FEDERAL COURT OF AUSTRALIA

 

Hicks v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 757

 

 

MIGRATION – judicial review – New Zealand citizen – cancellation of visa – cancellation by Minister personally – whether Minister bound to have regard to unavailability of review by Administrative Appeals Tribunal in deciding to determine case personally - failure to pass character test – substantial criminal record –  reliance upon protected material – irrelevance to existence of substantial criminal record – whether question of judicial power raised – what constitutes substantial criminal record whether applicant sentenced to two or more terms of imprisonment totalling two years or more – concurrent sentences – effective term ten months – nominal total of sentences twenty five months -  whether concurrent terms counted in total for purposes of character test – concurrent terms not counted – counting of concurrent terms constituting jurisdictional error – jurisdiction of court to grant relief - applicant returned to New Zealand – utility of relief – certiorari and prohibition issued

JUDGES AND COURTS – single judge decisions – judicial comity – decision of single judge of same or coordinate jurisdiction to be followed unless clearly wrong – authority of and confidence in courts – desirability of referral of important points of difference to Full Court

CRIMINAL LAW  - sentencing – concurrent sentences – common law principle – statutory presumption – underlying principles

 

Migration Act 1958 (Cth) s 32(2)(a), s 5, s 501(2), (6), (7), s 503A(2), (3), (6), s 474

Judiciary Act 1903 (Cth) s 39B

 

Plaintiff S157/2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 195 ALR 24 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 cited

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 cited

Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 cited

Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 FLR 162 cited

Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699 followed

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited

Police Authority for Huddersfield v Watson [1947] 1 KB 842 cited

Froom v Butcher [1976] 1 QB 286 cited

Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 cited

Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 cited

Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 cited

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 cited

La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 cited

 

 

 

STEPHEN EDWARD HICKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W356 OF 2002

 

 

FRENCH J

21 JULY 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W356 OF 2002

 

BETWEEN:	STEPHEN EDWARD HICKS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	21 JULY 2003
WHERE MADE:	PERTH

 

THE COURT ORDERS THAT:

 

1.         Certiorari issue to quash the respondent’s decision made on 26 November 2002 to cancel the applicant’s visa.

2.         The respondent be prohibited from acting upon the said decision.

3.         The parties have liberty to apply by written submission within seven days for such further or other relief as may be appropriate.

4.         The respondent pay the applicant’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W356 OF 2002

 

BETWEEN:	STEPHEN EDWARD HICKS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

 

JUDGE:	FRENCH J
DATE:	21 JULY 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1                     Stephen Edward Hicks is a citizen of New Zealand who arrived in Australia at the age of fourteen in 1986 and has lived in this country since that time.  By reason of sentences of imprisonment imposed upon him on 31 January 2001, the Minister for Immigration, Multicultural and Indigenous Affairs cancelled his visa on 26 November 2002.  He did so upon the basis that Mr Hicks did not pass the character test defined in s 501 of the Act by reason of the fact that he had ‘a substantial criminal record’ as defined by s 501(7).  The basis upon which the Minister decided that Mr Hicks had a substantial criminal record was that he had been sentenced to two or more terms of imprisonment where the total of those terms was two years or more.  In fact, the sentences which had been imposed on Mr Hicks on 31 January 2001 amounted to an effective term of ten months as they were imposed concurrently with each other.  The nominal total of the concurrent terms was twenty-five months.  The principal question in this case is whether the Minister erred in law in having regard to the nominal total of the concurrent sentences and thereby concluding that Mr Hicks had a substantial criminal record.  For the reasons which follow in my opinion the Minister erred in law in so concluding and certiorari should issue to quash the cancellation decision.

Factual Background

2                     Mr Hicks was born in New Zealand on 8 July 1972.  He is a citizen of that country.  He first entered Australia at age 12 in July 1984 for an eight-day stay.  Afterwards he returned to New Zealand.  He came back to Australia with his mother and stepfather on 18 December 1986 when he was 14 years old.  The family settled in Kambalda in Western Australia.  Mr Hicks attended Kambalda Senior High School for a year and completed Year 10.  He then undertook a boilermaker’s apprenticeship with Western Mining.  He has had a number of short absences from Australia from 9 July 1987 to 30 July 1987, 28 December 1991 to 10 January 1992, 1 September 1993 to 15 September 1993 and 25 February 1994 to 27 February 1994. 

3                     Until its recent cancellation, Mr Hicks was the holder of a visa class TY444.  This class of visa permits an indefinite stay in Australia. 

4                     Since his arrival in Australia in 1986, Mr Hicks has been convicted of a number of criminal offences.  His record of convictions is as follows:

Date	Crt	Offence	#	Penalty
13/02/1989	CC	No MDL	1	Disq hold/obt MDL 3 mths $110
18/04/1989	CC	Possess Offensive Weapon		$100
12/06/1989	CC	Juvenile consume Liq on Lic prem	1	$50
13/11/1991	PS	Cannabis possess a quantity		$150
13/11/1991	PS	Possess smoking implements	1	$150
02/04/1997	PS	Disorderly conduct	1	$100
02/04/1997	PS	False name and/or address	1	$150
02/02/1998	-	Demerit point suspension	1	MDL disq 3 mths
13/11/1998	PS	Possess prohibited drug	1	$250
12/01/2000	-	Demerit point suspension	1	MDL disq 3 mths
22/02/2000	PS	Assault Common	2	$500 each charge
22/02/2000	PS	Assault public officer	2	1-10 mths imp sent susp for 2 years 2-6 mths imp sent susp for 2 years
22/02/2000	PS	Resist Arrest	1	12 mths CBO (adult)
31/01/2001	PS	Breach of CBO (order of 22/02/2000)	1	4 mths imp conc
31/01/2001	PS	Breach of suspended sent (order of 22/02/2000)	2	1-10 mths imp cum 2-6 mths imp conc
31/01/2001	PS	Refuse name and/or address	1	1 mth conc
31/01/2001	PS	Resist arrest	1	4 mths imp conc

 

5                     The convictions recorded on 22 February 2000 in the Karratha Court of Petty Sessions arose out of an incident which occurred in the early hours of the morning of 8 January 2000 at the Trawlers Restaurant in Karratha.  It appears that after having been asked to leave the restaurant Mr Hicks went out into the car park where other persons whom he had telephoned on his mobile phone were arriving.  A policeman, Madaffari, approached him and was trying to settle him down.  Another policeman, Burke then called for police reinforcements.  Mr Hicks rushed towards the building, pushed Burke back into the building and knocked the telephone from his grasp.  He then attacked Burke and others.  He kneed Madaffari in the groin twice.  He punched another police officer, Constable GA Duthie.  When a security guard interposed himself between Mr Hicks and Burke, Mr Hicks lent around the guard and hit Burke twice.  He grabbed Burke by the throat but Burke broke his hold.  His friends whom he had called tried to remove him.  However Burke and Senior Constable FB Arthur attempted to put Mr Hicks into a police van.  However he struggled violently.  He attempted to kick and punch Burke in the groin, lashed out with his feet and connected with Arthur and Duthie and kicked Arthur in the face.  Burke sustained an injury to his right eye and Arthur to his lower lip.  Duthie had some swelling.

