Federal Court of Australia

Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be 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:

Introduction

1    Under the Migration Act 1958 (Cth) (Migration Act or Act), the Minister may grant visas to non-citizens who satisfy certain criteria and in certain circumstances may (and in some cases must) cancel visas.

2    Section 501(3A) relevantly imposes an obligation on the Minister to cancel a person’s visa if:

(a)    the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record, which is defined by s 501(7)(c) to include where the person has been sentenced to a term of imprisonment of 12 months or more; and

(b)    the person is serving a sentence of imprisonment on a full-time basis for an offence against an Australian law.

3    If the Minister cancels a person’s visa under s 501(3A), s 501CA gives the person a right to make representations to the Minister about the revocation of the cancellation decision. Section 501CA(4) stipulates that the Minister may revoke the cancellation decision if satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked.

4    The appellant, Clarissa Price, is a New Zealand national. She has a lengthy criminal record. As an adult, she was convicted of 51 offences over a period of 15 years. In 2021, she held a Class TY Subclass 444 Special Category (Temporary) visa. On 13 April 2021, a delegate of the Minister cancelled the visa under s 501(3A) because:

(a)    in 2016, Ms Price was convicted of supplying the prohibited drug methylamphetamine (commonly referred to as “meth” and in crystalline form as “ice”) and sentenced to 12 months imprisonment; and

(b)    at the time of the cancellation, Ms Price was serving a 10-month full-time prison sentence for possessing methylamphetamine with intent to sell or supply.

5    Ms Price made representations to the Minister to revoke the cancellation decision but the Minister, through a delegate, decided not to.

6    Ms Price applied to the Administrative Appeals Tribunal for a review of the delegate’s decision not to revoke the cancellation, but the Tribunal affirmed the delegate’s decision.

7    Ms Price sought judicial review of the Tribunal’s decision in this Court.

8    The application for judicial review had two, legally distinct, bases. The first was a challenge to the Tribunal’s jurisdiction to review the delegate’s decision not to revoke the cancellation of the visa (made under s 501CA(4)) for the reason that the preceding cancellation decision (made under s 501(3A)) was not a valid or legally effective decision. This involved an indirect or collateral challenge to the cancellation decision. The second was that the Tribunal’s decision to affirm the decision not to revoke the cancellation under s 501CA(4) was affected by jurisdictional error.

9    Ms Price sought a writ of habeas corpus for her immediate release from immigration detention, an order that the Tribunal decision be quashed and a writ of mandamus directed to the Tribunal to determine her application according to law. She also sought costs.

10    The application for judicial review was wholly unsuccessful. This is an appeal from that judgment.

11    On 12 June 2023, after the appeal was filed, Ms Price lodged a written request for her removal from Australia in accordance with s 198(1) of the Act, which requires an officer to remove as soon as practicable an unlawful non-citizen who asks the Minister in writing to be so removed. On 30 June 2023, the Court was informed by the Minister’s lawyers that the Minister intended to make arrangements for the removal of Ms Price to New Zealand. At the hearing of the appeal, the Court was informed that Ms Price had been removed from Australia. By an affidavit affirmed 13 July 2023, Ms Price deposed that she wished to continue with the appeal because, if successful, she wished to return to Australia. The Court accepts that Ms Price’s removal from Australia does not render the appeal moot.

12    Ms Price has twice amended her notice of appeal and the grounds of appeal are now recorded in the further amended notice of appeal dated 13 July 2023. The amendments are relatively minor, however Ms Price no longer seeks a writ of habeus corpus (given her removal to New Zealand). Also, in so far as Ms Price seeks to challenge indirectly or collaterally the cancellation decision made under s 501(3A), Ms Price seeks a declaration that the cancellation decision was invalid and of no legal effect. The grounds of appeal are in the following terms:

1.    The primary judge erred in concluding that the Second Respondent had jurisdiction as the Appellant’s visa was not validly cancelled because her sentence did not meet the criteria under s 501(7)(c) of the Migration Act 1958 (Cth) (the Act).

2.    The primary judge erred in concluding that the Second Respondent had jurisdiction as the decision purportedly under s 501 of the Act on which it was premised was legally ineffective because it:

a.    arose from a denial of natural justice concerning which cancellation power was exercised in respect of the Appellant’s visa; and/or

b.    was legally unreasonable.

3.    The primary judge erred in concluding that the Second Respondent had not fallen into jurisdictional error by failing to make its decision on a correct understanding and application of Direction 90, paragraph 8.1.1(1)(a)(i), or by failing to comply with that Direction, which permits, but does not require, the Tribunal to consider a violent crime as ‘very serious’.

13    It can be seen that grounds 1 and 2 involve an indirect or collateral challenge to the cancellation decision made by the Minister’s delegate under s 501(3A), whereas ground 3 is a challenge to the Tribunal’s decision not to revoke the cancellation under s 501CA(4).

14    In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256 (XJLR), the majority concluded that this Court has jurisdiction to review the validity of a cancellation decision made under s 501(3A) in the course of an application for judicial review of a revocation decision made under s 501CA(4) (at [59]–[65] per Rares J and [95]–[96] per Yates J, Snaden J disagreeing). The majority also concluded that, despite the application for judicial review being directed to the revocation decision made under s 501CA(4), the Court has power to declare that the cancellation decision made under s 501(3A) was invalid (at [87] per Rares J and [95]–[96] per Yates J).

