Federal Court of Australia

Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335

ORDERS

THE COURT ORDERS THAT:

1.    The applicant no longer be described by pseudonym.

2.    The application is dismissed.

3.    On or before 28 April 2023, any party may seek an order as to the costs of the application by filing an outline of submissions of no more than three pages stating the terms of the order sought, together with any necessary affidavit in support.

4.    If an order as to costs is sought by a party then, on or before 12 May 2023, the opposing party shall file an outline of submissions in response of no more than three pages, together with any answering affidavit.

5.    Unless otherwise ordered, any application for an order as to costs shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Clarissa Price arrived in Australia in 1999 as a child. She has a long history of criminal offending. Many of those offences have resulted in fines or driving disqualifications. In 2016 she was convicted of supplying a prohibited drug and sentenced to 12 months imprisonment (Sentence). In April 2021, Ms Price was serving a further term of imprisonment for a different offence. Her visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Ms Price made representations to the Minister to exercise the power conferred under s 501CA(4) to revoke the cancellation. A delegate of the Minister decided not to do so. The applicant sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate.

2    The applicant seeks to review the decision of the Tribunal for alleged jurisdictional error. In addition, the applicant seeks the issue of a writ of habeas corpus on the basis of a claim that the cancellation of the applicant's visa was not lawful. It is convenient to deal first with the application for a writ of habeas corpus.

Grounds of application for writ of habeas corpus

3    There are three grounds upon which the applicant seeks a writ of habeas corpus. They are to the following effect:

(1)    the applicant's visa was not validly cancelled because she had not been sentenced to a term of imprisonment of 12 months or more and therefore did not have a substantial criminal record;

(2)    the applicant was not afforded procedural fairness in respect of the decision to cancel her visa under s 501(3A) with the consequence that her visa has not been validly cancelled; and

(3)    the decision to cancel the applicant's visa was legally unreasonable with the consequence that her visa has not been validly cancelled.

4    For the following reasons, each of these grounds must be rejected.

The statutory authority relied upon to cancel Ms Price's visa

5    Ms Price served the Sentence. Some years later, Ms Price was serving a sentence of 10 months imprisonment for a further offence. Whilst in custody, she was informed that her visa had been cancelled under s 501(3A) on the basis of the Sentence. Since then, Ms Price has pursued her legal rights to seek review of the visa cancellation decision including her present application to this Court to review the decision of the Tribunal (see below).

6    There are a number of provisions in the Migration Act which confer statutory authority upon the Minister to cancel a visa. One such provision is s 501(3A). It provides that the Minister must cancel a visa if the Minister is satisfied that the person concerned (a) 'does not pass the character test' for certain specified reasons, one of which is that 'the person has been sentenced to a term of imprisonment of 12 months or more'; and (b) the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against Australian law.

7    An issue arises as to whether the Sentence was indeed for '12 months or more' and, in consequence, whether there was power to cancel her visa. If there was no such power then her visa has not been validly cancelled and she is not being lawfully detained in immigration detention.

8    The submissions advanced for Ms Price included contentions to the effect that the imposition of a sentence of imprisonment of 12 months or more was a jurisdictional fact. On that basis it was said to be a matter for this Court as to whether the Sentence fell within the statutory language in s 501(3A). Quite properly, the Minister accepts that any state of satisfaction on the part of the Minister that is formed for the purposes of s 501(3A) must be based upon a correct understanding of the law as to the duration of the Sentence. Therefore, it is not necessary to determine whether the statutory terminology has the character of a jurisdictional fact. If the view of the Minister that the term of the Sentence was 12 months or more is shown to have been based upon a flawed understanding of the law then it follows that there was no statutory authority to cancel the visa of Ms Price.

9    The oral submissions for the Minister also did not take issue with the proposition advanced for Ms Price (on the basis of s 2G of the Acts Interpretation Act 1901 (Cth)) that the reference to '12 months' in s 501(3A) meant a period starting at the start of a day of a calendar month and ending immediately before the corresponding day of the calendar month that is 12 months after the starting month. That is to say, it was a period that included the whole of the commencement day and the whole of the day that concluded immediately before the anniversary of the commencement day.

The term of imprisonment of Ms Price

10    Ms Price was convicted and sentenced under New South Wales law. It is common ground that the duration of her sentence is to be determined according to the law of New South Wales.

