FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Nuuamoa [2024] FCAFC 13

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s objection to competency be overruled.

2.    The appeal be allowed.

3.    The declaration made on 13 June 2023 be set aside.

4.    Orders 4, 5 and 6 made on 13 June 2023 be set aside and in lieu thereof:

(a)    The amended originating application dated 26 April 2022 be dismissed.

(b)    The respondent (applicant in the Court below) pay the costs of the appellant (first respondent in the Court below) as agreed or assessed.

5.    The first respondent pay the appellant’s costs of the appeal as agreed or assessed, except the costs of the appellant’s interlocutory application to adduce fresh evidence dated 3 November 2023.

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

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal by the Minister for Immigration, Citizenship and Multicultural Affairs from a declaration and orders made by a judge of this Court consequent upon the first respondent, Mr Mafoe Chanel Nuuamoa, succeeding on one out of four grounds in an amended originating application. By a notice of objection to competency, Mr Nuuamoa asserts that the appeal is incompetent.

2    For the reasons that follow, the appeal is competent and must succeed. As a result, the primary judge’s declaration of jurisdictional error and invalidity should be set aside with the consequence that the visa cancellation decision made by a delegate of the Minister on 21 October 2020 is reinstated.

Overview

3    Mr Nuuamoa is a citizen of New Zealand. He arrived in Australia in 1997 when he was 14 years of age on a Class TY Subclass 444 special category temporary visa available on arrival to New Zealand citizens. The visa was reissued when he most recently arrived in Australia in 1999. He is now 40.

4    Between 2002 and 2020, Mr Nuuamoa was convicted and sentenced on a number of offences. The sentences included 18 months detention in a youth detention centre for recklessly causing serious injury and reckless conduct endangering serious injury. Numerous sentences for a range of further offences followed that sentence.

5    On 28 September 2020, Mr Nuuamoa was convicted on offences of theft of a motor vehicle, possession of a prohibited firearm, retention of stolen goods, and contravention of a community correction order. His aggregate sentence was four months’ imprisonment and a community corrections order for 18 months, subsequently determined to expire on 21 October 2020. On that day, he was notified at the prison that his visa had been cancelled under the mandatory visa cancellation provision in s 501(3A) of the Migration Act 1958 (Cth). All further references to statutory provisions are to those in the Migration Act unless stated otherwise.

6    Mr Nuuamoa sought revocation of the visa cancellation decision under s 501CA(4), but this was refused by a delegate of the Minister (most likely a different delegate to the delegate who made the cancellation decision, but that prior decision is not before this Court). The non-revocation decision was affirmed by the Tribunal. While the Tribunal doubted the validity of the original visa cancellation, it found that this did not affect its duty to consider whether there was “another reason” for revoking that cancellation decision under s 501CA(4). While the Tribunal’s approach was understandable having regard to the state of the authorities at the time, it was incorrect for the reasons expressed by Rares J (Yates J agreeing) in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 6; 289 FCR 256 at [47] that while only a court can authoritatively determine the question of jurisdiction for the purposes of s 501CA(1), the delegate and Tribunal are still required to form a view that they have jurisdiction to deal with the matter before them. A court may later be called upon to determine authoritatively whether a conclusion reached about jurisdiction was correct or incorrect.

7    The direct challenge by Mr Nuuamoa to the affirming of the non-revocation decision on other grounds failed, and this has not been pursued further by him. However, in this Court he maintained his challenge to the visa cancellation under s 501(3A) as a jurisdictional prerequisite to the valid operation of s 501CA(4). The mandatory visa cancellation regime in s 501(3A) is as follows:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8    There was never any issue that the first limb of s 501(3A) in paragraph (a) was satisfied because it was clear that Mr Nuuamoa had a substantial criminal record. His successful ground of review before the primary judge was based on a finding by her Honour that the Minister had not established that Mr Nuuamoa was, at the time of the cancellation decision, still “serving a sentence of imprisonment, on a full-time basis in a custodial institution” as required by s 501(3A)(b). Without the existence of that fact, the jurisdictional basis for the application of both the mandatory visa cancellation regime in s 501(3A), and therefore the visa cancellation revocation regime in s 501CA, did not exist.

