Minister for Immigration v Tamou
[2008] FMCA 5
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v TAMOU & ANOR | [2008] FMCA 5 |
| MIGRATION – Whether a person is a “behaviour concern non–citizen?” INTERPRETATION OF PHRASE – “sentenced to imprisonment” – suspension of sentence does not mean that the person has not been sentenced to imprisonment. |
| Migration Act 1958 (Cth), ss.5, 12, 32, 200, 201, 202, 204, 501 Federal Magistrates Court Rules 2001, r.44.05, 44.12 |
| Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 Meng Kok Te v Minister for Immigration and Multicultural Affairs [1998] FCA 1339 Drake v Minister for Immigration and Ethnic Affairs 46 FLR 409 Meng Kok Te v Minister for Immigration and Ethnic Affairs [1999] FCFCA 111 Te v Minister for Immigration and Multicultural Affairs M32/1999 Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCFCA 105 Te v Minister for Immigration and Ethnic Affairs 88 FCR 26 |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | EARL HUNTER TAMOU |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | PEG 145 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 December 2007 |
| Date of last submission: | 14 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mosley |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the First Respondent: | Ms Gilbert |
| Solicitor for the First Respondent: | Victoria Legal Aid |
| Counsel for the Second Respondent: | Ms Fouge |
| Solicitors for the Second Respondent: | Blake Waldron |
ORDERS
The Court issues a writ of Certiorari quashing the decision of the Tribunal signed on 30 May 2007 (MRT Case Number 060864978).
The Court issues a writ of Mandamus directing the Tribunal to determine the matter according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
PEG 145 of 2007
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| EARL HUNTER TAMOU |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application by the Minister for Immigration and Citizenship for the Respondents to show cause why an order should not be made quashing the decision of the Migration Review Tribunal signed on
30 May 2007, and remitting the matter to the Tribunal for determination according to law.
Pursuant to Rule 44.12(1)(c) of the Federal Magistrates Court Rules 2001, the Court will proceed to make final orders in this matter.
Background
The first respondent is a citizen of New Zealand. He arrived at Brisbane airport on 9 August 2006 and was issued with a 773 Border Visa, after disclosing convictions for a number of offences.
The first respondent applied to the Department for a Special Category (Temporary)(Class TY) visa on 8 September 2006. The delegate refused to grant the visa by decision dated 19 September 2006.
The first respondent then applied to the Migration Review Tribunal to review the decision of the delegate. By decision signed on
30 May 2007 the Tribunal remitted the application for a visa to the delegate with a direction that the first respondent met the primary criteria for a subclass 444 (Special Category) visa as set out in s.32(2)(a)(i) of the Act. That provision is as follows:
“(2)A criterion for a special category visa is that the Minister is satisfied 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; or…”The Minister has applied to the Court pursuant to Rule 44.05 of the Federal Magistrates Court Rules 2001 to review the decision of the Tribunal. The five grounds of the application are as follows:
“1. The Migration Review Tribunal committed jurisdictional error in not taking into account the first respondent’s conviction of crime for which he was sentenced to six months imprisonment in 1996, and which sentence was subsequently suspended for one year, in assessing whether the respondent was a behaviour concern non-citizen for the purpose of s 32(2)(a)(ii) of the Migration Act 1958 (Cth).
2. The Migration Review Tribunal committed jurisdictional error in its construction of the term “behaviour concern non-citizen” in s 5 of the Migration Act in holding that a sentence of imprisonment which is subsequently suspended does not amount to the convicted person being “sentenced to imprisonment” with the meaning of paragraph (b) of the definition of behaviour concern non-citizen”.
3. The jurisdictional errors identified in paragraphs 1 and 2 above affected the exercise of the Migration Review Tribunal’s power in that it thereby wrongly concluded that the first respondent had been convicted of crimes and sentenced to imprisonment for periods which totalled seven months and 28 days, and failed to conclude that the first respondent was a behaviour concern non-citizen for the purposes of s 32(2)(a)(ii) of the Migration Act.