11    When the Sentence was imposed by the magistrate it was expressed to be a sentence of 12 months imprisonment. Subsequently, a document headed 'Advice of Court Result' was issued by the Local Courts of New South Wales. It stated:

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

The relevant statutory provisions and their proper construction

12    The Crimes (Sentencing Procedure) Act 1999 (NSW) provides in s 47(1) that a sentence of imprisonment 'commences … on the day on which the sentence is imposed'. Section 47(6) then provides:

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

13    It was submitted for Ms Price that the words 'at the end of the day' do not mean the last moment of the day. Reliance was placed upon examples of colloquial usage of the term, such as when the expression is used to make an arrangement to meet 'at the end of the day'. It was submitted that such matters of ordinary usage indicate that the words refer to the end of daylight hours or otherwise allow for the possibility that the end of the day is not the precise moment before the next day. On that basis, it was submitted that the Sentence was for a period that was less than 12 months and therefore the power under s 501(3A) was not enlivened. The submission should not be accepted for a number of reasons.

14    Firstly, the use of the phrase 'at the end of the day' in a statutory provision concerned with the specification of the duration of a sentence of imprisonment is unlikely to invoke a colloquial meaning, especially one as imprecise as one invoked by the examples given to support the submission.

15    Secondly, a colloquial use of the phrase 'end of the day' takes its meaning from the context as to what is meant by 'day'. In particular it is likely to take its meaning from a shared understanding as to when the day ends. In some contexts it will refer to the end of a work day determined by reference to usual business hours. It may mean the end of daylight hours. It may even be used metonymically to mean the end of a long series of events. However, in many other contexts it will mean midnight, that is when a particular calendar day ends. All depends upon context. There is no contextual matter which points to the phrase being used to refer to a point in time other than midnight. On the contrary, the expression is juxtaposed with the expression 'the beginning of the day' a context which supports an interpretation of the provision as identifying the first and last moments of a day.

16    Thirdly, the evident purpose of the provision is to provide clarity as to the duration of a sentence of imprisonment. The only interpretation which affords a degree of certainty as to such duration that is consistent with such a purpose is one which construes the provision to refer to the very earliest moment of a day and the very latest moment of a day. Further, the seriousness of the subject matter, a person's liberty, indicates a precise identification of a point in time.

17    Fourthly, uncertainty as to precisely when a sentence of imprisonment ended would raise the possibility of debate as to whether a person was detained for a longer period than was legally authorised. If 'at the end of the day' means the very last moment of the day then the adoption of an administrative practice of arranging release at any time on that day would not result in unlawful detention. On the other hand, a colloquial interpretation of the kind advanced for Ms Price would leave open the possibility for argument that a late release on the last day of the sentence may be beyond the end of the day, a possibility which appears to be inconsistent with the evident purpose of the provision. As to such administrative practice, I note that the Crimes (Administration of Sentences) Act 1999 (NSW) provides that an inmate may be released from custody 'at any time on the release date for the current sentence' (and allows for an inmate to request release after a weekend or public holiday): s 8(1). In short, practical arrangements may be made for release of a person on the last day of the sentence being served that do not require the person to be held in custody until midnight. Therefore, arrangements for release are not a reason to adopt the construction advanced for Ms Price.

18    The contentions for Ms Price also placed heavy reliance upon the terms of s 48 of the Crimes (Sentencing Procedure) Act. It provides that the court must specify certain matters when sentencing an offender: s 48(1). The express purpose of the provision is 'to require a court to give information about the likely effect of a sentence': s 48(2). Section 48(1) is in the following terms:

When sentencing an offender to imprisonment for an offence, or to an aggregate sentence of imprisonment for 2 or more offences, a court must specify -

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

(b)    the earliest day on which it appears (on the basis of the information currently available to the court) that the offender will become entitled to be released from custody, or eligible to be released on parole, having regard to -

(i)    that and any other sentence of imprisonment to which the offender is subject, and

(ii)    the non-parole periods (if any) for that and any other sentence of imprisonment to which the offender is subject.

19    It is followed by three examples the first of which is expressed as follows:

Example No 1: A court sentences an offender to 7 days' imprisonment. The sentence is imposed on a Monday. The court has not set a non-parole period. The offender is not subject to any other sentence of imprisonment. In this example, the court should specify that the sentence commences on the Monday on which it is imposed and that the earliest day on which the offender will become entitled to be released from custody is the following Sunday.

