FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2019] FCAFC 93

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Shamsher Ali, is a citizen of Fiji who arrived in Australia in 1988 when he was about 29 years old. He has resided here since that date and is now 60 years old. During his time in Australia Mr Ali worked full-time for a period of 20 years, until he sustained a severe work-related injury in 2009. Since then he has been unable to work and in recent years his partner has become his full-time carer.

2    Mr Ali was convicted of a number of criminal offences between 1993 and 2017. On 16 June 2017, the Department of Home Affairs determined that Mr Ali met the requirements of ss 501(3A)(a) and (b) of the Migration Act 1958 (Cth), and subsequently cancelled his visa. The basis for this decision was that on 17 March 2010, Mr Ali was convicted of common assault and sentenced to 12 months’ imprisonment, suspended on a bond. Further, on 13 April 2017 he was convicted of assault occasioning actual bodily harm, and at the time of the visa cancellation he was serving a 9 month sentence of imprisonment for that offence. On 13 July 2017, Mr Ali requested that the cancellation of his visa be revoked pursuant to s 501CA(4) of the Act. On 24 April 2018, a delegate of the first respondent, the Minister for Home Affairs, affirmed the decision. Mr Ali then made an application for review to the Administrative Appeals Tribunal, which subsequently affirmed the decision of the delegate.

3    On 8 August 2018, Mr Ali sought judicial review of the decision of the Tribunal in this Court, and on 30 November 2018 the primary judge dismissed the application; Ali v Minister for Home Affairs [2018] FCA 1895.

4    Mr Ali, who is represented by Mr J Mitchell of counsel (appearing pro bono), now appeals from the decision of the primary judge. Mr Ali filed a Notice of Appeal on 11 December 2018 containing 3 grounds. In his written submissions filed shortly before the hearing, he indicated that he abandoned two of the grounds and applied to amend the other. He also indicated that he sought leave to rely on a new ground. The proposed amended ground and the new ground are set out below:

(1)    The Court erred at [51] of its reasons in finding that the Tribunal considered each of the impediments that had been raised by the appellant in circumstances where the Tribunal failed to consider the appellant’s claims or integers of his claims to be at real risk of destitution if returned to Fiji by reason of his ill health and impecuniosity and for that reason failed to consider matters made mandatory by clauses 8 and 14.5 of Ministerial Direction No 65 (ground 1);

(2)    The Minister and Tribunal applied the wrong test, and thereby did not make a decision under the Act, where it found that Mr Ali had been sentenced to a term of imprisonment of 12 months or more in circumstances where he had not been sentenced to any form of detention (ground 2).

5    The Minister, who is represented by Mr M Cleary of counsel, points out that neither of the grounds now advanced were raised by Mr Ali before the primary judge. He opposes the grant of leave to rely on them and contends that there is no explanation for those grounds not being raised previously, especially in circumstances where Mr Ali was represented by solicitors and counsel below. Furthermore, the Minister contends that the proposed grounds do not have merit. Accordingly, he submits that leave should be refused in accordance with the principles set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] – [48] (Kiefel, Weinberg and Stone JJ).

6    At the hearing, we granted leave to the appellant to rely on the two grounds of appeal above at [4]. For the reasons set out below, we find that the appeal must be dismissed with costs.

7    Ground 1 concerns the Tribunal’s assessment of the extent of impediments that Mr Ali would face if he were removed to Fiji. In the Tribunal’s reasons, it said (bold emphasis added):

Extent of Impediments if Removed

141.    There would no doubt be some impediments facing Mr Ali were he to be required to return to Fiji. They are not necessarily easy to assess.

142.    Obviously, removal from an extended network of family support would be an impediment and there is no indication that family members would return to Fiji with him where, in any case, they would not be citizens.

143.    The Tribunal accepts that the quality of health care is not as great in Fiji as in Australia, although it is not unacceptable and that Mr Ali would be disadvantaged in this respect. It is also obvious that, at his age, and with his disabilities [footnote 102: G documents 72-75 (the medical report from Dr Roger Pillemer, an Orthopaedic Surgeon, suggests that Mr Ali’s condition is such that he is not likely at any stage in the future to be fit of employment), 212 (Report of Dr Robert Alder)], he would find it hard to secure employment and hence regular income. He does not have any close relatives in Fiji and has no access to accommodation.

