FEDERAL COURT OF AUSTRALIA

VWOK v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 336

IMMIGRATION – whether a spent conviction order in Western Australia is a conviction for the purposes of cl 866.222A of the Migration Regulations – whether cl 866.222A invalid as inconsistent with or repugnant to the Migration Act 1958 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Crimes Act 1914 (Cth), s 85ZM, 85ZV and 85ZZH

Judiciary Act 1903 (Cth), s 39

Justices Act 1902 (WA), s 150

Migration Amendment Regulations 2001 (No. 8) SR 246 of 2001, cl 866.222A and 785

Migration Act 1958 (Cth), ss 4(1) and (2), 29, 31(2) and (3), 36(1) and (2), 45, 65(1) and 501

Misuse of Drugs Act 1981 (WA), ss 5(1)(d)(i) and 6

Sentencing Act 1995 (WA), ss 4, 39 and 45

Spent Convictions Act 1988 (WA), ss 3, 25(1) and 28(1)

Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 referred to

Ira, L & LC Berk Ltd v The Commonwealth (1930) 30 SR (NSW) 119 referred to

Morton v Union Steamship Company of New Zealand (1951) 83 CLR 402 referred to

Shanahan v Scott (1957) 96 CLR 245 referred to

VWOK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 858 OF 2004

CRENNAN J

1 APRIL 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         Application dismissed.

2.         Applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant has applied under s 39 of the Judiciary Act 1903 (Cth) (the ‘Judiciary Act’) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘Administrative Decisions (Judicial Review) Act’) for judicial review of a decision of the respondent’s delegate dated 10 June 2004 refusing to grant to the applicant a permanent protection visa class XA (subclass 866 (Protection)) and granting instead a temporary protection visa (subclass 785 (Temporary Protection)). 

2                     The applicant is a twenty‑nine year old male citizen of Burma (Myanmar). The applicant arrived in Australia on 27 September 2000 and applied for a protection visa on 18 October 2000.  This was refused by a delegate of the Minister.  On review the Refugee Review Tribunal (‘the Tribunal’) concluded that the applicant had suffered persecution in Burma in the past, that he remains of interest to Burmese authorities and that there is a real chance he will be persecuted on return to Burma by reason of his political activities and beliefs.  The Tribunal found the applicant satisfies the criteria set out in subs 36(2) of the Migration Act 1958 (Cth) (‘the Act’) for a protection visa.  On 7 January 2004, the Tribunal remitted the matter ‘. . . for reconsideration with the direction that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.’

3                     On 27 February 2004 the respondent advised the applicant that cl 866.222A of the Migration Regulations (‘the Regulations’) might apply to the applicant on the basis of two convictions for offences under the Misuse of Drugs Act 1981 (WA) (the ‘Misuse of Drugs Act’), such that he might be found unable to meet the requirements for a Permanent Protection visa.  The matter relied on in the letter related to orders of the Court of Petty Sessions made against the applicant on 21 June 2001.  The letter invited submissions.

4                     The records of the Court of Petty Sessions of Western Australia for 21 June 2001 record that the applicant pleaded guilty to two offences as charged being:

(a)                possession of a prohibited drug namely cannabis contrary to subs 6(2) of the Misuse of Drugs Act; and

(b)               possession of a metal pipe for use in connection with the smoking of a prohibited plant contrary to subs 5(1)(d)(i) of the Misuse of Drugs Act.

Spent conviction orders were made and small fines were imposed on the applicant for the sums of $100 and $50 respectively plus costs.  It is not in contest that the offences were offences which fell within cl 866.222A being offences for which the maximum penalty is imprisonment for at least 12 months.  Nor is it contested that the applicant pleaded guilty to the offences as charged.  There was no appeal against the conviction or the sentence.

5                     On 10 June 2004, the respondent’s delegate refused the grant of a subclass 866 Permanent Protection visa on the basis that by reason of the orders made by the Court of Petty Sessions the applicant could not satisfy the necessary criteria in cl 866.222A.  The applicant was however granted a Temporary Protection visa subclass 785.

Application

6                     The application for an order for review, which was amended by leave granted today, alleges that the respondent’s delegate exceeded his jurisdiction, failed to exercise his jurisdiction, or committed a jurisdictional error. The applicant seeks orders which include a declaration that the applicant has not been convicted for the purposes of cl 866.222A of the Regulations and orders in the nature of certiorari and mandamus compelling the respondent to grant the applicant a Permanent Protection visa.

Contentions

7                     The applicant contends:

(a)                cl 866.222A is invalid because it is inconsistent with or repugnant to the Act; and

(b)               the applicant has not been convicted of an offence against the law of a State for which the maximum penalty is imprisonment for at least 12 months because cl 866.222A which refers to ‘convictions’ does not apply to ‘spent convictions’.

