FEDERAL COURT OF AUSTRALIA

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

MOORE J

1                                             I have had the considerable advantage of reading the reasons for judgment of Nicholas J in a draft form.  I have also had the advantage of reading the reasons for judgment of Rares J with which I agree.  Subject to the observations of Rares J, I agree with the orders proposed by Nicholas J and his reasons.

Associate:

Dated:         19 April 2010

REASONS FOR JUDGMENT

RARES J

2                                             I have had the privilege of reading the careful and detailed reasons of Nicholas J.  I agree with the orders that he proposes and with his reasons and wish to add the following observations on the construction of s 501.

3                                             At first blush there is a superficial attraction to the appellant’s construction of s 501(7).  After all, it centres on an apparent incongruity.  That is, a person sentenced to periodic detention or a residential program within the meaning of ss 501(8) or (9), is treated as having served a term of imprisonment equal to the number of days he or she actually spends in detention or in the program.  In contrast, a person sentenced to a term of imprisonment that is wholly suspended, actually spends no time at all in detention, yet is treated, on the Minister’s argument, as if he or she had been in detention.

4                                             However, this appearance of incongruity cannot shroud the proper construction of the Act, and, in particular of s 501.  The imposition by the sentencing court of the punishment of a suspended prison sentence is a selection of a very serious form of punishment in the hierarchy of sentencing opinions, as Kirby J explained in Dinsdale v The Queen (2000) 202 CLR 321 at 346 [77] (Gaudron and Gummow JJ agreed with Kirby J at 329-330 [23]-[26]).  The position is similar in New South Wales under the Crimes (Sentencing Procedure) Act 1999 (NSW) as that State’s Court of Criminal Appeal has explained in Reg. v Zamagias [2002] NSWCCA 17 at [22]-[31] per Howie J, Hodgson JA and Levine J agreeing;  Reg. v Fadde Assaad [2009] NSWCCA 182 at [30]-[31] per McCallum J with whom McClellan CJ at CL and Hidden J agreed.  Indeed, s 12(3) of that Act expressly recognises that a sentence of imprisonment, the execution of the whole of which is suspended under s 12(1)(a), is nonetheless “a sentence of imprisonment the subject of an order under this section”.

5                                             The legislation of each jurisdiction fixes its own criteria for a sentencing court to consider in deciding whether to suspend a term of imprisonment.  But the fundamental structure of such a sentence begins with the imposition of a term of imprisonment as the first step in the overall sentence.  It is only because a term of imprisonment has been imposed that the next step, of suspending its operation, can be considered in the evaluation of the appropriate form of punishment by the sentencing court.  Kirby J explained the operation of the relevant Western Australian legislation in Dinsdale 202 CLR at 346 [79] in terms that are of general application for the proper understanding of the nature of a suspended sentence of imprisonment.  He said:

“The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted (R v Liddington (1997) 18 WAR 394 at 398-401). The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’ (R v O’Keefe [1969] 2 QB 29 at 32).”  (emphasis added)

6                                             The essential feature of a suspended sentence of imprisonment is that it is necessarily a sentence to imprisonment for the term selected by the sentencing court as the appropriate punishment.  The first stage of the two step process of sentencing an offender to a term of imprisonment is determined without regard to the fact that, at the second stage, the sentencer is to suspend it:  Dinsdale 202 CLR at 346 [79];  Zamagias [2002] NSWCCA 17 at [27], [31].

7                                             The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of ss 501(6)(a) and (7).  The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form;  that is, each definition elucidates but does not limit the ordinary and natural meaning of the word.  A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty.   The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.

8                                             The role of ss 501(8) and (9) is to amplify, not qualify, the meaning of the cognate expression “sentenced to a term of imprisonment” in s 501(7).  The circumstances of compulsory deprivation of liberty described in ss 501(8) and (9) are deemed by those provisions to be a sentence to a term of imprisonment.  When s 501 was substituted into the Act in 1998, it included ss 501(8), (9) and (12).  Those elucidatory provisions did not derogate from, or confine, the existing and accepted meaning of the expression “sentenced to a term of imprisonment” in s 501(7).  Rather, ss 501(8) and (9) expanded the nature of punishments falling within that expression to include the aggregate of the days spent by a person in complying with the requirements of periodic detention or participation in the relevant residential scheme or program.  In some jurisdictions the form of sentencing for the punishments described in ss 501(8) and (9) may not meet the ordinary and natural meaning of a “term of imprisonment” as Nicholas J explains.  Hence, those provisions define the term of imprisonment that is relevant for ss 501(7)(c) and (d) in cases where the particular sentence itself does not impose an identifiable term of imprisonment.  But, nothing in ss 501(8), (9) and (12) qualifies or derogates from the natural and ordinary meaning of a sentence to a term of imprisonment in ss 501(7)(c) and (d) as comprehending a suspended sentence.

9                                             The construction of the expression “sentenced to a term of imprisonment” in s 501(7) cannot depend on the vaguery or intricacies of different sentencing regimes in many jurisdictions.  It may be that some particular legislation introduces the unusual concept that a suspended sentence to term of imprisonment is to be treated differently to the ordinary and natural meaning of that expression.  In such a case an argument may be open that such a sentence does not fall with s 501(7)(c) or (d).  However, that situation need not be considered here.  The ordinary and natural meaning of the expression used in s 501(7) describes the penalty imposed as distinct from the time, if any, required to be served in prison.  The step of suspending a sentence of imprisonment actually imposed occurs after, and is distinct from, the initial imposition.  Thus, s 501(7)(c) looks to the initial imposition of a sentence and is not concerned with the subsequent way in which that sentence is enforced.

10                                          The purpose of s 501(7) is to characterise the five outcomes of criminal proceedings that it specifies as each being sufficient to amount to a “substantial criminal record”.  That is because the four categories of sentences in ss 501(7)(a)-(d) and the category of detention in s 501(7)(e) have been selected by the Parliament as an objective, easily identified, criterion.  A sentence to a term of imprisonment of 12 months or more, prescribed in s 501(7)(c), is readily ascertained.  The section does not create an exception that excludes time not served or a sentence the operation of which is suspended after it has been imposed.  Khanna (2007) 168 A Crim R 530 dealt with different legislation and is not of assistance in construing the Act or s 501 in particular.

11                                          Fundamentally, however, the text and structure of s 501 read as a whole, and in the context of the whole of the Act, do not exclude the very serious form of sentence, namely a sentence to a term of imprisonment of not less than 12 months that is then wholly or partly suspended, from falling within the expression “sentenced to a term of imprisonment” in s 501(7).

12                                          For these reasons, the appellant’s suspended sentences amounted to a substantial criminal record within the meaning of s 501(7)(c).

Associate:

Dated:         19 April 2010

REASONS FOR JUDGMENT

NICHOLAS j

Introduction

13                                          This is an appeal from a judgment of a Judge of this Court dismissing an application under s 476A(1)(b) of the Migration Act 1958 (Cth) (the Act) for review of a decision of the Administrative Appeals Tribunal (the Tribunal) (see Maria Brown v Minister for Immigration and Citizenship [2009] FCA 1098).  The decision of the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) to cancel the appellant’s visa pursuant to s 501(2) of the Act. 

14                                          The first issue which arises in this appeal is whether the appellant had a “substantial criminal record” within the meaning of s 501(7) of the Act by reason of her having been sentenced to imprisonment for 12 months, even though the sentence was wholly suspended.

15                                          The second issue, broadly stated, is whether the appellant was afforded procedural fairness before the Tribunal.  The appellant contends that she was not, when regard is had to the use made by the Tribunal of various police intelligence reports and records from the New South Wales Department of Housing (Department of Housing) tendered by the Minister at the hearing which, it is said, she was not given sufficient opportunity to answer. 

16                                          The third issue which arises is whether the Tribunal made findings of criminal conduct on the part of the appellant on the basis of the various intelligence reports and Department of Housing records in circumstances where that material did not logically establish that the appellant was guilty of such conduct. 

The Cancellation of the Appellant’s Visa

17                                          The appellant was born in Samoa and is a citizen of New Zealand.  She arrived in Australia in 1997 at the age of 31.  She was granted a class TY subclass 444 special category (temporary) visa.  In July 2008 the appellant was notified that the Minister was considering cancelling her visa under s 501(2) of the Act on the ground that she failed the character test under s 501(6)(a) of the Act.  She was granted an extension until 31 August 2008 to respond to the notice.  In the meantime, she was also informed by a letter dated 17 July 2008 that information protected under s 503A of the Act would be considered in relation to the possible cancellation of her visa.  The appellant responded to the notice on 1 September 2008. 

18                                          On 3 November 2008 a delegate of the Minister cancelled the appellant’s visa. In the course of arriving at that decision the delegate concluded that the appellant had a “substantial criminal record” as defined by s 501(7) of the Act.  In reaching that conclusion the delegate relied on 6 separate convictions recorded against the appellant for supplying a prohibited drug.  The convictions were recorded on 11 May 2006 and related to offences committed in July 2005 at Airds, New South Wales.  In respect of each of those convictions the appellant was sentenced to a term of 12 months imprisonment all to be served concurrently.  The sentences were suspended on the condition that the appellant enter into a good behaviour bond.

the hearing before the tribunal

19                                          On 20 November 2008 the appellant applied to the Tribunal for review of the delegate’s decision to cancel the appellant’s visa. 

20                                          In evidence before the Tribunal, and referred to in its reasons, were the documents required to be provided to the appellant under s 501G(2) of the Act.  There is no suggestion that the appellant was not provided with copies of these documents as and when required by s 501G(2) of the Act.  Nothing further need be said about them. 

21                                          However, on about 22 December 2008 the solicitors for the Minister arranged for various summonses to produce documents to be issued to the registrars of various courts.  On 16 January 2009 the solicitors for the Minister also arranged for the issue of a summons to the Department of Housing seeking all records pertaining to the appellant including files relating to her tenancy of premises at Airds, which the Department of Housing leased to her between June 1999 and July 2006.  The summons appears to have been made returnable on 19 January 2009. 