144.    On the other hand, Mr Ali lived in Fiji until he was 29 years of age, was educated and grew up there, and so it cannot be asserted that he would be unfamiliar with the country, its language, social customs, mores or culture. This is not a case of a person facing removal to a country which they have never visited or where they have no familiarity with the language and culture.

145.    He would, on the other hand, have considerable financial resources (by Fijian standards) as he informed the Tribunal that if he were required to return, he would “sell the house”. The Tribunal has no way of assessing the value of a four bedroom house in Ropes Crossing, but it cannot imagine, given the nature of the dwelling and the location, that it would be negligible and Mr Ali apparently owns it freehold.

146.    On this point, the Tribunal noted that while Mr Ali stated very clearly that, if he were forced to return to Fiji:

I would sell the house and the family would have nowhere to live.

147.    This does not appear to be the understanding of Ms Bibi (or perhaps she is unaware of Mr Ali’s intentions) who told the Tribunal that if Mr Ali were removed, she would not follow him to Fiji and would “continue to live” in the family home.

148.    On balance, this criterion should be assessed as weighing in Mr Ali’s favour.

8    The essence of ground 1 is that the Tribunal failed to take into account mandatory considerations, being the appellant’s claims that he was at real risk of destitution if he returned to Fiji because of his poor health and impecuniosity, and in doing so fell into jurisdictional error. It is said that the primary judge erred at [51] of his reasons by failing to identify such jurisdictional error.

9    A preliminary difficulty with this ground is that the primary judge was not asked to have regard to whether the Tribunal failed to take into account claims advanced by the appellant. Rather, he was asked to consider whether the Tribunal’s decision was infected by jurisdictional error by reason of legal unreasonableness (at [14(2)]). Four bases were advanced in support of that contention, one of which concerned the assessment of the extent of impediments that would be faced by the appellant if required to return to Fiji. The primary judge rejected that argument as drifting into an impermissible review of the merits of the appellant’s application (at [54]). He further found that the process of reasoning engaged in by the Tribunal was rational and not affected by legal unreasonableness.

10    We consider the observation that this ground amounts to an invitation for the Court to re-consider the merits of the application also to be apposite in the context of the appeal.

11    The legal basis for the submissions now advanced is that there was a failure on the part of the Tribunal to consider relevant material. Amongst the several authorities relied upon by the appellant is NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (Black CJ, French and Selway JJ) where the court said:

63.    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):

‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision.  This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’

12    In our view, the Tribunal did consider the relevant claims and did not misunderstand the evidence.

13    The first alleged error by the Tribunal is that it mischaracterised the financial resources available to Mr Ali, as it did not appreciate that he was a co-owner or joint-owner of his family home along with his wife, rather than being the sole owner. The appellant argues that due to this, the Tribunal failed to appreciate that he may not be able to sell the family home without his wife’s consent, and so miscalculated the extent of the impediments the appellant would face in Fiji. The second alleged error concerns the finding at [143] of the Tribunal’s decision that Mr Ali would find it hard to secure employment and hence regular income in Fiji because of his medical condition. This finding is accompanied by a footnote that refers to medical reports from Dr Roger Pillemer, an Orthopaedic Surgeon and Dr Robert Alder, a consultant in pain management.

14    In relation to the first alleged error, it is apparent the Tribunal had before it a statement of the delegate to the effect that Mr Ali and his wife have a freehold title to the family home, and that his wife and other members of the family live together at the home. These matters are referred to in the Tribunal’s reasons at [42] and [129]. It notes at [145] and [146] that whilst Mr Ali plans to sell the family home in the event he is required to return to Fiji, his wife plans to remain living there. The reference in [145] of the Tribunal’s reasons to Mr Ali owning the freehold title is not inconsistent with the fact that his wife may be a co-owner or a joint-owner. Neither would preclude the sale of the property, which Mr Ali said he would do if required to return to Fiji. In relation to the second alleged error, the Tribunal finds at [143] that Mr Ali would “find it hard” to secure employment in Fiji. That reference supplies a footnote to the medical evidence. The report of Dr Pillemer states that Mr Ali is not fit to work and will not be fit to work in the future. However, it is Mr Ali’s own evidence that he will find it “difficult” to find employment in Fiji. Having recorded the evidence, the Tribunal then engages in the task of weighing the considerations and records at [148] that “on balance”, the extent of impediments Mr Ali would face in Fiji weigh in favour of revocation of the cancellation of his visa. Later, at [153] and [154] the Tribunal considers that whilst some factors favour Mr Ali, it arrives at the “firm conclusion” that on balance the decision should not be revoked.