15    XJLR was followed in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 304 (at [10]–[12]), Pearson v Minister for Home Affairs (2022) 295 FCR 177 (Pearson) (at [57]) and Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10; 408 ALR 503 at [13], although the Full Court was not invited in any of those cases to reconsider XJLR. Similarly, in the present case, the Minister did not seek to challenge the majority’s conclusions and, in those circumstances, we proceed on the basis that those conclusions are correct.

16    As observed in Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53 (Okoh) (at [79]), the cancellation decision made by the Minister’s delegate under s 501(3A) of the Act was not amenable to judicial review in this Court having regard to the terms of s 476A, although it was amenable to judicial review in the High Court under s 75(v) of the Constitution. The decision was also likely to have been reviewable in the Federal Circuit and Family Court of Australia (Div 2) (FCFCoA) under s 476 of the Act subject to the time limits imposed by s 477. However, Ms Price did not seek judicial review of the cancellation decision in that manner and within the time limits imposed. Instead, she applied to the Tribunal for review of the revocation decision made under s 501CA(4). Ms Price then applied to this Court for judicial review of the Tribunal’s decision (to affirm the delegate’s decision under s 501CA(4)) on the basis that the cancellation decision under s 501(3A) was invalid. This procedure has the effect of outflanking the limitations imposed by the Act on this Court’s judicial review jurisdiction, as well as the time limitations imposed by the Act on the judicial review jurisdiction of the FCFCoA. Nevertheless, the Minister did not put in issue the jurisdiction of this Court to determine the validity of the cancellation decision made under s 501(3A), and we therefore follow the approach taken in XJLR.

17    The arguments advanced by Ms Price in respect of ground 3 go beyond the arguments advanced in the Court below. Accordingly, Ms Price requires leave to advance those arguments. The Minister does not object to leave being granted and we therefore grant that leave. During the hearing of the appeal, the Court inquired whether the Minister sought to advance a contention that, if the Tribunal had erred as alleged by ground 3, the error was not material to the Tribunal’s decision and therefore not jurisdictional. The Minister indicated that he wished to advance that contention, although a notice of contention to that effect had not been filed. The Minister advanced oral submissions on that issue during the hearing. Later that day, the Minister filed a draft notice of contention which contains the following contention:

In respect of Ground 3 of the Appellant’s Further Amended Notice of Appeal dated 13 July 2023, any error of the kind alleged could not in any event realistically have affected the outcome of the decision of the Second Respondent, and therefore was not material.

18    Ms Price opposed the grant of leave to the Minister to rely on that contention. On 21 August 2023, the Court made orders to enable the parties to address the question of leave and Ms Price to make any further submission on the question of materiality.

19    For the reasons that follow, the appeal must be dismissed.

Ground 1

The appellant’s contentions

20    By ground 1, Ms Price contended that the primary judge erred in concluding that the Tribunal had jurisdiction as her visa was not validly cancelled because her sentence did not meet the criteria under s 501(7)(c) of the Act.

21    As noted earlier, s 501(3A) stipulates that the Minister must cancel a person’s visa if:

(a)    the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record, which is defined by s 501(7)(c) to include where the person has been sentenced to a term of imprisonment of 12 months or more; and

(b)    the person is serving a sentence of imprisonment on a full-time basis for an offence against an Australian law.

22    The expression “imprisonment” is defined in s 501(12) to include any form of punitive detention in a facility or institution and “sentence” is defined to include any form of determination of the punishment for an offence.

23    The following facts were not in dispute:

(a)    On 13 April 2021, the Minister’s delegate cancelled Ms Price’s visa under s 501(3A) because the delegate was satisfied that Ms Price did not pass the character test.

(b)    In forming that state of satisfaction, the delegate relied on the fact that, on 23 August 2016, Ms Price was convicted of “Supply a prohibited drug” and was sentenced to 12 months imprisonment.

(c)    The information relied on by the delegate was the “Advice of Court Result” issued by the Local Court of New South Wales on 26 March 2021 which recorded that an order had been made on 23 August 2016 in the following terms:

The offender, CLARISSA PRICE, is sentenced to a term of imprisonment of 12 months to commence on 14 January 2016 and expiring on 13 January 2017 with a non-parole period of 7 months. The offender is to be released to supervised parole on 13 August 2016. The relevant agency for the purposes of supervision is City Community Corrections District Office.

(d)    As recorded in the sentencing remarks of the Local Court Magistrate, Ms Price was released on parole on the date of sentencing, 23 August 2016, on account of time served from 14 January 2016 to 13 August 2016.

24    Ms Price submitted that the cancellation of her visa was only lawful if she had been “sentenced to a term of imprisonment of 12 months or more”. The reckoning of time under the Migration Act is determined by reference to the Acts Interpretation Act 1901 (Cth) (Interpretation Act). Section 2G of that Act has the effect that “12 months” is calculated from the start of a day of a calendar month and ends “immediately before” the start of the corresponding day of the calendar month that is 12 months after the starting month. Ms Price submitted that this has been understood to mean a period measured from midnight to midnight. Ms Price argued that this means that her visa was validly cancelled only if she had been sentenced to imprisonment for a period that included the whole of 14 January 2016 and the whole of 13 January 2017.

25    Ms Price submitted that, on a proper construction of the relevant statutory provisions governing the administration of prison sentences in New South Wales, being the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) and the Crimes (Administration of Sentences) Act 1999 (NSW) (Administration of Sentences Act), she was not sentenced to a period of 12 months because her sentence did not include the entirety of 13 January 2017. She argued that, under those statutes, she was entitled to be released on 13 January 2017 and, by operation of law, such release could occur “at any time” of that day. It followed, so the argument ran, that the Minister could not have reached the required satisfaction that Ms Price had been “sentenced to a term of imprisonment of 12 months or more” based upon a correct understanding of the law (referring to Pearson at [48]). On that basis, Ms Price claimed, the cancellation decision was invalid.