9    The primary judge, in concluding that it had not been proven that Mr Nuuamoa was still serving a full-time sentence of imprisonment at the time of the cancellation of his visa, accepted that Mr Nuuamoa had the onus of establishing jurisdictional error. Her Honour found that:

(a)    Mr Nuuamoa had adduced sufficient evidence to establish that he had been released from prison before he was given notice of his visa cancellation so as to shift the evidential onus to the Minister to prove that Mr Nuuamoa had not been released from prison before the cancellation decision was made;

(b)    there was insufficient evidence to prove that fact.

That conclusion is challenged by ground 1 in the notice of appeal.

10    The primary judge also found that even if the Minister had been able to establish that the cancellation decision was made prior to Mr Nuuamoa’s release, the decision taking place on the last day of his sentence did not satisfy the requirement in s 501(3A)(b) that he still be serving a sentence of imprisonment on a full-time basis. That was because her Honour was of the view that on the day of release, a prisoner has already served their sentence and accordingly the sentence could not be described as still being served on a full-time basis. That conclusion is challenged by ground 3 of the notice of appeal (ground 2 having been abandoned).

11    The Minister accepts that in order for the appeal to succeed, both grounds 1 and 3 must succeed. Although Mr Nuuamoa contends that the alternative finding challenged by appeal ground 3 is obiter, that point need not be decided as the issue should be addressed in any event.

12    The primary judge concluded the reasons for judgment as follows (at J[131]):

The applicant is entitled to a declaration that the purported s 501(3A) decision of the delegate on 21 October 2020 was of no legal effect. As such, the appellant will be entitled to be released immediately from immigration detention.

13    Her Honour made the following declaration:

The decision of the delegate of the first respondent dated 21 October 2020 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affected by jurisdictional error and invalid.

Notice of objection to competency

14    By a notice of objection to competency, Mr Nuuamoa asserts that the combined effect of the last sentence of the judgment and the declaration made, reproduced in the two preceding paragraphs above, was that the primary judge had in substance issued a writ of habeas corpus from which this Court had no jurisdiction to entertain an appeal.

15    The notice of objection to competency must fail at the first hurdle. It is plain that no issue of unlawful detention arose at any stage in the proceeding before the primary judge, with no relief of that kind ever being sought. Moreover, nothing in the nature of a writ of habeas corpus was ever granted, so no appeal is or can be on foot to challenge it.

16    The terms of the declaration made by her Honour reflect the issue that was being litigated in relation to the successful fourth ground of judicial review, now challenged by the Minister on appeal. The second sentence of J[131] reflects no more than an observation by her Honour that as consequence of the declaration of invalidity of the cancellation that was made, which was only prospective and not retroactive, Mr Nuuamoa was entitled to be released by reason of the ordinary operation of the Migration Act. There is no evidence or suggestion that the declaration was not acted upon. Mr Nuuamoa was released from immigration detention without any unlawful detention ever taking place.

17    The notice of objection to competency must be overruled.

The evidence before the primary judge

18    Mr Nuuamoa did not file any direct evidence, nor give evidence himself, before the primary judge about the service of the visa cancellation decision upon him, nor where he was or what he was doing at the time that took place. The material before the primary judge on this topic was confined to the following documents:

(a)    a file note from the Department of Home Affairs with the time and date of 9.06 am on 21 October 2020, stating that the writer had contacted the Sentence Calculation and Warrant Administration (SCWA) section of the relevant Division of the Victorian Department of Justice and Community Safety and been advised that Mr Nuuamoa “is serving a sentence of imprisonment on a full time basis in Port Phillip Prison in Victoria”;

(b)    the decision record for the delegate’s mandatory visa cancellation decision with the time and date of 10.58 am on 21 October 2020:

(i)    noting on the first page that the earliest release date was recorded as 26 October 2020;

(ii)    on the last page checking a box that “The person continues to be held in a custodial institution on a full time basis”; recording satisfaction that Mr Nuuamoa met the requirements of both paragraph (a) and paragraph (b) of s 501(3A) and the delegate therefore must cancel his visa; and checking boxes labelled:

  •  “Prison emailed details of cancellation”

  •  “Visa holder sent decision via registered post/email (choose one) with a written notice inviting the person to make representations to the Minister about revocation”

  •  “Ministerial Direction attached to written notice”

  •  “Request for Revocation Form attached to written notice”

(c)    an email sent at 11.06 am on 21 October 2020 by the National Character Consideration Centre (NCCC) within the Department of Home Affairs to Port Phillip Prison and in terms addressed to the prison authorities and asking that the six attached documents be given to Mr Nuuamoa, including a notice of visa cancellation decision from the Department of Home Affairs addressed to Mr Nuuamoa signed by the delegate and dated 21 October 2020, marked “By Hand”; the email was also sent to SCWA (the sentence calculation and warrant administration section at the Victorian Department of Justice) and to another email address at the Victorian Department of Justice;