8                     The respondent supported the validity of cl 866.222A and contended that it applied to spent convictions. 

Applicable law

The Act

9                     The Act regulates the presence in Australia of non‑citizens such as the applicant (subss 4(1) and (2)) and makes provision for the grant of visas to non‑citizens (subs 29(1) and s 49).

10                  Subsection 36(1) provides that there is a class of visas to be known as Protection visas and subs 36(2) relevantly provides that a criterion for the grant of a Protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (‘the Convention’). 

11                  Subsection 65(1) of the Act relevantly provides that, after considering a valid visa application:

‘(a)      the respondent must, if satisfied that relevant criteria have been satisfied, grant the visa; and

            (b)        if not satisfied, the respondent must refuse to grant the visa.’

Subsection 31(3) relevantly states that:

‘The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section . . . 36 . . .).’

12                  Section 504 contains the general regulation‑making power in the Act.  It relevantly provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.  Regulation 2.03 relevantly states that the prescribed criteria for the grant to a person of a visa of a particular class are set out in the relevant Part of Schedule 2.

13                  Clause 866.222A of Part 866 of Schedule 2 to the Regulations sets out the criteria which an applicant must satisfy at the time of a decision in respect of an application for a Permanent Protection visa.  The provision relevantly states that:

‘. . .the applicant has not, in the last 4 years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.’

14                  Clause 866.222A was introduced by item 4 to Schedule 1 to Migration Amendment Regulations 2001 (No. 8) SR 246 of 2001.  The Explanatory Statement includes the following:

‘The purpose of the Regulations is to effect changes to the Migration Regulations 1994 (the Regulations) to restrict the grant of permanent protection visas in relation to applicants who have had certain previous visas cancelled, or who have been convicted of certain offences in Australia, and to ensure that temporary protection visa holders keep the Department of Immigration and Multicultural Affairs notified of their residential address.

. . .

In particular, the Regulations:

·        ensure that a person is not granted a permanent protection visa for four years from the date of any conviction in Australia, whether during detention or while in the community, for a criminal offence carrying a maximum penalty of imprisonment of twelve months or more;

. . .

New clause 866.222A requires that the applicants who have made specific claims under the Refugees Convention (ie, the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees) will not be granted a permanent protection visa if they have been convicted, within the last 4 years, of an offence against a law of the Commonwealth, a State or Territory which carries a maximum penalty of 12 months imprisonment.

. . .

Parallel provisions have not been introduced in Part 785.  Therefore, a person found to be owed protection obligations under the Refugees Convention (who has been convicted of a criminal offence in Australia carrying a maximum penalty of imprisonment of twelve months or more) may still be eligible for the grant of the Subclass 785 (Temporary Protection) visa, provided that they meet the other criteria for grant of that visa, including existing character provisions.’

15                  In an affidavit in support of the application for judicial review the applicant has sworn he is aggrieved by the decision under review because he cannot leave Australia and return under his Temporary Protection visa and because he cannot sponsor his wife and mother under that visa.

Spent Convictions Act 1988 (WA)

16                  The Spent Convictions Act 1988 (WA) (the ‘Spent Convictions Act’) makes provisions, inter alia, for limiting the effects of a conviction for an offence against the laws of Western Australia.  The legislature described the objects of the Act as follows:

‘An Act to make provision for a person who has been convicted of an offence against the law of this State or of a foreign country and who has not re‑offended during a specified period to be rehabilitated by limiting the effects of the conviction, to enable that limitation to apply to a conviction against the law of another State or Territory to which a corresponding law thereof applies, to limit the effects of a dismissal or withdrawal of a complaint or indictment, and for connected purposes’

.

‘Conviction’ is relevantly defined in s 3 as:

‘. . . a conviction incurred by a natural person for an offence against the law of this State. . .’

‘Spent conviction’ is relevantly defined under the same section as:

‘. . . a conviction that is spent under section 6, 7 or 8 or that is spent by virtue of a spent conviction order made under s 39 of the Sentencing Act 1995.’

17                  Section 6 governs ‘serious convictions’ and s 7 ‘lesser convictions’.  Section 9 defines ‘serious convictions’ as convictions in respect of which the sentence imposed is imprisonment for more than one year or for an indeterminate period, or a fine of $15,000 or more. Then follow provisions in relation to the effect of a conviction being spent.  One effect important to this case is set out in subs 25(1) as follows:

‘A reference in a written law of this State (other than this Act) to a conviction of a person for an offence does not include a reference to a spent conviction.’

Further, subs 28(1) provides that:

‘A person shall not, without lawful reason, obtain information about a spent conviction, or the charge to which the conviction relates, from an official criminal record.’

18                  It is clear from the whole of this Act that the legislature of Western Australia intended that ‘spent convictions’ be treated as past matters in certain contexts including where a written law of the State permitted a person to determine the good character of a person.