6                     In mitigation it was put on Mr Hicks’ behalf that he had been involved with the Rebel bikie group for about two and a half years, that three search warrants had been executed on his house and that he felt, as a consequence, that he was living in a goldfish bowl.  He had been to the Karratha International Hotel for a meal at the restaurant there which is called Gecko’s.  He saw some police officers there and they told him they weren’t there for any bikie group activity, there was no animosity.  Subsequently he went to Trawlers.  He was talking to somebody and then the drinks were cut off.  A chair fell back. The doorman came over and asked him to leave and he was prepared to comply with that because he knew the doorman.  At this point it was said on Mr Hicks’ behalf that Burke had come over and put his arm around his neck.  Mr Hicks felt his space had been invaded and he became angry.  When he was outside he became very upset.  He used his telephone to contact some friends.  According to his defence counsel he was ‘getting arced up’.  It was in that context that he committed the assaults for which he was subsequently charged.  The learned magistrate found that he had been affected by alcohol to some extent.  After reviewing the relevant sentencing authorities and the provisions of the statute, the learned magistrate said that he regarded the most serious of the offences as the assault upon Burke and the next most serious as the assault upon Madaffari.  They were both police officers.  The other assaults and the resisting arrest were part of Mr Hicks ‘out of control behaviour on that particular evening’.  He was described by the magistrate as having ‘exploded with anger’.  The magistrate described the assault on Burke as ‘very serious’ and as a ‘sustained assault’.  It was sufficiently serious to warrant imprisonment.  The learned magistrate said:

‘On balance, the assault upon Burke is the worst offence of the five offences and it calls, in my view, for a custodial sentence but it will be suspended and, similarly, the sentence for Madaffari will be a suspended sentence.  The other sentences, I’ve had regard to what should be done about those because they are lesser in terms of their seriousness but I am very concerned about the anger displayed by the defendant in respect of his behaviour on that evening and something needs to be done for the defendant in order for him to control his behaviour and his temper in particular.’

The learned magistrate also warned Mr Hicks that he would have to behave himself for two years because if he did not behave himself the consequences would be that he would go to prison as a result of the matters before the court that day.  The form of imposition of the suspended sentences and other penalties then followed in the following terms:

‘With respect to the individual sentences, and bearing in mind the comments I’ve made in terms of their seriousness, I pronounce the following sentences.  With respect to the assault upon Burke, which is by far the worst assault, you’re sentenced to imprisonment for 10 months suspended for 24 months.  You’re ordered to pay compensation of $68 to Mr Burke.

On the charge of Madaffari, 6 months imprisonment suspended for 24 months.

With respect to the assault on Duthie, you are fined $500. 

With respect to the assault on Arthur, you are fined $500.

With respect to the resisting arrest, but at that stage that was the last event it seems of this unfortunate sage, (sic) you’re sentenced to a community based order for a period of 12 months with a programme requirement to include anger management counselling.’

 

7                     Unhappily Mr Hicks committed further offences on 22 December 2000.  According to a submission which was made to the Minister for Immigration, Multicultural and Indigenous Affairs on his behalf, these offences occurred at about 5am when Mr Hicks was outside the Taipan Room in Northbridge.  A security officer working at the Taipan Room told Mr Hicks that a group of six or seven police officers, who were across the road, had arrested one of his friends.  Mr Hicks walked to the group to inquire what had happened.  However his friend was not with the police officers.  One of the police asked Mr Hicks for his name.  Mr Hicks responded by swearing at him.  Another police officer then grabbed him and others followed suit.  He was arrested and taken to the East Perth lockup.  He was charged with giving a false name and with resisting arrest.  He was sentenced on those matters and sentenced in respect of the matters the subject of his earlier suspended sentences on 31 January 2001 by his Worship Mr Malley SM. 

8                     In respect of the suspended sentence of ten months relating to the assault upon Burke, he was ordered to serve ten months imprisonment by reason of his conviction for the subsequent offences.  Similarly, in respect of the earlier assault upon Madaffari the magistrate ordered that the period of six months which had been suspended be served concurrently with the period of ten months ordered in respect of Burke.  In relation to the charge of resisting arrest for which he had been given a twelve month community based order, the order was cancelled and a term of four months imprisonment was imposed to be served concurrently with the other two sentences.  In respect of the charges to which he pleaded guilty on 31 January 2001, he was sentenced to one months imprisonment for giving a false name and four months imprisonment for resisting arrest.  These were each to be served concurrently with the other terms.  This meant an effective total period of ten months imprisonment to be served in respect of all charges.

9                     On 17 May 2001, Mr Hicks was released on a home detention order which he completed on 23 August 2001.  On 13 July 2001, he married Kylie Rachel Bell whom he had met in 1997.  His wife is an Australian citizen.  She also has a son from a previous relationship.  The son’s name is Jay.  The son resides with his father in Morley.  Mr Hicks also has one daughter from a previous relationship.  Her name is Jenna-Rae.  She is eight or nine years old.  Mr Hicks has a brother living in Perth who has been an Australian citizen for two years.  His mother and stepfather are Australian permanent residents and reside in Kambalda.  His sister is an Australian citizen and is married with three young children.  They all reside in Kambalda.  Mr Hicks is godfather to his niece Laura.  His family in New Zealand consists of his father, a brother, three half sisters and one half sister but, according to Mr Hicks’s submission to the Department, they never keep in touch. 

10                  On 26 July 2001, Mr Hicks was notified by the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) of the Minister’s intention to consider cancelling his visa under s 501 of the  Migration Act 1958 (Cth).  He was also provided with a copy of General Direction No 17.  Submissions were prepared and sent to DIMIA by Mr Hicks’ migration agent on 16 August 2001. On 4 September 2001, DIMIA renotified Mr Hicks of the intention to consider cancelling his visa and provided him with a copy of the New General Direction No 21. 

11                  On 26 November 2002, the Minister decided, under subs 501(2) of the Migration Act, to cancel Mr Hicks’ visa.  In so doing he acted upon a departmental submission which referred to the sentences imposed upon Mr Hicks on 31 January 2001 in the Perth Court of Petty Sessions.  It was said in the submission:

‘Grounds

[2]  Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)), and the person does not satisfy the Minister that he or she in fact passes the character test (s 501(2)(b)).

[3]  Under Section 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record within the meaning of s 501(7).

[4]  Under s 501(7)(d), a person is deemed to have a substantial criminal record if he or she has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.  Policy states that:

.           It is intended that sentences be ‘totalled’ irrespective of the time and place at which each sentence was imposed.

Reasonable Suspicion

[5]  On 31 January 2001, Mr HICKS was sentenced by the Perth Court of Petty Sessions in Western Australia for the following s 501(7)(d) applicable offences:

.           1          Breach of CBO (order of 22/2/2000)              4 mths imp conc

.           2          Breaches of Suspended sentence

                        (order of 22/2/2000)                            1          10 mths imp cum

                                                                                    2          6 mths imp conc

.           1          Refuse name and/or address                           1 mth imp conc

.           1          Resist Arrest                                                    4 mths imp conc

[6]  It is open for you to find on the above facts that there is a reasonable suspicion that Mr HICKS does not pass the character test due to the fact that he has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.’

12                  By way of evidence in support of the stated grounds for cancellation, Mr Hicks’ criminal history was set out and then a reference made to ‘protected’ information thus:

‘[8]  Additional evidence of relevance is set out in information that is “protected” for the purposes of section 503a of the Act (protected information).  Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure.  The protected information is set out at Annex G.’

13                  In paragraph 9 reference was made to the contention in Mr Hicks’ submission that:

‘In terms of a substantial criminal record pursuant to the Act, Mr Hicks has been sentenced to a total period of imprisonment of 14 months, less than the two years mentioned in the Act when concurrent sentences are taken into account.’

 

 

It was said then that based upon the above information it was open to the Minister to find that Mr Hicks had a substantial criminal record and therefore could not pass the character test.

14                  The submission then moved on to discretionary considerations and referred the Minister to his General Direction 21, the notifications sent to Mr Hicks on 26 July 2001 and 4 September 2001 and his response to those notices. 

