Neshausen v Minister for Immigration - [2008] FMCA 1448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NESHAUSEN v MINISTER FOR IMMIGRATION

[2008] FMCA 1448

MIGRATION – Visa application – section 32 visa – behaviour concern non-citizen – suspended sentence – effect of suspension of sentence.

Criminal Justice Act 1985 (NZ), ss.2, 21A, 21B, 71, 77A, 95, 142A, 144
Migration Act 1958 (Cth), ss.5, 32
Sentencing Act (NT) s.40(5)
Sentencing Act 1997 (Tas) s.25(2)
Sentencing Act 1991 (Vic) s.21(8)

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 46 FLR 409; (1979) 2 ALD 60
Meng Kok Te v Minister for Immigration and Ethnic Affairs [1998] FCA 1339
Minister for Immigration and Citizenship v Tamou [2008] FMCA 5
Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111; (1999) FCR 264

Applicant:

STEVEN JAMES NESHAUSEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG1116 of 2008

Judgment of:

Riethmuller FM

Hearing date:

3 October 2008

Date of Last Submission:

20 October 2008

Delivered at:

Melbourne

Delivered on:

22 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Hurley

Solicitors for the Applicant:

FSG Legal

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed on 12 September 2008 is dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $5,000, payable within 3 months.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1116 of 2008

STEVEN JAMES NESHAUSEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of New Zealand. He currently holds property in Australia and is employed in Western Australia as a process technician. He has been working in Western Australia for some years. On return from a recent trip to New Zealand he was denied a visa on entry to Australia at Sydney Airport. The application was filed on 12 September 2008 and listed urgently due to the applicant’s circumstances.
The applicant sought a special category visa under s.32, being a visa for New Zealand citizens with a current New Zealand passport who are ‘neither a behaviour concern citizen nor a health concern non-citizen’. There is no question in this case that the applicant is not a health concern non-citizen.
Section 5 of the Migration Act defines ‘behaviour concern non-citizen’ 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
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
The applicant has been convicted of a considerable number of offences related to driving motor vehicles. Significantly, on 18 May 1998, he was convicted on 3 offences which occurred on 26 December 1997. For driving whilst his blood alcohol exceeded .08 he was convicted and sentenced to 3 months imprisonment. For causing bodily injury to another person whilst carelessly driving he received a cumulative sentence of 3 months imprisonment and for driving while disqualified from driving or holding a driver’s licence (as a result of previous convictions) he was sentenced to a further cumulative sentence of 3 months imprisonment. He was also disqualified from driving for 2 years on each offence.
On 11 December 2000 the applicant was convicted of 2 driving offences occurring on 30 September 2000. For the second offence, driving whilst disqualified, he was imprisoned for 6 months, suspended for 18 months.

First Ground

The first argument raised by the applicant was the effect of the sentences for the offences of 18 May 1998 was a total period imprisonment for six months and not 9 months.
The applicant, when interviewed by an officer for the Department at the Airport, stated that he had been sentenced to a total of 9 months. The certified copy of the criminal record entry shows 1 period of imprisonment for 3 months and 2 further periods of imprisonment for 3 months, each described as being cumulative on one of the other convictions. A plain reading of the certified copy of the criminal record that the applicant has produced appears to indicate that his period of imprisonment was for a total of 9 months.
On a computer printout, at page 13 of the Court Book, the 3 offences were described as concurrent, cumulative and cumulative. It was argued that it was open to consider that the total period of imprisonment imposed on that day was only 6 months.
There is ample evidence, that was before the relevant officer, for the conclusion that the period of imprisonment on this occasion was 9 months. Indeed, on the material before me at hearing it remained sufficient to persuade me that the periods of imprisonment imposed on that occasion totalled 9 months. In any event, following the hearing a further affidavit was filed by the applicant, confirming the interpretation of the orders adopted by the delegate of the Minister.

