Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Singh [2020] FCA 1384

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 20 February 2020, setting aside the decision of a delegate of the applicant not to revoke the cancellation of the first respondent’s Resident Return (Class BB) (Subclass 155) visa, and substituting it with a decision to revoke that visa cancellation, be set aside.

2.    The second respondent hear and determine the first respondent’s application for review according to law.

3.    The first respondent pay the applicant’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J

1    Unusually, this is an application brought under s 476A of the Migration Act 1958 (Cth) by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. All of the provisions referred to in these reasons are from the Migration Act.

2    The Tribunal:

(1)    set aside a decision of a second delegate of the Minister made under s 501CA(4) not to revoke the decision made by a first delegate of the Minister under s 501(3A) to cancel the first respondent’s (Ms Singh’s) Resident Return (Class BB) (Subclass 155) visa; and

(2)    substituted the second delegate’s decision with a decision that the first delegate’s cancellation decision under s 501(3A) be revoked.

3    The Tribunal’s decision was made upon the ground that there was no jurisdiction bestowed upon the first delegate under s 501(3A) to cancel Ms Singh’s visa in the first place. Because of that finding, there was explicitly no consideration given to the merits of Ms Singh’s application to review the second delegate’s decision not to revoke her visa cancellation.

4    The issue before the Court is one of statutory construction concerning the operation of s 501(3A), and in particular the relationship between paragraphs (a)(i) and (b). This is a topic upon which a Full Court has decisively spoken in Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207; 273 FCR 105. The decision in Ketjan was made on 19 November 2019, with written reasons published a week later on 26 November 2019.

5    It is readily apparent that Ketjan was not known by the Tribunal at the time of the hearing on 3 and 4 February 2020, nor when the decision and reasons were published on 20 February 2020. Indeed, the Tribunal expressly stated that neither party referred it to any decisions which were directly relevant.

6    For the reasons that follow, the Minister’s application to have the Tribunal’s decision set aside must succeed.

Representation in this Court

7    The Minister was represented by a solicitor, and Ms Singh by counsel, before the Tribunal. In this Court, the Minister is represented by senior and junior counsel, while Ms Singh was not legally represented. Ms Singh is undergoing continuing medical treatment for a serious illness. The Minister furnished detailed but concise written submissions and his counsel spoke to them at the hearing of the application. Ms Singh did not provide written submissions. Nor was she able to make any meaningful oral submissions, instead expressing entirely understandable distress and concern about her situation, both in terms of her health, and in terms of her visa.

8    Well prior to the hearing of the application, I gave careful consideration as to whether amicus curiae should be appointed to assist the Court, or pro bono representation arranged. This arose in circumstances in which Ms Singh’s solicitors and counsel withdrew, I readily enough infer, because she was not in a position to be able to accept their advice as to the likely fate of this application. As the outcome is governed by Full Court authority which is directly on point, I saw no point in taking either step. In truth, I was left with no real alternative, although, I hasten to add, I would have independently reached the same conclusion as the Full Court in Ketjan, and for the same reasons.

Relevant history and the Tribunal’s decision

9    The following chronology of key events leading to the impugned decision of the Tribunal is based on the helpful summary provided in the Minister’s written submissions.

(1)    Ms Singh is a citizen of Fiji who first came to Australia approximately 30 years ago. The Tribunal found (at [9]) that she has accrued “a very large number of convictions” since then.

(2)    On 18 January 2017, Ms Singh was sentenced to 12 months’ imprisonment for driving a motor vehicle while disqualified. On appeal, that sentence was confirmed but suspended. Section 501(7)(c) provides, for the purposes of the character test, that a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more, including suspended sentences: Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [11] per Rares J and [114] per Nicholas J.

(3)    On 31 January 2017, Ms Singh’s visa was mandatorily cancelled pursuant to s 501(3A). She successfully obtained revocation of that decision.

(4)    On 25 February 2019, Ms Singh was convicted of driving a motor vehicle while disqualified and sentenced to eight months’ full time imprisonment. While she was serving that term of imprisonment, her visa was again mandatorily cancelled pursuant to s 501(3A). In making that decision, the Minister’s delegate was satisfied:

(a)    for the purpose of s 501(3A)(a)(i), that she had a “substantial criminal record” on the basis of s 501(7)(c), because of the 12-month suspended sentence imposed on 18 January 2017; and

(b)    for the purpose of s 501(3A)(b), that at the time of making the decision she was serving a sentence of imprisonment on a full-time basis (being the eight-month sentence imposed on 25 February 2019).