15                  The submission then referred to what were described as ‘Primary Considerations’.  Under the general heading ‘Protection of the Australian Community’ and the specific heading ‘seriousness and nature of conduct’ it was pointed out that Mr Hicks’ offence was listed as ‘a very serious offence’ under par 2.6 of General Direction 21.  That paragraph says:

‘It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

(f)        murder, manslaughter, assault or any other form of violence against persons;’

After referring again to Mr Hicks’ criminal history, the submission set out the sentencing remarks made by Mr Nicholls SM in which the circumstances relating to the commission of the offences outside the Trawlers Restaurant were described as being ‘… toward the top end of the scale of seriousness’. 

16                  Remarks made by Mr Malley SM on 31 January 2001 in the Perth Court of Petty Sessions were also set out in part, and a copy of those remarks attached to the submission.  It was then put that on the basis of Mr Hicks’ criminal history it was open to the Minister to find that his conduct against the community was serious. 

17                  Mr Hicks’ explanation of the circumstances surrounding the incidents on his criminal record were set out in the submission but it was said that ‘… he put forward few factors by way of direct mitigation in his submission to the department’. 

18                  Under the heading ‘likelihood that the conduct may be repeated (including any risk of recidivism)’ reference was made to Mr Hicks’ submissions and the fact he had ‘undergone rehabilitation in relation to anger management and alcohol and intends to start afresh after his home detention has been served, settle down with his wife and live in the same manner as any honest Australian’.  At [24] under this heading it was said:

‘Additional evidence of relevance is set out in information that is “protected” for the purposes of section 503a of the Act (protected information).  Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure.  The protection information is set out at Annex G.’

It was then submitted, at [25], that in consideration of the above factors it was open to the Minister to find that Mr Hicks was ‘… at a moderate risk of recidivism’.

19                  Under the heading ‘General deterrence’ it was said that the offences committed by Mr Hicks were very serious and it was open to the Minister to find that cancellation of his visa would serve as a deterrent factor against others committing similar offences. 

20                  The next general heading in the submission was ‘The Expectations of the Australian Community’.  Reference was made to par 2.12 of the Direction which said, inter alia, that the Australian community expects non-citizens to obey Australian laws while in Australia.  The submission then went on:

‘[29]  The offences committed by Mr HICKS are considered by the Government to be very serious.  The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Mr HICKS should be removed from Australia.’

21                  Then under the heading ‘The Best Interests of the Children’ reference was made to Mr Hicks’ daughter from a previous marriage, Jenna-Rae, and his wife’s son from a previous relationship ‘Jay’.  Reference was also made to the fact that Hicks is godfather to his niece, Laura.  The departmental submission noted that Mr Hicks did not have custody of his daughter or of his stepson.  He had submitted that if his wife travelled to New Zealand in the event that his visa were cancelled she would be forced to live away from her son who currently resided with the father and would only be able to have minimal and unsatisfactory contact.  After referring to the educational and health services in New Zealand and the absence of language barriers for children, the submission was that it was open to the Minister to find, from the information given, that the cancellation of Mr Hicks’ visa and his removal from Australia would not have a detrimental effect upon his children. 

22                  The submission then turned to ‘Other Considerations’ and referred to Mr Hicks’ family in Australia and in New Zealand.  It also referred to letters of support which had been received from a number of people in favour of Mr Hicks.

23                  The Minister was given the option at the end of the submission of making a number of alternative decisions, but in the event opted to cancel the visa. 

24                  A notice of the cancellation of the visa was sent to Mr Hicks on 29 November 2002.    On 30 December 2002, an application was filed in this Court seeking review of the Minister’s decision pursuant to s 39B of the Judiciary Act 1903 (Cth).  The application was subsequently amended and further amended at the hearing. 

25                  In the further amended application the claims for relief are somewhat confusingly set out.  Under the heading ‘Grounds’ there is a statement that Mr Hicks claims prohibition and certiorari.  Under the heading ‘Relief Claimed’ he seeks declarations,  an order ‘setting aside the decision’ and injunctive relief restraining the Minister from removing him from Australia.

26                  The grounds of relief claimed are as follows:

‘1.        The Applicant claims an order in the nature of prohibition to prohibit the Respondent and his servants and agents from acting on the decision, and further an order in the nature of Certiorari to quash the decision on the ground that the Respondent did not have jurisdiction to make the decision because it involved jurisdictional errors being either errors of law or other errors such that the decision of the Respondent was not reasonably capable of reference to the power given to the Respondent by s501(2) of the Migration Act being:

           

            (a)        the Respondent failed to take into account a relevant matter in exercising the power being the circumstance that by exercising the power himself personally he denied to the Applicant the opportunity of merits review by the Administrative Appeals Tribunal;

            (b)        alternatively the Respondent erred by concluding that he was authorised to make a decision personally under s501(2) of the Migration Act in the absence of any circumstance involving the “national interest” which would move the Respondent to either make a decision under s501(3) or set aside a decision by the AAT in favour of the Applicant under s501A of the Migration Act;

            (c)        the decision constituted an unreasonable exercise of power, or an abuse of the power, given by s501(2) of the Migration Act because the Respondent exercised personally a power which could have been exercised by a delegate in respect of a criminal history which consisted entirely of summary convictions;

            (d)        the decision involved an error of law in that the Respondent concluded that the effect of the orders of the Perth Court of Petty Sessions of 31 January 2001 was to sentence the Applicant to two or more terms of imprisonment where the total of those terms was two years or more within s501(7)(d) of the Migration Act when the orders of the said Court imposed a sentence of ten months imprisonment;

            (e)        in the alternative, if which is not admitted but denied, the orders of the Perth Court of Petty Sessions did constitute a sentence of imprisonment described by s502(7)(d) of the Migration Act, the provision is beyond the power given by Constitution s51(xix) to make laws with respect to aliens in that it operates to contradict the operation of the laws of the State of West Australia with respect to the punishment of criminals by giving drastically different effect to minor changes in penalty imposed by the courts of the State, and, or, by having the effect that the Applicant was denied natural justice at the hearing before the Court on 31 January 2001 because he was not given the opportunity to address the Court as to the significant effect that imposing a term of imprisonment, rather than a fine, would have in respect of the charges before the Court on that day;

            (f)         the procedures required to be observed in relation to the decision were not observed in that the Applicant was denied natural justice because he was not informed prior of (sic) the making if (sic) the decision of the substance or effect of the “Protected Information” in Annex G to the submission which the Respondent signed on 26 November 2002 and thus denied the opportunity to respond to it;

            (g)        in the alternative the decision was made in breach of the rules of natural justice in that the Respondent took into account in making a decision based on failure to pass the character test by reason of ss501(6)(a) and (7)(d) of the Migration Act allegations made against the Applicant, or in the alternative “information” allegedly concerning him, that did not constitute matter constituting a “Substantial criminal record” for the purposes of ss501(6)(a) and (7) of the Migration Act;  

            (h)        further in acting on the “Protected information” in Annex G the Respondent erred in law in that because the notice in the Government Gazette purporting to specify agencies for the purpose of s503A(9) of the Migration Act does not do so the Respondent took into account irrelevant matter and, or, denied the Applicant natural justice other than as authorised by law;

            (i)         the Respondent could not have exercised the power reasonably, as required by law, because the information before as to the circumstances by which the Applicant failed the character test were incomprehensible;

Particulars

                        The Respondent acted on a submission which asserted the Applicant was convicted by the Court of Petty Sessions on 22 February 2000 and again on 31 January 2001.  The original document presented to the Respondent gave him transcripts of proceedings which occurred on 22 February 2001(sic) and 31 January 2001.  The Respondent was not given certified extracts of any Court order.  It is not possible on the material placed before the Respondent to determine which document is correct.  Further the submission did not clearly inform the Respondent whether the effect of the sentences of the Perth Court of Petty Sessions concerned “offences of 22/02/2000” [17]; whether the orders lead to a term of imprisonment of 25 months, 16 months, 14 months [9] or 10 months [18].  The submission failed to disclose the policy that “sentences be ‘totalled’ irrespective of the time and place at which each sentence was imposed” [4].