22                                          According to the Tribunal’s reasons for decision, on 19 January 2009 a “summons hearing” was held which the appellant and her son, Prince Brown, attended by telephone.  By that stage the appellant’s application for review of the delegate’s decision had already been fixed for a hearing scheduled to commence on 22 January 2009.  Relevantly, for present purposes, at the summons hearing the appellant applied for an adjournment of the substantive hearing.  In support of her application for an adjournment she claimed that she had no legal representation and that her lawyer had withdrawn because of her inability to pay him. 

23                                          It appears that the documents referred to in the summons to the Department of Housing were produced to the Tribunal at the summons hearing.  The question then arose whether the appellant should be given access to that material.  The Tribunal granted her access “subject to the names of Housing Department officers and their sources being redacted.”  It is convenient to refer to those documents as the housing department records. 

24                                          The hearing of the appellant’s application for review of the delegate’s decision commenced as scheduled on 22 January 2009.  It is not clear whether the appellant inspected the housing department records prior to that time, though it is clear enough she was given leave to inspect them two clear days earlier, subject to any redaction permitted by the Tribunal’s order for access.  The housing department records form part of the material which is central to the appellant’s claim that she was denied procedural fairness before the Tribunal.  The other material that is central to that claim is conveniently referred to as the police intelligence reports. 

25                                          The first of the police intelligence reports is a statement of Detective Inspector Galea together with various attachments.  His statement was signed and dated 20 January 2009.  The second police intelligence report is a statement of Senior Constable Alavoine together with various attachments.  Her statement was dated 29 December 2008 but not signed until 19 January 2009.  The statements of Detective Inspector Galea and Senior Constable Alavoine were tendered and admitted into evidence by the Tribunal apparently without objection by the appellant.  Both officers were cross-examined by the appellant’s fiancé (Mr Rajab) who was given leave to represent the appellant at the hearing. 

26                                          The Tribunal’s reasons for decision indicate that at the commencement of the hearing the applicant renewed her application for an adjournment to enable her to arrange legal representation and “… to examine the documents produced on summons and the statements of three police witnesses that were not served on her until shortly before the hearing”.  These included the housing department records and the police intelligence reports. 

27                                          The Tribunal’s reasons for decision record that the Minister opposed the granting of an adjournment of the hearing on the ground that the 84 day time limit imposed by s 500(6L) of the Act would expire on 6 February 2009 and that if the Tribunal’s decision was not published by this date the delegate’s decision to cancel the appellant’s visa would be affirmed automatically by operation of law.  The Tribunal accepted this submission and refused the adjournment.

28                                          The appellant never sought to make out a case before the primary judge, or this Court, that the Tribunal’s refusal to adjourn the hearing gave rise to procedural unfairness.  That is not to say, however, that the time at which the housing department records and the police intelligence reports were first made available to the appellant may not have some significance in relation to the grounds of review that were relied upon before the primary judge and the grounds of appeal relied upon in this Court. 

the decision of the tribunal

29                                          The Tribunal found that the appellant failed the character test under s 501(6)(a) of the Act.  It specifically found that the appellant had a “substantial criminal record” because of the sentences imposed on her on 11 May 2006.  It also found that the appellant failed the character test under s 501(6)(c)(i) and 501(6)(c)(ii) of the Act.  Having made those findings the Tribunal then had to decide whether to exercise the discretion to cancel the appellant’s visa.  For this purpose the Tribunal had regard to Direction No. 21 issued by the Minister pursuant to s 499(1) of the Act.

30                                          In its reasons for decision the Tribunal referred to the appellant’s criminal record.  The offences for which the appellant had been convicted included assault, assault occasioning actual bodily harm, intimidating a police officer with the intention of causing her to fear harm and assaulting a police officer in the execution of duty.  They also included various convictions for supplying a prohibited drug.

31                                          The Tribunal recounted at some length the appellant’s evidence concerning the various offences for which she had been convicted and her use of drugs.  Much of the appellant’s evidence concerning those matters was rejected by the Tribunal.  The Tribunal concluded that the appellant was not a reliable witness. 

32                                          The Tribunal also recounted other evidence called by the appellant mainly in the form of letters and statements to the Tribunal from neighbours, relatives and friends.  Some of these people were cross-examined. 

33                                          The Minister relied upon various affidavits and statements of police officers which were admitted into evidence by the Tribunal in addition to those already referred to.  Also before the Tribunal were various photographs taken by a CCTV camera which, the Tribunal found, showed the appellant “swinging at someone or throwing something” during a brawl which occurred in June 2008 at the Smithfield RSL Club.  The appellant was charged with affray over that incident though this had not been dealt with by the time of the Tribunal hearing. 

34                                          The Tribunal’s reasons for decision referred to the evidence of Senior Constable Alavoine in some detail.  She was the Information Manager within the Intelligence Unit of the Campbelltown Local Area Command.  She outlined in her statement and oral evidence the sources and methods used to compile a person of interest (POI) profile which she originally prepared in February and March 2008 at the request of her Local Area Commander. 

35                                          In its reasons at paras [120]-[122] the Tribunal summarised Senior Constable Alavoine’s evidence in these terms:

120.      She explained the meaning of the various prefixes (U, E, I and H) used to identify various classes of information source and how reports are generated. The profile listed the applicant’s key associates and criminal history. A summary of intelligence history listed 63 intelligence reports and was followed by this intelligence assessment:

                        …

In summary, BROWN’S intelligence revolves around drug supply and intimidation within the local Airds community since 1999 to present. BROWN’S intimidation ranges from verbal threats of violence to actual acts of violence (physical assaults and malicious damage) against those who she perceives cause her grief. This included government authorities (NSW Police, Department of Housing).

…

121.      A detailed statement of her criminal history was followed by a threat assessment, which reads:

        …

Ongoing reports of threats, intimidation, physical violence over the past 10 years against members of the public, crown witnesses and police officers. BROWN appears to have no fear or respect for authority.

…

122.      Finally, a detailed intelligence assessment described that applicant as “a dominant personality who appears to have a desire to ‘control’ the local community”. The assessment made a number of points in summary, including:

                        …

·                      will use other persons (suspected to be family members, specifically BROWN’s sons) to commit offences of an intimidatory type (E 24642377)

·                      will openly and loudly abuse local community members, calling them dogs if she believes they have provided information to police – another form of intimidation (E 32006340)

·                      whilst there are several reports made by members of the public claiming to have been assaulted, victimised, threatened by BROWN, most wish only for a record to be made, usually because of fear of retribution (E 23213258). It is also suspected that there are many more within the Airds local community that have not reported the assaults, intimidation and harassment committed by BROWN.

·                      Example of assaulting male Police Officer (E 18305648 03/09/03)

·                      Example of assaulting a female outside Campbelltown court house because she claimed they were looking at her (E 12166989 12/12/00)

·                      Intimidation campaign by Maria and her son Matthew against an Airds local in 2005 saw that person move immediately out of the area. The local had his vehicle fire bombed (E 24642377) then several days later an incendiary device was thrown into the victim's home causing extensive damage to the kitchen (E 24118952). Matthew was charged with the latter, however the matter was dismissed at Bidura Children’s Court.

…

            The Tribunal noted at para [123] that the prefix “E” where appearing in Senior Constable Alavoine’s statement refers to a standard report on the Computerised Operational Police System database. 

36                                          The Tribunal then turned to the evidence of Detective Inspector Galea who was the Crime Manager at Campbelltown Local Area Command.  According to the Tribunal, he held a “strategic management” position and was responsible for “the development and management of criminal investigations and crime reduction strategies in the area.”  The Tribunal summarised Detective Inspector Galea’s evidence at paras [126]-[133] of its reasons in these terms:

126.      The statement outlined the circumstances of the applicant’s various convictions and offered as another example of the applicant’s propensity for violence and intimidation an intelligence report dated 24 October 2007 in which:

                        ... information has been supplied by numerous community sources stating that BROWN has been threatening crown witnesses in the murder trial of John THOMPSON. THOMPSON has been charged with the murder of Fallon BAKER and that matter was set down for trial at Sydney Supreme Court on 12 November 2007. It was revealed in this intelligence report that those witnesses threatened with violence will not be giving evidence at that trial for fear of reprisals from BROWN.

                        …

127.      Other information received spoke of community unrest generated by a power struggle in the suburb of Airds between the Aboriginal community and the Pacific Islander community revolving around the drug trade. The applicant was believed to be a significant player in the Airds drugs trade and the general community were intimidated by her and her two sons Prince and Matthew.

128.      The statement concluded by saying that the “vast and extensive intelligence holdings” relating to the applicant maintained by the police predominantly consists of information provided by members of the public who are often too afraid or intimidated to make an official complaint to police as a victim or witness to criminal acts perpetrated by the applicant and her sons, for fear of reprisal. That had led to a significant disproportion between the number of charges and criminal convictions in relation to the number of intelligence reports. That was the reason there had been a limited number of prosecutions involving the applicant.

129.      At the hearing Detective Inspector Galea explained that Airds, which consists mainly of housing department accommodation, has a large majority population of Pacific Island and Aboriginal people. According to intelligence, the applicant was a major dealer, and when there is a major dealer, competitors may be forced to pay a percentage of their takings to that dealer or face violence.

130.      There had been few drug intelligence reports relating to Airds since the applicant and her son had been detained in Villawood. Violent assault and robbery had ceased and there had been a reduction in the drug trade and social tension. The applicant had in the past taken over the residences of others by agreement or force, and if she were released that would continue.

131.      This was a high profile case and the outcome was relevant to the question of general deterrence. The applicant had escaped imprisonment and therefore appeared to operate with impunity. Visa cancellation would have an immediate impact on the Pacific Islander population and other non-citizens. People would feel safer and would be more likely to report crimes. The demand on police resources would be much reduced.

132.      The applicant claimed to be the victim of a police vendetta. While it was true that she was a target of police attention, that was because she had been identified and profiled in relation to criminal activities. She was the subject of investigations but not of a vendetta.