15    This process of reasoning reflects no jurisdictional error on the part of the Tribunal. In particular, it considered and evaluated the state of Mr Ali’s health, his future employment prospects, and the availability of funds to support himself in Fiji. It cannot be said that the Tribunal failed to address a claim raised by the evidence, made any error of fact, or erred by misunderstanding or construing a claim in such a way that amounted to a failure to consider the claim at all; NABE at [63]. It has not been shown that the Tribunal failed to consider the matters it was required to by Ministerial Direction No. 65, and accordingly, ground 1 must be dismissed.

16    We now turn to ground 2.

17    As noted above, Mr Ali contends that the finding that he has a serious criminal record was vitiated by error. This is of central importance because a person will fail the character test defined under s 501(6) of the Act if, relevantly, they have a “substantial criminal record”; under s 501(7), a person has a “substantial criminal record” if, among other things, they have been “sentenced to a term of imprisonment for 12 months or more”.

18    A factual contention was advanced by Mr Ali in his written submissions that there was a want of evidence before the Tribunal to establish that the appellant was sentenced to 12 months’ imprisonment. To the extent it is persisted in, this contention is unsustainable. The material before the Tribunal disclosed a 12 month sentence of imprisonment suspended on a bond being entered under the relevant sentencing legislation in New South Wales (the now repealed s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Act)). Unsurprisingly, given this material, the Tribunal found (at [9] and [24]) that Mr Ali was sentenced to 12 months’ imprisonment and hence had a substantial criminal record.

19    Despite this, the appellant argues that as a matter of statutory construction of the NSW Act, the appellant was not sentenced to 12 months’ imprisonment, because the sentence was wholly suspended, and he was never detained.

20    As counsel for Mr Ali correctly conceded, the acceptance of this submission would require this Court to reach the state of satisfaction that the decision of the Full Court in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 was plainly wrong. This is because in Brown, at [114] Nicholas J (with whom Moore and Rares JJ agreed) held that if an applicant is sentenced to a term of imprisonment of 12 months or more, such a sentence, even if suspended, amounts to a “substantial criminal record” for the purposes of s 501(7)(c) of the Act. The submission of Mr Ali faces the not inconsiderable hurdle that the reasoning in Brown was consistent with earlier Full Court authority referred to in the judgment of Nicholas J and has been, at the very least implicitly, accepted as being correct by two subsequent Full Courts.

21    First, in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158, Allsop CJ, Griffiths and Wigney JJ made the following observations at [73] as to a sentence of imprisonment that had been suspended:

As for the apparent suggestion that, by reason of the content of the issues paper or otherwise, the Minister failed to have regard to, or failed to give adequate weight to, the fact that Mr Eden’s sentence of imprisonment was fully suspended, it is clear that the Minister had the sentencing judge’s remarks on sentence before her. The issues paper also clearly indicated that Mr Eden’s sentence was fully suspended. A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [4].

22    Secondly, this aspect of Eden was quoted, with approval, by another Full Court (Kenny, Flick and Griffiths JJ) in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 at [184].

23    Not only do we disagree with the submission that Brown is plainly wrong (which is sufficient to reject ground 2), but we consider Mr Ali’s contention to be misconceived.

24    The starting point is that s 501 of the Act operates in a federal context that must accommodate the reality that each State or Territory jurisdiction may have disparate sentencing regimes including bespoke criteria for a sentencing court to consider in deciding whether and how a term of imprisonment should be imposed, including whether it should be suspended or served periodically. What is evident, however, from an examination of the sentencing regime applicable to Mr Ali (the NSW Act), is that fundamental to its structure is that the imposition of a sentence of imprisonment and determination of the length of the sentence is determined at a stage anterior to any consideration as to whether the term ought to be suspended.