(5)    Ms Singh sought revocation of that decision pursuant to s 501CA(4). On 29 November 2019, a delegate of the Minister refused to revoke the cancellation decision, referring (as did the cancellation decision-maker) to the 2017 suspended 12-month prison sentence. She sought review by the Tribunal of the delegate’s decision not to revoke her visa cancellation.

(6)    On 20 February 2020, the Tribunal set aside the delegate’s decision and substituted a decision that the mandatory cancellation of Ms Singh’s visa be revoked. The basis for the Tribunal’s decision was that the delegate “impermissibly relied upon the 2017 conviction when Ms Singh was not in jail at the time of his or her decision on account of that conviction”, rejecting the effect of the Minister’s construction of s 501(3A), summarised as being that “any period of imprisonment that is served, no matter how small, after the visa-holder has received at some earlier point a term of imprisonment of 12 months or more, requires the Minister to cancel the person’s visa”.

The review grounds and Ketjan

10    The interrelated grounds of the Minister’s application are that the Tribunal erred in finding that the delegate did not have jurisdiction to cancel Ms Singh’s visa and misconstrued s 501(3A), including by finding that the condition in s 501(3A)(b) is only satisfied where the sentence of imprisonment being served is for the same offence(s) that caused the Minister (via his delegate) to be satisfied as to s 501(3A)(a).

11    In Ketjan, the unsuccessful appellant had been convicted and sentenced prior to enactment of s 501(3A). The Full Court posed the question before it succinctly as follows (at [3], emphasis in original):

What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?

12    It is appropriate to reproduce the Full Court’s reasoning in answer to that question in full:

[35]    The appropriate starting point is the text of s 501(3A) of the Act. That provision is again set out for reference:

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

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

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

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

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

…

[36]    As apparent from s 501(3A), there are two conditions which must exist to enable the mandatory cancellation of a visa by the Minister. The first is para (a) of s 501(3A). The second is para (b) of s 501(3A).

…

[38]    From an ordinary reading of the language of s 501(3A)(a), and the supporting definitions in ss 501(6) and (7), there is no basis to confine the Minister to a consideration of events that influence the passing (or not) of the character test after, but not before, the commencement of the mandatory visa cancellation scheme on 11 December 2014. In particular, s 501(7)(c) prescribes that a person has a “substantial criminal record” if he or she “has been sentenced to a term of imprisonment of 12 months or more”. That language pre-dates the commencement of s 501(3A), and does not temporally confine the terms of imprisonment to those that straddle or operate exclusively after the commencement date of the scheme.

[39]    As to para 501(3A)(b), there is no requirement that the sentence of imprisonment that the non-citizen is serving for the purposes of that paragraph be the same sentence that gave rise to the non-citizen having a “substantial criminal record” for the purposes of para (a). The events that may trigger paras (a) and (b) may be distinct. There are various bases for this interpretation.

[40]    First, para (b) refers to “a” sentence of imprisonment rather than “the” sentence of imprisonment. Should Parliament have intended for a non-citizen’s visa to only be mandatorily cancelled where he or she is serving the term of imprisonment that gave rise to the non-citizen having a “substantial criminal record”, then the language of para (b) could have easily connected to the operation of para (a).

[41]    Second, although para (b) is inherently directed to a sentence of imprisonment, the satisfaction of para (a) may not occur as a result of such a sentence. Paragraph (b) may alternatively be satisfied where the non-citizen is “merely” convicted or found guilty of a sexually based offence (s 501(6)(e)) or where the non-citizen has been sentenced to death (s 501(7)(a)). These events do not necessarily involve sentences of imprisonment. This tends to demonstrate that para (b) has an operation distinct from that of para (a).

[42]    Third, as evident from the text of the provisions, para (a) requires a “positive state of satisfaction” on the part of the Minister (Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 (Falzon) at [46] per Kiefel CJ, Bell, Keane and Edelman JJ), while para (b) operates upon a factual state of affairs at a particular point in time.