133.      The disproportionality between the number of intelligence reports and the relatively small number of charges brought stemmed from the reluctance of victims to complain because they had to live in the area. Prosecutions became impossible because the applicant interfered with prosecution witnesses, leading to a higher incidence of crime and people generally feeling unsafe.

37                                          The Tribunal then turned to some psychiatric and psychological evidence concerning the appellant including a pre-sentence report dated 11 May 2008 which, among other things, included information given by the appellant concerning her drug use.  The author of the report concluded that the appellant was, by reason of her drug problems, unsuitable for a community service order. 

38                                          The Tribunal then referred to various submissions that were made on the appellant’s behalf by her fiancé including, relevantly, a submission that the police intelligence reports “were hearsay and could not be confirmed”. 

39                                          The Tribunal noted, correctly, that if the appellant did not pass the character test under s 501(6)(a) and (c)(i) and (ii), it was required to consider whether to exercise the discretion arising under s 501(2) to cancel the appellant’s visa.  In so doing the Tribunal was required to have regard to Part 2 of Direction No. 21. 

40                                          It is necessary to record a number of significant findings made by the Tribunal in this regard.  It found at paras [154]-[156] of its reasons:

154.      In this case the applicant fails the character test as enunciated in ss 501(6)(a) and (7) because of her sentences of 12 months’ imprisonment imposed on 11 May 2006.

155.      As regards past and present criminal conduct within the meaning of s 501(6)(c)(i), she had repeatedly over the years from 1999 to 2006 been convicted of offences of violence, intimidation and drug dealing, incurring several bonds and fines and three custodial sentences, two of 12 months concurrent and one of nine months, all of them suspended.

156.      The evidence from police intelligence shows a continuing pattern of similar behaviour. Housing Department records, including at least seven reports of separate incidents by Housing Department officers and numerous complaints from public housing residents paint a similar picture (part Exhibit R4).

41                                          Then at paras [159] and [161]-[168] of its reasons the Tribunal said:

159.      As regards past and present general conduct within the meaning of s 501(6)(c)(ii), the criminal convictions and criminal conduct described above indicate contempt or disregard for the law or for human rights within the meaning of para 1.9(a) of Direction No 21. There are also the unresolved charges (Direction No 21, para 1.10(a)) of affray that are set down for hearing in March 2009 that are consistent with the applicant’s pattern of conduct.

            …

161.      It is clear that the applicant can be a good neighbour to some people, and very supportive on occasion, but that does not compensate for the pattern of drug-dealing and lawless violence and intimidation disclosed by the remainder of the evidence.

162.      That evidence includes the Housing Department memoranda from the Campbelltown team leader dated 20 February and 26 February 2008 reporting that the applicant had recently stood over one of the elderly residents in Airds and occupied his property against his will. At the hearing she denied ever having forced anyone to leave and explained that it was a case of friends helping her.

163.      That evidence also included records made of the applicant's conduct towards department officers, including sustained abuse, refusal to leave the office, threats and threatening behaviour and threatening language alluding to fire-bombing of the office (Exhibit R4, pp55-58, 75, 77, 83).

164.      Also to be placed in the balance are the numerous complaints against the applicant by other public housing tenants reporting physical assaults, abuse, threats, and general harassment (Exhibit R4, pp67-74). One tenant gave the department notice of intention to vacate saying that there was too much violence in the area and that the applicant was causing all the trouble. Her husband had witnessed a child being bashed with a bat but he would not give a statement to police while still living in Airds. The applicant had arranged for local children to throw stones at her house the previous night. She had not called the police as she was frightened of reprisals from the applicant (Exhibit R4, p70).

165.      Another tenant telephoned to inform the department that she had abandoned her home and wanted to hand in the keys to the office. She had fled in fear of her life stating that she was sick of being intimidated and physically abused by the applicant. She was too afraid to contact police because if the applicant found out she would kill her (Exhibit R4, p74).

166.      A department briefing note (Exhibit R4, p88) recorded that:

                   …

                        Families at 16 and 24 Teeswater Place Airds causing major damage to properties. Terrorising tenants, physical abuse and intimidation. As a result of this activity tenants are continually requesting priority transfers, abandoning their homes and are living in fear. We have several major fires and home invasions with claims directed at Maria Brown and her son Prince and various visitors to both properties. Miss Fiti and Maria Brown are sisters.

                        …

167.      The note also records a number of fire-bombings, mentioning that “It is our understanding that Maria Brown also burned out [redacted] where a rival drug ring was operating. We understand that fire at [redacted] was also as a result of the actions of Maria Brown” (Exhibit R4, p88).

168.      None of those reports constitutes direct evidence in this case and one must assume that their quality is variable. Nor can one rule out the possibility that some reports may be malicious falsehoods. Nevertheless, when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases. In this instance there are 63 such reports, most of them in the last three years (part Exhibit R12, POI profile, p4).

42                                          At [169] of its reasons the Tribunal expressed its key finding that the appellant failed the character test under ss 501(6)(a), (c)(i) and (c)(ii) “or any one or more of them.”

43                                          Ultimately, after considering various other matters as required by Direction No. 21, the Tribunal concluded at para [218] of its reasons that the appellant’s case was one of serious and sustained wrongdoing in which the primary considerations of community protection and expectations had to be weighed against the best interests of the child and other considerations.  The Tribunal therefore affirmed the decision of the delegate. 

THE DECISION OF THE PRIMARY JUDGE

44                                          So far as the first issue arising in the appeal is concerned, the primary judge merely noted that the appellant made a formal submission that the Tribunal was in error in finding that she had a substantial criminal record for the purpose of s 501(6)(a) given that the sentences of 12 months imprisonment imposed upon her were wholly suspended. 

45                                          As to the second and third issues that arise in the appeal, there were five relevant grounds of review relied upon by the appellant before the primary judge:

1.         The applicant was denied procedural fairness in relation to police intelligence reports (including police intelligence assessments) and housing department records (collectively, the ‘reports), which reports were central to the decision, insofar as each of the particular matters contained in those reports were not put to the applicant fairly or at all during the hearing, including during the cross-examination of the applicant.

2.         The applicant was denied procedural fairness in relation to police allegations that she was a “major” and “predominant player” in the “drug trade” and the “head of the drug trade” in that these allegations were not put to the applicant fairly or at all during the hearing, including during the cross-examination of the applicant.

3.         The Tribunal erred in relying on the police intelligence reports and housing department records concerning the applicant, and in its findings relating to those records and reports, in that it applied an incorrect standard of proof insofar as satisfaction that criminal conduct has occurred is not attained on slight material or indirect inferences

4.         As a consequence of 3 above, the Tribunal erred in finding that the applicant failed the character test under subsections 501(6)(c)(i) and/or 501(6)(c)(ii) of the Act by taking into account irrelevant considerations, namely the police intelligence reports and housing department records concerning the applicant.

…

7.         The Tribunal erred in its exercise of the discretion under s 501(2) of the Act by not properly taking into account a relevant consideration, namely the protection of the Australian community and the expectations of the Australian community, in that the Tribunal took into account the police intelligence reports and housing department records concerning the applicant.

46                                          As to the first ground of review, his Honour found at para [70] of his reasons that it was the number and nature of offences for which the appellant was convicted between 1999 and 2006 that was central to the Tribunal’s conclusion.  His Honour also held that neither the police intelligence reports nor housing department records were central to the Tribunal’s findings under s 501(6)(c).  His Honour noted that the Tribunal stated that the police intelligence reports “show a continuing pattern of similar behaviour” and that the housing department records merely “paint[ed] a similar picture” to that which was apparent from the appellant’s convictions. 

47                                          So far as the appellant’s complaint that she was denied procedural fairness was concerned, his Honour said at paras [71]-[72]:

71.       … the applicant’s contention that she was denied procedural fairness by reason of the matters raised in grounds 1 and 2 of the Amended Application for Review cannot be accepted.  The thrust of this argument appeared to be that while there was no denial of procedural fairness: (1) in providing this material to the applicant prior to the hearing; (2) in the introduction of the material into evidence; and (3) in the applicant cross-examining witnesses called by the respondent in respect of the material, the rules of natural justice required the Tribunal to disregard such evidence … and insofar as the Tribunal did not do so, but rather had regard to it, made findings based on such evidence and drew conclusions therefrom, the Tribunal denied the applicant procedural fairness in the ways indicated.  I cannot agree.

72.       The weight to be attached to such evidence is a matter for the Tribunal.  Having regard to the provenance and nature of the impugned material, one might expect that the Tribunal would not attach the weight to it that it attached to evidence of the applicant’s convictions.  In my view, that expectation is fulfilled in the passages from the Tribunal’s reasons extracted in [68] and [69] above, but also at [168] of the Tribunal’s reasons.  But at the end of the day, the weight to be attached to such evidence is a matter for the Tribunal and even if it was obvious, and it certainly is not in this case, that the Tribunal attached greater weight to such evidence than might be thought appropriate having regard to its provenance and nature, that would not constitute a denial of procedural fairness to the applicant on the part of the Tribunal. …

48                                          At paras [68] and [69] of his judgment his Honour included extracts from paras [155] and [159] respectively of the Tribunal’s reasons for decision which are set out above.  His Honour rejected the first and second grounds of review relied upon by the appellant. 

49                                          The primary judge then considered the third ground of review relied upon by the appellant.  The submission made to his Honour concerning this ground was to the effect that the Tribunal erred in relying upon the police intelligence reports and the housing department records by making findings based upon that material that the appellant had engaged in criminal conduct.  His Honour was referred to various authorities relating to the need for “logically probative evidence” from which the Tribunal could satisfy itself on the “balance of probabilities” that criminal conduct had occurred.  These authorities included Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, a case in which the Full Court observed at 194 that “… in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”

50                                          The primary judge rejected the appellant’s submission in relation to this ground and held that the weight to be attached to the evidence before the Tribunal including, relevantly, the police intelligence reports and the housing department records, was a matter for the Tribunal.  His Honour referred back to his earlier conclusion to the effect that the material in question “merely ‘paint[ed] a similar picture’” to that which was apparent from the appellant’s list of convictions. 

