 The facts appear sufficiently from the reasons prepared by Jacobson and Bennett JJ.

THE CHARACTER TEST

2 Subsection 501(7) of the Migration Act 1958 (Cth) (the "Act") provides:

‘For the purposes of the character test, a person has a substantial criminal record if:

"(a) ...

(b) ...

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more ...".’ (original emphasis)
3 The respondent was sentenced, on each of twenty-five counts, to imprisonment for eleven months and in respect of each of twenty-four counts, to imprisonment for two months. It has been accepted for all relevant purposes that the sentences (imposed in New Zealand) were to be served concurrently. The maximum period of imprisonment to be served was therefore eleven months. The question is whether the respondent was sentenced to two or more terms of imprisonment, the total of which terms is two years or more.

4 In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Court considered whether the expression ‘sentenced to imprisonment for one year or longer’ used in a deportation provision of the Act (s 12) was satisfied by a person who had been sentenced to imprisonment with hard labour for a period of twelve months, with a direction that after serving a period of three months, he be released upon his entering into a recognizance to be of good behaviour for the next two years.

5 At 586 Bowen CJ and Deane J observed:

‘It would seem clear that the sentence referred to in s 12 of the Migration Act is the sentence of imprisonment imposed and not the term of imprisonment actually served. The fact that a person who had been sentenced to be imprisoned for a term of one year was, by reason of remissions or release on parole, not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year for the purposes of s 12 ... . In such a case, the remissions could not properly be regarded as part of the sentence imposed. They are the result of the context in which the sentence imposed operates. Similarly, in the case of premature release on parole, the release itself - even when consequent upon the fixing of a minimum non-parole period - cannot properly be regarded as altering the character of the sentence of imprisonment imposed.’

6 At 588-589 their Honours continued:

‘The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment for one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. None the less, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words of s 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff.’

7 The decision in Drake is important for two reasons. Firstly, in addressing the question as to whether the relevant person had been ‘sentenced to imprisonment for one year or longer’ the majority gave a literal meaning to those words, ignoring systemic factors or aspects of the sentence which would operate to reduce the period actually served. Secondly, at 588 the majority observed:

‘... the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year’.

8 This statement is important because much of the argument before us focused upon the meaning of the expression ‘term of imprisonment’. In my view, Bowen CJ and Deane J used the expression in an entirely orthodox way in speaking of the appropriate sentence ‘for the offence’ being ‘a term of imprisonment’. Similar usage appears in the decision of the High Court in Winsor v Boaden (1953) 90 CLR 345. In that case state legislation provided that an officer should be deemed to have vacated his office if convicted of a felony and sentenced to imprisonment ‘for any term of or exceeding six months ...’. The respondent was convicted of three counts. On each of two counts he was sentenced to imprisonment for three months, such sentences to be served concurrently. On the third count he was sentenced to three months’ imprisonment ‘to commence at the expiration of the imprisonment’ for the other offences. The question was whether, for the purposes of the relevant legislation, the third sentence should have been added to the period to be served pursuant to the concurrent sentences. It seems that the legislation did not provide for accumulation of sentences, as does subs 501(7) of the Act. In the absence of such a provision, the Supreme Court of New South Wales held that the legislation required ‘that that there must be one sentence and that the sentence must be for a term of six months or more.’ The High Court agreed. At 347, Dixon CJ said:

‘The word "sentence" connotes a judicial judgment or pronouncement fixing a term of imprisonment. A term of imprisonment is the period fixed by the judgment as the punishment for the offence.’

9 Of course, the provision for accumulation in subs 501(7) brings about a different outcome in the present case. In my view, Drake and Winsor indicate that the expression ‘a term of imprisonment’ as used in subs 501(7) means ‘the period fixed ... as the punishment for the offence’. The expression ‘two or more terms of imprisonment’ means the terms of imprisonment fixed for multiple offences. The section contemplates there being terms of imprisonment for two or more offences and prescribes that such terms be totalled. It says nothing about the period to be served pursuant to each sentence or in totality. Clearly, the respondent was sentenced to a separate term of imprisonment for each offence. The only remaining question is whether the terms totalled two years or more. They plainly did so. To enquire further as to the effect of the sentences is to proceed in the way which was disapproved in Drake.

10 If I may say so with all respect, one sentence in the reasons of Ryan J demonstrates the difficulty with his Honour’s view of the provision. At [44] Ryan J observed:

‘... the sentencing judge determined ... that the appropriate sentences to be imposed for the offences ... were a term of imprisonment of eleven months to be served concurrently.’ (original emphasis)

The grammatical difficulty in moving from the plural subject and verb "sentences" and "were" to the singular complement "a term" highlights the difficulty in construing subs 501(7) as addressing something other than the penalty imposed in respect of each offence.

11 I should say a little about certain propositions advanced by the respondent. It was said that for the purposes of subs 501(7), a term of imprisonment is a period having a fixed or ascertainable beginning and end. This may well be so. However it is not uncommon for a person to be sentenced to concurrent periods of imprisonment of different lengths. In such a case, the sentences have the same commencing dates but different concluding dates. This suggests two terms, according to the respondent’s definition. If this is correct, then it is difficult to avoid the conclusion that two sentences of the same length also involve two terms of imprisonment, even if they are to be served concurrently. That two terms may start on the same date and finish on the same date does not change the fact that they are separate terms of imprisonment imposed as separate sentences. It was also said that the expression ‘terms of imprisonment’ is not apt to describe the period during which concurrent sentences are to be served. This question simply does not arise for the reasons given in Drake. The section directs attention to the sentences, not to the way in which the sentences are to be served.

12 It is also necessary that I say something about the majority judgment in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364. In that case the Full Court considered a provision which deemed a person to be an illegal entrant into Australia if, when he or she entered Australia, he or she was:

‘(i) ...
(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;
(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year.’
13 At 375 Burchett and Lee JJ said:

'There is a further ambiguity in the amendment, which we should mention. It is sufficient, in itself, to indicate that the draftsman may have been somewhat less than careful to make an exact statement. If so, there is all the more reason why the court should not hesitate to apply the appropriate presumptions in the construction of the legislation. The point is that subpar (iii) makes no express distinction between cumulative and concurrent sentences. Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: See R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminalty involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction.’