26    In support of those submissions, Ms Price relied on the following aspects of the New South Wales legislation.

27    First, Ms Price relied on s 47 of the Sentencing Procedure Act which is titled “Commencement of sentence”. Section 47(1) stipulates that, subject to exceptions not presently relevant, a sentence of imprisonment commences “on the day on which the sentence is imposed”. Section 47(6) states:

A sentence of imprisonment … starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

28    Ms Price argued that the effect of s 47(6) is to create a different end time for a 12 month sentence in comparison to the effect of the Interpretation Act (which governs the interpretation of s 501(7)(c) of the Act). For a sentence imposed in New South Wales, the sentence ends “at the end of the day” on which the sentence expires. Ms Price submitted that the “end of the day” is the time immediately before the beginning of the night or the time immediately before the close of business. As such, s 47(6) stipulates that a New South Wales sentence expires at an earlier point of time than the period reckoned by the application of s 2G of the Interpretation Act, being the time “immediately before” the 12 month anniversary date.

29    Second, Ms Price relied on s 48 of the Sentencing Procedure Act which is titled “Information about release date”. Section 48(1) stipulates that, when sentencing an offender to imprisonment for an offence, a court must specify:

(a)    the day on which the sentence commences or is taken to have commenced; and

(b)    the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody or eligible to be released on parole, having regard to that and any other sentence of imprisonment to which the offender is subject and the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.

30    Ms Price referred to the notes to that section and submitted that the section makes clear that, where a person is sentenced, the earliest day they become entitled to be released from custody (assuming no parole release) is the last day of their sentence. Ms Price argued that, as a person sentenced in New South Wales is entitled to be released during the last day of their sentence, a 12 month sentence of imprisonment in New South Wales is a sentence that is less than 12 months as reckoned in accordance with s 2G of the Interpretation Act. Ms Price submitted that that construction of the Sentencing Procedure Act is supported by Farkas v R (2014) 243 A Crim R 388 (Farkas v R) at [2], [25]–[32] (Basten JA) (with whom RA Hulme J and Campbell JA agreed at [34] and [103] respectively).

31    Third, Ms Price relied on s 8 of the Administration of Sentences Act which is titled “Release from custody”. That section relevantly provides as follows:

(1)     Unless sooner released on parole, an inmate who is serving a sentence by way of full-time detention (the current sentence) is to be released from custody on the day the sentence expires (the release date), as determined in accordance with Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 but subject to any variation of the term of that sentence under this or any other Act.

(2)     An inmate may be released from custody:

(a)     at any time on the release date for the current sentence, or

(b)     if the release date for the current sentence is a Saturday, Sunday or public holiday and the inmate so requests, at any time during the next day that is not a Saturday, Sunday or public holiday.

32    Ms Price argued that the effect of s 8 of the Administration of Sentences Act is to give the inmate an entitlement to be released from custody on the day the sentence expires, and at any time on that day. On the basis of that statutory provision, Ms Price reiterated her argument that, as a person sentenced in New South Wales is entitled to be released during the last day of their sentence, a 12 month sentence of imprisonment in New South Wales is a sentence that is less than 12 months as reckoned in accordance with s 2G of the Interpretation Act.

33    Ms Price also placed reliance on Nuuamoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587 (Nuuamoa) in which Rofe J concluded, in respect of the second limb of s 501(3A), that a person is not serving a term of imprisonment on a full-time basis on the last day of the sentence because of their imminent release (at [126]). On that basis, her Honour found that a cancellation decision made on the day of a person’s release from prison, even if made prior to the time of release, was invalid (at [127]).

Consideration

34    Ground 1 was rejected by the primary judge. We agree for the same reasons.

35    The following matters were common ground before the primary judge. First, the Minister’s state of satisfaction that Ms Price had been “sentenced to a term of imprisonment of 12 months or more” must be based upon a correct understanding of the law (PJ [8]). Second, in accordance with s 2G of the Interpretation Act, the reference to “12 months” in s 501(7)(c) of the Migration Act means a period starting at the start of a day of a calendar month and ending immediately before the corresponding day of the calendar month that is 12 months after the starting month. As the primary judge explained, the period includes the whole of the commencement day and the whole of the day that concluded immediately before the anniversary of the commencement day (PJ [9]). Third, the sentence imposed on Ms Price was stated to be a term of imprisonment of 12 months commencing on 14 January 2016 and expiring on 13 January 2017 (PJ [11]).

36    In relation to Ms Price’s first argument based on s 47(6) of the Sentencing Procedure Act, as the primary judge held, the expression “end of the day” means the last moment of the day and not some earlier point in time such as the end of daylight or the close of business (at PJ [13]–[17]). Contextually, s 47(6) defines the time at which a sentence commences and the time at which it ends. It stipulates that a sentence starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires. The statutory context demands that the beginning and the end of a sentence of imprisonment are defined with precision. The juxtaposition of the expressions “beginning of the day” and “end of the day” indicate that they refer to the first and last moments of the day, which must be understood as each side of midnight. Further contextual support for that construction is given by the definition of “midnight” in s 21 of the Interpretation Act 1987 (NSW) which states that “midnight, in relation to a particular day, means the point of time at which that day ends”. That construction is also consistent with the general law approach to reckoning time in units of days. In Prowse v McIntyre (1961) 111 CLR 264, Kitto J stated (at 274) that: “The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next…”. Windeyer J poetically observed (at 278, emphasis added):

A day, the period of the earth’s axial rotation, is the natural and fundamental division of time. A day for legal purposes is the mean solar day, a period of twenty-four hours. These hours are reckoned from midnight to midnight, the instant of midnight being both the end of one day and the beginning of the next, for there are no rests in time, and as each instant comes it goes.

