Sciascia, G.K. v Minister for Immigration & Ethnic Affairs

[1991] FCA 259

Re: GRAHAM KAHIRA SCIASCIA
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G39 of 1991
FED No. 259
Migration
101 ALR 321

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Migration - illegal entrant - criteria for - preliminary question - criminal convictions before entry into Australia - none amounting to or exceeding one year - no cumulative sentences amounting to or exceeding one year - nominal total of sentences imposed at different times or concurrently exceeding one year - whether sentenced "for a period totalling at least one year" - whether thereby illegal entrant - error of law.

Words and Phrases - "for a period totalling at least one year".

Migration Act 1958 s.20(1)(d), s.14, s.59

Administrative Decisions (Judicial Review) Act 1977

HEARING

PERTH

#DATE 17:5:1991

Counsel for the Applicant: Mr D. Dempster

Solicitors for the Applicant: Aboriginal Legal Service

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The deportation order made by the respondent's delegate on 16 April 1991 be quashed.

The respondent pay the applicant's costs of the application.

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

JUDGE1

Graham Kahira Sciascia is a citizen of New Zealand who was born on 7 July 1945 and migrated to Australia on 18 April 1975. He has resided in this country ever since. On 16 April 1991, some 16 years after his arrival in this country, a delegate of the Minister for Immigration and Ethnic Affairs ordered his deportation because of convictions for criminal offences committed in New Zealand. The convictions relied upon were recorded between 30 July 1967 and 30 July 1970. None of them attracted any single term of imprisonment amounting to or exceeding 12 months. Nor did any cumulative terms imposed amount to or exceed 12 months. It is common ground, however, that the delegate took the view that if the aggregate of sentences imposed amounted to or exceeded 12 months, regardless of the timespan over which they were imposed, then Sciascia, being a non-citizen could be deported as an illegal entrant under s.20(1)(d) of the Migration Act 1958.

1. An application for an order of review of that decision was filed on 19 April 1991 and relied upon the ground of failure to take into account relevant considerations in making the decision. It emerged, however, in the second directions hearing that central to the case would be the correctness of the assumption that s.20(1)(d) had the operation contended for by the delegate. That point is not reflected in the grounds set out in the application. In a directions hearing on 2 May 1991 the parties were asked to formulate the constructional question as a preliminary issue for hearing on 10 May 1991. On that day an agreed statement of facts was tendered and the following preliminary issue heard:
   

"Is the applicant an illegal entrant pursuant to s.14(2) of the Migration Act 1958 by reason of him being a person who, when he entered Australia, was a person to whom paragraph (d)(iii) of s.20(1) of the Migration Act 1958 applied?"

It is that question which now falls for determination.

The Present Statutory Framework

1. Section 14 of the Migration Act 1958 came into effect in its present form on 19 December 1989 as s.6 of the Migration Act 1958 by virtue of s.6 of the Migration Legislation Amendment Act 1989. It was renumbered as s.14 by virtue of s.35 of the Amendment Act with effect from 20 December 1989. It provides:
   

"14(1) On entering Australia, a non-citizen becomes an illegal entrant unless:

(a) he or she is the holder of a valid entry permit; or

(b) the entry was authorised by section 17.

(2) Where a person to whom sub-section 20(1) or (2) applies has entered Australia, (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(a) remains in Australia;

(b) is not a citizen; and

(c) does not hold a properly endorsed valid entry permit or a properly endorsed valid entry visa."

Sub-sections 14(3) and (4) are not relevant for present purposes. Section 20, which governs the application of sub-s.14(2) came into effect as s.11A on 19 December 1989 and was renumbered as s.20 by virtue of s.35 of the Migration Legislation Amendment Act 1989 with effect from 20 December 1989. It provides in the relevant parts:

"20(1) This sub-section applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: .

.

.

(d) when the person entered Australia, the person was: . . .

(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;

(iii) a person who had been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year."