25    Section 12(1) of the NSW Act provided:

Suspended Sentence

(1)    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 a period (not exceeding the term of the sentence) as the court may specify in the order; and

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

26    As can be seen, the point of departure for the operation of this provision is that a court has imposed “a sentence of imprisonment”. This directs attention to s 5 of the NSW Act, which provides that 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”. This section requires the sentencing court to consider, at the first stage of the process, whether some sentencing alternative instead of imprisonment would be appropriate the circumstances. The next question is the length of the sentence, the determination of which is to be made without regard to whether the sentence is to be immediately served, or to the manner in which it is to be served: R v Zamagias [2002] NSWCCA 17 at [26] (Howie J, with Hodgson JA and Levine J agreeing); R v Ryan [2006] NSWCCA 394; 167 A Crim R 241 at [1] (Barr and Latham JJ).

27    If the sentence imposed is for a term of not more than two years, a further then question arises: whether the “execution” of the sentence ought be suspended pursuant to s 12(1)(a) of the NSW Act. This sequence is apparent from the wording of the NSW Act and has been confirmed by the Court of Criminal Appeal of New South Wales in a number of cases including Zamagias at [23] – [31] and O’Brien v R [2013] NSWCCA 197 at [31] – [33] (Adamson J, with Hidden and Latham JJ agreeing).

28    Since the court may suspend “execution of the whole of the sentence”, it is not open to suspend execution of only part of the sentence of imprisonment. But this does not mean it loses its character as a sentence of imprisonment. It is well established that sentencing courts must proceed on the basis that a suspended sentence of imprisonment, while not imposing a liability to immediate detention, involves a contingent liability to detention and it is “wrong-headed” to treat a suspended sentence as not involving a sentence of imprisonment at all: R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 at [86] (Adamson J, with Hoeben CJ and Davies J agreeing).

29    When the place of a suspended sentence within the statutory scheme of the NSW Act is appreciated, the distinction Mr Ali seeks to draw between a sentence of imprisonment and actual incarceration or detention, is one that is foreign. Also, as Rares J observed in Brown at [7], the structure of s 501 of the Act 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 provided within the section of “imprisonment” and “sentence” (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” and 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”.

30    Counsel for Mr Ali sought support for his argument by observing that when s 501 is read as a whole, it is clear that the definition of “substantial criminal record” in s 501(7)(c) is concerned with the time that a person is required to spend in detention by reason of having been sentenced to a term of imprisonment, and that this must be so when one has regard to the terms of s 501(8) (periodic detention) and s 501(9) (residential schemes). These latter provisions provide that for the purposes of the character test, if a person has been sentenced to periodic detention or to participate in a residential scheme, the person’s term of imprisonment is taken to be equal to the number of days the person is required to spend in detention or participate in the relevant scheme. Mr Ali submits that his construction avoids the incongruity that an offender sentenced to periodic detention or required to participate in a residential scheme is treated as having served a term of imprisonment equal to the number of days spent in detention or in the scheme, while an offender sentenced to a term of imprisonment that is suspended (and hence spends no time in detention) is treated the same way as if the offender was detained.

31    The difficulty with this argument, as recognised by Nicholas J in Brown at [108], is that if these subsections are interpreted as applying only where an order for periodic detention or to participate in a residential scheme is made as an alternative to a sentence of imprisonment, then there would be no tension. It is important to bear in mind that the Act operates in a federal system and needs to accommodate, at least potentially, differences in approach by the various States and Territories including the possibility that imposition on an offender of periodic detention or participation in a residential scheme, may not amount to a “term of imprisonment”.

32    There is no reason to doubt the correctness of Brown. Mr Ali was sentenced to a term of imprisonment of 12 months, notwithstanding that he had not been sentenced to any form of detention and, as a consequence, ground 2 has no merit.

33    The only grounds maintained by Mr Ali having failed, the appeal must be dismissed with costs.

Associate:

Dated:    4 June 2019