(d)    an email from Port Phillip Prison to NCCC sent at 12.36 pm on 21 October 2020, attaching an acknowledgement of receipt of the notice of visa cancellation signed by Mr Nuuamoa, and countersigned by a Corrective Services Officer;

(e)    a file note from Corrections Victoria dated 25 March 2021 recording Mr Nuuamoa’s last incarceration dates as being from 8 August 2020 to 21 October 2020;

(f)    the relevant part of the Tribunal’s reasons, which is as follows (AAT[22] to AAT[28]):

[22]    Mr Nuuamoa’s evidence was that on 21 October 2020, which is the date he completed the prison sentence imposed by the Court, he had expected to be released. He was processed by the corrections authorities at the prison and readied to leave. He said he was then asked to wait in a cell. The Applicant said that officers of the Australian Border Force (‘ABF’) then arrived. He was given a letter (GD, p 153 and p 411) notifying him that his visa had been cancelled. These ABF officers then took him into immigration detention.

[23]    The Tribunal was concerned on the evidence that Mr Nuuamoa may have, in fact, completed his prison sentence when the decision to cancel his visa was made and the notice (dated 21 October 2020) was served, which would mean that section 501(3A)(b) was not satisfied. The advice from Corrections Victoria (GD, p 151) was that he completed his most recent period in full-time prison custody on 21 October 2020. After this query was raised, the Respondent offered to provide a written submission on this question by the end of 8 September 2021, which was done.

[24]    That written submission of the Respondent relevantly said:

At 9.06am on 21 October 2021, a Department officer contacted Port Phillip Prison and confirmed the applicant was currently serving a prison sentence.

(G Documents, page 321 (G321)).

[25]    This is not factually correct. Page 321 of the GD is a file note from an officer of the Department stating that the officer had emailed the sentencing area of the Victorian Department of Justice and Community Safety on 21 October 2020 and had been advised Mr Nuuamoa was serving a prison sentence. The file note is not signed but has the author’s position number and they have typed the time of completing the note as 9.06 am. It is not plausible that the email making the inquiry could have been sent, that the Victorian authorities could have checked their prisoner records and responded, and that the one- page file note could have been written – all within one minute. It also appears not to have been the prison where Mr Nuuamoa had been serving his sentence that was emailed but an administrative area of the Victorian Justice Department.

[26]    The note goes on to say that the Minister’s delegate decided to cancel the visa at 10.58 am, i.e. almost two hours later. A letter advising of the cancellation was then sent to the prison to give to Mr Nuuamoa. The evidence of the Applicant that he had been processed in the usual manner as he had completed his sentence is plausible, as is his evidence that, after completion of this release procedure, he was then asked to go and wait in a cell.

[27]    It would seem to the Tribunal that for a mandatory cancellation decision to be made on the very day a non-citizen prisoner is to be released having completed his or her sentence is perilous administrative practice, because the consequence may be the invalidity of the visa cancellation.

[28]    After receiving his evidence at the hearing, the Tribunal explained to the Applicant that, although the Respondent had offered to provide further submissions on the question, the Tribunal was not able to review whether the cancellation of his visa was valid, but that he did have an avenue to contest that before the Federal Circuit Court. I made clear to Mr Nuuamoa that my task was to review whether the delegate’s decision not to exercise the discretion to revoke the mandatory cancellation of his visa was the correct decision in law, and whether it had been in all the circumstances exercised in a preferable manner. The delegate who decided not to revoke the mandatory cancellation may or may not have been the same delegate who originally cancelled the visa. But it is indisputable that these were separate decisions, and the second one to decline to revoke the cancellation is reviewable by the Tribunal under section 500(1)(b) of the Act.

The reasoning of the primary judge

19    The only successful judicial review ground before the primary judge, being that there was jurisdictional error by reason of the visa cancellation decision being made when Mr Nuuamoa was no longer “serving a sentence of imprisonment, on a full-time basis in a custodial institution” is the subject of the present appeal by the Minister. The operative part of her Honour’s reasons is as follows (J[121] to J[126]):

[121]    The onus lies on the applicant to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50;258 CLR 173 at [24].