51                                          After summarising the Minister’s submission at [82] and [83] of his judgment, the primary judge accepted that there was nothing to suggest that the Tribunal applied a standard of proof less than the balance of probabilities.  His Honour added at [84]:

84.       … It is true that the Tribunal had regard to the police intelligence reports and the housing department records in reaching the conclusion it did that the applicant failed the character test in s 501(6)(c)(i) and (ii), but as pointed out in [67] to [70] above, this was not central to that conclusion; it merely “paint[ed] a similar picture” to what was central, namely, the number and nature of the offences for which the applicant was convicted during the period 1999 to 2006.

52                                          His Honour also considered various others grounds of review which are not material to any of the grounds of appeal before this Court. 

Ground 1 of the Notice of appeal:  The proper construction of section 501(7)(c)

53                                          Ground 1 of the notice of appeal states:

The Tribunal erred in finding that the applicant failed the character test under subsections 501(6)(a) and (7) of the Act on the basis that she has a “substantial criminal record” due to having received two suspended sentences of 12 months’ imprisonment. The Appellant will submit that the Full Court’s decision in Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 580 at [27] should be overruled.

54                                          The appellant submitted that Seyfarth was wrongly decided in so far as it held that s 501(7)(c) is concerned with the sentence to imprisonment imposed on a person rather than the term of imprisonment the person is required to serve.  The appellant argued that when s 501 is read as a whole, it is clear that s 501(7)(c) is concerned with time that a person is required to spend in detention by reason of having been sentenced to a term of imprisonment.  This was said to follow from s 501(8) (periodic detention) and s 501(9) (residential schemes or programs).

Relevant Legislation

Crimes (Sentencing Procedure) Act 1999 NSW

55                                          The sentences imposed on the appellant on 11 May 2006 were suspended by the sentencing court pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the NSW Act).  For the purpose of deciding the first issue in the appeal, it is desirable to explore in a little detail the legislative setting within which those sentences were imposed upon the appellant. 

56                                          Part 2 of the NSW Act (ss 4-20) is concerned with penalties that may be imposed upon offenders. Division 2 of Part 2 (ss 5-7) is entitled “Custodial sentences” and includes s 5.  Section 5 relevantly provides in subs (1) and (5):

5. Penalties of Imprisonment

(1)        A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

…

(5)        Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of a periodic detention order or home detention order.

57                                          Sections 5A, 6 and 7, also found within Division 2, deal with compulsory drug treatment detention, periodic detention and home detention respectively. Section 6(1) provides in relation to periodic detention:

6. Periodic Detention

A court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention.

58                                          Division 3 of Part 2 of the Act (ss 8-13) is concerned with “non-custodial alternatives”. There are various alternatives provided for in Division 3 including “good behaviour bonds” (s 9) and “suspended sentences” (s 12). Section 9 provides that instead of imposing a sentence of imprisonment on an offender, a court may make an order directing the offender to enter into a good behaviour bond for a specified term.  By contrast, s 12 is concerned with an offender who has been sentenced to imprisonment. Section 12(1) provides:

A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a)        suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b)        directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

59                                          The consequences of breaching a good behaviour bond entered into pursuant to an order under s 9 or s 12 are dealt with in Part 8 of the NSW Act (ss 94-100).  The circumstances in which a good behaviour bond may be revoked are dealt with in s 98.  Relevantly, subs (1)-(3) of s 98 provide:

(1)   If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond:

(a)     the court with which the offender has entered into the bond, or

(b)     any other court of like jurisdiction, or

(c)     with the offender’s consent, any other court of superior jurisdiction,

may call on the offender to appear before it.

(1A)-(1C) …

(2)   If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court:

            (a)     may decide to take no action with respect to the failure to comply, or

            (b)     may vary the conditions of the bond or impose further conditions on the bond, or

            (c)     may revoke the bond.

(3)   In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:

            (a)     that the offender’s failure to comply with the conditions of the bond was trivial in nature, or

            (b)     that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.

60                                          Section 99(1)-(3) relevantly provides:

(1)        If a court revokes a good behaviour bond:

(a)        in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or

(b)        in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or

(c)        in the case of a bond referred to in section 12:

(i)         the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(ii)        Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part.

(2)        Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates is to be served by way of periodic detention or home detention.

(3)        An order made under subsection (2) is taken to be a periodic detention order made under section 6 or a home detention order made under section 7, as the case requires.

Migration Act 1958

61                                          The appellant’s visa was cancelled by the delegate pursuant to s 501(2) of the Act.  It provides:

            (2)        The Minister may cancel a visa that has been granted to a person if:

                       (a)   the Minister reasonably suspects that the person does not pass the character test; and

                       (b)   the person does not satisfy the Minister that the person passes the character test.

62                                          Relevantly, section 501(6)-(9) and (12) provides:

            Character test

            (6)        For the purposes of this section, a person does not pass the character test if:

                       (a)   the person has a substantial criminal record (as defined by subsection (7)); or

                       (b)   …

                       (c)   having regard to either or both of the following:

                              (i)      the person’s past and present criminal conduct;

                              (ii)      the person’s past and present general conduct;

                              the person is not of good character; or

                       (d)   …

                       Otherwise, the person passes the character test.

            Substantial criminal record

            (7)        For the purposes of the character test, a person has a substantial criminal record if:

                       (a)   the person has been sentenced to death; or

                       (b)   the person has been sentenced to imprisonment for life; or

                       (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; or

                       (e)   the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

            Periodic detention

            (8)        For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

            Residential schemes or programs

            (9)        For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

                       (a)   a residential drug rehabilitation scheme; or

                       (b)   a residential program for the mentally ill;

                       the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

            …

            Definitions

            (12)      In this section:

                       court includes a court martial or similar military tribunal.

                       imprisonment includes any form of punitive detention in a facility or institution.

                       sentence includes any form of determination of the punishment for an offence.

63                                          There are other provisions in the Act which closely resemble the relevant provisions of s 501.  For example, s 500A, which deals with the refusal or cancellation of temporary safe haven visas, enables the Minister to refuse or cancel such a visa if the person concerned (inter alia) has been “sentenced to a term of imprisonment of 12 months or more”: see s 500A(3).  The same definitions of “imprisonment” and “sentence” found in s 501(12) appear in s 500A(14), while s 501(9) is reproduced in substantially identical terms in s 500A(5).  Curiously, however, s 501(8) (periodic detention) has no counterpart in s 500A even though s 501(9) (residential schemes programs) does: see s 500A(5).

64                                          There is also s 5C of the Act (added in 2004) which, in subs (2), deems that a “non-citizen [who] has been sentenced to a term of imprisonment of 12 months or more” has a “substantial criminal record” and is therefore of “character concern” for the purposes of the Act.  There is no definition of imprisonment included in s 5C.  Nor is the application of s 5C(2) qualified by any provisions akin to s 501(8) or (9).  The same is also true of the definition of “behaviour concern non-citizen” in s 5 of the Act which provides that a person who has been “convicted of a crime and sentenced to … imprisonment for at least one year” is a “behaviour concern non-citizen” where “sentenced to imprisonment includes ordered to be confined to a corrective institution”. 

65                                          Section 201 of the Act is also relevant.  When read with s 200 it authorises the Minister to deport a person who meets the criteria specified by s 201, including a person who has been convicted in Australia of “an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year”: see s 201(c).  There is no counterpart in s 201 to s 501(8), (9) or (12).  Section 201 was the provision with which the Full Court was concerned in Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264.  It is necessary to examine that decision in considerable detail. 

The relevant authorities

66                                          In Te the appellant had been convicted in Australia of drug trafficking for which he was sentenced under the Sentencing Act 1991 (Vic) (the Victorian Act) to 12 months imprisonment, three months of which was suspended.  The question for decision by the Full Court was whether the conviction was for an offence for which the appellant in that case was sentenced to imprisonment for a period of not less than one year within the meaning of s 201(c) of the Act.  The Full Court held that it was.  As already pointed out, s 201 does not contain any provision equivalent to s 501(8), (9) or (12). 

67                                          The Full Court identified Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 as its starting point.  Drake was concerned with s 12 of the Act as it stood in 1978.  Under s 12 the Minister could order the deportation of an alien “… convicted in Australia of any … offence for which he had been sentenced to imprisonment for one year or longer … upon the expiration of, or during, any term of imprisonment served or being served by that alien …”.

68                                          The plaintiff in Drake was sentenced under the Criminal Law (Conditional Release of Offenders) Ordinance 1971 (NT) to imprisonment for 12 months with a direction that he be released after three months on entering into a recognizance to be of good behaviour for two years.  It was held by the majority (Bowen CJ and Deane J) that the plaintiff had been convicted in Australia of an offence for which he had been sentenced to imprisonment for one year.  It is convenient to quote from the reasons of the Full Court in Te which makes extensive reference to the reasons of Bowen CJ and Deane J in Drake.  At [18]-[20] the Full Court said in Te:

18        The majority (Bowen CJ and Deane J) held that s 12 authorised the Minister to issue the deportation order. They pointed out that the sentence referred to in s 12 must be the sentence imposed and not the term of imprisonment actually served. Their Honours said this (at 416):

“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 of the Migration Act. 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. The fixing of a non-parole period neither confers any right of premature release upon the person sentenced nor qualifies the nature or term of the sentence of imprisonment actually imposed. In the event that the person sentenced is prematurely released on parole, the residue of the sentence of imprisonment is not extinguished. If the condition of parole are broken, the person released can be returned to prison to serve the residue of the term imposed.”

19        Bowen CJ and Deane J acknowledged (at 416) that the plaintiff's position was not the same as that of a prisoner who had been released on parole or by reason of remissions. The direction for suspension of part of his sentence had been an element in a composite sentence, and operated as a condition or qualification upon the sentence of imprisonment. The plaintiff, upon entering the recognisance, was entitled to be released at the nominated time (that is after serving three months). Accordingly, his sentence expired on his release. Breach of the conditions of release would not “revitalise” his sentence, but was separately punishable under the Ordinance.