Justices Act 1902 WA

19                  The charges against the applicant under the Misuse of Drugs Act were heard by a Magistrate as permitted by s 33 of the Justices Act 1902 (WA) (the ‘Justices Act’).  Section 150 of that Act provides:

‘If justices convict a person, whether after a plea of guilty or otherwise, the justices may sentence and make other orders in respect of the offender under the Sentencing Act 1995.’

Sentencing Act 1995 (WA)

20                  ‘Convicted in relation to an offence’ is defined in s 4 of the Sentencing Act 1995 (WA) (the ‘Sentencing Act’) as:

‘. . . found guilty of the offence, whether after a plea of guilty or otherwise.’

21                  Section 3 of the Sentencing Act applies to all persons convicted of an offence and s 39 provides various sentencing options for sentences for a natural person that include options with or without a spent conviction order.  It appears that the spent conviction orders in this case were made under subs 39(2).  In that context the provisions for making such orders set out in s 45 should be noted:

‘(1)      Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless –

(a)               it considers that the offender is unlikely to commit such an offence again; and

(b)               having regard to -

(i)                 the fact that the offence is trivial; or

(ii)               the previous good character of the offender,

            it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

(2)       A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.

(3)       The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.

(4)       A spent conviction order is to be taken as part of the sentence imposed.

(5)       A spent conviction order in respect of a conviction does not affect -

(a)               the right or duty of a court to –

(i)                 disqualify the offender from holding or obtaining a driver’s licence under the Road Traffic Act 1974;

(ii)               make any order under this Act or any other written law on convicting the offender.

(b)               the operation of any provision of the Road Traffic Act 1974, or Part 15, relating to the cancellation of, or disqualification from holding or obtaining, a driver’s licence under that Act;

(c)                the duty of the offender to comply with the sentence imposed and with any order of the court in addition to the sentence;

(d)               the revesting or restitution of any property as a result of the conviction;

(e)                any cancellation or disqualification that occurs by operation of any written law;

(f)                 any right of appeal against the conviction or the sentence imposed.

(6)       A spent conviction order in respect of a conviction does not prevent -

(a)               proceedings to enforce, or for a variation or contravention of, the sentence;

(b)               subsequent proceedings against the offender for the same offence.’

22                  It can be seen that s 45, governing the making and effect of spent conviction orders, contains a number of provisions in respect of ‘a spent conviction order in respect of a conviction’ (emphasis added) and that a spent conviction order in respect of a conviction does not affect any right of appeal ‘against the conviction or the sentence imposed’.

Crimes Act 1914 (Cth)

23                  Section 85ZM of the Crimes Act 1914 (Cth) (the ‘Crimes Act’) relevantly defines the terms ‘conviction’ and ‘spent conviction’ as follows:

(1)               For the purposes of the Part, a person shall be taken to have been convicted of an offence if:

(a)               the person has been convicted, whether summarily or on indictment, of the offence;

(b)               the person has been charged with, and found guilty of, the offence but discharged without conviction; or

(c)                . . .

(2)               For the purposes of this Part, a person’s conviction of an offence is spent if:

(a)               the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or

(b)               the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period (defined in s 85ZL) for the offence has ended.’

24                  Section 85ZV is in Division 3 of Part VIIC.  It relevantly provides that, subject to Division 6, if a person’s conviction of a State offence is spent, the person is not required to disclose to a Commonwealth authority the fact that he or she was charged with, or convicted of, the offence.  Section 85ZZH is in Division 6 of Part VIIC.  It relevantly states that:

‘Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body:

(a)               . . .

(b)               . . ..

(c)               . . .

(d)               a person who makes a decision under the Migration Act 1958 . . . for the purpose of making that decision; or

. . .’

Consideration

25                  The submission on behalf of the applicant that the applicant was not convicted because the effect of s 25 of the Spent Convictions Act was that any conviction by a Western Australian Court of Petty Sessions following a plea of guilty was not a conviction is untenable.

26                  Section 25 of the Spent Convictions Act is a provision in respect of interpreting statutes in Western Australia.  Where statutes contain a reference to a conviction such a reference is not to be construed as including a spent conviction.  This is consistent with one of the objects of the Spent Convictions Act, which is to rehabilitate persons who have been convicted by limiting the effects of the conviction.  None of the examples of legislation of the Western Australian legislature referred to here which contain a reference to a spent conviction provides that a spent conviction is not a conviction; in fact the opposite.  A spent conviction order is a statutory sentencing option once a finding of guilt has been made and ‘convicted’ means ‘found guilty’ as set out in paragraph 20 above.  References to a spent conviction are all predicated on a conviction which is able to be treated as ‘spent’ or ‘past’ for certain purposes such as obligations to disclose and obligations on employees and those assessing character (ss 18 –23, 26 and 27).  Construed in accordance with well established principles, s 25 does not provide that spent convictions are not convictions.