14 To the extent that these observations might be said to apply to the present section, I am, with all respect to their Honours, unable to agree with them. As was pointed out by French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [61], the passage appears to assume that concurrent sentences are only imposed where the relevant offences ‘arise out of the one enterprise’. Although the decision in Melville involved circumstances of that kind, the case is not authority for the proposition that concurrent sentences are only imposed in those circumstances. Concurrent or partially concurrent sentences are often passed in connection with numerous offences of a broadly similar kind committed over an extended period of time. In that, and other situations, the device is used to achieve an appropriate totality of sentences. See Mill v The Queen (1988) 166 CLR 59 and R H McL v The Queen (2000) 203 CLR 452, especially at [15-16].

15 Once it is accepted that concurrent sentences may be passed in connection with offences not forming part of one "enterprise", the logic of the position adopted in Sciascia is somewhat undermined. For my part, I see no reason why the Parliament should have dealt expressly with concurrent and/or cumulative sentences. Section 501(7) clearly applies to both. I also see no anomaly in totalling sentences which are to be served concurrently. The sentencing process is notoriously imprecise and inevitably varies from jurisdiction to jurisdiction. It is understandable that Parliament should choose a reasonably precise parameter for the operation of s 501(7), namely a sentence to a term of imprisonment.

16 The decision in Sciascia and that in Hicks were made without reference to the decision of the High Court in Winsor to which I have referred above. That decision offers guidance as to the meaning of the language used in the section presently under consideration, keeping in mind that the current legislation permits accumulation of terms. Further, Drake is consistent with the decision in Winsor. In my view, when subs 501(7) is read in the context of Winsor and Drake, no ambiguity arises, and so there is no room for the presumptions referred to in Sciascia and upon which the respondent, at least tacitly, relies.

PROCEDURE

17 Three other questions arise. They are:

۰ Whether the respondent was notified, to the extent required by law, of the appellant’s intention to consider revoking her visa;
۰ Whether the appellant was required by law to provide certain information to the respondent, apart from the provisions of s 503A; and if so,
۰ Whether s 503A exempted the appellant from such requirement.

Notice of intention to consider cancelling visa

18 As I understand it, the Minister cancelled the visa pursuant to subs 501(2) of the Act. The heading which precedes subss 501(1) and (2) describes those subsections as involving decisions to which ‘natural justice applies’. This is in contrast to a decision pursuant to subs 501(3) which is said to be a decision to which ‘natural justice does not apply’. The Act does not expressly identify the content of the requirements as to natural justice or procedural fairness in proceedings pursuant to subs 501(2). In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416, French J held that subs 501(2) implicitly required that the Minister take "reasonable steps" to notify a visa-holder of the intention to consider cancelling his or her visa. This implication was said to flow from the fact that the power to cancel a visa can only be exercised if the holder fails to satisfy the Minister that he or she passes the character test (s 501(2)(b)), suggesting that the visa-holder should have an opportunity to do so. French J considered, at [20], that there was no absolute obligation to notify the visa-holder because such an obligation would enable a relevant person to ‘... defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers.’ The regulations provide for service of documents in various ways, but French J did not rely on them in ascertaining what was "reasonable" for the purposes of subs 501(2).

19 The respondent submitted that there was an absolute obligation upon the Minister to notify the respondent, relying largely upon analogy with the criminal law and the assertion that a decision to cancel a visa in some way displaces a ‘fundamental right’. I see no justification for these arguments. It is a long-established principle of our criminal law that trials proceed in the presence of the accused. There is no reason to import that requirement into the realm of administrative decision-making. Clearly, subs 501(2) is designed to serve a protective purpose. Its efficacy should not be undermined by imposing an obligation as to notification which may, not infrequently, be impossible to discharge. The assertion of a "fundamental right" does nothing to clarify, and much to obscure, the position.

20 The approach adopted by French J implies that the Minister may act without notification where reasonable steps to notify the visa-holder have failed or no such steps are available. It might be said that the device of an implied term substantially reduces the extent of procedural fairness which Parliament intended to confer in connection with decisions pursuant to subs 501(2). However, as I have said, the provision is presumably designed to protect the Australian community. It will most often be invoked where, as in Osborne, the visa-holder has been dealt with in Australian courts and so his or her location is likely to be known or relatively easily ascertained. In other cases, the visa-holder may have concealed information concerning his or her criminal history prior to entering Australia. In neither case does the test proposed by French J unreasonably undermine the requirement of procedural fairness.

21 Whilst I accept the correctness of the approach adopted by French J, it may not resolve all questions as to procedural fairness likely to arise in connection with subs 501(2). Other questions might include:

۰ whether the Minister must take reasonable steps or all reasonable steps; and
۰ how the Minister should proceed if the initial method of notification is unsuccessful.

22 In the present case, the relevant notice was returned unclaimed prior to the Minister’s decision. No further steps were taken to notify the Minister’s intention. Once it is known that a particular, apparently reasonable, step has failed, other available steps may be more or less reasonable. I do not suggest that the Minister must take every possible step. The obligation is to take reasonable steps, but it is not necessarily satisfied by taking one, apparently reasonable, step. At the time at which the decision as to cancellation was to be taken, the Minister had to consider any submissions from the respondent. In the absence of submissions, he should have considered whether adequate steps have been taken to notify her. If, at that time, with the Minister’s then state of knowledge, reasonable steps had not been taken, any outstanding reasonable step or steps ought to have been taken before the decision was made.

23 In the present case, the only possible step suggested by the respondent was use of a newspaper advertisement. To my mind, such a course would be most unlikely to produce any results. In any event, Ryan J concluded, at [25], that ‘hort of physically locating the [respondent], it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa.’ This finding of fact seems to be beyond challenge. In those circumstances, whether the Minister addressed the question or not, all reasonable steps were taken in order to notify the respondent of the intention to cancel the visa.

Disclosure of information

24 The respondent submitted that information as to her criminal record, upon which the Minister acted, was not provided to her. There was no suggestion that the material was inaccurate. Nonetheless Ryan J concluded, at [34], that the respondent was deprived of ‘an opportunity to know the material adverse to her on which the Minister might have relied.’ His Honour accepted that the respondent was deemed to have received notice of the Minister’s intention to consider cancelling her visa by virtue of the regulations and therefore could not complain of lack of service. However Ryan J considered that such deemed notice had not afforded her an opportunity to respond to the adverse material upon which the Minister acted. This approach distinguishes between notice of the intention to consider cancelling the visa and notice of the material upon which such a decision might be based. Obviously, in order to satisfy the Minister as to good character, the visa-holder would need to know something of the material which had led to the decision to consider revocation. However, in the present case, it is now known that such reasonable steps as were available to the Minister to notify the respondent of such intention were to no avail. The Minister had no reasonable way of communicating with the respondent. I cannot see that any substantial injustice was caused by the fact that, had the Minister been able to do so, he would not have provided particulars of the respondent’s criminal history. The point is that there was no reasonable way of doing so.