[122]    Putting aside for a moment the question of whether the applicant could be considered to be serving a sentence “on a full-time basis” on the day of their release from prison, the question before the Tribunal was whether the applicant was still serving a sentence of imprisonment when the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Act at 10.58 am on 21 October 2020.

[123]    The decision to cancel the applicant’s visa was expressed to be made at 10.58 am. A copy of the notice of cancellation was emailed to two justice.vic.gov.au emails: apb.documentation@justice.vic.gov.au and SCWA.OperationalEnquiries@justice.vic.gov.au at 11.06 am the same day. At the time the applicant was given the notice, the applicant’s evidence is that he had been processed and released from prison, and waiting in a cell.

[124]    I consider that the applicant’s evidence that he had been processed and released before he was given the notice is sufficient to shift the evidential onus to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment at 10.58 am when the decision to cancel the visa was made. The evidence before the Tribunal which I have set out above does not establish that fact.

[125]    I endorse the Tribunal’s comment at D[27], that for a mandatory cancellation decision to be made on the very day a prisoner is to be released having completed his or her sentence is perilous administrative practice, because the consequence may be the invalidity of the visa cancellation. Where Parliament intended that a mandatory cancellation pursuant to s 501(3A) would occur only in the clearest of situations pursuant to an exceptional, closely confined power (XJLR at [68]), and the Explanatory Memorandum expresses an intention that the cancellation decision be made before the visa holder is released, the delegate takes a risk waiting until the day of release to make the cancellation decision.

[126]    Even if the Minister was able to establish that the cancellation decision was made prior to the applicant’s release, I do not consider that the last day of the applicant’s sentence, the day on which he was released, satisfies the requirement of s 501(3A)(b), that the applicant be serving a sentence of imprisonment, on a full-time basis. On the day of their release, a prisoner has served their sentence, and given their imminent release, that sentence could not be described as still being served on a full-time basis.

20    The primary judge’s reasons at J[123] above are incomplete in that the documents before her Honour summarised above, aided by the Tribunal’s observations at AAT[22], make it clear that the visa cancellation decision was also emailed to the Port Phillip Prison at 11.06 am on 21 October 2020, and that it was printed out and given to Mr Nuuamoa, as requested in that email, apparently by Australian Border Force (ABF) officers later that day. He signed an acknowledgment of receipt, witnessed by a Corrective Services Officer who must also have been present, which was sent back as also requested in the covering email.

The grounds of appeal

21    The substance of the first ground of appeal asserts that the primary judge erred by finding that there was sufficient evidence before her Honour to conclude that the evidential onus had shifted to the Minister and that Mr Nuuamoa had discharged his onus of proof in establishing that he was not “serving a sentence of imprisonment, on a full-time basis in a custodial institution” as required by s 501(3A)(b). The substance of the third ground of appeal is that the primary judge erred by misconstruing s 501(3A)(b) as requiring that Mr Nuuamoa serve an entire day in prison on the final day of his sentence before he could be considered to be serving his sentence on a “full-time basis” on that day.

22    It is common ground that those appeal grounds and the nature of this appeal calls for this Court to engage in a real review of the evidence that was before the primary judge, and that her Honour enjoyed no advantage over this Court in that regard, given that all of the evidence and other material below was documentary.

23    The general observation can be made that if a person is detained in prison after a sentence has expired, that is necessarily unlawful unless there is some other legal basis for the detention to continue. If a person is lawfully released before the expiry of the sentence, it means only that the remaining portion of the sentence is not being served in prison, and indeed not required to be served in prison. It follows that under any sentencing and custodial regime, it may be expected that a prisoner will be released on the last day of their sentence (and possibly even before that day if lawfully directed or authorised), but before it has expired, to ensure that there is no period of unlawful detention. That contextual reality informs the approach that must be taken to drafting, implementing and interpreting sentencing and custodial legislation. It follows that, before turning to the competing arguments, it is convenient and efficient to consider the steps that were taken in relation to Mr Nuuamoa in the context of the sentencing and custodial legislation in Victoria. The primary judge did not have the benefit of submissions containing analysis of the kind that immediately follows, which delves into the scheme for sentencing and custody that we find to be determinative on ground 1.