20    In R v Kay [2000] NSWSC 716 at [128], the view was expressed that the examples 'reflect a misunderstanding of either simple counting or the law's measurement of time'. The basis for that view was put in the following terms:

Absent special circumstances, the law does not take account of parts of a day. Seven days' imprisonment commencing on a Monday expires at midnight on the following Sunday. The person is entitled to be released immediately thereafter i.e. on the next Monday, not on the Sunday as the first example states. Whether for ease of administration the authorities choose to release such an offender on the Sunday is, of course, a different matter entirely.

21    Subsequently, the same point was considered by Basten JA in Farkas v The Queen [2014] NSWCCA 141; (2014) 243 A Crim R 388, a case in which a sentence of 3 years and 7 months was imposed with a non-parole period of 2 years: at [2]. His Honour referred to s 48 of the Crimes (Sentencing Procedure) Act at [25] observing that the Court was required by that provision to specify the earliest date of eligibility for parole. As to that date, his Honour said that it was 'either the day before the anniversary of the commencement of [the offender's] sentence, or the anniversary'. The answer was said to 'depend upon the commencement of [the offender's] sentence' but that was a matter that was 'affected by the statutory scheme'.

22    After considering the statutory scheme, Basten JA said that the conventional approach to determining the duration of a sentence was one that was consistent with the notes to s 48(1): at  [29]. His Honour found that to the extent that there was inconsistency between the statutory language and the examples given, there were four reasons to follow the approach adopted in the examples: at [29]-[32]. His Honour concluded the analysis in the following terms (at [32]):

Given that the matter has not, however, been the subject of argument, these views should not preclude the issue being raised at some future time if a different construction is sought to be placed on the legislative scheme.

23    One reason expressed for adopting the position in the note was that it resulted in a shorter period of imprisonment. Applying the principle of legality, it was said that 'the doubt should be resolved against an interpretation which deprives an offender of his or her liberty, albeit for a very brief period': at [31].

24    It should be noted that s 48 is not concerned with defining the duration of a sentence. That task is undertaken by s 47. Section 48 imposes a requirement to give information about the likely duration of a sentence. It requires the identification of the earliest day on which a person will become entitled to be released from custody or eligible to be released on parole. However, it is s 47(6) that specifies precisely when on that day the sentence comes to an end, namely 'at the end of the day on which it expires'. The authorities concerned with the identification of the release day to be included in information as to the likely effect of a sentence are not concerned with the proper operation of s 47(6). For reasons that have been given, it provides that the sentence comes to an end at the last moment of the day on which the sentence expires. The reasoning of Basten JA provides no basis to adopt the meaning contended for Ms Price.

25    Finally, the submissions for Ms Price as to the proper construction of s 47(6) called in aid the statement in Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139 to the effect that a statutory provision which affects the personal liberty of the subject must be strictly construed. The requirement for clear and express words to support an infringement to liberty is also evident in the reasoning in R v Bolton; Ex parte Beane (1987) 162 CLR 514. In Coco v The Queen (1994) 179 CLR 427 at 437, it was noted that the courts insist upon 'an express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity'. Therefore, general words will rarely be sufficient to effect such consequences. If indeed there is to be such an abrogation or curtailment then legislation must say so in terms.

26    However, this is not a case where the Minister's position depends upon implication or the adoption of a broad or general approach to the statutory language. It is a case where there is express provision concerning the duration of any sentence of imprisonment. The principle of legality does not assist. Nor does any notion of strict or literal construction that might be said to favour a lesser term of imprisonment. For reasons that have been given there is no such literal construction of the text of the provision. Rather, the expression 'end of the day' takes its meaning from context. Therefore, there must be a contextual reading of the express text of the statutory provision having regard to its evident statutory purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]; and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [31]. For reasons that have been given, the case advanced for Ms Price as to the meaning of 'the end of the day' should not be accepted.

Conclusion as to ground 1

27    It follows that ground 1 has not been established.

Grounds 2 and 3

28    After grounds 2 and 3 were formulated and shortly prior to the hearing of the application for habeas corpus, the decision in Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53 was delivered. It rejected contentions that were similar to those advanced to support grounds 2 and 3. In Okoh, the Full Court was concerned with an application for leave to raise a ground that had not been advanced before the primary judge. Leave was refused for reasons unrelated to the merits of the ground. However at [85]ff, the Full Court went on to record reasons for the view that the proposed ground did not have any prospects of success.