25 In any event, I consider that it was not necessary to provide such information. A court might reasonably infer that a person is aware of his or her own criminal record. The notice at AB 43-48 made it clear that the Minister proposed to consider cancelling the visa pursuant to subs 501(2) of the Act. Reference was also made to the content of subpars 501(6)(a), (6)(c)(i), (6)(c)(ii), (6)(d)(ii) and (6)(d)(v) of the Act. Paragraph 501(6)(a) refers specifically to subs 501(7). The full text of s 501 was provided with the notice. Clearly, the respondent was informed of the Minister’s suspicion that she did not pass the character test and that this suspicion was related to her criminal record as contemplated in par 501(6)(a) and defined in subs 501(7) of the Act. I cannot accept that exercise of the Minister’s power was dependent upon the provision of further details concerning that criminal record. Had the Minister acted upon erroneous information, the position may have been more difficult, but that is not the present case.

26 The appellant submitted that there was no practical unfairness, given that the respondent did not, in any event, receive the notice and so did not seek to satisfy the Minister as to her character. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]-[38] Gleeson CJ observed:

‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness.’

27 I consider that there was no procedural unfairness in the course taken by the Minister.

Section 503A

28 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51, Lindgren J concluded that s 503A did not prohibit the Minister from divulging information of the kind described in the section. I agree with that conclusion and respectfully adopt his Honour’s reasons which appear at [86 – 101]. However his Honour was concerned with a decision made by the Minister pursuant to subs 501(3), to which the "rules of natural justice" do not apply. See subs 501(5). However those rules apply to a decision pursuant to subs 501(2). Thus it is necessary to identify the effect of subs 503A upon such application. Put another way, it is necessary to consider the inter-relationship between s 503A and the implied condition as to reasonable notice found by French J.

29 I agree with Jacobson and Bennett JJ that the Minister is not an authorized migration officer or other Commonwealth officer for the purposes of s 503A. As a result, only par 503A(2)(c) and subs 503A(3) are relevant to the Minister’s obligation to provide to the respondent information to which that section applies. However subs 503A(6) provides:

‘This section has effect despite anything in:
(a) any other provision of this Act; and
(b) any law (whether written or unwritten) of a State or a Territory.’
30 If the source of the obligation to disclose is the implied term in subs 501(2) then, by virtue of subs 503A(6), that obligation must, to the extent of any inconsistency, give way to the terms of par 503A(2)(c). If the proper construction of subs 501(2) is that the Minister is required to disclose relevant information to which s 503A applies, then there is an inconsistency. I favour that view. Of course subs 503A(3) permits the Minister to authorize disclosure in some circumstances. However that is entirely within his or her discretion. The Court should not try to avoid the clear intention of Parliament by imposing sanctions in connection with the exercise of that discretion. Similarly, in my respectful view, there is no warrant for requiring the Minister to seek alternative sources for obtaining information to which s 503A applies in order to enable disclosure to the visa-holder of such information, free of the constraints imposed by the section.

ORDERS

31 I propose the following orders:

۰ Allow the appeal;
۰ Set aside the orders made by Ryan J on 11 July 2003;
۰ The application be dismissed with costs; and
۰ The respondent pay the appellant’s costs of the appeal including those of and incidental to the notice of contention.


I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.



Associate:

Dated: 21 April 2004


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 585 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: AMANDA BALL
RESPONDENT


JUDGES: DOWSETT, JACOBSON & BENNETT JJ
DATE: 22 APRIL 2004
PLACE: SYDNEY (VIA VIDEO LINK) (HEARD IN MELBOURNE)


REASONS FOR JUDGMENT

JACOBSON & BENNETT JJ:

BACKGROUND

32 The respondent was born in New Zealand on 2 October 1975. The respondent arrived in Australia on 21 November 1998 and was granted a subclass 444 Special Category visa applicable to New Zealand citizens. On or about 29 January 2003, the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) sent the respondent, by registered post, a "Notice of Intention to Consider Cancelling Your Visa Under Subsection 501(2) of the Migration Act 1958" (‘the Notice’). The Notice was returned to the Department on or about 11 March 2003 marked "unclaimed". On 13 March 2003, the appellant (‘the Minister’) cancelled the respondent’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’). On 16 May 2003, the respondent was taken into immigration detention.

33 On 28 May 2003, under s 39B of the Judiciary Act 1903 (Cth), the respondent applied to this Court for review of the decision of the Minister. On 11 July 2003, Ryan J made the following orders:

‘THAT certiorari issue to quash the decision of the respondent [Minister] of 13 March 2003 to cancel the applicant’s visa.

THAT the applicant forthwith be released from immigration detention.’

This is an appeal from that decision.

CONCURRENT SENTENCES AND SECTION 501(7)(d)

THE ISSUE

34 Having been convicted of a number of offences over a period of time for which no term of imprisonment was imposed, the respondent was convicted on 28 April 1994 on 49 counts, most of which were for ‘obtain by cheque (under $500) by false pretences’. In respect of 25 of those convictions, the respondent was sentenced to imprisonment for 11 months for each conviction, each sentence to commence on 28 April 1994. In respect of 24 of those convictions, she was sentenced to imprisonment for 2 months for each conviction, each sentence to commence on 28 April 1994.

35 Section 501(7) of the Act provides, relevantly:

‘For the purposes of the character test, a person has a substantial criminal record if:

...

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more’
36 If the respondent is a person to whom s 501(7) applies, she does not pass the character test (s 501(6) of the Act) and the Minister may cancel her visa under s 501(2). The question is whether 49 ‘concurrent’ sentences, each for less than 2 years, can be totalled so that the respondent has been sentenced to 2 or more terms of imprisonment where the total of those terms is 2 years or more. Put another way, is the section directed to the term of each sentence imposed or to the term of imprisonment for which the sentence or sentences were imposed?

