Smith v Minister for Home Affairs

Link copied
Case Copied 43 min read

FEDERAL COURT OF AUSTRALIA

Smith v Minister for Home Affairs [2019] FCA 45

File number: ACD 34 of 2018
Judge: GRIFFITHS J
Date of judgment: 29 January 2019
Catchwords: MIGRATION – application for judicial review of a decision of the Assistant Minister for Home Affairs (Minister) under s 501CA(4) if the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act following the applicant’s conviction for a murder and burglary charge – whether the Minister committed jurisdictional error by finding that the sentencing judge had imposed a life sentence on the applicant because the offending was viewed as “very serious”, in circumstances where a life sentence was the mandatory sentence for murder in Queensland – whether, on a proper construction of the Minister’s reasons for decision, the Minister found that the applicant had denied having committed any offences involving illegal substances and whether such a finding was unreasonable or was based on an absence of evidence – whether the Minister denied the applicant procedural fairness if, on the proper construction of his reasons for decision, he found that the applicant had denied that her murder and burglary charge was drug related, which led to a finding that the applicant’s denial is indicative of her propensity to re-offend  
Legislation:

Migration Act 1958 (Cth), ss 4, 501, 501A, 501CA

Criminal Code Act 1899 (Qld), s 305

Cases cited:

Ali v Minister for Immigration and Border Protection [2018] FCA 650

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

BZC17 Minister for Immigration and Border Protection [2018] FCA 902

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; 314 ALR 130

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Hooton v Minister for Home Affairs [2018] FCAFC 142

Jione v Minister for Immigration and Border Protection [2015] FCA 144; 232 FCR 120

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection vSZSSJ [2016] HCA 29; 259 CLR 180

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Smith v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCA 45
Decision Date

CaseChat Overview and Summary

Smith v Minister for Home Affairs involved a judicial review of the Assistant Minister for Home Affairs' decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of Ms Smith's visa. This followed her conviction for murder and burglary. The primary legal issues were whether the Minister committed a jurisdictional error by incorrectly assessing the seriousness of Ms Smith's offending, whether he unreasonably found that she denied drug-related offences, and if he denied her procedural fairness by failing to address her denial of drug involvement.

The court found that the Minister's assessment of the seriousness of the murder offence was valid as he explicitly considered the circumstances of the offence and the life sentence imposed. The court noted that the Minister was not required to consider mandatory sentencing laws unless specifically raised by Ms Smith. Regarding the drug-related offences, the court held that the Minister's finding that Ms Smith denied these offences was reasonable based on the evidence. The court also ruled that the Minister did not deny Ms Smith procedural fairness by not separately addressing her denial of drug involvement as the Minister had considered all aspects of her offending.

Consequently, the decision dated 16 April 2018 was set aside and the matter was remitted for reconsideration according to law. The Minister was also ordered to pay Ms Smith's costs.