37    It follows that the stipulation of the period of a sentence under s 47(6) of the Sentencing Procedure Act has precisely the same effect as the reckoning of time under s 2G of the Interpretation Act.

38    Ms Price’s second argument based on s 48 of the Sentencing Procedure Act must also be rejected. As the primary judge observed (with respect, correctly), that section is not concerned with defining the duration of a sentence; rather, the section imposes a requirement to give information about the likely duration of a sentence (at PJ [24]). It is s 47(6) that defines the duration of a sentence. The decision of the New South Wales Court of Appeal in Farkas v R merely confirms that, under the Sentencing Procedure Act, the last day of a sentence of 12 months is the day before the anniversary of the commencement of the sentence and not the anniversary (at [25]–[32] per Basten JA). The decision is not concerned with the question whether the sentence ends at midnight on that day.

39    In relation to Ms Price’s third argument based on s 8 of the Administration of Sentences Act, we agree with the primary judge’s description of the effect of s 8 as governing practical or administrative arrangements for release (PJ [17]). Ms Price’s submission that the effect of s 8 is to give the inmate a right or an entitlement to be released from custody “at any time” on the day the sentence expires cannot be accepted. The section confers an entitlement to be released on the last day of the sentence, but the inmate has no right or entitlement to dictate the time of release.

40    More significantly, we do not accept Ms Price’s submission that the time of release of an inmate on the day the sentence expires alters the term of imprisonment to which a person has been sentenced within the meaning of s 501(7)(c) of the Act. That section stipulates that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The word “sentence” is defined in s 501(12) to include any form of determination of the punishment for an offence. It follows that the question whether a person has been sentenced to a term of imprisonment of 12 months or more must be answered by reference to the sentencing determination. As the Full Federal Court stated in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 (Brown), the ordinary and natural meaning of the expression used in s 501(7) describes the penalty imposed as distinct from the time served or required to be served in prison (at [9] per Rares J and at [81] and [94] per Nicholas J).

41    Further, as Rares J said in Brown (at [9], Moore J agreeing at [1]), the construction of the expression “sentenced to a term of imprisonment” in s 501(7) cannot depend on the vagaries or intricacies of different sentencing regimes in many jurisdictions. That statement was expressly approved by the Full Court in Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 429 at [46]. The Administration of Sentences Act is concerned with the administration of a term of imprisonment. Section 8, upon which Ms Price relied, is specifically concerned with the administration of the release of an inmate from prison. The administrative arrangements relating to release that are stipulated in the Administration of Sentences Act do not affect the term of imprisonment for which a person has been sentenced.

42    It may be accepted, as Ms Price argued, that in the usual case a person who has been sentenced to a term of imprisonment in New South Wales will be released during the last day of the term and will not remain in prison until the time that is immediately prior to the anniversary of the commencement of the term. We do not accept, however, that that circumstance means that a sentence of 12 months imprisonment in New South Wales is to be regarded as a sentence of a few hours less than 12 months. The sentence must be distinguished from time served or to be served which is affected by the administration of prisons. As Abraham J observed in BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539 (at [63]):

The exercise of judicial power with respect to a trial on indictment is spent on the imposition of the sentence in relation to the offence(s), and the responsibility for the prisoner passes to the executive branch of the government of the State: Crump at [58] citing Elliot v The Queen [2007] HCA 51; (2007) 234 CLR 38 at [5].

43    Nuuamoa does not assist Ms Price’s argument. The judgment concerned the second limb of s 501(3A), not the first limb.

44    For those reasons, we reject ground 1 of the appeal.

Ground 2

The appellant’s contentions

45    By ground 2, Ms Price contended that the primary judge erred in concluding that the Tribunal had jurisdiction as the decision purportedly under s 501 of the Act on which it was premised was legally ineffective because it:

(a)    arose from a denial of natural justice concerning which cancellation power was exercised in respect of her visa; and/or

(b)    was legally unreasonable.

46    The expression of ground 2 is obscure, to say the least. In written submissions, however, Ms Price explained that ground 2 agitates the same issue that was considered (and rejected) by the Full Federal Courts in Okoh and Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 74 (Motufoaki). In those proceedings, it was argued that the Tribunal lacked jurisdiction to review the delegate’s decision under s 501CA(4) by reason that the preceding cancellation decision under s 501(3A) was legally ineffective because it arose from a denial of natural justice (see Okoh at [72]). The argument advanced was that, before exercising the power to cancel the appellant’s visa under s 501(3A), the Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision (see Okoh at [85]).

47    By ground 2 in the present appeal, Ms Price relied on the principle of legal unreasonableness in addition to denial of natural justice, but we understand that the contention advanced in this appeal is materially the same as advanced in Okoh and Motufoaki.