37 The word "concurrent" does not appear in the respondent’s record of convictions. There was no evidence as to the use of that terminology or of sentencing procedures in New Zealand. It was, however, accepted by the Minister that the sentencing Judge intended that the 49 sentences would be served at the same time. Accordingly, the terms of the sentences passed on the respondent added up to over 26 years of imprisonment. These were divided into 25 terms of 11 months and 24 terms of 2 months. The term of imprisonment that she was sentenced to serve was 11 months. The question is whether s 501(7)(d) refers in this case to the 11 months, 13 months or the 26 years. It is only if the latter applies that the respondent does not pass the character test.

38 The primary judge (at [38]) concluded that:

‘the expressions "term of imprisonment" and "terms of imprisonment" in s 501(7)(c) and (d) denote respectively a period having a fixed or ascertainable beginning and end, and an aggregation or accumulation of such periods. The plural expression "terms of imprisonment" is not apt to refer to the same period for which several sentences have been directed to be served concurrently.’
(emphasis added)
39 His Honour noted that this accords with the meaning of "term" as a matter of ordinary English, in the sense of the definition in the Oxford English Dictionary of ‘a portion of time having definite limits; a period esp. a set or appointed period; the space of time through which something lasts or is intended to last’ and also the meaning given to the expression in other statutory contexts and in relation to the law of landlord and tenant.

40 His Honour concluded that what was relevant was the term of imprisonment to be served. He considered that the reference in s 501(7)(d) to ‘two or more terms’ and ‘one or more occasions’ contemplated the practice of sentencing courts of imposing, on one occasion, sentences to be served cumulatively.

41 The primary judge reviewed the authorities and noted the Explanatory Memorandum to the Bill which introduced s 501(7) in its present form and concluded that there was nothing inconsistent with the construction that he favoured in the application of that subsection to concurrent sentences. The effect of that construction was stated by his Honour (at [44]) as follows:

‘In the present case, the fact remains that the sentencing judge determined, on 28 November 1994, that the appropriate sentences to be imposed for the offences of which the applicant was guilty were a term of imprisonment of eleven months to be served concurrently. The applicant was "under the composite sentences imposed" sentenced to a term of imprisonment of eleven months’ (original emphasis).

42 Counsel for the appellant submitted that, in a determination of character, the number of offences must be relevant and, accordingly, the policy of the Act is best served by a construction that permits totalling the individual sentences. It could also be deduced, however, that the policy of the Act looks to the severity with which a Court views the offence or series of offences and is directed to such behaviour as attracts a term of imprisonment of at least 2 years. As both policies seem reasonable, we derive no assistance from the presumed policy in this regard.

43 Counsel also relied upon the fact that, if concurrent sentences are not added, offences in addition to the first one are disregarded and that cannot be the case where the consideration is of character. This does not assist either, as the relevance of offences to character has been determined by Parliament and set out in the legislation. It is a question of the construction of that legislation that determines the relevance of a multiplicity of offences.

44 The question in this aspect of the appeal is relatively straightforward. The answer is not. It is not in dispute that a term refers to a portion of time having definite limits, defined by a starting point and a finishing point, in this case determined by the starting point and the period from that date to be served. There are, however, two possible constructions of s 501(7)(d) as it applies to sentences to be served concurrently.

45 The first construction has as its object the sentence imposed. The person has been sentenced to a separate term of imprisonment for each offence. The sentencing Judge then directs that they be served concurrently. In those circumstances, the terms of imprisonment would be totalled. In the alternative construction, the object is the term of imprisonment. Under this construction, there has only been a single term of imprisonment imposed with respect to the numerous sentences.

46 The primary judge favoured the latter construction. The appellant urges the former.

DECISION ON SECTION 501(7)(d)

47 In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (‘Drake’) the Full Court considered s 12 of the Act as then in force. That section referred to a conviction for an offence ‘for which he has been sentenced to imprisonment for one year or longer’ (emphasis added) and provided that the Minister may ‘upon expiration of, or during, any term of imprisonment served’ (emphasis added) deport the person. In that case, the sentence imposed was for 12 months accompanied by a direction that the plaintiff be released after three months on entering into a recognizance. To Bowen CJ and Deane J (at 586) it was clear that the sentence referred to in s 12 was the sentence of imprisonment imposed and not the term of imprisonment actually served. Their Honours held that the fact that ‘a person ... was ... not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year’ for the purposes of s 12 of the Act. The remissions were merely ‘the result of the context in which the sentence imposed operates’. Their Honours also observed (at 588) that the powers conferred on the Minister by the section should be strictly construed and noted that the magistrate in that case clearly intended that the plaintiff should serve only three months in prison. However, their Honours concluded that such intention did not alter the fact that the appropriate sentence was determined to be a term of imprisonment of one year.

48 In Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264 (‘Te’), the Full Court followed Drake. In so doing, the Court reiterated that, in considering s 201(c) of the Act, the words ‘the offence is an offence for which the person was sentenced ... to imprisonment ... for a period of not less than one year’ refers to the sentence of imprisonment imposed and not the term of imprisonment actually served. The language was said to direct attention to the quality of the offence, as reflected in the sentence imposed and focuses on the sentence determined to be appropriate punishment for the offence. In that case, the County Court had imposed a suspended sentence of imprisonment which meant that the offence was one for which the appellant was sentenced to the term of the unsuspended sentence.

49 In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 (‘Sciascia’), Burchett and Lee JJ construed s 20 of the Act, in the form that then applied and, in particular s 20(1)(d)(iii) which referred to ‘a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year’. The question was whether: (a) the section was intended to operate to embrace a deemed sentence of imprisonment, for a period of at least one year obtained by adding together unconnected sentences of imprisonment, imposed upon conviction for individually minor offences over a period of time; or (b) it was intended to cover sentences of imprisonment for several offences that were made consecutive, to form a period of imprisonment totalling at least one year. Their Honours were careful to adhere to the principle that sections such as s 20 were to be construed narrowly and so as strictly to confine their operation. They looked to the history of the legislation to conclude that it was not intended to permit the adding together of quite unconnected minor sentences. At 374, their Honours said:

‘Of course, the language is not clear. The expression "has been convicted" is simply not limited, nor extended, by any words such as, to give it plainly the one meaning, "one some occasion", or, to give it plainly the other, "on one or more occasions". While it could refer to the case we have mentioned, it could also refer to a series of minor convictions spread over many years. In that case, a person, who had never, at any particular time in his life, been guilty of any serious offence or series of offences, might have become retroactively a prohibited immigrant by a statutory process of adding together unconnected sentences of imprisonment imposed for widely separated minor offences, some perhaps even committed in adolescence’.
50 Their Honours pointed to a further ambiguity in the language arising from the failure to express a distinction between cumulative and concurrent sentences. They said (at 375):

‘Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several changes which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: see R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction.’