29    In those circumstances, no more than a formal submission was advanced to support grounds 2 and 3. It was contended that the reasoning in Okoh may be distinguished but it was accepted that at first instance such submissions were unlikely to be accepted. Against the possibility that arguments may be presented on any appeal (if ground 1 was unsuccessful) as to why the reasoning in Okoh should not be followed (or should be distinguished), this Court was invited to make findings of fact. The relevant facts were said to be expressed in the applicant's written submissions.

30    The difficulty with making factual findings in the terms proposed is that they rest to some extent on the foundation of the analysis advanced for Ms Price as to the relationship between the power conferred by s 501(3A) and other sources of power to cancel a visa. In other respects they involve the characterisation of the consequences of Ms Price being at the end of serving a term of imprisonment when the prospect of the cancellation of her visa was raised. It is difficult to separate the precise terms in which such findings might be made from the legal context the subject of the reasoning in Okoh - which reasoning may be sought to be challenged on appeal. The factual matters relied upon are of very short compass. The evidence has been received subject to objections as to relevance. In those circumstances, this is an instance where the facts that might be found are best dealt with in the context of any argument on appeal.

Conclusion as to grounds 2 and 3

31    It follows that grounds 2 and 3 also have not been established.

Grounds of application to review Tribunal's decision for alleged jurisdictional error

32    There are two grounds upon which review is sought of the decision by the Tribunal. They were identified as grounds 4 and 5 of the application. They are to the following effect:

Ground 4:    The Tribunal erred by failing to consider all of the material documenting the strength, nature and duration of the applicant's social and family links to Australia.

Ground 5:    The Tribunal erred by failing to make its decision on a correct understanding and application of a direction under s 499 of the Migration Act, or by failing to give effect to the direction by treating it as requiring the Tribunal to consider violent crime as 'very serious' when the direction permitted but did not require that course.

33    The decision that was required to be made by the Tribunal in the present case was whether to revoke the original decision to cancel Ms Price's visa. The Tribunal, standing in the shoes of the Minister, could revoke the decision if it was satisfied (a) that the person passed the character test; or (b) that there is 'another reason why the original decision should be revoked': see s 501CA(4).

The relevant aspects of Direction 90

34    Section 499 of the Migration Act provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing); and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing).

35    In the present case, the Tribunal was required to comply with the relevant parts of 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA' (Direction 90) in deciding whether to revoke the cancellation of the visa. Direction 90 identifies considerations that a decision-maker is required to take into account 'where relevant'. Some considerations are identified as 'primary' and some are identified as 'other'. The Direction states expressly that in applying the considerations identified in the Direction, being 'both primary and other', the decision-maker should give appropriate weight to 'information and evidence from independent and authoritative sources': para 7(1). Further, the direction provides that primary considerations 'should generally' be given greater weight than other considerations.

36    One of the 'other considerations' listed in Direction 90 is 'links to the Australian community, including…strength, nature and duration of ties to Australia': para 9(1)(d)(i). Direction 90 goes on to state that decision-makers must consider any impact of the decision on the person's immediate family members (para 9.4.1(1)) and 'the strength, nature and duration of any other ties that the non-citizen has to the Australian community' (para 9.4.1(2)). As to the latter, Direction 90 states that in considering such ties, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

37    The submissions as to ground 4 focussed upon whether the Tribunal had complied with the requirement expressed in para 9.4.1(2)(b) (as quoted immediately above) insofar as it concerned social links with Australian people. I will refer to this requirement as the social links factor.

The Tribunal's reasoning as to the social links factor

38    After dealing with the primary considerations (which concerned the protection of the Australian community from criminal and other serious conduct, whether the conduct constituted family violence, the best interests of minor children in Australia and the expectations of the Australian community), the Tribunal addressed the other considerations. However, it did so in a context where it had already addressed aspects of the social circumstances of Ms Price in the course of addressing the primary considerations. In particular, the Tribunal had by that point already made reference to the following material:

(1)    evidence from Ms Price that the daughter of Ms Price's partner did not have a mother figure and that she sees her in person and speaks to her by phone regularly and that the child had provided a letter (para 94);

(2)    evidence of living arrangements whereby Ms Price's partner and his daughter lived with Ms Price's parents in a household that included Ms Price's two daughters (para 95);

(3)    evidence from the elder of Ms Price's daughters as to the support that Ms Price provides for her and 'that she needs [her mother] present at the time of birth of her child to provide support "mentally and physically" particularly given her grandmother's illness' (para 98);

(4)    notes and letters of support from family members including Ms Price's daughters (paras 100-101);

(5)    evidence from Ms Price's mother that it would be difficult for her pregnant daughter without her mother to support her (para 101); and

(6)    evidence as to the extent and duration of the relationship between Ms Price and her partner's child (para 106).