           

            (j)         the Respondent failed to comply with procedures required by law in that he failed to comply with s501G(1)(e) of the Migration Act and give the Applicant a notice that sets out the reasons for the decision and the omission is not cured by s501G(4) of the Migration Act because insofar as this provision purports to authorise the making and implementation of the decisions for which the Respondent has not prepared a statement of reasons the provision is not authorised by the Constitution has no legal force.

2.         In the alternative to paragraph 1 the Applicant claims Constitutional Writs to quash the decision, and to prohibit the Respondent from acting on it, because in the absence of reasons the decision is not, on its face, reasonably capable of reference to the power given to the Minister by s501(2) of the Migration Act and the Applicant repeats the particulars given to paragraph 4 hereof.

Particulars

                        The Applicant refers to and repeats the matters alleged in paragraph 1 hereof.

3.         The Applicant seeks Constitutional Writs to quash the decision and to prohibit the Respondent from acting on it on the grounds that the decision was made in breach of an inviolable condition under which the power given by s501(2) of the Migration Act was conferred, namely the obligation to apply the rules of natural justice in making the decision.

Particulars

            (a)        The Applicant refers to and repeats the particulars to paragraph 1 hereof.

            (b)        Because the power given by s501(2) of the Migration Act is granted on the condition that the rules of natural justice apply observance with the rules of natural justice is an inviolable limitation on the exercise of power.’

Statutory Framework  - Cancellation of visas under the Migration Act

27                  The Migration Act confers upon the Minister for Immigration, Multicultural and Indigenous Affairs the general power to grant to a non-citizen permission, to be known as a visa, to travel to and enter Australia and to remain in Australia (s 29).  There are various classes of visa for which the Act provides and there are classes of visas prescribed by the Migration Regulations (s 31).  Section 32 of the Act provides for the grant of a class of temporary visa known as a special category visa.  A criterion for the grant of a special category visa is that the Minister is satisfied that the applicant is:

‘(a)      a non-citizen:

            (i)         who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

            (ii)        is neither a behaviour concern non-citizen nor a health concern non-citizen;…’  (s 32(2)(a))

 

 

Mr Hicks held a special category visa. 

28                  The term ‘behaviour concern non-citizen’ is defined in s 5 as a non-citizen who:

‘(a)      has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

(b)       has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

           

            (i)         any period concurrent with part of a longer period is disregarded; and

            (ii)        any periods not disregarded that are concurrent with each other are treated as one period;

            whether or not:

            (iii)       the crimes were of the same kind; or

            (iv)       the crimes were committed at the same time; or

            (v)        the convictions were at the same time; or

            (vi)       the sentencings were at the same time; or

            (vii)      the periods were consecutive; …’

Section 501 of the Act, which relates to the refusal or cancellation of visas on character grounds provides, inter alia:

‘501(2)  The Minister may cancel a visa that has been granted to a person if:

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

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

…

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

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

…

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

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

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

            the person is not of good character;

…

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

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

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

(c)       the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)       the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

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

Subsections (8) to (11) are not relevant for present purposes.  Subsection (12) includes a definition of ‘sentence’ thus:

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

29                  Where the Minister cancels a visa under s 501(2) the Minister is required, by s 501G to give the visa holder a written notice that sets out the decision, specifies the provision under which it was made and sets out the effect of that provision and sets out the reasons (other than non-disclosable information) for the decision. 

30                  Section 503A deals with protection of information supplied by law enforcement agencies or intelligent agencies.  If information is communicated to an authorised migration office by a gazetted agency on the condition that it is to be treated as confidential information and it is relevant to the exercise of a power under s 501 (inter alia) the officer must not divulge or communicate the information to another person except to the Minister or an authorised migration officer and for the purposes of the exercise of the power under s 501.  In particular s 503A(2), (3) and (6) provide:

‘503A(2)  If:

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

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

then:

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

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

(3)  The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal.  However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

…

(6)  This section has effect despite anything in:

(a)       any other provision of this Act; and

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

31                  Section 496 deals with the delegation of ministerial powers under the Act and, relevantly provides:

“496(1)  The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

     (1A)  The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

…’

Section 500 deals with review by the AAT of certain decisions taken under the Act and, relevant to s 501 provides:

 ‘500(1)  Applications may be made to the Administrative Appeals Tribunal for review of:

…

(b)       decisions of a delegate of the Minister under section 501; or

…

other than decisions to which a certificate under section 502 applies.’

There is no provision for Administrative Appeals Tribunal (‘AAT’) review of decisions made by the Minister under s 501 other than by a delegate. 

Statutory Framework – Judicial review of Migration Act decisions

32                  The further amended application does not make entirely clear the source and nature of the jurisdiction which it invokes. 

33                  The Court has a jurisdiction to entertain what might broadly be called judicial review applications under s 39B of the Judiciary Act 1903 (Cth) and under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’).  Those jurisdictions are affected in respect of the defined class of decisions under the Migration Act known as ‘privative clause decisions’.  Privative clause decisions are defined in s 474(2) of the Act thus:

‘(2)  In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’

The term has the same meaning in the other provisions in the Act in which it appears by virtue of its definition in s 5 which is as follows:

‘privative clause decision has the meaning given by subsection 474(2).’

34                  The original jurisdiction of the Federal Court conferred by s 39B of the Judiciary Act relevant for present purposes is as follows:

‘39B(1)  Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

    (1A)  The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)       in which the Commonwealth is seeking an injunction or a declaration; or

(b)       arising under the Constitution, or involving its interpretation; or

(c)        arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

35                  The Court also has jurisdiction conferred upon it by s 8 of the ADJR Actin the following terms:

‘8(1)  The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.’

Applications may be made under s 5 of the Act for review of decisions on the various grounds there set out and, under s 6 of the Act, for review of conduct related to the making of decisions.   The class of ‘decision to which this Act applies’ is defined in s 3(1) as:

‘… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition);

(a)       under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)       by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)        a decision by the Governor General; or

(d)       a decision included in any of the classes of decisions set out in Schedule 1.’

The term ‘enactment’ is defined to include, inter alia, an ‘act’ with exceptions that are immaterial for present purposes.  Schedule 1 to the Act excludes from the class of decision to which it applies:

‘(da)    a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958.’

36                  Section 476 of the Migration Act excludes the jurisdiction of the Federal Court with respect to a ‘primary decision’ (s 476(1)).  A ‘primary decision’ is defined in s 476(6) as a privative clause decision:

‘(a)      that is reviewable, or has been reviewed, under Part No 5 or No 7 or section 500; or

(b)       that would have been so reviewable if an application for such review had been made within a specified period.’

That is to say a primary decision is one which is amenable to review by the Migration Review Tribunal (Pt 5) or the Refugee Review Tribunal (Pt 7) or by the AAT under s 500.  Primary decisions are a subset of privative clause decisions, that is they are decisions of an administrative character made, proposed to be made, or required to be made as the case may be under the Migration Act or under a regulation or other instrument made under that Act. 

37                  By virtue of s 475A however, s 476 does not affect the jurisdiction of the Court under s 39B or s 44 of the Judiciary Act or under s 39 of the Federal Magistrates Act 1999 in relation to a privative clause decision that is made on review by a Tribunal under Pt 5 or 7 or s 500 or any other decision in respect of which the Court’s jurisdiction is not excluded by s 476 (s 475A).