Consideration of the relevant Victorian legislation and sentencing and custodial evidence

24    Section 17(1) of the Sentencing Act 1991 (Vic) provides that, subject to ss 16 and 18 (which are not presently relevant), a sentence of imprisonment commences on the day that it is imposed unless the offender is not then in custody, in which case it commences when the offender is apprehended under a warrant. Mr Nuuamoa was in court and already in custody when he was sentenced to four months’ imprisonment commencing 28 September 2020 and expiring on 27 January 2021 (122 days), so his sentence commenced on the day of sentencing.

25    Section 18(1) of the Sentencing Act provides for time already held in custody in relation to proceedings for the offence upon which sentence is passed to be deducted, but this does not apply to a period of custody of less than a day: s 18(2). The transcript of the sentence proceeding on 28 September 2020 reveals that the magistrate deducted 52 days for such time already served, leaving 80 days to be served. The magistrate also referred to Mr Nuuamoa serving less time due to emergency management days, which are dealt with by reg 100 of the Corrections Regulations 2019 (Vic), allowing for the deduction of up to four days for each day or part of a day on which an industrial dispute or emergency exists in a prison under s 58E(1)(a) of the Corrections Act 1986 (Vic) (reg 100(a)) and up to 14 days in other circumstances of an unforeseen and special nature under s 58E(1)(b) of the Corrections Act (reg 100(b)). There is no provision for the deduction of part days. No other basis for deductions from the four-month prison sentence were identified by the magistrate.

26    In order for Mr Nuuamoa’s sentence of four months’ imprisonment imposed on 28 September 2020 to expire only 22 days later on 21 October 2020, on top of the 52 days deducted by reason of time already served, another 48 days must have been deducted, apparently for emergency management days.

27    While there is no provision in the Sentencing Act expressly providing that a sentence ends at the end of the last day of a sentence period, nor is there any provision for any day of the sentence other than the first day to be less than a full calendar day. On that basis, the sentence imposed expired at the end of the last day of the sentence after deductions were applied, being at the stroke of midnight. To be precise, at 11:59:59 pm on the last day of a sentence, it will not yet have expired, on the stroke of midnight it will expire, and thereafter it will have expired. It follows that there is no basis for concluding that Mr Nuuamoa’s sentence expired before the stroke of midnight on 21 October 2020, because there is no identified provision for serving part of a day except for the first day, and no provision identified for deducting less than a full day. As the provisions of the Corrections Act considered below allow, release from prison may take place at any time during the last day of the sentence so that the sentence formally continues until its expiry, but does not continue to be served in prison (and thus in a “custodial institution” for the purposes of s 501(3A)(b)), for the balance of the day from release from prison up to midnight.

28    This reasoning is supported by Pt 1A of the Corrections Act, dealing with legal custody, including when that ends. It provides a logical equivalence between serving a sentence of imprisonment in a custodial institution, and being in legal custody during the term of a sentence of imprisonment, because legal custody is a necessary part of serving a sentence of imprisonment. In particular, in summary:

(a)    s 6A(1) provides that a person is deemed to enter the legal custody of the Secretary to the Department of Justice and Community Safety when an order of imprisonment is made and the person is either taken into physical custody or received into prison on behalf of the Secretary;

(b)    s 6A(2) provides that a person who enters the legal custody of the Secretary under subsection (1) is deemed to remain in that custody until that custody ceases under Pt 1A;

(c)    s 6B addresses when legal custody of the Secretary ceases, including:

(i)    when the sentence expires: s 6B(1)(a);

(ii)    when the Secretary acting under lawful direction or authority releases the person from the legal custody: s 6B(1)(b).

29    Section 6B(1)(b) makes it clear that legal custody may cease before a sentence expires, not just upon its expiry by reason of the operation of s 6B(1)(a). This facilitates release, and thus ceasing to serve a prison sentence in custody before sentence expiry, so as to avoid unlawful detention taking place. The Tribunal at AAT[22] summarised Mr Nuuamoa’s evidence as being that after being processed by corrections authorities and readied to leave, he was asked to wait in a cell. The reference to Mr Nuuamoa being processed and readied to leave necessarily implies that the correctional authorities were dealing with some lawful direction or authority to enable Mr Nuuamoa to be released.

30    The Tribunal’s summary of Mr Nuuamoa’s evidence is that he was sitting waiting in a cell when ABF officers arrived, that he was then given a letter (identified by the Tribunal as the notice of the visa cancellation decision and the acknowledgment of receipt of that notice) and that those ABF officers then took him into immigration detention. There is no suggestion that there was anything other than a seamless transition from Mr Nuuamoa being in the custody of the Secretary to him being in the custody of the ABF officers in the form of immigration detention. As we explain below, the “processing” of Mr Nuuamoa for release — whatever that involved — did not constitute his release from custody of the Secretary.