4. Upon a proper construction of the term “behaviour concern non-citizen” in s 5 of the Migration Act the Migration Review Tribunal should have held the first respondent’s 1996 conviction and sentence to a term of imprisonment of six months was a crime in respect of which the first respondent had been convicted and sentenced to imprisonment within the meaning of paragraph (b) of that term, notwithstanding the subsequent suspension of that sentence, and therefore the period of that sentence was to be added to the periods of any other sentences of imprisonment in respect of any other crimes of which the first respondent has been convicted, in determining whether the periods of such sentences added up to at one year.
5. Upon a proper construction of the term “behaviour concern non-citizen” the Migration Review Tribunal should have found that the first respondent had been convicted of two or more crimes and sentenced to imprisonment for periods that added up to a total of one year, one month and 28 days, and that the first respondent was accordingly, a behaviour concern non-citizen for the purposes of s 32(2)(a)(ii) of the Migration Act and was not entitled to the grant of a special category visa.”
The evidence before the Tribunal was that the first respondent was convicted of a number of offences relating to assault and a minor drug offence. He was sentenced to periods of imprisonment as set out in paras 8 and 10 below.
In April and August 1996 he was given sentences of 6 months non– residential periodic detention and 6 months imprisonment (CB 50.8). Other sentences are set out in para 10 below. The delegate found that the first respondent had been sentenced to a total of 13 months and 28 days imprisonment and was therefore a “behaviour concern non–citizen” as defined.
The term “behaviour concern non–citizen” is defined in s.5 of the MigrationAct 1958 (the “Act”) as far as it is relevant as follows: “behaviour concern non–citizen” means 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; or
…
where sentenced to imprisonment includes ordered to be confined in a corrective institution.”
The first respondent was sentenced to imprisonment for 28 days in 1995; one month in 1996; two further periods of 6 months in 1996 (but those latter sentences were then suspended), and 6 months in 1997 (CB 53.4).
The Tribunal had documentary proof of these sentences (CB 9).
The Tribunal decided that as the sentences in 1996 were suspended, it would not take them into account in determining the total period that the first respondent had been sentenced to imprisonment (CB 53.4).
The Court takes judicial notice of the fact that a sentence of imprisonment is first imposed, and it can then be suspended.
A misconstruction or misapplication of prescribed visa criteria results in jurisdictional error (see: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [51]).
The Tribunal erred in law in not taking into account the sentence in 1996 to 6 months imprisonment. The definition in s.5 of the Act is concerned with sentences that have been imposed on a person, rather than on the terms of imprisonment actually served.
The Court accepts the submissions for the Minister that there is nothing to suggest that the construction of the phrase “sentenced to imprisonment” in s.5, requires any different approach from that adopted in the authorities referred to by the Minster, in considering the phrase in the context of ss.201 and 501 of the Act.
In Meng Kok Te v Minister for Immigration and Multicultural Affairs [1998] FCA 1339 three months of a sentence to 12 months imprisonment was suspended. Justice Branson said that “the contention that the person there had not been sentenced…to imprisonment for a period of not less than one year as provided in s.201 of the Act, required consideration to be given to the significance so far as s201 is concerned of the suspension of part of the term of imprisonment”. The relevant sentence imposed on the appellant was “sentenced to 12 months imprisonment, three months of the sentence suspended for 12 months” (page 2.4).
His Honour referred to the decision of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs 46 FLR 409 where Chief Justice Bowen and Justice Deane held at [418] “that a sentence of imprisonment for 12 months…accompanied by a direction that the plaintiff be released after three months…was a sentence to imprisonment for one year within the meaning of s.12 of the Act” as it then was (Meng Kok Te supra page 2.6).
Justice Branson concluded that the suspension of a portion of a sentence does not affect the length of a sentence for the purpose of
s.201 of the Act (Meng Kok Te supra page 3.2).
On appeal in Te v Minister for Immigration and Ethnic Affairs [1999] FCFCA 111, Justices Sackville, North and Merkel dismissed the appeal and followed the decision in Drake ante, referring to the decision there that the term in s.201(c) “must refer to the sentence of imprisonment imposed, not to the term of imprisonment actually served” (para 31.1). On refusing an application for special leave to appeal to the High Court Te v Minister for Immigration and Multicultural Affairs M32/1999 Justices McHugh and Kirby stated that the case fell squarely within the interpretation in Drake ante which has stood for 20 years and was correctly decided.