51 The distinction between different sentences and different terms of imprisonment was also dealt with by the High Court in Winsor v Boaden (1953) 90 CLR 345 (‘Winsor’). The section under consideration was s 80 of the Government Railways Act 1912-1851 (N.S.W.). The section was in terms of ‘sentenced to imprisonment for any term of or exceeding six months’. Dixon CJ, delivering the judgment of the Court, was considering whether two concurrent sentences of three months and a sentence of three months to commence at the expiration of the other two sentences, equalled or exceeded a term of imprisonment of six months. His Honour emphasised that a section which destroys accrued rights is not to be given a wider operation than the ordinary meaning of the words conveys unless the context or subject matter demands it. The Court held that the sentence to imprisonment was not for any term of or exceeding six months. A distinction was drawn between "sentence" connoting a judicial judgment or pronouncement fixing a term of imprisonment and the period fixed by the judgment as punishment, the term of imprisonment.

52 The emphasis on the term of imprisonment imposed, so that concurrent terms are not added together, reflects the approach taken by the primary judge.

53 The second reading speech of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill (No. 2) 1998 (Cth) (‘the Bill’) in the House of Representatives stated that the Bill sought to establish clear benchmarks for criminal behaviour that would lead to failure of the character test where ‘the length of several sentences aggregates to two years or more’. In the Senate, the second reading speech referred to ‘certain levels of criminal sentences’. It was also said that the Bill sought ‘to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test’. Circumstances included a situation ‘where the length of several sentences aggregates to two years or more’.

54 The Explanatory Memorandum to the Bill (at [53]) refers to ‘a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment. It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed’.

55 It is of interest that the words of Burchett and Lee JJ in Sciascia: ‘on one or more occasions’ were introduced into the amended section. It cannot be said that the other ambiguity, in respect of concurrent sentences, was clearly resolved by the amendment although it had been clearly adverted to by their Honours. The second reading speech in the Senate did, however, make reference to several sentences being aggregated, which seems to draw on the language of Sciascia but neither the Act nor that speech take up their Honours’ invitation to make clear reference to sentences to be served concurrently. It would have been easy to have done so.

56 The question of concurrent terms, s 501(7) and the character test was also recently considered by French J in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 (‘Hicks’) which is on appeal to a Full Court. His Honour observed (at [59]) that the Act itself provides no explicit guidance in its text or context and the legislative history offers little illumination as to whether the condition for the existence of a substantial criminal record set out in s 501(7)(d) is satisfied by the imposition of two or more terms of imprisonment to be served concurrently where, if served consecutively, they would amount to two years or more.

57 French J also observed, correctly in our view, that the observations of Burchett and Lee JJ on concurrent sentences in Sciascia were obiter and assumed a single coherent theory of concurrent sentencing as applying in respect of a plurality of offences arising out of one or connected criminal incidents. That may not be the case and was not here. His Honour was referred to the primary judge’s decision in this case and expressed the view that the construction there adopted was the preferred one.

58 A submission was made before French J on behalf of the Minister that was not made before us. Counsel in Hicks relied on the definition of "behaviour concern non-citizen" in s 5 of the Act and express provision therein for concurrent terms, excluding them from the sum of periods of imprisonment. The submission was that express exclusion of concurrent sentences in s 5 meant that they were included in s 501(7)(d). His Honour noted that this would lead to ‘a tension between the criteria for the grant of visas for New Zealand citizens [by reason of s 32 of the Act] and their cancellation for failure to pass the character test". The respondent is a New Zealand citizen. This would mean that she would be entitled to a special category visa and would not be excluded by reason of her concurrent sentences under s 32 (2) but, on entry into the country, could then have her visa cancelled under s 501 by reason of s 501(7)(d). We see this absurd result as militating against the construction advanced by the appellant in this case.

59 In our view, the construction of s 501(7)(d) in respect of concurrent sentences is not clear. In Sciascia the clear opinion was expressed that concurrent sentences were not included. While that opinion was obiter, it is persuasive and there was an opportunity to amend the Act after Sciascia to make it clear that their Honours’ view was not to apply if that had been the intention of the legislature.

60 Section 20(1)(d)(iii) was subsequently amended by the Migration Amendment Bill (No 2) 1992 (Cth) (‘the 1992 Bill’), according to the second reading speech:

‘ in response to a Federal Court decision which has limited the power of the Commonwealth to decide who may enter and stay in Australia with regard to persons with criminal records. The intention of the Government has always been that a person who has committed a series of unrelated crimes which have resulted in that person being sentenced, in total, to a period of 12 months or more imprisonment should be categorised as a person to whom section 20 applies. The court decision, however, requires that this provision be interpreted very narrowly. It would apply only to a person in circumstances where there is a court order that several sentences of imprisonment are to be served consecutively so as to make up one continuous period of detention of at least one year. The amendment proposed to section 20 will make this longstanding policy of the Government clear in the legislation and overcome the narrow interpretation of the court.’

61 The Explanatory Memorandum to the 1992 Bill stated that the amendments were, inter alia, to ‘clarify’ certain provisions including the circumstances in which non-citizens become illegal entrants. Clause 7 of the Explanatory Memorandum states:

‘This clause clarifies the criminal convictions that are relevant for the purpose of subparagraph (1)(d)(iii) of section 20 of the Principal Act. The Federal Court held in a recent decision that unconnected sentences of imprisonment could not be added together unless they resulted in one unbroken period of imprisonment. This amendment makes it clear that unconnected sentences of imprisonment can be aggregated even though the periods of imprisonment are not consecutive or relate to separate incidents of criminal activity. The operation of this clause is affected by transitional provisions in clause 17 of this Act.’

The amendment itself was, relevantly, as follows:

‘20. (1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
...
(d) on any occasion when the person entered Australia, the person was:
...


(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year if:

(A) any period concurrent with part of a longer period is disregarded; and
(B) any periods not disregarded that are concurrent with each other are treated as one period;


whether or not:

(C) the crimes were of the same kind; or
(D) the crimes were committed at the same time; or
(E) the convictions were at the same time; or
(F) the sentencings were at the same time; or
(G) the periods were consecutive’.