38                  The exercise of the Court’s jurisdiction under s 39B of the Judiciary Act and under s 8 of the ADJR Act is constrained, by virtue of s 476(1) of the Migration Act and Schedule 1 of the ADJR Act.  Privative clause decisions that are primary decisions are not within the jurisdiction of the Court under s 39B.  Privative clause decisions fall outside the jurisdiction of the Court under the ADJR Act.  The review of privative clause decisions under s 39B of the Judiciary Act is also affected by s 474(1) which provides:

‘474(1)  A privative clause decision:

(a)       is final and conclusive; and

(b)       must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.’

The definition of the Court’s jurisdiction in respect of decisions under the Migration Act, and in particular under s 501 of that Act, is affected by whether or not the decision under challenge is a privative clause decision.  This is a matter which has been the subject of recent judicial exegesis in the High Court in Plaintiff S157/2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 195 ALR 24.

 

The Jurisdiction of the Court with respect to decisions under the Migration Act in the light of the High Court’s decision in Plaintiff S157

39                  The jurisdiction of the High Court in relation to decisions purportedly made under the Migration Act was considered in connection with the proper construction of s 474 in Plaintiff S157/2002. In the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, their Honours held s 474, in order to conform to Ch III of the Constitution, must be read ‘so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act’.  Such a reading was possible because the Court had held previously that an administrative decision which involved jurisdictional error was ‘regarded, in law, as no decision at all’ – Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 at 129, 131 and 154-5.  A decision infected by jurisdictional error is not therefore ‘a decision made under this Act’ and is therefore not within the definition of ‘privative clause decision’ under s 474(2) and (3).  Jurisdictional errors might involve a failure to discharge imperative duties or to comply with inviolable limitations or restraints.  The extent to which failure to comply with limitations and restraints, imposed on the exercise of powers under the Act, would amount to jurisdictional error requires a construction of the relevant grant of power.  This is to be done in the light of s 474 and giving effect to the reconciliation process that such construction requires – R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 as explained in Plaintiff S157 and the authorities there cited.

40                  The effect of the High Court’s construction of s 474 was that its jurisdiction to entertain applications for the issue of constitutional writs under s 75(v) of the Constitution was unaffected by that provision.  If s 474 could not have been so construed, it would have lacked validity.

41                  In the joint judgment reference was also made to the jurisdiction conferred upon the Court by s 75(iii) of the Constitution in ‘all matters … in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’ and that conferred pursuant to s 76(i) of the Constitution ‘in any matter .. arising under [the] Constitution, or involving its interpretation’.  Their Honours observed that, as certiorari might also issue in the exercise of those jurisdictions, it might be that in some matters judicial review of administrative decisions was not, in the absence of a privative clause having that effect, confined by the notion of jurisdictional error.  Their Honours observed:

‘As no constitutional provision confers jurisdiction with respect to certiorari, it is open to the parliament to legislate so as to prevent the grant of such relief.  However, because “privative clause decision” is relevantly defined in terms of a “decision … made under [the] Act”, s 474(1)(c) does not prevent the issue of certiorari as ancillary to mandamus or prohibition, but validly does so for non-jurisdictional error of law on the face of the record.’

42                  Their Honours also however discussed the availability of injunctive relief under s 75(v) and observed at [82]:

‘Given that prohibition and mandamus are available only for jurisdictional error, it may be that injunctive relief is available on grounds that are wider than those that result in relief by way of prohibition and mandamus.  In any event, injunctive relief would clearly be available for fraud, bribery, dishonesty or other improper purpose.  The Hickman requirement that a decision be made bona fide presumably has the consequence that s 474 permits review in all such cases.  If it does not, there must, to that extent, be a real question as to the constitutional validity of s 474.  However, as the draft order nisi indicates that relief would be or would have been sought only by way of prohibition, certiorari and mandamus, those questions need not now be explored.’

43                  The statutory jurisdiction conferred upon this Court by s 39B of the Judiciary Act 1903 (Cth) includes jurisdiction conferred in similar terms to that enjoyed by the High Court under s 75(v) of the Constitution.  The way in which the High Court construed s 474 of the Migration Act excluded its application to decisions which are not privative clause decisions by reason of jurisdictional error.  That exclusion does not depend upon whether the jurisdiction in which judicial review is sought is constitutional or statutory.  So applications for judicial review under any of the statutory jurisdictions conferred upon the Federal Court is unaffected by s 474 if brought upon the premise that the purported decision is no decision at all.  That premise is established where the ground upon which review is sought asserts jurisdictional error.  There may be a question whether jurisdictional error covers a narrower range than ultra vires action in respect of which it would seem precisely the same argument applies.  The concept of jurisdictional error is linked to the history of the prerogative writs.  It would be a curious result that the constructional question, namely when is a purported privative clause decision not a decision, is to be linked exclusively to that historical taxonomy.  The fundamental question of construction in cases to which s 474 is said to apply is whether a purported exercise of statutory decision-making power has been vitiated for want of compliance with a necessary condition or limitation. 

44                  If it be the case that the authority of Plaintiff S157 binds the Court to the proposition that jurisdictional error and jurisdictional error alone avoids the operation of s 474 with respect to purported privative clause decisions, then that ground may be raised in relation to applications brought under the heads of jurisdiction in s 39B(1) and s 39B(1A)(b) and (c) of the Judiciary Act and under the ADJR Act.

Statutory Framework – The Sentencing Act 1995 (WA)

45                  The imposition of sentences for criminal offences in Western Australia is generally governed by the Sentencing Act 1995 (WA).  Subject to exclusions which are immaterial for present purposes the Act applies to all persons convicted of an offence whether or not the offence was committed before the Act came into operation (s 3(1)).  The Act does not itself provide for the penalties for criminal offences.  These are to be found in other statutes which create criminal offences including the Criminal Code.  Part 13 of the Sentencing Act deals with imprisonment.  In s 85 it defines the word ‘term’ thus:

‘term means a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or a life term, but does not include –

(a)       detention in strict or safe custody during the governor’s pleasure under an order made under s 282 of the Criminal Code; or

(b)       indefinite imprisonment.’

Section 85(2) provides:

‘85(2)  For the purposes of this Part and Parts 11 and of the Sentence Administration Act 1995, the aggregate of two or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or cumulatively or partly cumulatively.’  (sic)

 

 

46                  Section 88 of the Act deals with concurrent, cumulative or partly cumulative terms thus:

‘88(1)  An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3). 

   (2)  An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3). 

   (3)  If at the time an offender is sentenced to a fixed term –

(a)       the offender is serving or has yet to serve another fixed term imposed previously; or

(b)       the offender is then also sentenced to serve another fixed term,

the sentencing court may order that –

(c)        the fixed term is to be served cumulatively on the other fixed term; or

(d)       the fixed term is to be served partly cumulatively on the other fixed term.

   (4)  If under subsection 3(b) a court orders that a term is to be served partly cumulatively on another fixed term, the court must specify the period of the other fixed term that is to be served before the partly cumulative term is to begin; but that period must not extend beyond the earliest date on which the offender could be released  (whether on parole or not) in relation to the other fixed term.

   (5)  An offender sentenced to a life term is to serve that term concurrently with any other term that he or she is serving or has yet to serve.’

 

47                  Part 11 of the Sentencing Act 1995 provides for suspended imprisonment.  Under that Part, a court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of sixty months or less, may order that the whole of the term  or terms be suspended for a period set by the court but not for more than twenty four months (s 76(1)).  The Act requires that suspended imprisonment not be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances (s 76(2)).  The effect of suspending imprisonment is specified in s 77 thus:

‘77(1)  An offender sentenced to suspended imprisonment is not to serve any part of the imprisonment that is suspended unless –

(a)       during the suspension period he or she commits an offence (in this State or elsewhere) the statutory penalty for which is or includes imprisonment; and

(b)       a court makes an order under s 80.’