27                  The second submission of the applicant that cl 866.222A is invalid turned on a submission that the clause was inconsistent with or repugnant to the Act.  It was not in contention that the Act and Regulations thereunder are to be construed so as to produce harmonious and consistent provisions: see generally, D Pearce, Delegated Legislation in Australia, 2^nd ed., ch 19: see also Webster v McIntosh  (1980) 32 ALR 603 at 605; and see Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].

28                  Sources of power to make regulations under the Act containing criteria for protection visas are to be found in s 31 referred to above and under the general regulation power in s 504.

29                  It was contended for the applicant that s 501 of the Act dealing with a power to refuse or cancel a visa on character grounds dealt exhaustively with the way in which criminal records are to be taken into account in the exercise of the power to grant or refuse to grant a Permanent Protection visa by reference to a character test.  Thus it was contended cl 866.222A impermissibly covered the same ground and/or alternatively was directly inconsistent with the statutory scheme of s 501, by imposing a mandatory exclusion based on conviction per se without regard to penalty, whereas s 501 contained a discretionary power.

30                  On this aspect, I accept the submissions on behalf of the respondent that cl 866.222A is not additional to or inconsistent with s 501 of the Act.

31                  In providing for the respondent to exercise a special power to refuse or cancel a visa under s 501, where the respondent is not satisfied that an applicant passes the character test, the respondent can take into account ‘past and present general conduct’ as well as ‘past and present criminal conduct.’ 

32                  There are other powers to cancel a visa (see s 118).  The terms of s 501 do not evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account.  Other sections of the Act, such as 91T and 91U also deal with criminal conduct. Section 501 does not contain criteria for the grant of a visa as does cl 866.222A.  There is nothing repugnant to the Act in regulations containing certain specified criteria for certain specified visas as contemplated by s 31.  Section 501 contains a power to refuse or cancel a visa; the power to grant a visa is provided in s 65 of the Act.  Finally, cl 866.222A cannot be described accurately as a ‘mandatory exclusion’ as it was in written submissions on behalf of the applicant.  In its terms, the clause operates to preclude an applicant from obtaining a Permanent Protection visa in the circumstances covered.  As there are no equivalent criteria in respect of a Temporary Protection visa, an applicant is not excluded from protection; rather an applicant does not obtain all the benefits of a Permanent Protection visa until the effluxion of four years in respect of convictions covered by the clause.  It can be noted in this regard that cl 866.228(b) allows the Minister to specify in writing the requisite period for which the applicant needs to hold his Temporary Protection visa in the context of qualifying for a Permanent Protection visa.  In the normal course the applicant will not be impeded by cl 866.222A after 21 June 2005.  I accept that should the applicant seek to renew or expedite an application for a Permanent Protection visa after 21 June 2005, the nature of a spent conviction order and s 25(1) of the Spent Convictions Act and s 45(1) of the Sentencing Act are matters worthy of consideration having regard to the different provisions in respect of family sponsorship for Temporary and Permanent Protection visa holders.  However, I express no views beyond that as the fate of any application made by the applicant under cl 866.228(b) is entirely a matter for the Minister. 

33                  There is nothing clearly inconsistent or clearly lacking in harmony in the coexistence of a power to refuse a particular class of visa for failure to satisfy certain criteria set out in subordinate legislation and a power to refuse to grant a visa on character grounds under the Act.  The fact that each of s 501 of the Act and the Regulation in question refers to convictions, but deals with them differently, one from the other, reflects no more than their different purposes.  Section 501 may be exercised independently of the satisfaction of criteria for a visa of a specified class.  Clause 866.222A does not diminish, add to or derogate from the regime in s 501.

34                  Thus, it seems to me that cl 866.222A does not impose distinct ‘additional’ criteria to any requirements of s 501, and does not fall outside the regulation making powers under the Act; further it is neither an inconsistent piece of subordinate legislation nor does it create a regime for dealing with character, different from that provided in the Act.  Accordingly, the authorities relied on for the applicant are all distinguishable: see Morton v Union Steamship Company of New Zealand (1951) 83 CLR 402; Ira, L & LC Berk Ltd v The Commonwealth (1930) 30 SR (NSW) 119 and Shanahan v Scott (1957) 96 CLR 245.  In my view cl 866.222A is valid subordinate legislation.

35                  I should record my gratitude to counsel for comprehensive submissions made both in writing and orally.  No jurisdictional error or errors of law as alleged have occurred in the decision for which judicial review is sought.  Thus no grounds for review have been made out.

36                  The relief sought by the applicant pursuant to s 39B of the Judiciary Act and/or s 5 of the Administrative Decisions (Judicial Review) Act is refused and the application for judicial review is dismissed with costs.

Associate:

Dated:              1 April 2005