20        Nonetheless, their Honours held that the sentence imposed on the plaintiff was within s 12. In their view, the question was essentially one of statutory construction. They approached that question as follows (at 418):

“The making of a deportation order pursuant to s 12 of the Migration Act can involve drastic interference with the liberty of an individual. The powers conferred upon the Minister by the section should be strictly construed. Plainly, it was the intention of the magistrate who sentenced the plaintiff that he should serve but three months in prison. In the ordinary course it was to be expected that he would enter the recognisance and be released from prison after he had served three months. In fact, at the time the deportation order was made, it was known that the plaintiff had entered into the recognizance and had served no more than three months in prison under the sentence imposed. The fact that he had served no more than three months in prison was the direct result of the terms and operation of the composite sentence itself.

It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s 12 of the Migration Act, sentenced to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognisance 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 of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognisance 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. Nonetheless, 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.”

69                                          The Full Court concluded that the facts in Te were, if anything, stronger for the Minister than they were in Drake.  The Full Court said at [23]-[24]:

23        [Counsel] first submitted that the decision in Drake was distinguishable from the present case. On the contrary, in our opinion, the facts of the present case are, if anything, stronger for the Minister. In Drake, it was clear from the moment the sentence was imposed that, assuming the plaintiff elected to enter into a recognisance, the maximum period for which he could be imprisoned for the offence for which he was convicted was three months. In the present case, if within the period of 24 months after the expiry of the “operational period” of the suspended sentence, the appellant committed another offence punishable by imprisonment, the court was empowered to make one of the orders referred to in s 31(5) of the Sentencing Act. Moreover, the court was bound to restore the sentence or part sentence held in suspense and order the offender to serve it, unless the court was of opinion that it would be unjust to do so: Sentencing Act, s 31(7). It follows that in the event of the appellant re-offending, he was bound to serve the whole of the suspended part of his sentence, unless the court otherwise ordered pursuant to s 31(7) of the Sentencing Act.

24        At the time the relevant sentence was imposed on the appellant, it could not be said that he was liable to serve a maximum of nine months imprisonment in respect of the offence for which he had been convicted. The length of his period of imprisonment for that offence would depend upon whether he re-offended during the statutory period and, in that event, whether the court exercised its discretion under the Sentencing Act in his favour. The reasoning of the majority in Drake applies with greater force to the sentence imposed on the appellant. Accordingly, there is no basis for distinguishing the decision of the Full Court from the facts of the present case.

[Original emphasis]

70                                          The Full Court referred to Drake as a decision which had stood for 20 years and observed that Parliament had, in substance, repeated the words judicially construed in Drake in s 201(c).  The expressions in issue in Drake (“offence for which he has been sentenced to imprisonment for one year or longer”) and Te (“offence for which the person was sentenced … to imprisonment for a period of not less than one year”) were described by the Full Court at para [29] as “very similar”.  The correctness of that observation is not open to doubt. 

71                                          The Full Court in Te also relied upon the decision of the High Court in Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing & Engineering Employees (1994) 181 CLR 96.  It said of that decision at para [30]:

In Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106, a unanimous High Court said that:

“[t]here is abundant authority for the proposition that where Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’.”

The Court noted that the validity of this proposition had been questioned, but nonetheless applied the presumption having regard to the history of the legislation with which they were concerned. The present case is not as strong as Re Alcan, but the re-enactment by Parliament of substantially the same language as that construed in Drake provides at least some support for the contention that that decision should not be reopened.

72                                          The Full Court went on (at para [31]) to identify five reasons which suggested that upon the proper construction of s 201(c) of the Act the sentence imposed upon the appellant in that case brought him within the section.  The second of these is especially relevant:

The language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for 12 months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was “an offence for which [he] was sentenced ... to imprisonment ... for a term [sic] of not less than one year”, within the meaning of s 201(c) of the Migration Act.

[Original emphasis]

73                                          Their Honours then note that the proper construction of s 201(c) of the Act cannot be determined by the legislation under which the relevant sentence was imposed.  That is certainly true of s 501 which, unlike s 201, is not limited to sentences imposed upon conviction in Australia.  But that is not to say that the approaches taken to sentencing in the various jurisdictions which make provision for the suspension of sentences to imprisonment are not relevant when attempting to ascertain the meaning of the provision in issue in the present appeal. 

74                                          Section 501(7) of the Act was considered by the Full Court in Seyfarth.  The issue in Seyfarth was whether the appellant had been sentenced to imprisonment for a term of 12 months.  The primary judge held against the appellant on that question and the Full Court agreed.  The facts in that case were quite unlike those being considered in the present appeal.  In particular, the Full Court was not concerned with a suspended sentence.  But the appellant’s and the primary judge’s acceptance of the proposition in the present case that it followed from Seyfarth that the appellant had a substantial criminal record is explicable in light of the following paragraph in the joint judgment of the Full Court (Sundberg, Jacobson and Bennett JJ) at [27]:

Section 501(7)(c) is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served: Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264 at 272. There a Full Court said, in a passage quoted by the primary judge:

The language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the Court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence.

To the same effect is the judgment of Jacobson and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Ball at [47] to [51].  See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Minister for Immigration and Multicultural and Indigenous Affairs v Hicks at [13], [14] and [18] per Hill J. We do not consider that anything turns on the slight differences between the language of the legislative provisions under consideration in Drake; Te; Ball and the present case to which the appellant drew attention.

75                                          The Full Court’s reasons do not explicitly identify the differences in language to which the appellant in that case drew attention. It is apparent that the Full Court considered that nothing turned on the fact that the sections under consideration in Drake and Te used the expressions “sentenced to imprisonment” or “sentenced to a period of imprisonment” respectively as opposed to “sentenced to a term of imprisonment” which is the expression used in s 501(7)(c).  But it is not apparent whether the Full Court took account of s 501(8) or (9) when reaching the conclusion set out in para [27] of its reasons. 

76                                          There are two other Full Court decisions concerning s 501(7) to which reference should be made.  Both were concerned with the operation of subpara (d) and, in particular, the question whether sentences of imprisonment which were ordered to be served concurrently should be aggregated for the purpose of determining whether a person had been “sentenced to 2 or more terms of imprisonment … where the total of those terms is 2 years or more”. 

77                                          The first decision is Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 (Dowsett, Jacobson and Bennett JJ).  The majority (Jacobson and Bennett JJ) held that concurrent sentences were not to be aggregated for the purposes of s 501(7)(d).  Their Honours noted that s 5 of the Act included a definition of “behaviour concern citizen” which made clear that concurrent sentences were to be disregarded when determining whether a person had been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year.  Their Honours referred to a submission which had been made in Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475 (Hill, Carr and Hely JJ) and said at para [58]:

… 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.

78                                          Their Honours also referred to Dixon CJ’s statement in Winsor v Boaden (1953) 90 CLR 345 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.  Having referred to that statement, and having concluded that s 501(7)(d) was not clear, their Honours concluded (at para [69]) that the construction to be preferred was “the one that did not derogate from the respondent’s rights.”

79                                          Dowsett J, who dissented in Ball, began his consideration of the problem with an analysis of Drake.  After referring to the passages in the reasons of the majority in Drake reproduced above, his Honour said at paras [7]-[8]:

The decision in Drake is important for two reasons. First, 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. Second, at 418 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.”

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.

            His Honour then referred to what Dixon CJ also said in Winsor at 347:

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.

80                                          The second decision is the Full Court’s decision in Hicks.  It was delivered 15 days after the decision in Ball was delivered.  Hill J and Carr J preferred the view of Dowsett J to the majority in Hicks, but neither was prepared to characterise the majority view in Ball as “clearly” or “plainly” wrong. 

81                                          Hill J explained his reasons for preferring the minority view in Ball in case there was an appeal.  His Honour said at para [13]:

… The statutory language, “sentence for a term of imprisonment”, does not mean the same thing as the term of imprisonment which the accused in fact serves or even is required to serve.

            And his Honour said at para [14]:

It is, perhaps, important to bear in mind that the expression “term of imprisonment” has a well established meaning which equates with the normal meaning of the expression, that is to say, that it denotes the term of imprisonment that is imposed by the sentencing judge and not the period for which the prisoner is in fact detained. That follows from the decision of the High Court in Winsor v Boaden (1953) 90 CLR 345. See also Husson v Slattery [1983] 3 NSWLR 389 at 393 and Smith v Community Corrections Board (Qld) [2002] 1 Qd R 448 at [1] per McPherson JA.

82                                          Hely J identified two factors which suggested that the majority decision in Ball should be preferred.  First, his Honour considered that a construction of the former s 20(1)(d)(iii) in so far as it applied to concurrent sentences had been adopted by the majority in Minister for Immigration and Ethnics Affairs v Sciascia (1991) 31 FCR 364, to the same general effect as that adopted by the majority in Ball.  Section 20(1)(d)(iii) was subsequently amended (before its eventual repeal) but in a manner which still left unclear the position in relation to concurrent sentences.  His Honour considered that this provided support for the construction adopted by the majority in Ball.  Secondly, his Honour referred to the matter addressed by the majority in Ball at para [58] concerning what his Honour described at para [88] as “the consequential mismatch between the provisions regulating the grant of special category visas to ‘behaviour concern non-citizens’ … and the criteria relating to visa cancellation in s 501”.

83                                          The Full Court’s decision in Sciascia, upon which Hely J relied in Hicks, is of interest for another reason.  The majority judgment makes passing reference to the matter of “periodic detention” which may go some way to explain why a subsection dealing expressly with “periodic detention” was included in s 501.  After referring to the absence of any express indication as to whether what was then s 20(1)(d)(iii) applied to concurrent sentences, the majority in Sciascia said at 375:

Similarly, the draftsman appears not to have adverted to the possibility that a sentence may have involved periodic detention, rather than a continuous period of imprisonment. It has been held judicially, and we respectfully agree with the decision and think it must have been acknowledged by the draftsman of the 1989 amendments who made no relevant change, that periodic detention does not fall within the provision: see Mere Akuhata-Brown v Chesley (unreported, Gallop J, 20 March 1981).