48    Ms Price primarily made a formal submission that Okoh and Motufoaki were wrongly decided and, to the extent that the earlier decision of Burgess v Assistant Minister for Home Affairs (2019) 271 FCR 181 (Burgess) is also contrary to the contention, that Burgess was also wrongly decided. In her written submissions, Ms Price submitted that those decisions failed to account for the granularity of the concept of a “migration decision” under the Act, which definition encapsulates “conduct preparatory to the making of a decision” (s 474(3)(h)). Ms Price submitted that the requirement to reach a “positive state of satisfaction” prior to determining a “mandatory” cancellation under s 501(3A) demonstrates that a distinct, preliminary decision is made. Ms Price argued that that preliminary decision is, on ordinary principles of statutory construction, qualified by requirements to afford procedural fairness and not to make a decision that is legally unreasonable.

49    Ms Price submitted that the decision to cancel her visa was made against the backdrop of the following circumstances:

(a)    On 23 August 2016, Ms Price was sentenced to full-time imprisonment commencing 14 January 2016 and concluding 13 January 2017 with a non-parole period of 7 months (as recorded in the sentencing remarks of the Local Court Magistrate on 23 August 2016, and in the Local Courts of New South Wales Advice of Court Result dated 26 March 2021). Ms Price was released to supervised parole on the same day as she was sentenced.

(b)    On 9 March 2020, Ms Price was sentenced to full-time imprisonment for seven months commencing 31 January 2020 (as recorded in the Australian Criminal Intelligence Commission report compiled on 21 January 2022).

(c)    On 23 March 2021, Ms Price was sentenced to 10 months imprisonment commencing 29 July 2020 and concluding 28 May 2021 (as recorded in the sentencing remarks of the District Court Judge on 23 March 2021 and the Sentence Summary produced by the Western Australian Department of Justice – Corrective Services on 25 March 2021).

50    Ms Price submitted that, as a result of any of the sentences imposed on 23 August 2016, 9 March 2020 and 23 March 2021, her visa could have been lawfully cancelled under the Act, including under ss 116 and 501.

51    Ms Price referred to a letter from the Department of Home Affairs dated 25 March 2021, which she received while in prison, stating:

It has come to the attention of the Department of Home Affairs that you have been convicted of an offence. The Department wishes to clarify your immigration status in Australia.

Please complete the attached form and return it to this office by email to nccc@homeaffairs.gov.au.

52    The attached form sought information relevant to Ms Price’s immigration status including date and place of birth, date of arrival in Australia and citizenship on arrival and identity, citizenship and residency of her parents. Ms Price completed the form on the same day (25 March 2021) and returned it to the Department.

53    On 13 April 2021, Ms Price was informed that her visa had been cancelled pursuant to s 501(3A).

54    Although not clearly articulated, we understand that the principal contention advanced by Ms Price is that, having regard to the terms of the Department’s letter, the Minister made a preliminary or anterior decision not to cancel her visa pursuant to ss 501(2) (or possibly 116(1)(e)) but to cancel her visa pursuant to s 501(3A). Ms Price argued that, in making that anterior decision, the Minister was required to afford Ms Price an opportunity to be heard and could not make a legally unreasonable decision.

Consideration

55    In the hearing below, Ms Price accepted that the primary judge ought to follow what was said in Okoh and, as a result, only a formal submission was made to the effect that Okoh was wrongly decided (enabling Ms Price to raise the ground on appeal).

56    We are not persuaded that there is any error in the reasoning in Burgess, Okoh and Motufoaki. Special leave to appeal from the judgment in Motufoaki was refused on 12 October 2023 ([2023] HCASL 141). The reasoning in those decisions is applicable to the present case. In that regard, we refer to and rely upon the reasons expressed in Okoh at [85]–[100] and Motufoaki at [21]–[24].

57    We do not understand the relevance of the submission that Ms Price’s visa could have been cancelled earlier. The fact that the Minister did not exercise a discretionary power to cancel Ms Price’s visa following her sentencing on 23 August 2016 and 9 March 2020 cannot have any bearing upon a decision made following her sentencing on 23 March 2021. We note for completeness that Ms Price did not identify which discretionary power within s 116 she relied upon, and therefore it is not possible to reach any view whether a discretionary power under that section was in fact available.

58    As was the case in Okoh and Motufoaki, the burden of Ms Price’s submission is that, following her sentencing on 23 March 2021, the Minister had a choice whether to consider the cancellation of Ms Price’s visa under s 501(2) or under s 501(3A), and the Minister made a decision to proceed under s 501(3A). As we understand the argument (which was not articulated at the hearing), Ms Price says that that anterior decision was subject to the requirement to afford natural justice (affording Ms Price the opportunity to be heard as to which power should be exercised) and the requirement to make a legally reasonable decision.

59    We do not accept the premises that underlie Ms Price’s argument. As the Full Court observed in Burgess at [71], s 501 contains no express requirement that, before exercising a power under that section, the Minister must first make a decision as to which power to exercise, and no such requirement could arise by implication. The Minister is not under a duty to consider whether to exercise any of the powers in s 501. Further, the different powers in s 501 are not only subject to different criteria for their exercise, but some of the powers are discretionary while others are mandatory. As explained in Okoh at [97]:

[T]he mandatory nature of the power in s 501(3A) demonstrates the impossibility of the anterior “choice” asserted by the appellant. The Minister could only have a choice of statutory powers to exercise if the statutory conditions for the exercise of the powers are met. However, if the Minister is satisfied that the conditions in s 501(3A) are met, no “choice” between powers can arise: the Minister is compelled to exercise the power under s 501(3A) because it is mandatory.

60    In the present case, following the sentencing of Ms Price on 23 March 2021 and her resulting imprisonment, the Minister considered whether s 501(3A) required the cancellation of Ms Price’s visa. The Minister cancelled Ms Price’s visa pursuant to that (mandatory) power on 13 April 2021. We reject the contention that the Minister necessarily made, or was required to make, an anterior decision as to which of the cancellation powers under s 501 would be considered and/or exercised, and the further contention that such an anterior decision was vitiated by jurisdictional error.