39    There had also been detailed consideration of the effect upon the family members if the visa cancellation was not revoked (paras 109-111).

40    In the course of addressing the primary considerations the Tribunal reached the following conclusions that are relevant for present purposes (at paras 111 and 124):

It is clear that the best interests of the applicant's two daughters would be served by the cancellation of the applicant's visa being revoked. There is, in my view, insufficient evidence to find that the best interests of Mr Montgomery's daughter would be served by a revocation of the cancellation of the applicant's visa. Taking into account the factors identified in para 8.1(4) of Direction 90, it is my view that this factor weighs moderately to heavily in favour of revocation of the cancellation of the applicant's visa.

…

I agree that the fact that the applicant has been a resident in this country for nearly 23 years, having arrived as a child, and the best interests of her children, one of whom is about to have a baby, would afford her with some degree of tolerance with the Australian community. Given the nature of her offending, however, in particular the repeated dealing in methylamphetamine, this consideration weighs against revocation and, in my view, should be given moderate weight.

41    The Tribunal then dealt with the other considerations. As to the social ties factor, after quoting the relevant parts of Direction 90, the Tribunal began by stating (para 147):

The applicant arrived in Australia as a 12-year-old and has, except for a 15-month period when she returned to New Zealand for the birth of her first daughter, lived in Australia. The impact of a decision on the applicant's visa will have a significant impact on her immediate family members. The impact on her two daughters has been discussed in the above consideration of the best interests of children. As set out in that consideration, the impact will be significant.

42    It can be seen that the Tribunal incorporated reference to the earlier consideration of the best interests of children. After some further consideration of family ties, the Tribunal then identified matters that had been identified in the statement of facts, issues and contentions filed by Ms Price in the proceedings before the Tribunal. It accurately recorded the fact that the statement identified the fact that Ms Price had arrived in Australia as a child and had spent the vast majority of her life in Australia, the fact that her entire family resides in Australia and the fact that she is in a committed relationship with her partner as being relevant. It did not identify particular social ties as being relevant.

43    The Tribunal began its consideration of those matters in the following way (para 158):

The Minister accepts that the applicant has built social and familial ties within Australia, including people who have an indefinite right to remain in Australia. The Minister notes, however, that the applicant commenced her offending at a young age and has committed numerous criminal offences during her time in Australia with little to no break in offending. The Minister submits that the applicant's ties to the community should be given somewhat less weight in those circumstances.

44    As to social ties the Tribunal found at para 161 that: 'There is little evidence of any social or other links to Australia outside the applicant's family'.

Claim that evidence of social ties was overlooked by the Tribunal

45    It was not claimed that the Tribunal overlooked any matter addressed by the statement of facts, issues and contentions. Rather, it was said that the materials before the Tribunal (which included the reasons of the delegate) included evidence of Ms Price's social ties in Australia and the Tribunal had failed to comply with Direction 90 in not considering that material in addressing the social ties factor.

46    The material that the Tribunal was said to have ignored or overlooked was as follows:

(1)    statements from Australian friends which showed that Ms Price's friendships with them were durable and strong;

(2)    references in the reasons of the delegate to the support of friends; and

(3)    the tie to Ms Price's expected grandchild.

Nature of the Tribunal's obligation to consider material

47    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, Kiefel CJ, Keane, Gordon and Steward JJ addressed what was required in considering whether to exercise the broad discretionary power conferred by s 501CA(4) to revoke the cancellation of a visa. In that case, the relevant decision had been made by the Minister acting personally and there must be due regard to that aspect in considering the way in which their Honours explained the decision-maker's task. Particular emphasis was placed upon the significance of the content of the 'representations' made to the Minister. In that regard, s 501CA(3) requires the Minister to invite the making of representations about the revocation of the visa cancellation decision. Further, the discretionary power to revoke only arises if representations are made in response to the invitation.