[43]    Fourth (and relatedly), having regard to the policy behind the introduction of the mandatory visa cancellation scheme, paras (a) and (b) serve different purposes. Paragraph (a) is directed to the quality of the non-citizen’s character which, in this context, is determined objectively by reference to the non-citizen’s (past) criminal record. Paragraph (b), in contrast, is directed to a state of affairs at a particular point in time; namely (and broadly), whether the non-citizen is, at that time, in prison on a full-time basis for committing an Australian criminal offence. This makes sense when you have regard to the stated purposes behind the mandatory visa cancellation scheme. As explained in the relevant explanatory memorandum and second reading speech, which were relevantly extracted above at [13]-[14], the primary intention of the mandatory visa cancellation scheme was to ensure that the decision to cancel a non-citizen’s visa occurs before he or she is released from prison: see Falzon at [49]-[50]. The result is that, should the non-citizen subsequently request revocation of the mandatory cancellation, that request would be pursued while the non-citizen is in prison or, if released from criminal custody, in immigration detention.

[44]    Having regard to these matters, no aspect of the plain reading of the legislative text justifies the imposition of a limitation that s 501(3A) cannot apply to the appellant’s circumstances.

13    The Minister’s submissions helpfully, accurately and succinctly summarise the way in which the Tribunal found that the delegate who cancelled Ms Singh’s visa in the first place had no jurisdiction to do so, effectively concluding that there was no valid visa cancellation and therefore revoking that decision (omitting court book references and cross-references to the Tribunal reasons):

The Tribunal found that there was no “jurisdiction” for the delegate to have cancelled the First Respondent’s visa under s 501(3A). In so finding, the Tribunal observed that the delegate had “acted on the basis that he or she was obliged to take into account [the First Respondent’s] earlier 2017 sentence of 12 months’ imprisonment and was also bound to take into account the term of imprisonment [the First Respondent] was serving at the time of his or her decision (albeit for a different offence)”. The Tribunal posed the “jurisdictional question” before it as “whether that was the correct approach”. The Tribunal reasoned that, for the power in s 501(3A) to be available, the visa holder must be serving a term of imprisonment (ie. such that s 501(3A)(b) of the Act is met) “on account of” the conviction that falls within s 501(3A)(a) of the Act. Accordingly, in the present case, the delegate was said to have “impermissibly relied upon” the 2017 Sentence, for the purposes of s 501(3A)(a), in circumstances where the Applicant “was not in jail at the time of his or her decision on account of that conviction”. It was the fact that the sentence being served at the time of the cancellation decision was for a different offence from the 2017 sentence relied upon for the purposes of the character test that was the basis of the Tribunal’s decision.

In reaching that conclusion, the Tribunal did not accept the Minister’s construction of s 501(3A). That was that the power in s 501(3A) is available “whenever two conditions are satisfied”, namely, (a) where the visa holder has been sentenced at any time in the past to a term of imprisonment of 12 months or more; and (b) at the time the Minister is exercising the power to cancel, the visa holder is “in a custodial institution on a full time basis (whether or not the term of imprisonment which a person is serving at that time is one of at least 12 months’ duration)”. The Minister saw the second condition as not dependent upon the sentence being served being the same as that satisfying the first condition.

14    It is not necessary to address a range of collateral matters that the Tribunal saw as pointing, as a matter of statutory construction, against the Minister’s interpretation, given the binding terms of Ketjan and the plain language of s 501(3A). As the High Court pointed out in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 (at [47], omitting footnotes):

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

In this case, there was no need to go beyond the text of s 501(3A), although, as the reasons in Ketjan reproduced above make clear, context served only to reinforce the plain meaning.

15    The Tribunal erred in its interpretation of s 501(3A), largely by deploying a collateral reasoning process to depart from the ordinary meaning to be derived from the express language of that provision. As the passages from Ketjan reproduced above make clear, there was no proper basis for the finding that the prison sentence giving rise to the “substantial criminal record” for the purposes of s 501(3A)(a)(i) needed to have any relation to the prison sentence being served for the purposes of s 501(3A)(b), let alone that they needed to be same sentence of imprisonment.

16    It follows that the Minister’s application succeeds. The Tribunal’s decision must be set aside and the matter remitted to the Tribunal to decide Ms Singh’s merits review application. There is no reason that I can see why the same Tribunal member should not hear that application, although that is, of course, a matter for the President of the Tribunal. Costs should follow the event, such that Ms Singh be ordered to pay the Minister’s costs.

Associate:

Dated:    28 September 2020