62 The long standing policy referred to in the second reading speech made no mention of concurrent sentences. However, the amendment to the legislation did. The new s 20(1)(d)(iii)(A) and (B) made express reference to concurrent periods. Paragraph (A) was clear. Concurrent periods which were shorter than a further concurrent period of imprisonment were to be disregarded and therefore not totalled. Paragraph (B) was not clear. On the one view what was meant was that any periods not disregarded, for example the 25 convictions for 11 months, were to be treated as one period and therefore not totalled. On another view, each of the 11 month periods was to be treated as one period but could be totalled because the person had been convicted of 2 or more crimes and sentenced to imprisonment for 25 separate periods of 11 months that therefore added up to more than one year within the opening words of sub–paragraph (iii).

63 What then was the intention of the legislature when it amended the legislation yet again in s 501(7)(d)? One possibility is that it thought it had already made clear a "long standing policy" that concurrent sentences were to be totalled in the limited circumstances provided for in s 20(1)(d)(iii) and that the new s 501(7)(d) merely reflected that policy. Another possibility is that it thought that the long standing policy was that concurrent sentences were not to be totalled and that this was reflected in s 501(7)(d). A third possibility is that it thought that s 20(1)(d)(iii) was not clear and that it required further clarification. But the difficulty with each such possibility is that s 501(7)(d) is not clear.

64 In our view the following observations of French J in Hicks (at [65]) are apt and are not affected by the fact that His Honour was apparently, in argument, not referred to the 1992 amendments:

‘In my opinion, although the position is not without doubt, the language of s 501(7)(d) does not readily lend itself to the totalling of concurrent terms of imprisonment. The issue is one of which the Parliament was well aware at the time that s 501(7)(d) was enacted, having regard to the joint judgment of Burchett and Lee JJ in Sciascia and what fell from Martin J in Pearson [Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 FLR 162]. It would have been a straightforward matter to have addressed that issue expressly in the definition of `substantial criminal record´ in subs 501(7)(d). In my opinion therefore, the preferable construction is that which counts only terms of imprisonment which are other than concurrent.’

65 We can see some force in the submission that what is to be totalled are the sentences imposed, rather than to look to the way in which the numerous sentences are to be served. In this regard, the appellant relied on R H McL v The Queen (2000) 203 CLR 452 as authority for the proposition that a sentence should be fixed appropriate to each individual offence and then the aggregate of those sentences viewed and made wholly or partly concurrent in accordance with the "totality principle". However, that case does not assist in ascertaining the true effect of the section in question and whether what must be 2 or more years is the total of the sentences imposed or the term of imprisonment imposed in respect of all of those sentences. In either case, it could be said that the quality of the offending conduct was being addressed. Counsel for the appellant also relied on the definition of "sentence" in s 501(12): ‘sentence includes any form of determination of the punishment for an offence’. This, in our view, recognises that sentences may be imposed other than by way of terms of imprisonment and reinforces the conclusion that s 501(7)(d) is not directed to sentences but to the terms of imprisonment.

66 Counsel for the appellant submitted that the process for consideration, as supported by Drake, is in two stages. The first is the imposition of a sentence for a term of imprisonment for an offence. It is this stage, it was submitted, to which s 501(7)(c) and (d) are directed. In the present case, there have been sentences for terms of imprisonment which total more than 2 years. There is then a second stage and that is the decision on the part of the judge to fix the starting date for each of those terms to be the same.

67 There was not in the present case evidence of a specified two stage process where sentence in respect of each offence was pronounced and then a direction given that they be served concurrently. This does not matter because it is clear that the section is intended to cover circumstances beyond the procedures recognised in individual States or, indeed, Australian criminal law. To that extent, we differ from the view taken by the primary judge that Parliament must be taken to have considered the practice of concurrent sentencing. Counsel for the appellant recognised that the meaning of the provision could not change depending on local sentencing principles but then drew on such principles, for example the totality principle, to support his case which relied on the Australian practice of cumulative and concurrent sentencing. The section cannot be of such limited application.

68 In the present case, there was no evidence other than the charge sheet. The terms were made apparent simply by an examination of the commencement and length of each term of imprisonment imposed. There was a sentence of imprisonment for each offence and a term of imprisonment imposed. In each of 24 cases, it was the same term of 2 months and in each of 25 cases, it was the same term of 11 months. All the terms commenced on the same day. Whether the total of the terms is 11 months or 13 months, it is below the 2 years that has been defined as the minimum for a substantial criminal record.

69 Bearing in mind the injunction in Winsor, where the section is not clear, we are of the view that the construction to be preferred is the one that does not derogate from the respondent’s rights.

70 It follows that there has not been demonstrated error by the primary judge in finding that the Minister applied an erroneous construction of s 501(7)(d) when he formed the suspicion required by s 501(2)(a) that the respondent did not pass the character test. This ground of appeal fails.

NATURAL JUSTICE

71 There are two aspects of the obligation to accord natural justice relevant to this appeal. The first involves the construction of s 503A of the Act and the second aspect was raised in the notice of contention.

NATURAL JUSTICE AND SECTION 503A

72 It was not in dispute before us and would seem not to have been in dispute before the primary judge that, ordinarily, the respondent would have been entitled to know the information upon which the Minister was basing the determination of whether the respondent did or did not pass the character test. In the present case, that information was not forwarded to the respondent as part of the Notice. The Minister claimed that the information was information that attracted the protection of s 503A, being information that was communicated by a gazetted agency (the New Zealand Police) on condition that it be treated as confidential information.

73 The view of the primary judge (at [28]) was that, in order to accord natural justice, the decision-maker should consider ‘what it is that attracts to critically relevant information the character of protected information and whether it can reasonably be divested of that character and supplied to the visa holder’.

74 His Honour held (at [29]) that the Minister should have taken reasonable steps to bring to the respondent’s attention the substance of the material obtained from the New Zealand Police under the stipulation that ‘this information should not be released without police consent’. His Honour was able to suggest two such steps: (1) to obtain the consent of the New Zealand Police to the provision of the information to the respondent; and (2) to obtain extracts from the register of the Dunedin Court at which the sentences were pronounced.

75 There is no real dispute that the information was, within the meaning of the Act, protected information. There is also no dispute that, were it not protected information, natural justice would have required that it be provided to the respondent. Whether the respondent was denied natural justice turns on the application of s 503A of the Act. If that section applies to prevent such provision, the rules of procedural fairness are overridden by the Act (Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 203 ALR 320 (‘Evans’)). Evans was handed down after the decision of the primary judge.