48                  For the purposes of other laws of the State a sentence of suspended imprisonment is to be taken as a sentence of imprisonment (s 77(6)).  Section 80 provides for the case in which a person re-offends during the period of  suspension.  In particular, s 80(1) provides:

‘80(1)  If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:

(a)       unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b)       unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;

(c)        unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d)       it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment.

    (2)  The powers in subsection (1) may be exercised as often as is necessary.

   (3)  A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

…

   (6)  If a court makes an order under subsection (1)(a) or (b) the offender must serve the imprisonment:

(a)       immediately; and

(b)       concurrently with any other term of imprisonment he or she is serving or is yet to serve.’

The other subsections of s 80 are not relevant for present purposes.

 

Ground (a) – Failure to take into account a relevant consideration

49                  In support of this particular it was said that the scheme of the relevant provisions of the Act operates so that a decision to cancel a visa on character grounds may be made by the Minister in person or by a delegate.  Where it is made by a delegate the decision is amenable to review by the AAT pursuant to s 500(1)(b).  A ministerial decision is, however, not subject to review by the AAT.  It was submitted that the material before the Court does not disclose why the Minister personally was asked to make the decision.  Counsel for Mr Hicks did not dispute that the Minister had the power to make the cancellation decision personally.  However, he said, no reason was provided in the departmental submission for, in effect, denying merits review to Mr Hicks.  The Minister was not given the option of passing the matter to a delegate.  It was submitted in support of particular (a) that the failure by the Minister to consider whether the matter ought to be dealt with by a delegate constituted a failure to consider a relevant matter. 

50                  There is no merit in this ground.

51                  Section 501 confers upon the Minister the power to cancel a visa on character grounds.  That power may be exercised by a person holding a relevant delegation from the Minister under s 496(1) of the Act.  Section 500(1)(b) provides that applications may be made to the AAT for review of the decision of a delegate of the Minister under s 501 other than decisions to which a certificate under s 502 applies.  The combined effect of s 500 and s 501 is that when a decision under s 501 is made by the Minister acting personally no review of that decision is available before the AAT. 

52                  The question whether AAT review is available in respect of the exercise of the cancellation power under s 501 is anterior to the exercise of that power as it is resolved by the decision of the Minister to exercise the power personally.  That, as a matter of logic, is an answer to the submission that the availability of AAT review, in the case of cancellation decisions by delegates, is relevant to the actual exercise of the power by the Minister.  The section confers upon the Minister power to cancel a visa on character grounds.  That may be exercised by a delegate under the general provisions of s 496.  But there is no constraint, expressed or implied, requiring the Minister in exercising the power or anterior to its exercise to have regard to the consequence that if he exercises the power personally AAT review will not be available.  It may be that the availability of merits review by the AAT, in the case of a cancellation decision, made by a delegate, is intended to provide a degree of protection where a decision is taken at a level lower than that of the Minister personally.  Whatever the policy underlying the provision of merits review in relation to a delegate’s decision, no basis was disclosed in argument for the proposition that its availability is a relevant consideration which the Minister is required to take into account in the exercise of his power to cancel a visa – Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.

Particular (b)

53                  In the written submissions filed on behalf of Mr Hicks this particular was grouped with particular (a).  It appears to involve the proposition that the Minister’s power to make the decision to cancel a visa on character grounds personally is constrained in some way by a requirement that he consider whether the ‘national interest’ requires his personal involvement.  This ground was not developed in argument and, on the face of it, has no merit.

Particular (c) – Unreasonable exercise of power

54                  This particular again raised the question about the Minister’s decision to exercise the cancellation power personally.  The decision was said to constitute an unreasonable exercise of power or an abuse of power because Mr Hicks’ criminal history consisted entirely of summary convictions and the power could have been exercised by a delegate.  Again, there is no merit in this ground which requires the importation into the terms of the statutory grant of power, of constraints which do not appear either expressly or by implication from its language or context.    In any event, unreasonableness per se does not amount to jurisdictional error.

Particular (d) – Whether concurrent sentences are to be totalled for the purposes of the character test

55                  This particular, which really stood as a distinct ground, was the substantial centre piece of the arguments advanced on behalf of Mr Hicks. 

56                  The submission put to the Minister which led to the cancellation of Mr Hicks’ visa relied upon the proposition that he had a substantial criminal record within the meaning of s 501(7)(d) ‘… due to the fact that he [had] been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more’.  In support of this proposition reference was made to Mr Hicks’ criminal record which included the record of sentences imposed upon him.  Additional evidence of relevance was said to be information ‘protected’ for the purposes of s 503A of the Act.  It does not appear from the materials before the Court how any evidence other than the public record evidence of sentences imposed could be relevant to the question whether or not Mr Hicks had a substantial criminal record by reason of the operation of s 501(7)(d).  It was the possession of a substantial criminal record that was the only ground advanced to the Minister as the basis upon which Mr Hicks was said to fail the character test.  Thereafter the submission went to issues of discretion by reference to the factors set out in the General Direction 21 including matters raised by Mr Hicks in his own submission.  It may be noted that the submission to the Minister was enclosed with the notice of cancellation sent to Mr Hicks on 29 November 2002 and characterised as:

‘a copy of the decision record that sets out the reasons for the decision (other than non disclosable or protected information).’

The determination that Mr Hicks failed the character test therefore turned entirely upon the proposition that he had been sentenced to two or more terms of imprisonment amounting to or exceeding two years. 

57                  It was submitted on behalf of the Minister that, on the proper construction of s 501(7)(d), the Act does not call for an examination of whether terms are imposed cumulatively or concurrently, nor to an examination of the time actually served in prison by the person whose visa is subject to cancellation.  Such matters, it was said, are not relevant to the function of the section in imposing an objective character test.  The definition of ‘behaviour concern non-citizen’ in s 5 was referred to by way of contrast as dealing specifically with concurrent sentences and parts of sentences.  Although the submissions made on behalf of Mr Hicks had regard to the sentencing legislation peculiar to Western Australia as to the calculation of terms to be actually served, it was said on behalf of the Minister that the interpretation of the Commonwealth law could not be determined by reference to the State law.  It was submitted that the fact that the sentencing magistrate directed that Mr Hicks’ terms of imprisonment be served concurrently rather than cumulatively did not alter the fact that the magistrate determined that the appropriate sentences to be imposed for the offences of which Mr Hicks was guilty were terms of imprisonment where the total was two years or more.  

58                  It is desirable, in dealing with this ground, first to consider the language of s 501(2).  Section 501(2), conditions the power of the Minister to cancel a person’s visa upon satisfaction of two conditions:

1.         The Minister reasonably suspects that the person does  not pass the character test.

2.         The person does not satisfy the Minister that the person passes the character test.

The first condition, which is crucial for present purposes, is satisfied when the Minister reasonably suspects that the person has a ‘substantial criminal record’ (s 501(6)(b)).  That condition is satisfied by any one of a number of circumstances including the circumstance that the person:

‘… has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more.’

(s 501(7)(d)).