31    It follows that Mr Nuuamoa’s sentence expired at the stroke of midnight, at the moment 21 October 2020 ended and the next day began, and that he ceased serving that sentence in prison when he was released from the custody of the Secretary into the custody of the ABF officers and taken away. Hence he was not “released” from prison at the earlier point of being processed. The only logical and available inference is that Mr Nuuamoa left the prison in the custody of the ABF officers and not before.

Ground 1

32    This ground asserts that the primary judge erred in finding that there was sufficient evidence before her Honour to conclude that the evidential onus had shifted to the Minister and that Mr Nuuamoa had discharged his onus of proof to prove that the condition in s 501(3A)(b) of still serving a full-time sentence at the time of the cancellation decision had not been met.

33    It is not readily apparent why there was any basis for there to be any shifting of the evidential onus from Mr Nuuamoa to the Minister. As was pointed out by the Minister in the course of argument, Mr Nuuamoa was imprisoned pursuant to a Victorian sentence handed down by a Victorian magistrate under a Victorian statute, and his sentence served in a Victorian prison. The Minister had no advantage over Mr Nuuamoa in terms of access to evidence about any aspect of that process. As Dixon CJ observed in Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 at 371:

But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at p.65; 98 ER 969 at 970 … .

34    Further on this topic, the Minister correctly relies upon the succinct reasoning in Citadel Financial Corporation Pty Ltd (Administrator Appointed) v Action Scaffolding and Rigging Pty Ltd (in liq) [2019] FCAFC 145 (Besanko, Colvin and Stewart JJ) at [56] that the party with an onus on an issue must discharge both the evidential burden and the burden of proof, and that for the latter “there must be sufficient evidence”, with the test being “whether the evidence, if uncontradicted, would justify persons of ordinary reason and fairness in affirming the proposition maintained by the proponent having regard to the standard of proof to be applied”. The question to be determined by the primary judge was whether Mr Nuuamoa had discharged his onus of proof as to there being a jurisdictional error on the part of the Tribunal, by establishing that he was no longer serving a sentence of imprisonment on a full-time basis in a custodial institution at the time that the visa cancellation decision was made at 10.58 am on 21 October 2020.

35    The primary submission made by Mr Nuuamoa on this point is effectively that him being processed for release meant that he was no longer serving his sentence, such that the condition in s 501(3A)(b) was not met. The problem with this argument is that it depends upon conflating the paperwork for release being finalised, and that release taking place. Finalising paperwork for release cannot properly be equated with release itself by which a sentence ceased to be served. Senior counsel for Mr Nuuamoa was unable to point to any evidence that he had been physically released from detention on behalf of the Secretary prior to being handed over to the ABF officers. Nor can the argument advanced on Mr Nuuamoa’s behalf that serving a sentence of imprisonment on a full-time basis as required by s 501(3A)(b) is a reference only to that imprisonment taking place for an entire day be accepted. Rather, as addressed in more detail below, the Minister’s submission that this is a reference to the nature of the sentence being served should be accepted. This leaves for consideration the balance of the Minister’s submissions.

36    The Minister submits that there was no evidence that Mr Nuuamoa had been released from prison as found at J[123] so as to have ceased serving his sentence of full-time imprisonment, as opposed to him still waiting in a cell at the prison when he was served with the notice of cancellation of his visa, necessarily some period of time after the cancellation decision had been made. The Minister points out that the summary of Mr Nuuamoa’s evidence by the Tribunal at AAT[22] goes no further than saying that he had been processed and “readied” to leave (that is, readied to be released). The Minister contends that this was an insufficient basis to shift any evidential burden (even if that were capable of arising), and also insufficient for Mr Nuuamoa to discharge his onus to prove jurisdictional error. Those submissions must be accepted.

37    The Minister correctly submits that the evidence simply did not go far enough to permit the necessary conclusion to be reached that Mr Nuuamoa was no longer serving his sentence of imprisonment, because it did not establish that he had been actually released from custody in prison, so as to no longer be serving his sentence, when he was served with notice of the cancellation of his visa, let alone at the earlier point in time when the decision was made. The substance of the argument is that the point when a failure to call evidence would result in the necessary conclusion as to actual release having taken place, was never reached. This should be accepted.