76 Section 503A of the Act relevantly provided:

(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

(a) the officer must not divulge or communicate the information to another person, except where:


(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of power under section 501, 501A, 501B or 501C; and

(b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:


(i) the other person is the Minister or an authorised migration officer; and
(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.


Note: Authorised migration officer and gazetted agency are defined by subsection (9).


(2) If:

(a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or


(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b);


then:

(c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and


(d) if the information was communicated to an authorised migration officer--the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.’


...

(6) This section has effect despite anything in:

(a) any other provision of this Act (other than sections 503B and 503C); and

(b) any law (whether written or unwritten) of a State or a Territory.

77 The Minister does not contend that she is an authorised migration officer as referred to in the section. It is not in dispute that the information was communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential. The question is whether the Minister, who is not an authorised migration officer, is precluded from divulging or communicating that information to another person.

78 In Evans, the Court discussed in some detail the purposes of s 503A. There the questions for determination concerned the specification and definition of a "gazetted agency". Evans was concerned with the content of the notice in which the Minister specified a gazetted agency. The Court was divided on certain aspects in that regard but not on the more general purposes of the section. Both Gray and Kenny JJ expressed concerns as to the construction of the section. Because of the effect of the section on the deprivation of rights to procedural fairness and natural justice, their Honours noted that the Court should look carefully at the provision and prefer a narrow construction of the provision to a broad one. Downes J did not discuss the general background and effect of the section.

79 Gray J observed (at [13]) that the purpose of s 503A ‘is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa’. Kenny J noted (at [50]) that the publication of a notice in conformity with paragraph (b) of the definition of "gazetted agency" prevents a person whose interests are likely to be affected by the relevant exercise of power from obtaining access to information relevant to the exercise of such power and added ‘[w]hilst the duty to accord procedural fairness (or natural justice) is not, for this reason alone, entirely excluded from the decision-making process in a case to which s 503A applies, the requirements of procedural fairness are diminished to the extent that they are inconsistent with the operation of s 503A’. The result is that affected persons will ‘[a]lmost inevitably’ be deprived of the opportunity to respond to the subject matter of the information.

80 It is also apparent, however, that the construction of s 503A (1) and (2) did not specifically arise in Evans, nor was it raised before the primary judge. It did arise in Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 (‘Wong’), in relation to a decision of the Minister made pursuant to s 501(3) of the Act. Lindgren J concluded that the Minister, not being "an authorised migration officer" or "a Commonwealth officer", was not prohibited from divulging information received in confidence from a gazetted agency and that this was the intention of the legislature. Having held that s 503A does not prohibit the Minister from giving to the visa holder the information so received, his Honour held that s 501C (3)(a)(ii) required her to do so.

81 In the context of s 503A, we can see no basis for the finding that procedural fairness required the Minister positively to take any reasonable steps to divest the information of the protection accorded to it by that section. His Honour did not explain the basis for his conclusion, nor how the principle of positive obligation that he applied would extend beyond the facts of this case or to situations where the Court itself could think of ways in which such steps could be taken.

82 There is a tension between the strict wording of the section and the scheme it sets out. Clearly, it is envisaged that the information is communicated by a gazetted agency to an authorised migration officer. That officer is prohibited from divulging or communicating the information to another person except where that other person is an authorised migration officer or the Minister and the information is divulged or communicated for the purposes of, inter alia, s 501. Where the decision under s 501 is made by a delegate of the Minister who is an authorised migration officer, the express prohibition has the effect of depriving the person whose visa is under consideration of the right to know that information.

83 Section 503A(1) deals with the receipt of the information and the passing of the information to the decision maker. Section 503A(2) deals with the information in the hands of the decision maker. Neither the Minister nor the officer can be required to divulge or communicate the information. The authorised migration officer must not give the information in evidence. The Minister may give the information in evidence. That is provided for in s 503A(3).

84 The missing explicit prohibition is on the Minister. There is no express prohibition on the Minister choosing to divulge or communicate the information. The question is whether, if the Minister does not divulge that information to the person the subject of the s 501 decision, that constitutes denial of the right to natural justice or procedural fairness that is not excluded by s 503A.

85 Two questions immediately arise. First, if the Minister cannot be required to divulge or communicate the information to any other person, does that extend to the requirement to accord procedural fairness? If it does not, such a failure to divulge or communicate the information vitiates the decision where made by the Minister but not a decision made by a delegate of the Minister where that delegate is an authorised migration officer.

86 Secondly, s 503A(6) provides that the section has effect despite any other provision of the Act and written or unwritten law of a State or a Territory. Does this affect the apparent scheme of the section, as described in Evans, to deny to the visa holder his or her rights to procedural fairness? No question arose in the appeal as to whether s 503A(6)(b) included the law (written or unwritten) of the Commonwealth or whether there was any relevant difference. We shall proceed on the basis that the common law of the States and Territories are, relevantly, the same as the law of the Commonwealth.

87 This line of argument seems not to have been put to Lindgren J in Wong and seems not have been a major issue in those proceedings.

88 It is not in dispute before us that, but for s 503A, the failure to provide particulars of the information, results in a denial of procedural fairness that vitiates the decision. Put another way, does the section impose a sanction upon the Minister’s refusal to disclose the information by setting aside any decision that she made, in circumstances where that sanction would not operate if the Minister delegated the decision to an authorised migration officer? This would not necessarily assist a visa holder, who would still not be entitled to the information because by delegation of the decision to revoke a visa the confidentiality of the protected information would be maintained, as the delegate will be prohibited to disclose. This would, however, force or require the Minister to delegate the decision in those circumstances.

89 This clearly undermines the purpose of the whole section.

90 We accept that the section must be construed bearing in mind the fact that it purports to take away fundamental rights to procedural fairness. We also note that, by reason of s 501(5), the rules of natural justice are said not to apply to the decision of the Minister pursuant to s 501(3).