Sub-section 20(15) defines "crime":

"'Crime' means an offence punishable

(a) by death;

(b) by imprisonment for life; or

(c) by imprisonment for a maximum period of at least six months."

Section 13 of the Act defines a "period of grace for illegal entrants" which starts when the person becomes an illegal entrant and ends when the total number of days since the period started, not counting excluded days, equals 28. There are no excluded days applicable in the present case. On the delegate's construction of s.20(1)(d)(iii), Sciascia became an illegal entrant upon the coming into effect of that provision on 19 December 1989. If the delegate's view were correct, then the deportation order was mandatory by virtue of s.59 of the Act:

"59(1) An illegal entrant is liable to deportation if the period of grace for the illegal entrant has ended.

(2) Where the Minister, after following the prescribed procedures, is satisfied that a person is, under subsection (1), liable to deportation, the Minister shall, in writing, order the deportation of the person.

(3) A deportation order made under this section may not be revoked.

(4) A deportation order made under this section in relation to a person shall be taken to revoke any deportation order made under section 60 in relation to the person."

Section 60 confers a discretion to make a deportation order in respect of an illegal entrant where the period of grace has not expired:

"60(1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.

(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended."

Statutory History

1. The words of s.20(1)(d)(iii) should be considered in the light of its statutory ancestry. The first Commonwealth legislation regulating immigration into Australia was the Immigration Restriction Act 1901. It was partly modelled upon Colonial statutes, in particular the Immigration Restriction Act 1897 (WA), the Immigration Restriction Act 1898 (NSW) and similar legislation in the Colony of Natal. The New South Wales Act made no reference to the exclusion of persons who had been convicted of offences in other places. Section 3(e) of the Western Australian Act classed as a prohibited immigrant:
   

"(e) Any person who has within 3 years been convicted of a felony or infamous crime, or a misdemeanour involving moral turpitude, and not being a mere political offence, and has not received a pardon therefor."

Section 3 of the Commonwealth Act followed the structure of the Western Australian provision but defined the relevant class of offences by reference to the penalty imposed. Section 3(e) included in the category of prohibited immigrants:

"(e) Any person who has within 3 years been convicted of an offence, not being a mere political offence, and has been sentenced to imprisonment for one year or longer therefor, and has not received a pardon."

The Second Reading Speech delivered by Edmund Barton who introduced the Bill, was largely taken up with argument about the operation of the notorious dictation test. He referred only in passing to what he called provisions dealing with "persons who have been convicted of crimes involving a certain punishment...".

1. The class of persons excluded by s.3(e) was substantially narrowed when it was amended in 1905 to cover only those, whenever convicted, who had not served their sentence or received a pardon. It was redesignated as para.(ga) of s.3 in 1912 and widened to include "any person who has been convicted of a crime and sentenced to imprisonment for one year or more unless five years have elapsed since the termination of the imprisonment". The paragraph was further widened in 1932 by the deletion of the five year threshold.

2. The Migration Act 1958 replaced the Immigration Restriction Act 1901. Its purpose was described by the then Minister for Immigration, Mr Downer, in his Second Reading Speech, as being "to consolidate and amend Australia's immigration statutes". He said "it has nothing to do with the Government's current immigration policy; its primary concern is with the mechanism by which national policy is implemented". Section 16 of the new Act provided, inter alia:
   

"16(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant: .

.

.

(c) at the time of entry is or was a person of any of the following descriptions, namely: . . .

(ii) a person who has been convicted of a crime and sentenced to imprisonment for one year or more; . . . that person shall, not withstanding section ten of this Act be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a statement that the officer granting that permit recognises him to be a person referred to in this sub-section."

And by s.18 of the Act, the Minister was empowered to order the deportation of "any person who is a prohibited immigrant under any provision of the Act". No specific reference was made to s.16 in the Second Reading Speech.