 

59                  The constructional question thrown up by the present case is whether the condition for the existence of a substantial criminal record set out in s 501(7)(d), is satisfied by the imposition of two or more terms of imprisonment to be served concurrently which, if they were served consecutively, would have amounted to two years or more.  The Act itself provides no explicit guidance in its text or context.  The legislative history of s 501 offers little illumination.  The section was initially introduced into the Act as s 108A by the Migration (Offences and Undesirable Persons) Amendment Act 1992.  It was renumbered as s 501 in 1994 and provided for cancellation of a visa if the Minister:

‘(a)  Having regard to:

            (i)         the person’s past criminal conduct; or

            (ii)        the person’s general conduct;

is satisfied that the person is not of good character…’

There was no deeming provision equivalent to the ‘substantial criminal record’ provision which is now to be found in s 501.  That provision was introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998.  The Explanatory Memorandum, in relation to those amendments, said of s 501(7)(d):

 

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

…

.           a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment.  It is intended that sentences be “totalled” irrespective of the time and place at which each sentence was imposed; …’

60                  The legislative intention so described overcame the effect of the decision of the Full Court in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364.  That case concerned what was then s 20(1)(d)(iii) of the Act which provided that s 20 applied to a  person if, when the person entered Australia the person was:

‘(iii)     a person who had been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year.’

A person to whom s 20 applied was an illegal entrant pursuant to s 14(2) of the Act and subject to deportation.  The Court in Sciascia, by majority, rejected a proposition on behalf of the then Minister that s 20(1)(d)(iii) applied to a person sentenced on different occasions to terms of imprisonment totalling at least one year.   It was observed, in the majority judgment of Burchett and Lee JJ, that subpar (iii) as it then stood ‘… makes no express distinction between cumulative and concurrent sentences’.  Their Honours held, nevertheless, that it would be a strange conclusion if a person who had been sentenced to two sentences of six months imprisonment to be served concurrently were held to have been sentenced to imprisonment for periods aggregating not less than one year.  They said:

‘In our opinion that would be a strange conclusion.  The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident; … Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved.  A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed.’

See also Pearson v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 FLR 162 at 166 (Martin J) which followed Sciascia.

61                  The observations of Burchett and Lee JJ in Sciascia were obiter in so far as they related to concurrent terms but are nevertheless to be accorded persuasive weight as the considered view of two judges of the Court, which was supported by the Supreme Court of the Northern Territory.  Their Honours’ view does suffer from the possible difficulty that it seems to assume a single coherent theory underlying concurrent sentencing, namely that such sentences are imposed in respect of a plurality of offences arising out of one or connected criminal incidents.  In many cases that may be so, but such sentences may derive from a statutory or common law presumption in favour of concurrency.  Sometimes they may also be used as a means of limiting the total burden of the sentences imposed on an offender at one time.  

62                  The proposition has been advanced that ‘… if a person receives a number of prison sentences for multiple offending, whether the result of being convicted on several counts in the one charge sheet or presentment, or being convicted of an offence while still serving a sentence of imprisonment imposed at some earlier stage, the general common law rule is that all terms are to be served concurrently with each other.’ – R Fox and A Frieberg, Sentencing State and Federal Law in Victoria, 2^nd ed, OUP, (1999) p 705.  The learned authors propose that the common law rule exists because the notion of cumulative sentences for felony had no meaning when death was the principal punishment for that class of crime – Longford (1970) 3 NSWR 276 at 278.  The position is now governed by statute in various jurisdictions within Australia.  In Western Australia, as will have been seen from s 85 of the Sentencing Act 1995 (WA), there is a presumption of concurrency.  This operates with respect to any fixed term the offender is already serving when sentenced or any other fixed term that he or she ‘has yet to serve’.  Where sentenced at the one time to one or more fixed terms, the offender is to serve those terms concurrently unless the Court makes an order that they be served wholly or partly cumulatively. 

63                  While the substantive connections between multiple offences will no doubt be an important and relevant factor in determining whether or not to impose concurrent sentences, it is plain that the policy of the statute in Western Australia supports the imposition of concurrent sentences unless the court specifically directs cumulative sentences.  To that extent the construction of s 501(7)(d) of the Migration Act, in relation to its possible application to concurrent terms, may not be greatly assisted by the proposition that such terms relate only to multiple offences arising out of the same incident or related incidents of criminal conduct.

64                  Some reliance was placed by counsel for the Minister upon the definition of ‘behaviour concern non-citizen’ in s 5 of the Act which makes express provision excluding concurrent terms from the sum of periods of imprisonment.  That term as may be seen from the provisions of s 32 of the Act, affects the eligibility of a non-citizen who is a New Zealand citizen to obtain a special category visa.  The proposition that what is expressly provided for in one section of an Act was intended to be excluded from another where no such express provision is made, is one to be treated with caution.  If accepted in this case, it would lead to a tension between the criteria for the grant of visas for New Zealand citizens and their cancellation for failure to pass the character test.

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

66                  Since this case was argued, the question of construction has been considered and decided by Ryan J in a judgment given on 11 July 2003 – Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699.  In that case the applicant had been convicted on 28 April 1994 on forty nine counts of false pretences.  This mainly related to the use of cheques.  In respect of twenty five of these convictions, it appeared that concurrent sentences of eleven months had been imposed.  The remaining twenty four convictions had attracted concurrent terms of imprisonment of two months.  His Honour said at [37]:

‘It is accepted that the Minister considered, on the basis of the information from the New Zealand Police, that the applicant had, on the one occasion on 28 April 1994, been sentenced to two or more terms of imprisonment the total of which was more than two years.  The view was apparently taken that the total of the terms of the imprisonment to which the applicant had been sentenced for 11 months each to be served concurrently beginning on 28 April 1994 was 275 months or slightly less than 23 years.  Similarly, it seems,  the 24 convictions which attracted sentences of 2 months each, also to be served concurrently beginning on 28 April 1994, were regarded as resulting in the total of those terms being exactly 4 years.’

67                  His Honour, referring to s 501(7)(c) and (d) said at [38]:

‘In my view, the expressions “term of imprisonment” and “terms of imprisonment” in s 501(7)(c) and (d) denote respectively a period having a fixed or ascertainable beginning and end, and an aggregation or accumulation of such periods.  The plural expression “terms of imprisonment” is not apt to refer to the same period for which several sentences have been directed to be served concurrently.  This accords with the accepted meaning of “term” in the relevant sense as a matter of ordinary English which the Oxford English Dictionary gives as “a portion of time having definite limits; a period esp. a set or appointed period; the space of time through which something lasts or is intended to last.”  It is also consistent with the meaning given to the expression “term” by courts concerned to apply it in other statutory contexts or in relation to the law of landlord and tenant; see eg St Olave’s Union v Canterbury Union [1897] 1 QB 682 and Cadogan (Earl) v Guinness [1936] Ch 515.’

68                  His Honour referred to the contrary submission put on behalf of the Minister that the parenthetical reference in s 501(7)(d) contemplated that a person might be sentenced to two or more terms of imprisonment ‘on one … occasion’.  While that much could be conceded, that contemplation was fulfilled by acknowledging the practice of sentencing courts of imposing on one occasion sentences to be served cumulatively, ie where the term of the second or later sentence was directed to commence immediately after the expiration of the first or preceding sentence. 

69                  His Honour also referred to paragraph 53 of the Explanatory Memorandum accompanying the Bill which became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1999.  In that reference was made to the definition of ‘substantial criminal record’ in s 501(7) as including:

‘a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment.  It is intended that sentences be ‘totalled’ irrespective of the time and place at which each sentence was imposed;’

Of that, his Honour said at [40]:

‘In my view, that paragraph is at least equally consistent with an intention that what are to be totalled are separate terms of imprisonment to which a person has been sentenced whether on different occasions or at one and the same time.  The practice of sentencing courts of differentiating between concurrent and cumulative terms of imprisonment is so well-established and widely known that, had the framers of s 501(7) in its present form or the Explanatory Memorandum intended concurrent terms to be “totalled”, they could easily have said so.’