91 There is no limitation in s 503A(2)(c). If the Minister were required to choose between divulging the information and avoiding the decision, there would be a direct or indirect requirement to divulge or communicate the information in order to make the decision. That clearly was not the intention of the legislature in promulgating s 503A and the scheme there provided. Indeed, it is inconsistent with the operation of it. Regard may be had to the practical context in which the decision maker must consider whether to exercise the power (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (‘Miah’) at [31] per Gleeson CJ and Hayne J). The scheme, as pointed out by Gray J in Evans (at [13]) was to remove the entitlement to natural justice or procedural fairness in respect of specific, defined information for a person who is subject to the application of the character test in relation to the consideration of the cancellation of an existing visa, or in relation to the application for a visa. The obligation to afford common law natural justice or procedural fairness is controlled by the statutory framework but exclusion must be made clear in direct terms Miah at [43] per Gleeson CJ and Hayne J; at [90] per Gaudron J; at [126]-[128] per McHugh J; at [181] per Kirby J; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [30] and [37] per Gleeson CJ). In respect of s 503A, in our opinion, that intention is clear.

92 In any event, the appellant did not receive the Notice. The Minister submits that, if reasonable steps were taken to give the Notice to the respondent (the finding of the primary judge the subject of the notice of contention and as to which see below), there was no practical unfairness if the content of those documents did not include the particulars of information received from the gazetted agency. The primary judge seems to have concluded that the respondent was still deprived of the opportunity to advance a case because she was not given the opportunity to know the material adverse to her on which the Minister might have relied because she was taken to have received the Notice by force of regulation 2.55(7).

93 There seems to us to be some force in the appellant’s submission in the circumstances of this case. As the respondent did not in fact receive the Notice, she would not have received the protected information even if it had been included with the Notice. Accordingly, there was no practical injustice that arose from a failure so to include it (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]-[38]).

94 The fact that it was her own criminal record that was the subject of the confidential information was also raised before us but, in circumstances where that does not seem to have been raised before the primary judge and there was no evidence as to whether any practical unfairness arose from the fact that the respondent was not provided with her record or of her own knowledge in that regard, we will not deal further with this aspect.

95 It follows that the primary judge was in error in his conclusion that the appellant was obliged to provide the protected information to the respondent.

THE NOTICE OF CONTENTION

96 The factual matters were set out by the primary judge. The Department sent the Notice to the respondent by registered post on 29 January 2003. The Notice was sent to the Kalgoorlie address supplied by the respondent when she appeared in the Kalgoorlie Court of Petty Sessions on 10 January 2003 on a charge of providing a false bail undertaking. It was also the address which had been supplied by the respondent to the Australian Taxation Office in March 2002.

97 In fact, the respondent moved to Melbourne on 18 January 2003. As a result, she did not receive the Notice which Australia Post, after three attempts to deliver it or have it collected by her, returned "unclaimed" to the Department on or about 11 March 2003.

98 The issues paper, placed before the Minister, noted that the respondent had been notified by mail but had not responded to the invitation to submit any comment which she believed relevant. However, the issues paper, presumably because it had been prepared before the Notice was returned unclaimed, did not advert to that fact.

99 The primary judge applied Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 (‘Osborne’) and held that, by force of regulation 2.55(7), the respondent was taken to have received the Notice on 5 February 2003. The respondent contends that his Honour’s reasoning in coming to this conclusion was erroneous.

100 Regulation 2.55 of the Migration Regulations 1994 (‘the Regulations’) provides, so far as is relevant:

‘(1) This regulation applies to:

(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and


...

(3) For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:

(a) by handing it to the person personally;

(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to he Minister; and


(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and


(iii) appears to be at least 16 years of age;


(c) by dating it, and then dispatching it:

(i) within 3 working days (in the place of dispatch) of the date of the document; and


(ii) by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;


...

(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or


(b) in any other case - 21 days after the date of the document.’

101 The respondent contends that the cancellation of the visa in circumstances where she had not in fact received the Notice and where the Minister knew that fact, there was a denial of procedural fairness. The respondent contends for an obligation on the part of the Minister, as a condition precedent to the exercise of the power to cancel the visa, to bring the substance of the material relevant to the exercise of the discretion to the attention of the respondent. The respondent asserts that it is not to the point that the Minister had taken reasonable steps to notify Ms Ball of the proposal to cancel her visa, nor that the notification is in accordance with the requirements of the Act. The respondent submits that such steps are not sufficient to satisfy the requirements of procedural fairness.

102 The respondent also submits that compliance with the Regulations does not govern the obligation in s 501 of the Act to provide the information.

103 In Osborne, French J said at [19] and [20]:

‘19 Unlike the provisions of ss 129 and 131 considered in Wang, there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister’s power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless: "The person does not satisfy the Minister that the person passes the character test." It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel. Some process of notification is therefore contemplated even thought [sic] the Act does not set it out. Indeed the regulations seem to assume as much.
20 The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.’

104 It is clear that French J held that the Act, not the Regulations, requires that only reasonable steps need be taken. Such a test was also applied by RD Nicholson J in George v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 38 at [30]. The Regulations establish a mechanism for notification which had been followed in Osborne and have been found, as a matter of fact, to have been followed in the present case. Even if it is accepted that, by the time the Minister made the decision, she was aware that the Notice had been returned unclaimed, the taking of those reasonable steps in circumstances where no alternative address for the respondent was known was sufficient. Otherwise, a person deliberately evading service could deprive the Minister of the power to cancel the visa. In the present case, the respondent continued to give the Kalgoorlie address after the Notice was returned unclaimed and the decision was made.

105 Counsel for the respondent did, ultimately, accept the test of reasonable steps as set out in Osborne. Counsel then submitted that, after the Department or the Minister knew that the Notice was returned unclaimed, the fact that no further steps were taken was insufficient. Counsel was, however, unable to point to any steps that reasonably and practically could have been taken in the circumstances prior to the cancellation decision and submitted that the mere fact that no further steps were taken meant that reasonable steps were not taken. This ignores the fact that the steps that had been taken that resulted in the letter being returned unclaimed were reasonable.

106 No error on the part of the primary judge has been demonstrated in this part of his Honour’s reasoning.

CONCLUSION

107 The appellant has not succeeded in the appeal as to the construction of s 501(7)(d). Accordingly, the necessary jurisdictional fact was not established and the appeal must be dismissed. As the appellant was successful on the construction of s 503A and on the notice of contention, the appropriate order for costs is that the appellant pay fifty percent of the respondent’s costs of the appeal.





I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson & Bennett.




Associate:

Dated: 21 April 2004




Counsel for the Appellant: S Donaghue



Solicitor for the Applicant: Australian Government Solicitor



Counsel for the Respondent: P G Nash QC with D A Perkins



Solicitor for the Respondent: Access Law



Date of Hearing: 11 February 2004



Date of Judgment: 22 April 2004
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