The Full Court of the Federal Court considered the same issue in the context of s.501(7)(c) of the Act in Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCFCA 105, and concluded at [27] that s.501(7)(c) “is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served”.
As stated in the first respondent’s contentions of fact and law at [7] “What does seem clear however is that the first respondent was at Court sentenced to 28 days imprisonment in 1995, to be actually served; 6 months imprisonment in 1996, wholly suspended for 1 year, and 6 months in 1997, to be actually served”.
The Court rejects the submission for the first respondent that the term “sentenced to imprisonment” in s.5 should not include a sentence not “actually served”. The definition refers to “sentenced to imprisonment” and not to “terms served”.
The first respondent contends that a “benevolent or differential” interpretation of s.5 is not at odds with the scheme of the Act.
The Court interprets this submission as saying that “the interpretation of the relevant definition in s.5 in matters not involving citizens of New Zealand, is that it refers to periods to which a person is “sentenced to imprisonment” and that should not apply to citizens of New Zealand”.
The Court sees no reason to apply a different interpretation to citizens of New Zealand. The first respondent argues that citizens of New Zealand are in a special category and the words “sentenced to imprisonment” in s.5 should be given a different interpretation when applying them to s.32. Section 32 requires an applicant to not be “a behaviour concern non–citizen”; if it was intended that s.32 applicants be subject to that requirement, s.32 could have stated that.
The Court finds that the phrase should be interpreted according to the authorities relied on by the applicant; it should be given its natural normal meaning.
The first respondent then contends that if the period of imprisonment in 1996 is included that leads to an incongruous result compared with
s.501, because the first respondent would pass the character test as he does not have a substantial criminal record (as defined in ss.501(6) and (7)) which relevantly is having been “sentenced to two or more terms of imprisonment where the total of those terms is two years or more.”
The Court finds no incongruity in these results. Under s.32, an applicant is not entitled to a special category visa if, relevantly, he has “been…sentenced to imprisonment for periods that add up to at best one year”; under s.501 the Minister must not grant a visa to, relevantly, a person who has been sentenced to 2 or more terms of imprisonment where the total of those terms is two years or more. The provisions set out tests to be applied in different circumstances. The wording of each section is clear and should be given their normal meaning without reference to what is said to be, but which the Court finds is not, an incongruous result.
The argument of the first respondent about an incongruous result lacks substance because on that argument the result is incongruous whether or not the period of suspended sentence is included.
The first respondent contends that to take account of the suspended sentence would result in other anomalous results. Those contentions cannot overcome the fact that the wording of the definition in s.5 is clear.
The first respondent argues that applying the construction of the phrase in s.5 proposed by the applicant, would result in incongruity between ss.5 and 501(7)(d) or other sections of the Act; when pressed it was conceded by the first respondent that the argument was raised to oppose the application of the decisions relied on by the applicant.
The relevance of those decisions has been considered above. Insofar as it is said that the phrase is ss.5 and 501(7)(d) result in the incongruous result that under s.5 sentences that add up to 1 year are “determinations of the punishment for an offence” (see definition of “sentence” in s.501(12)), whereas under s.501(7)(d) they must total two years or more: those differences appear in the legislation notwithstanding whether or not the suspension of a sentence is counted. If there are incongruous results and the Court does not accept that there are, that is a matter for Parliament. The Court’s decision is that the meaning of the words in s.5 is informed by the authorities referred to.
The Tribunal relied on an earlier Tribunal decision (N05/00861) (CB 52.5). That decision is not binding on the Court; the decisions in Drake, Meng Kok Te, Te and Seyfarth are persuasive. In any event the passages in the earlier decision referred to by the Tribunal states that “a person would be sentenced to imprisonment but this sentence would be suspended.” This is, a person is first sentenced to imprisonment and that sentence is then suspended. That is consistent with the authorities relied on by the applicant.