84                                          The decision of Gallop J in Mere Akuhata-Brown and Chelsey and Minister for Immigration and Ethnic Affairs [1981] AATA 18 referred to in the passage above was a decision of his Honour sitting as Deputy President of the Tribunal.  The question before his Honour which arose under the former s 16(1)(c)(ii) of the Act was whether the applicant had been convicted of a crime and sentenced to imprisonment for not less than one year.  After noting that the applicant had been sentenced to periodic detention pursuant to s 9 of the Criminal Justice (Amendment) Act 1962 (NZ), Gallop J said at 5:

In my view, it would be stretching the language beyond its ordinary meaning to interpret the sentences imposed and served by [the applicant] as imprisonment for a period of not less than one year within the meaning of s.16(1) of the Migration Act 1958. One knows that periodic detention was introduced in various jurisdictions as an alternative to imprisonment per se, so as to give courts more sentencing options. It is a different punishment from imprisonment. It is also different from work release or release on parole. Where a person has been sentenced to a term of imprisonment and has been permitted to leave prison towards the end of his sentence on a work release programme in order to prepare him for ultimate release, either on parole or at the expiration of his sentence, he might still be described as serving a sentence of imprisonment. But periodic detention does not involve imprisonment as such at all.

85                                          Section 9 of the Criminal Justice Amendment Act 1962 (NZ) (now repealed) provided that a person who had been convicted of an offence punishable by imprisonment could be sentenced to periodic detention for a term of up to 12 months.  It was clear that under that Act a sentence to periodic detention was not a sentence to imprisonment. 

Legislative History of s 501

86                                          Section 501 of the Act was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth) which repealed the previous s 501.  It took effect on 1 June 1999.  The definition of “court” in subs (12) has since been amended but that change is irrelevant to the issue under consideration. 

87                                          The former s 501 did not provide for a “character test” in the way that the current s 501 does and nor did it use the expression “sentenced to a term of imprisonment” which now appears in s 501(7). 

88                                          The Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provision Relating to Character and Conduct) Bill 1997 refers at 14-15 to proposed s 507(7), (8) and (9) in these terms:

55. New subsection 501(7) defines a “substantial criminal record” for the purposes of the new character test (as defined in new subsection 501(6)) as:

·           a sentence to death

·           one sentence of 12 months or more;

·           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; or

·           detention in a facility or institution as a result of being acquitted of an offence on the grounds of unsoundness of mind or insanity.  This amendment is intended to deal with the situation where a non-citizen has been acquitted of a particular serious offence due to unsoundness of mind or insanity.

56. New subsection 501(8) provides that, where a person has been sentenced to periodic detention, the term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.  For example, a sentence of 90 days to be served over 1 year would count as a sentence of 90 days.

57. New subsection 501(9) defines the duration of a sentence of imprisonment, for the purposes of the character test, where a person is ordered by the Court to participate in a residential drug rehabilitation scheme or a residential program for the mentally ill as a result of being convicted of an offence.  In these circumstances, the sentence is the period of time the person is required to participate in the scheme or program respectively. 

89                                          In the Second Reading Speech in the House of Representatives (Hansard, 2 December 1998) the Minister stated at 1229 that “… the bill seeks to enhance the government’s ability to deal with non-citizens who are not of good character …” by, inter alia, “deeming that certain levels of criminal sentences will lead to an automatic finding that the non-citizen concerned is not of good character …”.  The Minister continued at 1230:

This bill also seeks to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test.  Non-citizens who have been convicted to a single sentence of detention of 12 months or more, or where the length of several sentences aggregates to two years or more, will fail the character test. 

Consideration

90                                          The appellant contends that s 501(8) and (9) evince an intention on the part of Parliament that it is the time that a person is required to serve in detention which should be taken into account when determining whether the person has been sentenced to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c).  Since a person who is given a wholly suspended sentence is not required by that sentence to serve any time in detention, the imposition of such a sentence does not give rise to a “substantial criminal record” as defined by s 501(7).

91                                          In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 the plurality said at paras [69]-[70]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

92                                          The purpose of s 507(7) is to specify the circumstances in which a person is to be taken to have failed the “character test” by reason of them having a “substantial criminal record”.  As previously explained, a person who does not pass the character test may have their visa cancelled under s 501(2) or (3).

93                                          Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision.

94                                          The expression “sentenced to a term of imprisonment” in s 507(7)(c) consists of ordinary words that have a well settled legal meaning.  Moreover, the words “term” and “period” are frequently used interchangeably and it is not apparent why the choice of one rather than the other should give rise to any difference in meaning. As Dixon CJ said in Winsor (at 347), “[a] term of imprisonment is the period fixed by the judgment for the punishment of the offence.”  It is very hard to see any difference in meaning between “sentenced to a term of imprisonment” and “sentenced to a period of imprisonment”.  And while the appellant submitted that there was a difference, she did not explain what it was.

95                                          Nor is there any material difference between the expression used in s 501(7)(c) and the expression considered in Drake. It is true that the expression “sentenced to imprisonment” might cover a situation where a person has been sentenced to imprisonment for something other than a fixed term.  But it is clear from the context in which those words appeared in what was then s 12 of the Act that they were referring to a sentence of imprisonment for a particular period, viz. one year or longer.

96                                          Drake held that the section was not referring to the length of time an offender is required to remain in detention pursuant to their sentence. The majority held that an offender sentenced to a term of one year had been sentenced to imprisonment for one year even though the offender was not required to serve the full term by reason of remissions and parole.  The latter were not matters properly regarded as part of the sentence imposed but were rather part of the context in which the sentence imposed operated.

97                                          But the decision went somewhat further. Even though the suspension of a part of the plaintiff’s sentence in that case was “…part of a composite sentence and operated as a qualification or condition upon the sentence of imprisonment”, it was nevertheless held by the majority that the plaintiff had been sentenced to a year of imprisonment within the meaning of the section.  Since the sentence in that case included a direction that the plaintiff be released after 3 months upon him entering into a good behaviour bond, it could not be said that the plaintiff’s sentence required that he remain in detention for more than 3 months.  Yet the majority held that the section applied to the plaintiff.  

98                                          What was critical in the majority’s interpretation of the section was that the Magistrate who sentenced the plaintiff determined that imprisonment for one year was the appropriate sentence for the offence for which the plaintiff was convicted.  And under the composite sentence imposed upon the plaintiff, he was sentenced to imprisonment for one year. 

99                                          As explained by the Full Court in Te, the language of what is now s 201(c) of the Act “directs attention not merely to the sentence imposed on the non citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court” (at para [31], original emphasis).  Under the sentencing legislation with which their Honours were concerned the position was and still is that the sentencing court could not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances.  This reflects the approach taken in various jurisdictions including New South Wales: Dinsdale v The Queen (2000) 202 CLR 321 at [77]-[79] per Kirby J; R v Zamagias [2002] NSWCCA 17 at [27] per Howie J; The Queen v P (1992) 39 FCR 276 at 285-286 per Burchett, Miles and O’Loughlin JJ. 

100                                       As to s 501(8) of the Act, the circumstances of its operation in relation to a sentence to periodic detention of the kind imposed in Mere is also relatively straightforward.  It will be recalled that Mere involved a sentence imposed in a jurisdiction in which a sentence to periodic detention was something different to a sentence of imprisonment.

101                                       Under s 6(1) of the NSW Act an order may be made directing that a sentence to imprisonment for not more than 3 years be served by way of periodic detention.  The making of such an order does not mean that the person upon whom the sentence was imposed has not been sentenced to imprisonment.  The imposition of such a sentence is a precondition to an order that it be served by way of periodic detention.  The order merely specifies the way in which the sentence of imprisonment is to be served.  In this respect it is analogous to an order made under s 50(1) of the NSW Act requiring that a person sentenced to a term of imprisonment be released on parole at the end of their non-parole period.  The making of such an order does not reduce the term of the sentence imposed though it does entitle the offender to serve the balance of their term of imprisonment in the community. 

102                                       There were two particular issues relating to periodic detention identified by Gallop J in Mere and the Full Court in Sciascia which may be of assistance in understanding the purpose of s 501(8) of the Act. 

103                                       First, having regard to the New Zealand legislation under which the applicant in Mere had been sentenced, it could not be said that he had been sentenced to imprisonment; he was sentenced to periodic detention under legislation which made it clear that a sentence to periodic detention was not a sentence of imprisonment.  The definition of “imprisonment” now found in s 501(12) of the Act appears to address this issue by extending the meaning of that word to include any form of punitive detention in a facility or institution even if it might not ordinarily be understood to amount to imprisonment. 

104                                       Secondly, the Full Court in Sciascia drew a distinction between a sentence involving periodic detention rather than a continuous period of detention, the implication being that a sentence to periodic detention was not a sentence to a period or a term of detention.  This issue is addressed by s 501(8) which provides that a person sentenced to periodic detention is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required under that sentence to spend in detention. 

105                                       The Explanatory Memorandum at para [56] states that where a person has been “sentenced to periodic detention” the term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.  The example is then given of a sentence of 90 days to be served over one year and it is said that this would count as a sentence of 90 days.  A person who has been sentenced to 90 days periodic detention to be served over a period of a year could hardly be said to have been sentenced to detention for 12 months.  This is put beyond doubt by s 501(8). 

106                                       But it would be strange if a person who is sentenced in New South Wales to imprisonment for a term of 3 years who also is the subject of an order requiring that the sentence be served by way of periodic detention should be outside s 501(7).  Yet on the appellant’s construction they would be if the order required them to spend less than 12 months in detention.  This would involve a significant shift in emphasis when compared to analogous provisions in the Act in its current and former versions which, as interpreted by this Court, have emphasised the quality of the offence as reflected in the sentence imposed as opposed to the amount of time that the person convicted of the offence is required to spend in detention. 

107                                       Whether that is the effect of s 501(8), or whether it only applies to a situation in which an order for periodic detention is made as a true alternative to a sentence of imprisonment, need not be decided in this case. The answer to that question may not be as clear as it first seems. 

108                                       If s 501(8) is interpreted to apply only where an order for periodic detention is made as an alternative to a sentence of imprisonment, then the appellant’s argument falls away.  There would be no tension between s 501(7) and s 501(8) because a person sentenced to imprisonment for 12 months who was required to serve that sentence by way of periodic detention would still be within s 501(7). 