Ground 3

The appellant’s contentions

61    Unlike grounds 1 and 2, which concerned the cancellation decision made under s 501(3A), ground 3 concerns the revocation decision made under s 501CA(4). By ground 3, Ms Price contended that the primary judge erred in concluding that the Tribunal had not fallen into jurisdictional error by failing to make its decision on a correct understanding and application of Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), para 8.1.1(1)(a)(i), or by failing to comply with that Direction, which permits, but does not require, the Tribunal to consider a violent crime as “very serious”.

62    Direction 90 requires decision-makers (other than the Minister) to take into account the primary and other considerations detailed within it. The primary considerations are set out in para 8. The first primary consideration is the “protection of the Australian community from criminal or other serious conduct”. In respect of that consideration, para 8.1 states:

Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

a)    the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

63    Paragraph 8.1.1 relevantly states:

The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i)    violent and/or sexual crimes;

…

b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

…

(ii)    crimes committed against … government representatives or officials due to the position they hold, or in the performance of their duties;

…

64    Ms Price submitted that, while paras 8.1.1(1)(a) and (b) of Direction 90 specify the types of criminal conduct that are deemed to be viewed by the Australian government and community as “very serious” or “serious” respectively, those paragraphs do not require the Tribunal to find such conduct as “very serious” and “serious” by operation of those provisions. In that regard, Ms Price referred to the following explanation of those paragraphs given by Snaden J in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582 (Singh) (at [73]):

In assessing the seriousness of the appellant’s criminal offending, the Tribunal was obliged to take into account the effect of paragraph 8.1.1(1)(a) of Direction 90: namely that the Australian government and the Australian community consider [certain] crimes to be very serious. Doing so did not relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2) of Direction 90: the Tribunal remained separately obliged to consider for itself the seriousness of the appellant’s offending and to bring that assessment – informed by the statement of executive policy for which para 8.1.1(1)(a) stands – to bear upon its decision making.

65    Ms Price argued that the Tribunal’s reasons demonstrate that it considered itself bound to make findings that particular offences were “very serious” and “serious”.

66    At [42] of its reasons, the Tribunal said:

In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [31] above), I find that:

(a)     Paragraph 8.1.1(1)(a) – the applicant has two convictions of assault public officer (recorded 15 March 2012) and one of common assault (recorded 22 November 2013) which, by operation of this paragraph, must be considered as very serious.

(b)    Paragraph 8.1.1(b) – as noted above, the applicant has two convictions of assault public officer. By operation of sub-para (ii), these convictions are to be considered as serious.

67    Similarly, at [42(d)] of its reasons, the Tribunal stated that “para 8.1.1(a) requires violent offences to be viewed very seriously”.

68    Ms Price submitted that the reasoning of the Tribunal indicates that it considered itself bound to make these findings. She argued that the two findings at [42(a)] and [42(b)] of the Tribunal’s reasons (set out above) appear to be based on the names of the offences and there is no apparent independent assessment of the seriousness of these offences by reason of the sentence imposed (which the Tribunal was required to have regard to by para 8.1.1(1)(c) of Direction 90).

69    Ms Price submitted that the Tribunal’s misapplication of Direction 90 infected the Tribunal’s ultimate conclusion as to the seriousness of the whole of Ms Price’s offending. She argued that this is made clear by the Tribunal’s consideration of whether there was a trend of increasing seriousness. She submitted that the Tribunal proceeded on the basis that the three assault convictions were to be considered “very serious”, such that her other offending was “clearly” “more serious” (see [42(d)] of the Tribunal’s reasons). She claimed that this led to the conclusion that Ms Price’s criminal offending as a whole was “very serious”. She submitted that, had the Tribunal not misapplied or misunderstood the Direction, the Tribunal’s conclusion could have been different because the Tribunal’s assessment of Ms Price’s criminal offending as a whole could have been lower than “very serious” which could then have impacted the overall weighing exercise as to whether there was “another reason” as to why the original decision should be revoked.

70    Ms Price submitted that, as the Tribunal operated on the wrong understanding of the law and failed to comply with a direction made under s 499, its decision was infected by jurisdictional error (referring to Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 at [122]).

Consideration

71    As a direction made under s 499, the Tribunal was bound to have regard to Direction 90. However, Direction 90 cannot compel a decision-maker to reach a particular decision or to give particular weight to a matter if, in the individual circumstances of the case, the decision-maker considers that different weight should be given. In Singh (at [23]), Mortimer J (as her Honour then was) observed (Raper J agreeing at [81]):

Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 (Jagroop) at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions. The principles in Drake (No 2) about policies remain generally applicable to these kinds of directions: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) at 645.

72    At first blush and viewed in isolation, the Tribunal’s statements at [42] of its reasons are troubling. They suggest that the Tribunal felt it was bound to consider the convictions in question as “very serious” and “serious”. Yet that is not what the Direction required. The obligation it relevantly imposed on the Tribunal was to consider the nature and seriousness of the non-citizen’s criminal offending and other conduct and, in so doing, take into account the view of the Australian Government and the Australian community about the seriousness of such crimes and conduct. The Direction did not require the Tribunal to find that the convictions in question were, respectively “very serious” and “serious” as the language used by the Tribunal implies.