38    While the Minister accepts it could safely be concluded that the sequence of events was the cancellation decision was made at 10.58 am, and that it was served on Mr Nuuamoa between 11.06 am (when it was emailed to the prison) and 12.36 pm (when his signed acknowledgment of receipt was emailed back by the prison), the Minister further submits that there is nothing but guesswork to support any conclusion that Mr Nuuamoa had reached the point of no longer serving his sentence before 10.58 am. That is undoubtedly correct.

39    The Minister contends that Mr Nuuamoa’s account as recorded by the Tribunal only described being processed for release and then being asked to wait in a prison cell where he was given the notice of the visa cancellation decision, and said nothing at all about where he was at the earlier time when the decision was made, which is the only relevant time for the purpose of s 501(3A)(b). Indeed, the Minister submits, because Mr Nuuamoa was told at that time to wait in a prison cell, that suggests that the prison officers already knew about the visa cancellation decision having been made. That is, the wait was for the purpose of enabling the emailed material to be given to Mr Nuuamoa and for him to be handed over. It is not necessary to make any findings (inferential or otherwise) regarding whether the prison officers knew about the visa cancellation when they told Mr Nuuamoa to wait in the cell. The fact is, he was not released from custody but was still in custody, in a cell, when he received the notice of cancellation. This is further borne out by the fact that a corrective services officer witnessed Mr Nuuamoa signing the receipt for service of the notice of visa cancellation. There is no suggestion by Mr Nuuamoa that he had ever come close to leaving the prison except in the company of ABF officers, and he cannot logically be regarded as having been released before he was taken into immigration detention by being released into the custody of ABF officers.

40    Ground 1 must succeed. The primary judge erred in finding that Mr Nuuamoa discharged the onus of proving jurisdictional error. As already noted, ground 2 was abandoned by the Minister.

Ground 3

41    The primary judge at J[126], reproduced above, found in the alternative that the last day of Mr Nuuamoa’s sentence did not satisfy the requirement of serving a sentence of imprisonment on a full-time basis, even if the visa cancellation decision had been made prior to the critical time of his release from prison. Her Honour’s reasoning appears to be that part of a day is not a full day and is therefore not full-time service of a sentence of imprisonment.

42    The Minister submits that the conclusion reached by the primary judge that release part way through the day on 21 October 2020, even if that took place after the visa cancellation decision was made, did not constitute “serving a sentence of imprisonment, on a full-time basis in a custodial institution” as required by s 501(3A)(1)(b), rested on a misconstruction of that expression. The submission is developed by reference to the need to give words of a statutory text their ordinary and natural meaning, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53; 194 CLR 335 at [69]-[71], [78], North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] and Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 65; 250 CLR 503 at [39].

43    Applying those principles, the Minister submits that:

(a)    at all times, Mr Nuuamoa was “in a custodial institution”, there being no suggestion he had left the prison by the time the visa cancellation decision was made at 10.58 am on 21 October 2020, noting that he was apparently taken into immigration detention rather than ever being at liberty;

(b)    the proper construction of the balance of the expression, “serving a sentence of imprisonment, on a full-time basis”, involves being sentenced to full-time imprisonment and the sentence so imposed not having expired, having regard to the legislation that governs the sentence and the order made by the sentencing court, a construction that is supported by the plain terms of s 501(3A);

(c)    the expression “serving a sentence of imprisonment, on a full-time basis” should be read as a whole, which invites consideration of the basis upon which the sentence is being served, with the phrase “full-time basis” describing the nature of the sentence itself, namely being continuous, in contrast with such arrangements as broken periods of incarceration such as by periodic detention, which is addressed in s 501(8), and participation in drug rehabilitation schemes, which is addressed in s 501(9);

(d)    the purpose of s 501(3A) supports the construction of “full-time basis” being concerned with the nature of the sentence imposed, having regard to the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) which introduced s 501(3A), which:

(i)    at p.4, said it was to provide for “mandatory cancellation without notice, but with the ability to seek revocation, for non-citizens in full-time criminal detention who fail the character test to ensure that issues regarding their entitlement to continue to hold a visa, and the risk [they] pose to the Australian community, can be assessed prior to their release into the community”;

(ii)    at [32]-[34], said about s 501(3A), to be introduced by Sch 1, item 8:

This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.

A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CA inserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.

The intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.

(Emphasis added in the Minister’s submissions)

(e)    the words used in the Explanatory Memorandum support the interpretation already properly available that the phrase “full-time basis” goes to the nature of a sentence of imprisonment and does not cease to have that character during the part of a day before release takes place.