109                                       Section 501(9) is directed at a person who has been “convicted of an offence” and who is ordered to participate in a scheme or program of the kind described.  It provides that such a person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

110                                       It is highly doubtful that an order which did no more than require an offender to participate in a scheme or program of the kind described in s 501(9) would amount to a sentence to imprisonment as defined by s 501(12).  This may explain why s 501(9) provides that a person against whom such an order is made is deemed to have been sentenced to a term of imprisonment.  Section 501(9) might therefore be understood to be directed to a situation in which a person has not been sentenced to imprisonment as defined in subs (12).  The operation of the provision in those circumstances would seem to be relatively straightforward although it is relevant to note that in some jurisdictions an order of the kind referred to in s 501(9) can only be made where a term of imprisonment has been imposed.  In New South Wales, for example, an order of the kind referred to in s 501(9) is a means by which a sentence to imprisonment may be served, that is to say, the sentence of imprisonment is served by way of compulsory drug treatment detention.

111                                       Even if tension between s 501(7) and s 501(8) and (9) is not resolved in the manner suggested, the question remains whether the settled meaning which would ordinarily be given to the language of s 501(7) should be displaced because of the presence of s 501(8) and (9).  Section 501(7) is the lead provision and s 501(8) and (9) are the subordinate provisions.  In my opinion s 501(7) ought not to be required to yield to s 501(8) and (9), at least not in situations where those provisions have no direct application.  This is particularly so in circumstances where the manner of resolving the tension between them advocated by the appellant gives rise to inconsistency of interpretation in relation to a variety of other provisions of the Act which employ language that is very similar and in substance the same as that used in s 501(7).  Admittedly, s 201, which is the most obvious example of such a provision, does not contain counterparts to s 501(8) and (9). But acceptance of the appellant’s argument would carry with it the remarkable consequence – assuming Te was correctly decided – that the expressions “sentenced to imprisonment for a period of not less than one year” in s 201 and “sentenced to a term of 12 months or more” in s 501 have fundamentally different meanings.  See also the definitions of “character concern” and “behaviour concern non-citizen” in s 5C and s 5 respectively the application of which, as previously noted, are not qualified by any provision akin to s 501(8) or (9). 

112                                       The appellant relied upon Khanna v Commissioner of Police (NSW) (2007) 168 A Crim R 530 in support of the proposition that a person who is given a suspended sentence of imprisonment has not been sentenced to a term of imprisonment.  In that case the plaintiff had been convicted by the County Court of Victoria of having committed an indecent act with a child.  He was sentenced to a term of imprisonment of 12 months which was wholly suspended for 18 months.  The question arose whether the plaintiff had been sentenced to a term of imprisonment for the purposes of s 3A(2)(b)(i) of the Child Protection (Offenders Registration) Act 2000 (NSW) (the NSW Registration Act).  Brereton J held that the sentence imposed upon the plaintiff did not include a term of imprisonment.  His Honour said at para [31]:

In distinction from the Migration Act provisions considered in Drake and in Te, in each of which the relevant statutory provisions spoke of “sentenced to imprisonment for a period of not less than one year”, or “for one year or longer”, in the NSW Registration Act s 3A(2)(b) speaks of a sentence which includes “a term of imprisonment”, not merely of a “sentence of imprisonment”. I do not think that this distinction is merely semantic, although it is not critical to my conclusion that under New South Wales sentencing law, a person who receives a suspended sentence of imprisonment receives a sentence of imprisonment, but so long as it remains suspended and therefore does not take effect, the sentence does not include a term of imprisonment for the purposes of s 3A(2)(b).

[Original emphasis]

            His Honour went on to identify four matters upon which his conclusion was, in his Honour’s words, “primarily founded”.  Three of them were particular to the NSW Registration Act.  The second of them, which was not particular to the NSW Registration Act, was that the place of a suspended sentence in the sentencing hierarchy in New South Wales, as reflected in the NSW Act, ranks below terms of imprisonment the subject of a periodic detention order or home detention order.

113                                       None of the matters upon which his Honour’s conclusion was primarily founded had anything to say about whether a suspended sentence of imprisonment is, for the purposes of the Act, a sentence to a term of imprisonment or a sentence to a period of imprisonment.  Nor did his Honour express any doubt as to the correctness of Drake or Te.  I do not think that Khanna assists the appellant. 

114                                       For these reasons it should be accepted that the appellant was sentenced to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c) in spite of the fact that execution of her sentences was suspended. It follows that ground 1 of the notice of appeal fails.

grounds 2 – 7 of the Notice of Appeal: procedural fairness and standard of proof

Overview

115                                       Grounds 2, 3 and 5 the notice of appeal are concerned with the use which is said to have been made by the Tribunal of the housing department records and the police intelligence reports in making findings that the appellant was guilty of criminal conduct.

116                                       The appellant says that it was not open to the Tribunal to make such findings on the basis of what she characterised as “slight material” and which was admittedly hearsay in character. She also says that the primary judge erred in holding that the Tribunal stopped short of making any finding that the appellant was guilty of criminal conduct on the basis of that material.

117                                       Grounds 6 and 7 raise related questions concerning the standard of proof applied by the Tribunal and the correctness of the primary judge’s conclusion that, even if the appellant was denied procedural fairness, it did not affect the Tribunal’s exercise of the discretion under s 501(2).

118                                       Ground 3 of the notice of appeal also alleges that the appellant was denied procedural fairness in that certain evidence was not put to her fairly or at all during the hearing.  It does not identify the information contained in the housing department records and police intelligence reports which it is said the Tribunal should not have accepted or relied upon. The materials in question contain a wide variety of information, some of which might fairly be characterised as uncontentious (for example, details of the appellant’s criminal convictions) but some of which was highly contentious. 

119                                       Ground 4 also alleges that the appellant was denied procedural fairness in that particular allegations were not put to her fairly or at all during the hearing of the notice of appeal. In this instance the complaint is expressed with more precision. It is alleged that his Honour erred in finding that the appellant was not denied procedural fairness in relation to allegations that she was “the head of” or a “major or predominant player” in the drug trade and that those allegations were not put to the appellant fairly or at all during the hearing, including during cross-examination.  I have taken the reference to the “drug trade” in ground 4 of the notice of appeal to be a reference to “the drug trade in Airds” since that was the effect of oral evidence given by Detective Inspector Galea to which this complaint relates. 

120                                       I shall consider these grounds in turn. 

Ground 2

121                                       Ground 2 of the notice of appeal states:

His Honour erred in finding (at [70] and 84]) that the police intelligence reports and housing department records “merely ‘paint[ed] a similar picture’” and in determining that the weight to be attached to such evidence was a matter for the Tribunal in circumstances where the Tribunal made findings of criminal conduct based on that material.

122                                       In fairness to the primary judge, this ground of appeal should first be considered in light of the grounds of review which were relied upon by the appellant below.  In essence, the appellant contended before his Honour that the police intelligence reports and the housing department records were “central” to the Tribunal’s decision. It was then said to follow that a failure to put to the appellant each of the particular matters contained in that material gave rise to a denial of procedural fairness. 

123                                       The primary judge found that the material contained in the police intelligence reports and the housing department records was not central to the Tribunal’s decision.  His Honour’s finding was correct and, in any event, was not challenged in the appeal.  The appellant now puts her case slightly differently.  The appellant contends that it was not open to the Tribunal to make findings of criminal conduct based on the material contained in the police intelligence reports and the housing department records. 

124                                       The Tribunal’s analysis of the housing department records and the police intelligence reports appears under the heading “Application of the Law and Findings of Fact”.  In this section of its reasons the Tribunal refers to evidence called by the appellant to prove that she was a person who showed kindness and support to various people. The Tribunal accepted this evidence, and found that the appellant could be a good neighbour who was highly supportive on occasions. But it then referred to the remainder of the evidence that it also had to weigh up, which it described as disclosing a “pattern of drug dealing and lawless violence and intimidation”.  That evidence was not confined to the police intelligence reports and the housing department records. It included, of course, evidence concerning the appellant’s criminal convictions.  It also included, for example, evidence from Detective Senior Constable Mannah who had investigated the brawl at the Smithfield RSL Club in relation to which the appellant was awaiting trial on a charge of affray. 

125                                       The housing department records and the police intelligence reports included many reports of complaints and allegations to the effect that the appellant had stood over other residents, invaded other people’s houses and assaulted and abused other people. These allegations were laid out in documents provided to the appellant and many of them were put to her in cross-examination albeit with varying degrees of specificity.  The Tribunal observed that the reports did not constitute “direct evidence” and that it must be assumed that their “quality is variable”.  Nor could the Tribunal “rule out the possibility that some reports may be malicious falsehoods”.  Yet it reasoned that “when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases.”

126                                       Even if it did not automatically follow from the sentences imposed upon the appellant in May 2006 that she did not pass the character test, it could not be doubted that there were reasonable grounds to suspect the appellant did not pass it: s 501(2)(a).  It was therefore necessary for the Tribunal to satisfy itself that the appellant passed the character test if it was to conclude that the correct and preferable decision was not to cancel the appellant’s visa.

127                                       Given the sentences imposed upon the appellant, the Tribunal concluded that she failed the character test by reason of s 501(6)(a) and (7). But it did not necessarily follow that the appellant did not pass the character test by reason of s 501(6)(c)(i) or (ii).  Even though it was not necessary for the Tribunal to consider that matter given its earlier conclusion, it still did so and for the purpose of determining whether the appellant did not pass the character test by reason of her “past and present criminal conduct” or her “past and present general conduct” the Tribunal was entitled to have regard to the whole of the appellant’s criminal record as well as other material which was relevant to those matters. 