73    But the statements at [42] of the Tribunal’s reasons cannot be read in isolation. When the Tribunal’s reasons are read as a whole, it is clear that the Tribunal did not fail to undertake its own consideration of the seriousness of Ms Price’s offending.

74    As the primary judge observed, Ms Price has a lengthy criminal history. At [32] the Tribunal said that the earliest of her more serious convictions was the August 2016 conviction which was the conviction for possessing a prohibited drug (methylamphetamine) with intent to sell or supply, for which she was sentenced to a term of imprisonment for 12 months. The Tribunal referred to the magistrate’s sentencing remarks at [32]–[33] concerning the seriousness of that offence. At [34]–[38] the Tribunal discussed the other serious offences. At [39]–[41] it summarised the parties’ submissions concerning the seriousness of the offending.

75    Ms Price submitted that there was no apparent independent assessment of the seriousness of the assault offences. She emphasised that she was fined a total of $1800 for the three offences (one common assault, two assaults on public officers) and claimed that there was no mention, let alone engagement, in the Tribunal’s reasons with the particular circumstances of this offending.

76    Contrary to Ms Price’s claim, however, the Tribunal did refer to the circumstances of that offending. It did so explicitly at [97] when it referred to her evidence that the assaults were committed during a period of post-natal depression and because she was heavily intoxicated owing to a mixture of medication and alcohol. It also adverted to this evidence at [42(e)] when it accepted that “the applicant’s offending may be linked to her mental health …” and at [43]- [44] where it stated:

The applicant contends that, when assessing her offending, the applicant’s “circumstances at the time of the offending, which included a substance abuse problem and her mental health conditions, i.e. PTSD” should be taken into account and that the applicant’s “offending, while serious, should therefore be viewed through the lens of her addictions and mental health diagnosis”.

It seems clear that much of the applicant’s criminal behaviour has occurred while the applicant has been using drugs. It is also apparent on the evidence that the applicant has long-standing mental health conditions. These are spelt out in some detail in the report of consulting psychologist Warren Simmons and in the pre-sentence reports which were before Wallace DCJ when sentencing the applicant. While those factors are relevant to a number of considerations, the seriousness of the applicant’s conduct is primarily to be assessed objectively, having regard to the factors identified in para 8.1.1 of Direction 90.

77    Ms Price submitted that in [44] the Tribunal explicitly rejected the notion that it could take into account her addictions and mental health diagnoses in considering the seriousness of her offending because, it said, cl 8.1.1 of Direction 90 required seriousness to be assessed objectively. We do not accept that this is an accurate interpretation of the Tribunal’s reasons. Far from ruling those matters out of consideration, the Tribunal accepted that they were relevant to a number of the considerations but said that the seriousness of her conduct was primarily (not exclusively) to be assessed objectively.

78    Ms Price also submitted that the Tribunal’s lack of proper engagement in the task set by the Direction 90 is further reflected in it making two findings in tension with one another about the same offences: at [42] of its reasons the Tribunal found that that the two convictions for assaulting a public officer on 15 March 2012 were both “very serious” and “serious”. She contended that the Tribunal did not expose the reasoning by which these offences were considered to be both. We cannot accept this submission.

79    It will be recalled that at [42], the Tribunal said (relevantly):

In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [31] above), I find that:

(a)    Paragraph 8.1.1(1)(a) – the applicant has two convictions of assault public officer (recorded 15 March 2012) and one of common assault (recorded 22 November 2013) which, by operation of this paragraph, must be considered as very serious.

(b)    Paragraph 8.1.1(1)(b) – as noted above, the applicant has two convictions of assault public officer. By operation of sub-para (ii), these convictions are to be considered as serious.

80    The two convictions entered on 15 March 2012 in the Fremantle Magistrates Court were for separate offences of assaulting a public officer committed on 25 September 2011, for which Ms Price was fined $500 and $700 respectively. The conviction entered on 22 November 2013 in the Rockingham Magistrates Court was for an offence of common assault committed on 17 December 2011, which resulted in a fine of $600.

81    On one view of [42], the reference to very serious relates to the common assault conviction. That interpretation is arguably supported by the preceding paragraph of the Tribunal’s reasons, [41], which contains a concession made by Ms Price’s legal representative before the Tribunal:

In closing submissions, Mr Nikolic for the applicant contended that the last offence of a violent nature, which must be considered as very serious, was committed in November 2013, nine years ago. He argued that “… on that basis … her offending is not increasing in seriousness but it certainly has been persistent”. According to Mr Nikolic, the applicant’s offences largely relate to the applicant’s drug use and her need to “feed that habit”.

82    During oral argument, senior counsel for Ms Price asserted that the clause “which must be considered as very serious” was the Tribunal’s “interpolation”, rather than an accurate account of the submission made by Ms Price’s legal representative, Mr Nikolic, apparently because there was a footnote reference to para 8.1.1(1)(a) of Direction 90 immediately after that clause. But the transcript of the hearing before the Tribunal, which counsel had not yet seen but which was later supplied, shows that the Tribunal had accurately recorded the submission although Mr Nikolic erred in referring to the date of conviction rather than the date of the offence.

83    It is likely that in [42] of its reasons the Tribunal was picking up Mr Nikolic’s concession which should be taken as an acknowledgment of the view of the Australian Government and community about the seriousness of the offending and his candid acceptance, notwithstanding the penalties imposed, of the view the Tribunal should take of it. We are fortified in reaching this conclusion by the earlier submission made by Mr Nikolic (recorded at T74/20) that the fines imposed for each of the three assaults was “evidence that these offences fell at the very lowest end of the scale of very serious offending (emphasis added)”.