The first respondent contends that because the definition in s.5 differs from those in other sections, there is no need for commonality of interpretation of the term “sentenced to imprisonment”.
This case involves the correct meaning of that term in s.5 of the Act. That meaning is clear. The bulk of the last and similar submissions go to saying that the decisions referred to by the applicant are not relevant to determining the meaning of the words “sentenced to imprisonment” in s.5. These words should be interpreted in the same way as interpreted in the authorities referred to above; the addition of different words in different sections does not alter the meaning of the words “sentence to imprisonment” in s.5. The Court does not accept that because the words of the phrase appear in different sections of the Act with some additional provisions, authorities on the meaning of those words in one section, should not be applied in determining the meaning of them in s.5.
First, the decision in Drake ante gave consideration to the meaning of the words “sentenced to imprisonment for one year or longer” in the then s.12 of the Act.
In Meng Kok Te v Minister for Immigration and Multicultural Affairs [1998] FCA 1339 ante, the Federal Court at first instance, per Justice Branson said at [418] that nothing suggests that the construction of the words “sentenced for a period of not less than one year” in the context of s.201 of the Act requires a different approach from that adopted by the majority of the Full Court in Drake’s case in respect of s.12 of the Act as it was then.
In dismissing the appeal in Te v Minister for Immigration and Ethnic Affairs 88 FCR 264 at [16] cited the decision in Drake ante with approval in construing the meaning of the phrase. At [31] the Court decided that the decision in Drake should be applied to the interpretation of the phrase in s.201(c) which “must refer to the sentence imposed on a non–citizen…not to the term of imprisonment actually served by the non–citizen.” It would have been very simple for Parliament to say that the pre–condition for the issue of a deportation order is actual imprisonment for a term of not less than 12 months. Indeed “where Parliament intended to refer to a term of actual imprisonment it has said so directly. For instance, in assessing the period of time for which a person has been present in Australia for the purpose of ss.201 and 202(1) any period for which “a person was confined in prison” is to be disregarded (s.204)(1))” (para 31).
In dismissing an application for special leave to appeal, Te v Minister for Immigration and Multicultural Affairs M32/1999 the High Court decided that the interpretation of the phrase in s.201(c) “fell squarely within the interpretation of s.201(c) of the Act expounded in Drake.
We think that that case was correctly decided. In those circumstances, the application for special leave is refused” (page 6.5).In Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105, the Full Court considered the meaning of the words in s.501(7)(c) of the Act “sentenced to a term of imprisonment of 12 months or more” and decided at [27]:
“Section 501(7)(c) is concerned with the sentence that has been imposed on a person rather than on the term of imprisonment actually served… We do not consider that anything turns on the slight difference between the legislative provisions under consideration in Drake, Te; Ball and the present case to which the Applicant drew attention”.
The Federal Court therefore applied the interpretation in Drake and Te to the provision in s.501(7)(c). The Court finds no reason to not apply those decisions to the interpretation of the phrase in s.5, even though there are wording differences to deal with the specific issues dealt with in the other sections.
The Court accepts the submission for the applicant that if, as contended for the first respondent, the meaning of the phrase in ss.200 and 201 is irrelevant to the meaning of it in s.5, it should, similarly, be found to be irrelevant to the meaning of the phrase in s.501, but it was found to be relevant to that section in Seyfarth ante, where the Court applied the decision in Te ante on s.200 in determining the meaning in s.501.
That argument of the first respondent is rejected.
The authorities referred to by the applicant are persuasive in determining the meaning of the phrase in s.5.
The Court determines that upon a proper construction of the phrase “behaviour concern non–citizen” in s.5 of the Act the first respondent was sentenced to imprisonment for periods that add up to at least one year.
The Tribunal therefore misconstrued the visa criteria and in doing so fell into jurisdictional error. The application is granted.
The Court issues a writ of Certiorari quashing the decision of the Tribunal signed on 30 May 2007 (MRT Case Number 060864978).
The Court issues a writ of Mandamus directing the Tribunal to determine the matter according to law.
I certify that the preceding forty–five (45) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 1 February 2008
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