1. The Act was amended in 1979, in the words of the then Minister's Second Reading Speech, "to make essential amendments...without changing the basic concepts in existing legislation". Section 16 was amended to widen the range of persons who had criminal records when they entered Australia and would by virtue of those records be classed as prohibited immigrants. It now picked up multiple offenders "sentenced to imprisonment for periods aggregating not less than one year". And those persons were prohibited immigrants by virtue of the amendment even though they had entered Australia before it came into effect and were not previously prohibited immigrants. No reference was made to this change in the Second Reading Speech. A subsequent amendment substituted the term "prohibited non-citizen" for "prohibited immigrant" - see s.14 of the Migration Amendment Act 1983 (No. 112 of 1983). In the result, the relevant parts of s.16 immediately prior to the 1989 amendments which brought the Act into its current form read as follows:
   

"16(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who .

.

.

(c) at the time of entry is or was a person of any of the following descriptions, namely . . .

(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year;

(iii) a person who has been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than one year; . . . that person shall, notwithstanding s.10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognises him to be a person referred to in this sub-section."

When the 1989 amendments were introduced by the Migration Legislation Amendment Act 1989 (No. 59 of 1989), s.16 was, as has already been noted, replaced by a new s.11A which came into effect on 19 December 1989 (see s.6 of the Amendment Act). By the same Act, s.11A was renumbered and became s.20 (see s.35 of the Amendment Act). The renumbering came into effect on 20 December 1989. The explanatory memorandum in relation to s.11A said:

"This section outlines the circumstances in which an entry permit holder becomes an illegal entrant. This provision deals with those situations covered by the current section 16 with a number of style changes."

This, it was contended, supported the construction of para.20(1)(d)(iii) that assigned to it the same meaning as its predecessor, s.16(1)(c)(iii).

Factual Background

1. As appears from the Statement of Agreed Facts, Mr Sciascia is a New Zealand citizen who was born on 7 July 1945. He came to Australia on 18 April 1975 and has remained in the country since that time. He did not require an entry permit because s.8(1)(e) of the Act exempted from that requirement persons exempted by instrument under the hand of the Minister from the requirements of Div 1 of Pt. II of the Act relating to entry permits. By a Statutory Instrument signed by the Minister for Immigration on 6 November 1973, New Zealand citizens were so exempted. The exemption was expressed in the Statutory Instrument not to cover a person who at the time of entry into Australia was a person who had been convicted of a crime and sentenced to imprisonment for one year or more. This simply echoed the language of s.16(1)(c)(iii) as it then stood.

2. Prior to his entry into Australia, Sciascia had been convicted in New Zealand of a number of offences. These included the following, which are crimes within the meaning of s.20(15) of the Migration Act 1958:
   

(i) 30 July 1967 - conviction for burglary - sentence of imprisonment for six months commencing 30 July 1967.

(ii) 1 July 1969 - convictions for two charges of common assault and one charge of theft. Sentenced to three months imprisonment on each conviction of common assault beginning 1 July 1969 and three months imprisonment beginning on 1 July 1969 for the theft conviction.

(iii) 30 January 1970 - convicted of one charge of burglary and two of theft. Sentenced to imprisonment for six months beginning on 30 January 1970 for the conviction of burglary and sentenced to two cumulative periods of imprisonment of three months and two months for the two theft convictions beginning on 30 January 1970.

On 21 March 1991, Sciascia was arrested and taken into custody under s.92 of the Act on the grounds that the arresting officer reasonably supposed him to be an illegal entrant. A deportation order was signed, it is said, pursuant to s.60 on 16 April 1991, although it would appear that the appropriate section may have been s.59. The delegate ordered the deportation on the basis that Sciascia was an illegal entrant by virtue of s.14(2) as he was a person who came within the provisions of para.20(1)(d)(iii). It is that proposition which founds the decision under review and gives rise to the preliminary question.