84    There is no tension in the Tribunal’s findings. The Tribunal is bound to take into account the view of the Australian Government and community that certain types of offending and conduct are serious and very serious. The fact that certain types of offending and conduct are regarded seriously does not prevent them from also being regarded very seriously.

85    We now turn to the submission that the Tribunal failed to assess for itself the seriousness of each offence.

86    In rejecting Ms Price’s submission, the primary judge held at [64]–[65]:

The submission fails at its premise. The Tribunal did not fail to undertake its own consideration of the seriousness of the offending. Ultimately, the Tribunal undertook its own assessment as to whether it was appropriate to characterise the whole of the offending by Ms Price as serious and reached a reasoned conclusion to that effect based upon the number and type of offences, the frequency of offending and its cumulative effect. The Tribunal also undertook a consideration of whether there was a trend of increasing seriousness.

Viewed in context of the reasons as a whole, the statement that by operation of para 8.1.1(1) the convictions of assaulting public officers and one of common assault ‘must be considered as serious’ simply reflected the terms of the direction which required the Tribunal to have regard to a governmental view to that effect. Provided the Tribunal then undertook its own assessment and did not simply proceed on the basis of that view there is conformance with the requirements of Direction 90: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46. The Tribunal did so in the present case.

87    We respectfully agree with his Honour that the Tribunal did undertake its own consideration of the seriousness of that particular offending and the offending as a whole.

88    At [42(d)], in the course of its consideration of “the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness” for the purposes of para 8.1.1(1)(d) of Direction 90, the Tribunal gave its assessment of the relative seriousness of those offences (emphasis added):

[T]he frequency of the applicant’s offending is significant. She has been convicted of 51 offences as an adult since 2006. The applicant, in effect, suggests that the only serious offences are the three counts of drug possession with intent to sell of supply (see [40](d) above). I do not accept that. In addition to her three convictions for possession of a prohibited drug with intent to sell or supply, the applicant, as an adult, has 12 driving related offences (including drink driving), three convictions for assault (including two for assault a public officer), seven convictions for stealing, two convictions for stealing a motor vehicle, four convictions for possession of a prohibited drug or drug paraphernalia, three convictions for possession of stolen or unlawfully obtained property (for which the applicant received sentences of imprisonment), ten convictions for gains benefit by fraud, one conviction for carried an article with intent to injure, one conviction for possession of a firearm/ammunition, one conviction for burglary and commit an offence in a dwelling as well as five sundry other offences.

The sheer number and types of which the applicant has been convicted over a 15-year period makes her criminal record very serious. To describe it as being “lengthy” as the applicant does (see [40(a)] above), downplays the seriousness of the offences committed, the frequency at which they were committed and the repetition of similar offending.

I also reject the applicant’s argument that there is not a trend of increasing seriousness in her offending (see [41] above). The argument that, because none of the applicant’s convictions since 2013 has involved violence, there is not a trend of increasing seriousness, is fundamentally flawed. The mere fact that para 8.1.1(1)(a) requires violent offences to be viewed very seriously, does not mean that if subsequent offences do not involve violence there is, by definition, no trend of increasing seriousness. Clearly the offences committed after the last of the applicant’s violent offences were more serious than the assaults for which the applicant received fines in 2012 and 2013. Since the offences involving violence, the applicant has committed offences which have resulted in the imposition of sentences of imprisonment totalling 41 months. I acknowledge that the most serious of the offences were committed in December 2017 (for which the applicant was sentenced in March 2021) and that the applicant appears to have continued to offend up to the time that she was arrested in January 2019, however, even taking that into account, the offences committed by the applicant from January 2016 (possession of a prohibited drug with intent to sell or supply committed in New South Wales) to January 2019 when she was arrested and taken into custody, are more serious than the applicant’s earlier offences. I am satisfied that there is a trend of increasing seriousness.

89    The Tribunal concluded at [45] (emphasis added):

The offences of which the applicant has been convicted are clearly serious offences, particularly the three offences of possession of a prohibited drug with intent to sell or supply for which the applicant received not insubstantial prison sentences. I am also conscious of the comments made by the magistrate and the judge in sentencing the applicant as to the seriousness of the three possession with intent to sell or supply charges (see [32], [37] and [38] above). This consideration requires the decision-maker to take into account the factors identified in the sub-paragraphs of paragraph 8.1.1. The number and type of offences of which the applicant has been convicted, the frequency of the applicant’s offending and the cumulative effect of the offending cause me to characterise the applicant’s criminal offending as very serious.

90    The submission of Ms Price, with respect, commits the error of reading the Tribunal reasons sequentially which is to ignore the totality of the reasons, read fairly: see Minister for Immigration and Border Protection v Tran (2015) 232 FCR 540 at [24] (Jagot J). What is clear from [42(d)] and [45] is that the Tribunal did evaluate for itself the seriousness of the assault offences understood in the context of the totality of the offending.

91    Thus, while at first blush the language used by the Tribunal in [42] of its reasons suggests otherwise, we are satisfied that the Tribunal did not misunderstand or fail to comply with para 8.1.1(1)(a) of Direction 90. The posited errors are merely instances of “looseness [of] language” or “unhappy phrasing” which are insufficient to amount to reviewable error, the product of the kind of “over-zealous” scrutiny deprecated by the courts: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

92    In these circumstances it is unnecessary to consider the Minister’s application for leave to rely on a notice of contention that error of the kind alleged was not material to the outcome.

Conclusion

93    In conclusion, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    20 October 2023