48    As to the statutory task to be performed if representations are made, their Honours stated that 'there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations': at [24]. This requires the decision-maker to comprehend what is being advanced. It does not require the decision-maker to address in the reasons every matter that is the subject of representations: ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9]. Further, the requisite level of engagement that is required with a matter that is identified in the representations 'will vary, among other things, according to the length, clarity and degree of relevance of the representations' and there is no requirement to consider 'claims that are not clearly articulated or which do not clearly arise on the materials before [the decision-maker]': Plaintiff M1/2021 at [25]. Significantly, in Plaintiff M1/2021 their Honours then said at [26]:

Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. …

(footnotes omitted)

49    These statements must be placed in the context of the practices and procedures of the Tribunal. Although those procedures provide for the transmission to the Tribunal of the materials that were before the decision-maker (in the present case including all the representations that were before the delegate) as well as the reasons of the decision-maker, the Tribunal may receive further materials and may require a party to identify the matters that are said to be of significance. As to the latter, it is common practice for the Tribunal to require parties to provide a statement of facts, issues and contentions. That course was followed in the present case. As has been explained, it is evident that the Tribunal had resort to that statement in determining the extent to which the social ties factor was said to support the revocation of visa cancellation.

50    Therefore, when the reasoning in Plaintiff M1/2021 is applied to a Tribunal decision, the references to the statutory expression 'representations' must allow for the fact that, before the Tribunal on merits review, in the usual course, it is the statement of facts, issues and contentions that will comprise the matters that are clearly articulated. They may be supplemented by matters that are addressed by evidence and oral submissions before the Tribunal. However, material that is before the Tribunal but is not addressed in any way, will be unlikely to be able to be characterised as representations that were clearly articulated and especially so in circumstances were an applicant for review is legally represented before the Tribunal.

51    Further, when the reasons of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 note that nothing in their Honours' analysis 'detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument … that may give rise to jurisdictional error' (at [27]), their Honours, in the context of the earlier analysis, must be taken to be referring to facts or materials or arguments that form part of the representations. In a case concerned with a decision by the Tribunal, it is necessary to consider the extent to which those representations are maintained before the Tribunal. The effectiveness of the procedure whereby the Tribunal properly requires parties to identify by a statement of facts, issues and contentions and the conduct of proceedings before the Tribunal would be substantially compromised if the Tribunal was nevertheless required to painstakingly review material to which an applicant for review made no reference (and which is not sought to be characterised as so obviously significant that it arose from the facts, material or arguments before the Tribunal even though not expressly identified as such).

52    The above analysis reflects the approach of the Full Court in Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [51]-[57].

Whether the Tribunal ignored or overlooked representations in the present case

53    In the present case, the following position was put to the Tribunal in the statement of facts, issues and contentions advanced by counsel for Ms Price (under the heading 'strength, nature and duration of ties'):

The Applicant arrived in Australia as a 12-year-old. She has spent the vast majority of her life in Australia, including her childhood. Her ties to Australia are therefore incredibly strong. In accordance with the Direction, her offending should therefore be afforded a high level of tolerance.

The entirety of the Applicant's family reside in Australia. The Applicant's family include her parents (who have significant health issues of their own) and children. Her family connections with Australia are also very strong.

The Applicant is also in a committed relationship with [her partner]. This relationship has been ongoing for 12 months and [her partner] is fully aware of the Applicant's criminal history. They communicate daily and the Applicant is also regularly visited by [her partner] and his daughter. The Applicant submits that the Tribunal should have regard to the relationship, its genuineness, and that the relationship will be adversely affected by the removal of the Applicant from Australia.

54    It can be seen that the statement of facts, issues and contentions focussed upon family connections. Further, in her statement of evidence to the Tribunal, there was no reference by Ms Price to her social ties beyond her family. The closest that her statement came to making a representation of that kind was in the following passage from para 27 of the statement:

I have a real support network now with my family and help from psychologists. When I was sent to prison, it helped me as I was able to separate myself and have the support. It reassured me that I was not crazy and was able to have friends and support.

55    It may be accepted that the materials transmitted to the Tribunal included statements from Australian friends of Ms Price that were before the delegate and that there was some reference to aspects of those statements in the reasons of the delegate of the Minister for refusing to revoke the visa cancellation. In a case where there is no statement of facts, issues or contentions or an applicant is not legally represented, the reasons of the delegate will be the starting point for identifying the issues. However, having regard to the manner in which representations were made to the Tribunal it cannot be said that the Tribunal ignored or overlooked facts or materials the subject of representations as to those matters. The representations made to the Tribunal emphasised family connections and sought to attribute general significance to the fact that Ms Price had lived in Australia since she was a child. Those representations were addressed by the Tribunal.