70                  His Honour distinguished Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 which counted as a term of imprisonment for one year or longer a sentence of twelve months imposed with a direction that the offender be released after three months on entering into a bond to be of good behaviour.  In that case, Bowen CJ and Deane J construed s 12 of the Migration Act, as it then stood, as referring to ‘… the sentence of imprisonment imposed and not the term of imprisonment actually served’.  Ryan J took the view that that proposition was consistent with his interpretation of s 501(7) which he saw as reinforced by the express use of the words ‘term’ and ‘terms’ neither of which appeared in s 12 in its original form.   Ryan J also observed, in respect of the judgment of the majority in Sciascia,  that while the words in parentheses in s 501(7)(d) overcame the result in that case and while subs (8) had been included to accommodate periodic detention, no attempt had been made to remove the ambiguity which Burchett and Lee JJ identified in respect of concurrent sentences.  His Honour also referred to what was said in  Pearson.

71                  His Honour concluded that the Minister had applied an erroneous construction of s 501(7)(d) when he formed the suspicion required by s 501(2)(a) that the applicant in that case did not pass the character test.  This is the very construction which the Minister advances in respect of the present case. 

72                  Before delivering judgment in this case I invited the parties to make supplementary written submissions with respect to the effect of the decision in Ball.  Counsel for the Minister submitted that in arriving at his view of the proper construction of s 501(7)(d) Ryan J did not advert to the definition of ‘behaviour concern non-citizen’ in s 5 where the Act specifically provides for concurrent periods to be disregarded.  He submitted that the current Act differs from the provisions considered in Sciascia.  It now expressly uses the term or terms of imprisonment to which a person has been sentenced as an objective measure of whether that person has a substantial criminal record and therefore fails to pass the character test.  Consistently with that purpose, it is said that s 501(7) looks to whether a person has a record of offending resulting in terms of imprisonment where the ‘total of those terms is 2 years or more’.  In referring to the total of the terms the Act is not, as was the legislation in Sciascia, directed to one period of imprisonment resulting from multiple convictions. 

73                  It was also submitted by counsel for the Minister that it is not necessary for this Court as a matter of judicial comity to follow an earlier decision of a single judge.  It was submitted that there are factors in the present case which militate against following Ryan J.  It was said that the decision was wrong as to the construction of s 501(7)(d) and that it is recent and there is no question of the law being settled by the earlier decision. 

74                  I am not bound by any doctrine of precedent to apply the construction adopted by Ryan J in Ball.  The position in this Court is the same as that expressed by Lord Goddard CJ (Atkinson and Lewis JJ agreeing) in Police Authority for Huddersfield v Watson [1947] 1 KB 842 at 848:

‘… I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity.  He certainly is not bound to follow the decision of a judge of equal jurisdiction.’

This view has not always produced consistency in judicial decision-making at first instance.  In Froom v Butcher [1976] 1 QB 286 at 289 Lord Denning MR, sitting in the Court of Appeal, observed ‘a remarkable conflict of opinion’ in the lower courts on the question of seatbelts:

‘Half of the judges think that if a person does not wear a seatbelt he is guilty of contributory negligence and his damages ought to be reduced.  The other half think that it is not contributory negligence and they ought not to be reduced.’

Generally speaking the same position applies in the State Supreme Courts, although as a recent text on judicial precedent observes:

‘Some judges are quite robust in preferring their own views against those of their fellow single judges.’

MacAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, (1998) at 8.50.

 

 

In Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (cited by the learned authors), Blackburn CJ said:

‘As a judge of this Court I should follow a decision of another judge of the court unless there is a clear reason for not following it.’

75                    It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong – Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation(Cth) (1997) 150 ALR 117 at 121.  See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:

‘The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court.  Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504.  But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4^th ed, vol 26, para 580.  The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle…’

76                  The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions.  It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges.  And where questions of law, and  statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction.  Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention. 

77                  In the present case, this approach assists me although it is not necessary to my conclusion for in my opinion his Honour’s construction of s 501(7)(d) is the one that is to be preferred.

78                  The result of that conclusion is that in the present case the Minister has proceeded to exercise his power to cancel Mr Hicks’ visa upon an erroneous construction of s 501(7)(d).  In my respectful opinion the error of construction in this case amounted to a jurisdictional error such that the decision taken by the Minister was not a privative clause decision affected by the provisions of s 474.  It is a necessary condition of the Minister’s power to cancel the visa under s 501(2) that he reasonably suspects that the person, the subject of the cancellation, does not pass the character test.  The basis upon which the Minister concluded that Mr Hicks did not pass the character test was that set out in s 501(6)(a) read together with s 501(7)(d).  His misconstruction of the latter provision means that he did not address the question which he was required to address in determining whether he had the necessary suspicion under s 501(2).  The satisfaction of that condition is essential to the effective exercise of the power under s 501(2).  It cannot be construed as a non-essential condition by reference to s 474 of the Act.  So to do, would be to construe s 474 as conferring upon the Minister an unconditional power to cancel visas.  Having regard to the detailed provisions of s 501 and the following provisions of the Act, such a construction would be inconsistent with the evident legislative intention. 

79                  Section 501(7)(d) is not to be construed by reference to the definition of ‘behaviour concern non-citizen’ which makes express provision for concurrent periods not to be totalled.  The contrast between the two provisions does not, in my opinion, justify reading into s  501(7)(d) words that are not there but which could easily have been inserted requiring concurrent periods to be totalled.

Particular (e)

80                  It is sufficient of this ground to say that it has no merit and that no substantial argument was advanced in support of it.

Particulars (f) to (j)

81                  Having regard to the conclusions which I have reached in relation to particular (d) of the grounds, it is not necessary to address issues of natural justice involving the use of protected information ((f), (g) and (h)).  Indeed, as I have earlier observed, it is difficult to see what relevance that information had to the existence of a ‘substantial criminal record’.  Its invocation in that connection would be indicative  of legal error if it were relied upon.  However it is not necessary to resolve that matter nor is it necessary to address the issue raised in par (i) which related to the adequacy of the materials before the Minister as evidence of the record of sentences imposed upon Mr Hicks.  There may be a constitutional question about the extent to which the legislature can impact on the review process by preventing judicial consideration of materials which were before the decision-maker.  That is perhaps a question more likely to arise in the constitutional jurisdiction of the High Court than in the statutory jurisdiction of this Court.  In any event, the question does not fall for determination in this application. 

82                  As to the failure to provide a written statement of reasons required by s 501G(1)(e) of the Act, such failure does not go to the validity of the decision which has been made.  However, it is not necessary to finally determine this issue in this case.

Conclusion

83                  Mr Hicks has left Australia for New Zealand rather than spend time in immigration detention pending the outcome of these proceedings.  That decision does not, in my opinion, render his application moot.  The cancellation of his visa, if it were to stand, might well have a negative effect upon any attempt he might make to return to this country.  And if he does seek to return it is plain that he would not, by virtue only of the terms of imprisonment thus far imposed upon him, be a ‘behaviour concern non-citizen’ within the meaning of par (b) of the definition of that term in s 5 of the Act.

84                  In my opinion therefore, the appropriate orders are:

1.         That certiorari issue to quash the respondent’s decision made on 26 November 2002 to cancel the applicant’s visa.

2.         That the respondent be prohibited from acting upon the said decision.

3.         The parties have liberty to apply by written submission within seven days for such further or other relief as may be appropriate.

4.         The respondent pay the applicant’s costs of the application.

I certify that the preceding eighty four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:              21 July 2003

Counsel for the Applicant:	Mr T Hurley
Solicitor for the Applicant:	Mark Andrews & Associates
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 2003
Date of Judgment:	21 July 2003