128                                       The primary judge found, and I agree, that the Tribunal stopped short of making findings that the appellant was actually guilty of the criminal conduct described in the housing department records and police intelligence reports.  Similarly, the Tribunal did not find that the appellant failed the character test by reason of her “past and present criminal conduct” or her “past and present general conduct” on the basis of the material contained in the housing commission records and police intelligence reports. Looked at in isolation this material may have been “slight” in the sense that it was unlikely to provide a satisfactory basis to conclude that the appellant failed the character test on account of her having engaged in criminal conduct. But that presupposes that there was no other evidence upon which the Tribunal might also rely.  Here there was other evidence before the Tribunal establishing (inter alia) the appellant’s convictions for offences involving violence, intimidation and drug dealing between 1999 and 2006.  These convictions were central to the Tribunal’s finding that the appellant failed the character test.  It was a matter for the Tribunal to determine how much weight it should give the housing departments records and police intelligence reports: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. 

129                                       It appears to me that the Tribunal concluded that the picture created by the housing department records and police intelligence reports tended to confirm rather than refute the inference that the drug dealing, assaults and intimidation in respect of which the appellant had been convicted reflected a pattern of criminal activity engaged in over a period of years.  In my view this was a permissible form of reasoning. 

130                                       In my opinion the Tribunal did not make findings of criminal conduct based upon the housing department records and the police intelligence reports.  This ground of appeal fails.

Ground 3

131                                       Ground 3 of the notice of appeal states:

His Honour erred in not finding that the appellant was denied procedural fairness in relation to the police intelligence reports and housing department records insofar as the information contained in them (a) did not logically establish that the appellant was guilty of criminal conduct and/or (b) had not been put to the appellant fairly or at all during the hearing, including during cross-examination.

132                                       There are two limbs to this ground of appeal.  The first limb appears to assume that the Tribunal found that the appellant was guilty of criminal conduct on the basis of the information contained in the police intelligence reports and housing department records.  His Honour found that the Tribunal did not make findings of criminal conduct on the basis of that information.  As already stated, I agree with this finding. 

133                                       In support of her arguments directed to the second limb of this ground of appeal, the appellant drew attention to s 500(6H) of the Act.  It provides:

If:

              (a)      an application is made to the Tribunal for a review of a decision under section 501; and

              (b)      the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

            The appellant submitted that s 500(6H) prevented her from giving evidence in chief responding to the allegations made in the police intelligence reports and the housing department records because they were not made available to her until shortly before the hearing.  This, it was submitted, made the failure to put the information contained in those documents to the appellant in cross-examination egregious.

134                                       The appellant’s submission assumes that s 500(6H) would operate to prevent a person calling evidence in answer to prejudicial information disclosed by the Minister less than two days before a hearing.  It is questionable whether that construction is correct at least where the evidence sought to be adduced is not so much “in support of the person’s case” but in answer to a case to be presented by the Minister.  For the purposes of this appeal, however, it may be assumed that s 500(6H) had the effect the appellant’s submission attributes to it. 

135                                       Where prejudicial material is served shortly before a hearing is due to commence, a person’s inability to respond to it by reason of the operation of s 500(6H) might afford good grounds for the Tribunal to either decline to receive it or to grant an adjournment to enable a person wishing to respond to it to satisfy the requirements of s 500(6H).  Here, although the appellant’s applications for an adjournment of the hearing were refused, it was not contended before the primary judge that the failure to grant the appellant an adjournment constituted a denial of procedural fairness.  In particular, it was not contended before the primary judge that the rules of procedural fairness required that the Tribunal give the appellant an adjournment to enable the appellant to serve a further written statement within the time prescribed by s 500(6H).

136                                       The appellant did not call any evidence to support a finding that she was given insufficient opportunity to read and consider the police intelligence reports and housing department records. Nor did she call any evidence to identify what further evidence she would have sought to give had she been allowed more time or what she would have said in response to particular matters which were not put to her in cross-examination.  In this appeal and also before the primary judge the appellant was represented by experienced counsel.  That observation is in no sense a criticism of them.  The appellant’s counsel have argued the appellant’s case with skill and thoroughness.  The point I make is that it cannot be inferred that the absence of such evidence was the result of any lack of appreciation by an unrepresented litigant of the potential significance of such evidence. 

137                                       So far as the cross-examination is concerned, it should not be thought that there was no cross-examination of the appellant on the contents of the housing department records and the police intelligence reports.  Admittedly, not everything was put to the appellant, including the serious allegations contained in the department briefing note referred to at para [166]-[167] of the Tribunal’s reasons.  But it was put to the appellant that she was argumentative, violent and threatening towards Department of Housing staff and other tenants and that she had invaded the homes of other people after her own tenancy was terminated.  It was also put to the appellant that she informed an officer of the Department of Housing “… that it was because [the appellant] had told people not to firebomb the Department of Housing office that they [sic] were still there.”  There was also cross-examination of the appellant concerning her involvement in the drug trade.  I will return to that aspect of her cross-examination in the context of ground 4 of the notice of appeal.

138                                       I do not think ground 3 of the notice of appeal can succeed once it is accepted that the Tribunal did not make findings of criminal conduct on the basis of the information contained in the police intelligence reports and the housing department records.  Nor do I think it can succeed in circumstances where it is not supported by any evidence which indicates how the appellant would have responded to particular matters which she says should have been, but were not, put to her. 

Ground 4

139                                       Ground 4 of the notice of appeal states:

His Honour erred in not finding that the appellant was denied procedural fairness in relation to the allegations that she was “the head of” or a “major or predominant player” in the drug trade in that those allegations were not been put to the appellant fairly or at all during the hearing, including during cross-examination.

140                                       Detective Inspector Galea said in his statement that the appellant was “… believed to be a significant player in the drug trade in Airds and that the general community are intimidated by her and her two sons, Prince and Matthew …”.  He also stated that “… intelligence holdings suggest that [the appellant] was a low to mid level illicit drug supplier of cannabis …”, that her sons “… act as her enforces [sic]” and that she “… readily supplied cannabis from various occupied Department of Housing premises within Airds.”

141                                       It was clear from the contents of the written statement of Detective Inspector Galea that the Minister would be contending that the appellant was a significant player in the drugs trade in Airds and the general thrust of the appellant’s cross-examination was to the same effect.

142                                       Detective Inspector Galea also gave oral evidence in chief. For present purposes it is enough to say that his oral evidence went somewhat further than his written statement and referred to the appellant as a “major player” and a “predominant player” in the drug trade in Airds.

143                                       An analysis of the transcript of the cross-examination of the appellant shows that many questions were put to her that suggested that she had been supplying drugs since around the time she first arrived in Australia.  To make this observation good, I shall refer to some examples of what was put to the appellant in cross-examination.

144                                       It was put to the appellant that she supplied drugs between the time of her first conviction in 1999 and the time of her convictions in 2005.  Although the appellant denied this, it is clear enough that it was put to her very plainly that she had been supplying drugs over a period of some six years beginning around the time of her arrival in Australia.

145                                       It was put to the appellant that her first drug related conviction in 1999 suggested that she “was a well-established drug supplier by then.”  Again, this was denied by the appellant who claimed she “never sell [sic] drugs because…I am a well respected person, and my family is well respected, and I don’t want to do that.”   But what matters is that it was put to the appellant that by 1999 she was a well established drug supplier. 

146                                       It was also put to the appellant that her tenancy agreement had been terminated by the Department of Housing because the appellant had used the premises which she occupied pursuant to it “… for the storage, packing and/or supply of prohibited drugs.” This too was denied by the appellant, even though the evidence before the Tribunal appeared to establish this unequivocally. Again, however, what matters is that it was clearly put to the appellant that she had been supplying drugs from her home and that was the reason why her tenancy was terminated. 

147                                       It is true that it was never put to the appellant that she was the “head” of or a “major” or “predominate” player in the drugs trade in Airds. These were adjectives first used by Detective Inspector Galea in his oral evidence which were not repeated in either the submissions made on behalf of the Minister at the conclusion of the evidence nor by the Tribunal in its reasons for decision. The Tribunal was never asked to make a finding in those terms nor did it do so. It is impossible to see how the failure to put those very words to the appellant could give rise to any denial of procedural fairness.

148                                       It follows that ground 4 of the notice of appeal fails.

Ground 5

149                                       Ground 5 of the notice of appeal states:

His Honour erred in applying Ngaronoa v Minister for Immigration & Citizenship [2007] FCA 1565 to the Tribunal’s consideration of the police intelligence reports and housing department records in circumstances where the Tribunal made findings that the appellant engaged in criminal conduct based on that material.

150                                       For the reasons stated above, the Tribunal did not make findings that the appellant engaged in criminal conduct on the basis of the information in the police intelligence reports and the housing department records.  It follows that ground 5 of the notice of appeal also fails.

Ground 6

151                                       Ground 6 of the notice of appeal states:

His Honour erred in finding that the Tribunal applied the standard of proof of balance of probabilities in determining whether the appellant committed criminal offences in addition to those for which she has been convicted and sentenced.

152                                       This ground of appeal is also based upon the premise that the Tribunal found that the appellant had committed criminal offences in addition to those in respect of which she had been convicted and sentenced.  It follows that this ground of appeal also fails.  I agree, in any event, with the primary judge who found that there is nothing in the Tribunal’s reasons to indicate that it applied a standard of proof which was less than the balance of probabilities.  I would also add that it is neither useful nor appropriate to evaluate the Tribunal’s decision by reference to any particular standard of proof: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283.  This is especially so in circumstances where the power of the decision-maker to cancel the appellant’s visa is expressed in s 501(2) to turn upon the decision-maker’s satisfaction that the appellant passes the character test.  For present purposes, the relevant question is whether the satisfaction of the decision-maker was formed reasonably upon the material before the decision-maker:  Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [33]; Corporation of the City of Enfield v Development Assessment Commissioner (2000) 199 CLR 135 at [34]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-657. 

Ground 7

153                                       Ground 7 of the notice of appeal states:

His Honour erred in finding that any denial of procedural fairness infecting the Tribunal’s conclusion as to the character test under ss 501(6)(c)(i) and (ii) would not infect the exercise of the discretion under s 501(2).

154                                       The appellant was not denied procedural fairness for the reasons previously stated.  It follows that this ground of appeal does not rise. 

155                                       In my opinion the appeal should be dismissed with costs. 

Associate:

Dated:         19 April 2010