56    Further, to the extent that the submission for Ms Price was couched as a failure to give proper, genuine or realistic consideration to the material then it invited an evaluation of the merits of the Tribunal's decision by reference to material that was not the subject of representations made to the Tribunal.

57    Finally, to the extent that the submission advanced for Ms Price was to the effect that the Tribunal failed to have regard to representations that the then unborn child of Ms Price's elder child was a matter that was represented to form part of the social ties that the Tribunal should bring to account, the submission should not be accepted. As has been explained the Tribunal did have regard to that aspect of the representations by incorporating the earlier consideration of that matter.

58    Also, it must be observed that this is not a case where the claim made is that the social ties factor was not addressed at all and therefore there was a failure to comply with Direction 90 by failing to have regard to a matter that the Tribunal was required to have regard to by the terms of Direction 90. The Tribunal did have regard to the social ties factor.

Conclusion as to ground 4

59    For the reasons that have been given, ground 4 has not been established.

The Tribunal's approach to the seriousness of the offending by Ms Price

60    Ground 5 concerned the way in which the Tribunal approached the seriousness of the offending by Ms Price.

61    As to the nature and seriousness of offending (being a primary consideration), Direction 90 provides that in considering the nature and seriousness of criminal offending of the person whose visa has been cancelled, decision-makers must have regard to various matters listed in the direct (para 8.1.1(1)). One such matter is expressed as follows (para 8.1.1(1)(a)):

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

(i)    violent and/or sexual crimes;

(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

62    As to seriousness of offending by Ms Price, the Tribunal reasoned in the following way:

(1)    the Tribunal set out the submissions of the parties (paras 40-41);

(2)    the Tribunal made findings as to the considerations identified in para 8.1.1 of Direction 90 (para 42);

(3)    as to two convictions for assaulting a public officer and one of common assault, the Tribunal said that by operation of para 8.1.1(1)(a) the offending 'must be considered as serious' (para 42);

(4)    the Tribunal then dealt with other matters listed in para 8.1.1(1) and in the course of doing so undertook an evaluation of the offending and whether there was a trend of increasing seriousness which involved an evaluative consideration of the nature of Ms Price's offending (para 42);

(5)    the Tribunal referred to a submission for Ms Price to the effect that her circumstances at the time of offending should be taken into account (being a substance abuse problem and mental health conditions) (para 43);

(6)    the Tribunal noted that much of the offending by Ms Price had occurred while she was using drugs and that she has long-standing mental health conditions, but concluded that the seriousness of her offending was primarily to be assessed objectively (para 44); and

(7)    the Tribunal then reasoned as follows by way of a concluding paragraph (para 45):

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

The contention advanced by Ms Price

63    The contention advanced by Ms Price is to the effect that the Tribunal approached the question of the seriousness of the offending by Ms Price on the basis that Direction 90 required the Tribunal to conclude that the three assault convictions for which Ms Price was fined a total of $1,800 must be considered very serious. This was said to be an erroneous approach because Direction 90 required regard to a governmental position that all violent crimes were to be viewed very seriously. In effect, the contention was that the Tribunal did not undertake its own evaluation of the seriousness of the offending but rather considered itself to be bound by a characterisation of the conduct as serious because of the terms of Direction 90.

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

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

Conclusion as to ground 5

66    For the reasons that have been given, ground 5 has not been established.

Conclusion and orders

67    It follows that the whole of the application (both for a writ of habeas and for review for alleged jurisdictional error by the Tribunal) must be dismissed. In that event, an opportunity was sought by Ms Price to make submissions as to costs. I will provide for any such application as to costs to be made by written submission (and any necessary affidavit) and for any such application to be dealt with on the papers.

68    Finally, a pseudonym has been used to refer to Ms Price. The matters that had caused the Tribunal to use a pseudonym to refer to Ms Price were not in issue in this Court. Therefore, it was accepted that provided there was no reference in these reasons to the report of the proceedings in the Tribunal there was no basis for the continued use of the pseudonym. There should be an order accordingly.

Associate:

Dated:    14 April 2023