The Question of Construction

1. The legislative history indicates a general tendency to widen the class of persons who by reason of prior criminal record are prima facie barred from entry into Australia. The first such provision in s.3 of the Immigration Restriction Act 1901, referred both to the seriousness of the offence by reference to the actual sentence imposed and its recency by limiting the class of such convictions to those committed within three years before entry into Australia. In 1905 it was narrowed, and in 1912 widened to cover such convictions recorded up to five years before entry. It was further widened in 1932 by deletion of the time limit. The test remained unchanged when the 1958 Act was passed. Multiple offenders were picked up for the first time in 1979.

2. Read in accordance with the ordinary and natural meaning of its words, s.16(1)(c)(iii), after 1979, applied to persons convicted of more than one offence, whether those convictions were recorded at one time or at different times. All persons would be treated as prohibited immigrants and later as prohibited non-citizens who, at any time before entering Australia, had been sentenced to terms of imprisonment which when added together amounted to or exceeded one year. The distribution of those sentences and associated convictions in time was irrelevant. A person sentenced to a term of three months imprisonment in one year, 6 months five years later, and 3 months five years after that, would have attracted the operation of the section. A provision excluding those sentenced as the result of multiple convictions to cumulative terms amounting to or exceeding one year, would have been a natural and logical extension of the single crime restriction that existed before 1979. The words of s.16(1)(c)(iii) as amended in that year, however, reflect a much more restrictive approach which was not touched upon in the Second Reading Speech. It may, of course, be the case that it was intended to apply only to cumulative sentences totalling one year. But to so construe it would put a gloss on the words that is not supported by their ordinary and natural meaning nor by any policy apparent from the legislation or the Second Reading Speech.

3. Against that background, the change of language in the equivalent provisions of s.20(1)(d)(iii) after the 1989 amendments is most significant. The class of multiple offenders to be treated as illegal entrants is now described by reference to those "sentenced to imprisonment for a period totalling at least one year". The use of the words "a period totalling" contrasts clearly with the term "periods aggregating" in the former s.16(1)(c)(iii). The new section is directed to one period of imprisonment resulting from multiple convictions. The relevant meaning of the word "period" taken from the Shorter Oxford English Dictionary is:
   "A course or extent of time."
   

1. In this sense it refers to the time elapsed between a definite st art and a definite finish. It cannot be used in the singular to describe the arithmetical total of a number of discontinuous periods. I accept that the explanatory memorandum characterises the departure from the language of the former s.16 as a matter of style only. However, the significance of that observation depends upon its author's understanding of the proper construction of s.16 as much as it depends upon a view of the construction of s.20. The logical difference between s.16(1)(c)(iii) and s.20(1)(d)(iii) is sharp and cannot be disposed of by resort to policy considerations which are not apparent from the legislative context or the extrinsic material.

2. Upon an analysis of the convictions and sentences imposed upon Sciascia in New Zealand prior to his entry into Australia and relied upon by the delegate, it is evident and not in dispute that at no time was he sentenced to cumulative terms of imprisonment amounting to or exceeding one year. He was not within the class of prohibited immigrants described in s.16(1)(c) as it stood when he entered this country in 1975. The 1979 amendments appeared to have changed his status to that of a prohibited immigrant and later a prohibited non- citizen. The 1989 amendments, however, supplanting the previous s.16, do not, when properly construed, bring him within the class of an illegal entrant. In my opinion therefore, the preliminary question is to be answered in favour of the applicant. That is to say, he is not an illegal entrant pursuant to s.14(2) of the Migration Act 1958 by reason of his being a person who, when he entered Australia, was a person to whom para.(d)(iii) of s.20(1) of the Migration Act 1958 applied. In the circumstances, the foundation for the deportation order falls away. It was based upon an error of law, that is to say, a wrong construction of para.20(1)(d)(iii).

3. This finding effectively disposes of the application in favour of the applicant and the appropriate order under s.16 of the Administrative Decisions (Judicial Review) Act 1977 is that the deportation order should be quashed.