Orders

Orders of the court

1. The respondent’s decision dated 16 April 2018 is set aside.

2. The matter is remitted to the respondent for reconsideration according to law.

3. The respondent must pay the applicant’s cost of and incidental to the proceeding, as agreed or assessed.

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

Background

Background to the litigation

For the reasons that follow, the Minister’s decision dated 16 April 2018 will be set aside and the matter will be remitted for reconsideration according to law. Summary of background facts Ms Smith is 52 years old. She is a citizen of the United States of America. She arrived in Australia on 30 September 1978 and has lived here ever since for approximately 40 years. As noted above, her visa was mandatorily cancelled on 19 June 2017 under s 501(3A) of the Act. On 10 February 2005, Ms Smith was convicted in the Supreme Court of Queensland of a murder which took place on 26 March 2002. She was sentenced to life imprisonment. On the same day, she was convicted of burglary and sentenced to 10 years imprisonment, to be served concurrently. Ms Smith appealed unsuccessfully to the Queensland Court of Appeal against her murder conviction. The High Court dismissed her application for special leave to appeal on 21 June 2006. Transcripts from the proceeding in the Court of Appeal and the High Court provide some detail about Ms Smith’s offences in 2002. She had been in a relationship with the deceased but their relationship ended before 26 March 2002. She then formed a relationship with a man called Mr Michael Corry. She and Mr Corry were charged with murdering the deceased. On the Saturday prior to his murder, the deceased went to Ms Smith’s house and physically assaulted her. He also threatened to burn down her house. Since 1993, Ms Smith has been convicted of a range of drug, property and driving offences. They include possessing cannabis, cultivating cannabis, unlawful use of a firearm, receiving property, possessing dangerous goods, failure to take reasonable care and precautions in respect of syringe or needle, possession of property suspected stolen or unlawfully obtained, goods in custody and breach bail granted undertaking. After her visa was mandatorily cancelled, Ms Smith made representations under s 501CA(4)(a) seeking revocation of that decision. She did not dispute that she did not pass the character test (other than to repeat her claim that she is innocent of the murder conviction) as defined in s 501 of the Act. She made detailed representations as to why there was “another reason” for revoking the original decision. They included claims that Ms Smith has no family or resources in the United States; her family are unable to visit her there; she has three Australian citizen children who are all part-Aboriginal; it is culturally inappropriate to remove her from Australia on account of her children who are part-Aboriginal; her father is an Australian citizen in failing health and requires her to be his carer; she has a young grandchild who is an Australian citizen; she is not an unacceptable risk to the community and she has an unblemished prison record. She provided character references and other material in support of her representations. It is desirable to set out some relevant extracts from Ms Smith’s representations as they relate to both her judicial review grounds (emphasis added): …I respectfully request the Character Assessment Unit to take into account the following facts which I believe indicate that I am not an unacceptable risk to the community:1. I have now resided in Australia for almost thirty years.2. None of the allegations infer I am habitual or compulsive.3. None of the allegations are of a sexual nature.4. None of the allegations involve the elderly.5. None of the allegations involve illegal recreational drugs.6. I have an excellent work history during my imprisonment.7. I have an excellent conduct record during my imprisonment.8. I have only one breach of prison discipline recorded against my name.9. I have not returned any positive urine samples during my imprisonment.10. There is no suggestion that I benefited by financial gain from this incident.11. I do not have a drug; alcohol or gambling problem.12. I have no psychiatric history whatsoever.13. My father is an AUSTRALIAN CITIZEN.14. I have three sons who are AUSTRALIAN CITIZENS by birth.15.During my imprisonment in the ACT, my father has visited me each and every week. We also have regular phone contact.16.It is impossible for my father to visit me in the United States due to his state of health.17. I have a stable home to go to with my father.18. I have a young grandchild who is an AUSTRALIAN CITIZEN by birth.19.I have gained qualifications in my chosen field of employment in horticulture during my imprisonment.20.The cultural background of my family is a critically important consideration in this instance.21.A properly informed and compassionate community would not expect that it is in the best interests of anyone for this family to be forcibly separated.22.If I was removed from the country it would be impossible for my family to leave with me and financially impossible to visit.23. It is highly likely that my innocence in this matter will be proven in the future.Minister’s statement of reasons summarised

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For completeness, I would add that the reasons given above as to why there was procedural unfairness would apply equally even if [110] of the Minister’s statement of reasons were read more broadly and covered all of Ms Smith’s offending. The all-encompassing reference there to “any offending” must also include a reference to the offending which gave rise to the murder/burglary convictions. Conclusion For these reasons, the decision dated 16 April 2018 should be set aside and the matter should be remitted for reconsideration according to law. The Minister must pay Ms Smith’s costs.

Ratio Decidendi

Legal Principle Established

The Minister submitted that it was the applicant herself who raised the issue of whether there was a connection between her offending and her drug use and the Minister was not required to raise that issue with her again. He added that, given the close temporal conclusion between Ms Smith’s drug offending and her offences of murder and burglary, there was probative evidence for the Minister’s conclusion, on this construction of his statement of reasons, that the matters were related and there was no obligation on him to disclose his mental process to Ms Smith. The Minister also submitted that Stowers is distinguishable. Consideration and determination(a) Ground 1 As noted above, the applicant’s primary complaint is that the Minister erred in his consideration of the nature and seriousness of her offending. This was because the Minister failed to appreciate that the effect of s 305 of the Criminal Code Act 1899 (Qld) is that a life sentence is effectively a mandatory sentence upon a conviction for murder and thus the sentence itself did not reflect the Court’s own assessment of the seriousness of the offending. I accept the Minister’s submission that the applicant has mischaracterised the relevant part of his reasons. The Minister made a personal determination that “the offence of murder is very serious” ([62]). The Minister then made reference to the circumstances surrounding the murder in the light of comments recorded in Court transcripts or reasons for judgment. Ultimately, the Minister then concluded that “the conviction for murder and sentence to life imprisonment is an indication of the seriousness of the offending” ([71]). This reasoning was sufficient to justify the Minister’s conclusions concerning the seriousness of the applicant’s murder conviction. Moreover, as the Minister pointed out, the reference at [71] of the statement of reasons to incarceration being the “last resort” in the sentencing hierarchy is accurate, whether the incarceration occurs by operation of mandatory sentencing legislation or by the exercise of judicial discretion. Some additional points should be made. First, in circumstances where the applicant made no representation to the Minister concerning the operation of mandatory sentencing legislation, it is unlikely that the Minister was required to take that matter into account (see Hooton v Minister for Home Affairs [2018] FCAFC 142 at [64]-[66] and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Maioha) at [33] per Rares and Robertson JJ). Secondly, the applicant’s reliance upon Direction 65 is misguided in circumstances where the Minister is not bound by the Direction. In any event, the Minister plainly did consider the nature and seriousness of the applicant’s offending. Thirdly, the applicant incorrectly submitted that the Minister had effectively delegated the assessment of the seriousness of her offending to the sentencing judge or the Court of Appeal. As noted above, the Minister came to his own view on this matter and, in doing so, it was open to him to take into account findings and observations by those Courts.