Second Ground

The second ground raised by the applicant was that the period of imprisonment imposed on 11 December 2000 was a suspended sentence under New Zealand law. The applicant refers to s.21A of the Criminal Justice Act 1985 (NZ) which, at the relevant time, provided:
21A. Suspended sentences -
(1) Where a court sentences an offender to a term of imprisonment of not less than 6 months and not more than 2 years, it may make an order suspending the sentence for a period not exceeding 2 years from the date of the order.
(2) A court shall not make an order under subsection (1) of this section if it would not have sentenced an offender to imprisonment in the absence of power to make an order suspending the sentence.
(3) A court making an order under subsection (1) of this section shall specify a suspended sentence that corresponds in length to the sentence of imprisonment that it would have imposed in the absence of power to make an order suspending the sentence.
(4) Where an offender who is subject to a suspended sentence is convicted of a further offence punishable by imprisonment, the court sentencing the offender for the further offence shall order that the suspended sentence shall take effect for the period specified in the order made under subsection (1) of this section, unless it is of the opinion that it would be unjust to do so in view of all circumstances which have arisen since the suspended sentence was imposed, including the circumstances of any further offending.
(5) Where a court decides under subsection (4) that a suspended sentence is not to take effect for the period specified in the order, then, subject to this Act, the court must either –
(a) Order that the suspended sentence –
i.    Take effect with the substitution of a lesser term of imprisonment; or
ii.     Be cancelled and replaced by any non-custodial sentence that could have been imposed on the offender at the time when the offender was convicted of the offence for which the suspended sentence was imposed; or
iii.     Be cancelled; or
(b) Decline to make any order referred to in paragraph (a) concerning the suspended sentence.
The Act also contains some administrative provisions:
21B. Administration and effect of suspended sentences -
(1) On making an order under section 21A(1) of this Act, the court shall explain to the offender that if he or she is convicted of a further offence punishable by imprisonment while subject to a suspended sentence he or she is liable to undergo the sentence in addition to any other sentence which may be imposed.
…
(3) An offender shall have the same right of appeal against a suspended sentence as he or she would have had if the sentence had taken effect.
…
(5) Subject to subsection (3) of this section, an offender who is subject to a suspended sentence which has not taken effect under subsection (4) or subsection (5)(a) of section 21A of this Act shall not be treated for the purposes of this Act or any other Act as being subject to a sentence of imprisonment.
Counsel for the applicant also points out that the effect of this section is significantly different to similar provisions in various Australian states, such as the Sentencing Act (NT) s.40(5); the Sentencing Act 1997 (Tas) s.25(2); and Sentencing Act 1991 (Vic) s.21(8).
The applicant also relies upon the definition section, s.2 of the Criminal Justice Act 1985(NZ), which provides as follows:
2(1) In this Act, unless the context otherwise requires, -
…
Sentence of imprisonment does not include –
(a) A term of imprisonment imposed, whether by committal, sentence, or order, for –
(i) Non-payment of a sum of money; or
(ii) Disobedience of a court order; or
(iii) Contempt of court; or
(b) A suspended sentence of imprisonment that has not taken effect; or
(c) A sentence of preventive detention; or
(d) A sentence of corrective training.
…
Suspended sentence –
(a) Means a sentence in respect of which an order has been made under subsection (1) of section 21A of this Act; but
(b) Does not include a sentence that has taken effect by virtue of an order made under subsection (4) or subsection (5)(a) of that section:
The applicant argues that the effect of the New Zealand Act is that, having successfully completed his period of 18 months suspension, he is to be treated as not having been subject to a ‘sentence of imprisonment’.
It is a somewhat unusual situation that an Act provides that where a person is sentenced to a term of imprisonment (although subsequently suspended: s.21A), they are not to be taken to have been subject to a sentence of imprisonment. Read in isolation these provisions have a quality of something prepared by Lewis Carroll for Alice in Wonderland. However, when one reviews the balance of the New Zealand legislation, the practical purpose of this unusual definition of ‘sentence of imprisonment’, in the context of the legislation, becomes apparent.
The term is used in at least 5 other sections in the Criminal Justice Act 1985 (NZ):
a)In s.71 provision was made for the calculation of a final release date having regard to the effect of a ‘subsequent sentence’ of imprisonment. Clearly a suspended sentence would need to be excluded from such calculations.
b)Section 77A makes provision for the Court to impose conditions of parole when imposing a ‘sentence of imprisonment’. Similarly, this section would be irrelevant to a suspended sentence.
c)Section 95 makes provision for offenders subject to a ‘sentence of imprisonment’ to be released if detained in a psychiatric institution. Again, a purpose irrelevant to a person subject to a suspended sentence.
d)Section 142A deals with the detention of children or young persons who are serving a ‘sentence of imprisonment’. This provision makes appropriate discretions available for the detention of young persons who are the subject of a ‘sentence of imprisonment’, which again would not be relevant if the sentence was suspended.
e)Section 144 made provision to commute death sentences to sentences of imprisonment.
As can be seen from a review of the legislative provisions, a special definition of ‘sentence of imprisonment’ was required under the New Zealand legislation so as to enable the convenient description of a person the subject of a sentence that left them in custody in distinction to a person who is subject to a term of imprisonment that is suspended. To this extent, the term ‘sentence of imprisonment’, utilized for the purpose of Criminal Justice Act 1985 (NZ), appears to me to provide a special technical definition to facilitate various machinery provisions of the New Zealand legislation.
The interpretation of the relevant term in the Migration Act has been the subject of consideration by the Full Court of the Federal Court. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 46 FLR 409; (1979) 2 ALD 60, Bowen CJ and Smithers J considered a case where a person was sentenced to 12 months imprisonment, but was to be released upon entering into a recognizance after serving 3 months. Their Honours said:
“It is unfortunate that the liability of a person to be made the subject of a deportation order with all its consequences should depend upon verbal niceties of the type involved in the present matter. There is, indeed, much to be said for the view that a finding that the plaintiff was, for the purposes of s. 12 of the Migration Act, sentence to a term of imprisonment of one year involves a preference for the shadow of verbalism over the substance of reality. In our view, however, this is not so. The fact that the learned magistrate directed that the plaintiff be entitled to be released upon recognizance after he had served three months in prison does not alter the fact that the magistrate determined that the appropriate sentence to be imposed for the offence of which the plaintiff was guilty was a term of imprisonment of one year. The magistrate in fact imposed that sentence of imprisonment. True it is that, by entering into a recognizance and undertaking obligations which, if breached, would render him liable to be sentenced to a new term of imprisonment, the plaintiff was entitled to secure his release after he had served three months of the term imposed and that, on such release, his liability to serve the balance of the term imposed was extinguished. None the less, in our view, the plaintiff was, under the composite sentence imposed, sentenced to a term of imprisonment of one year. We are unable to read the relevant words if s, 12 in a sense which would warrant the conclusion that their requirements were not satisfied by the sentence which was imposed upon the plaintiff.”
In Meng Kok Te v Minister for Immigration and Ethnic Affairs [1998] FCA 1339, Branson J concluded that the interpretation adopted in Drake also applied under s.201 of the Act. Her Honour’s decision was appealed and the matter considered by Sackville, North and Merkel JJ in Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111; (1999) FCR 264. Following paragraph 31 of their Honours’ judgment, the following points can be made:
a)That the Migration Act referred to the sentence of imprisonment imposed and not the term of imprisonment actually served. ‘It would have been very simple for parliament to say…actual imprisonment for a term not less than 12 months’.
b)That the Act directs attention not merely to the sentence imposed but to the quality of the offence which is reflected by the sentence imposed, and therefore focuses on the sentence that was determined as appropriate punishment. The Court noted that in Te’s case the sentencing Court was not entitled to impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances. A similar provision appears in s.21A (2) of the New Zealand Criminal Justice Act 1985. The result is that the offence for which the applicant was sentenced was one for which the Court considered a period of imprisonment was appropriate.
c)That at the time when a person receives a suspended sentence it is not clear whether they would actually be incarcerated for the period (or some lesser part of it) as that depends upon whether they re-offend and the consequences of re-offending.
d)If the applicant were correct the Minister would have to wait a considerable period after a suspended sentence had been imposed before being able to determine whether a person had been sentenced to a period of imprisonment. It would be surprising if such a situation was envisaged in the Migration Act.
e)Whilst it is appropriate to take into account the terms of the sentencing legislation, the proper construction of the Migration Act cannot be determined by the terms of legislation from another jurisdiction.
The Full Court also stated that ‘in the absence of clear words indicating a contrary intention, it would be strange if s.201(c) of the Migration Act did not apply to an offender who, under state law, is taken, for all purposes, to have been sentenced to imprisonment for a term of not less than 12 months.’ In this case it is argued that the clear words of the New Zealand Act indicate that the sentence of imprisonment, once suspended, is not to be taken to be a sentence of imprisonment any longer. However, the applicant has nonetheless been ‘sentenced to imprisonment’ at least for the short period before orders were made suspending that sentence.
The ordinary meaning of the phrase ‘sentenced to imprisonment’ would include any sentence that a person be imprisoned whether it is later suspended or not. The focus of the definition in s.2 appears to be the practical question of whether a person was ordered to be confined, not what that is described as in other legislation. I do not see that such an interpretation would be contrary to the present statutory scheme whereby those persons who fail the relevant test with respect to previous criminal convictions must apply under alternative visa applications for discretionary considerations focused upon their own particular circumstances.
In the circumstances I am satisfied that the references in the Migration Act refer to the imposition of a term of imprisonment, whether it be suspended or not. The fact that particular definitions are given to various phrases in the New Zealand legislation does not alter the fundamental fact that a term of imprisonment was imposed as an appropriate sentence for the offences, even though it was subsequently suspended.
I note that in this regard I have reached the same decision as Federal Magistrate Turner in Minister for Immigration and Citizenship v Tamou [2008] FMCA 5, although I note in that case his Honour was not referred to the particular provisions of the New Zealand legislation. I also note that whilst this interpretation precludes an applicant from obtaining a visa under s.32 he may nonetheless apply for a visa under alternative provisions that provide a discretion to the Minister to exercise in the circumstances of particular cases. This appears to me to add weight to the interpretation I have found, as it requires those who have committed offences serious enough to received sentences of the length set by parliament (whether they are suspended or not) to then be required to apply for visas subject to individual consideration by the Minister.
I therefore find that the applicant does not succeed on this ground.

Third Ground

The final ground argued by the applicant was that if the applicant were successful in his argument as to the calculation of the overall terms of imprisonment then the total periods, inclusive of the suspended term, would be 12 months. The applicant has not succeeded in showing that the delegate of the Minister was in error in determining the lengths of the sentences and therefore there is no need to determine this ground.
As the applicant has not succeeded on any ground, I therefore dismiss the current application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Katherine Sudholz

Date: 21 October 2008