44    Based on the foregoing, the Minister submits that a person is serving a sentence of imprisonment on a full-time basis up to the time on a given day that it expires or the person is earlier released from that custody on that day; and that until then there has been no change in the full-time basis upon which it is being served. This is said to be where the primary judge erred, especially in assuming that once there is less than a full day of a sentence left to be served, the basis upon which it is served ceases to be full-time. Her Honour, it is submitted, effectively concluded that the sentence ceases to be served on a full-time basis at the conclusion of the day prior to release, a conclusion that was not supported by any evidence. This is submitted to be contrary to the terms of s 6B(1) of the Corrections Act, noting that there was no evidence before her Honour or before this Court about the application of this legislation and how it might have governed Mr Nuuamoa’s release from prison, and no evidence about when the sentence actually expired (beyond the ordinary understanding of it being at midnight on the last day of the sentence drawn from a consideration of the Sentencing Act).

45    Mr Nuuamoa submits to the contrary that the words in s 501(3A)(b) describe how a person was serving a sentence, not the nature of the sentence, relying upon a dictionary definition of the word “full-time” in the context of employment (normal working hours) and sport (the conclusion of a competition). He submits that as a person does not serve a sentence of imprisonment only during normal working hours, the most apt definition is that derived from sport, being “of, or relating to, something which occupies a person all the time”. He submits that s 17 of the Sentencing Act prescribes when a sentence of imprisonment commences, but not when it ends, in contrast to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that a sentence “ends at the end of the day on which it expires”. He submits that as his sentence was not expressed to end at a specific time of day, on the last day of his sentence he would only be serving a sentence on a full-time basis if he were serving it for the whole of the day, which would require him to serve his sentence until midnight. He therefore reasons that where the person finishes serving a sentence of imprisonment before midnight, they are not serving that sentence on a full-time basis on that day. This interpretation cannot be accepted because it conflates the concepts of expiry of a sentence and serving a sentence, with s 6B(1)(b) of the Corrections Act plainly permitting the service of a sentence in prison to conclude before the expiry of that sentence.

46    Mr Nuuamoa submits that the Minister’s reliance on subsections 501(8) and (9) is misplaced because each directs how the term of imprisonment is to be calculated for the purposes of the character test, which does not advance the interpretation of what is meant by “full-time”. This submission misses the point that s 501 is cast in terms that recognise different bases for serving a sentence of imprisonment, supporting the Minister’s submission that s 501(3A)(b) is concerned with the nature of the sentence being served.

47    Mr Nuuamoa relies upon the observations of Rares J in XJLR at [45] to support a strict construction of s 501(3A)(b) which does not depart from the words used. He contends that the Explanatory Memorandum does not assist the Minister because in referring to “full-time criminal detention”, “in prison” and “before the person is released”, there is a departure from the statutory language. This submission overlooks the role of extrinsic material in supporting or reinforcing an interpretation derived from the legislative language used. The Explanatory Memorandum supports the Minister’s submission that “full-time basis” is concerned with the nature of the sentence being served; there is no “departure” from the statutory language, as Mr Nuuamoa contended.

48    It may also be observed, supporting the conclusion that the primary judge erred in her collateral finding on this point, that an interpretation of s 501(3A)(b) which finds that “full-time basis” refers to a whole day rather than a part day leaves the validity of the Minister’s decision potentially dependent upon subsequent events. On her Honour’s construction, the Minister could make a decision under s 501(3A)(b) in the morning on the day that a prisoner is set to be released and that decision would be valid if the prisoner were released on the stroke of midnight, but invalid if the prisoner were released any time prior to midnight on the last day of their sentence. This leads to the precarious position of the validity of the Minister’s decision being unable to be determined as at the time it was made, with validity instead being reliant upon the subsequent actions of prison officials.

49    The Minister’s submissions must be accepted and those advanced by Mr Nuuamoa must be rejected. Ground 3 of the appeal must therefore succeed.

Conclusion

50    As both grounds 1 and 3 of the notice of appeal succeed, the appeal must be allowed. There is no apparent reason why the Minister should not have the benefit of a costs order, except for the Minister’s unsuccessful interlocutory application to adduce fresh evidence on the appeal. As already noted, Mr Nuuamoa must also pay the costs of his unsuccessful notice of objection to the competency of the appeal.

Associate:

Dated:    21 February 2024