Te v Min for Immigration & Multicultural Affairs

[1999] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M32 of 1999

B e t w e e n -

MENG KOK TE

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 1999, AT 11.50 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR D.A. PERKINS, for the applicant.  (instructed by Kuek & Associates)

MR W.S. MOSLEY:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Australian Government Solicitor)

McHUGH J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, I would first seek leave to rely on an amended outline of argument which, I think, was filed a week ago and which narrows the issues significantly.

McHUGH J:   Yes.

MR NASH:   The grounds of special leave are that this involves the interpretation and operation of sections 200 and 201 of the Migration Act which go to the power of the Minister to deport non-citizens.  It is for this reason we say that it is a matter of general public importance, apart from the fact that it does involve the liberty of, in the broad sense of the term, the subject, perhaps the liberty of the non-subject, in this particular case.

The applicant is a person who had permanent resident status in the country and in so far as section 201(c) authorises, or may authorise, his deportation, it interferes with or abrogates that right.  Therefore, we say that the Court should construe – I think the outline uses the word “strictly”, perhaps that is a little bit hyperbolic – but certainly should construe any ambiguity in favour of the applicant, rather than in favour of the Minister.

The power to deport given by section 201 is triggered if the migrant is convicted of an offence within 10 years of entering Australia and in respect of that offence is sentenced to imprisonment for a period of not less than one year.  There is no issue about the 10-year period and the only issue, and the issue of law before the Court, is what is meant by a sentence of 12 months imprisonment.  It is our contention that although a very arbitrary criterion has been adopted by the legislature, and although it may operate in a disparate way in various jurisdictions throughout Australia, the legislature is concerned with people who commit a relatively serious offence, the measurement being the period of imprisonment.

McHUGH J:   Your argument does lead to some practical difficulties, does it not, if you are right?  Take the case of somebody, say, sentenced to two years imprisonment, suspended on entering into a good behaviour bond for a period of three years, you might not know for three years whether or not you can exercise the power under 201(c).

MR NASH:   That is correct, your Honour, it does lead to that difficulty but, of course, one has the problem, if we can just take the particular facts of this case, if we are talking about a sentence in which the sentencing court thought the appropriate sentence was a period of 12 months imprisonment or more, then the facts of this case illustrate – I see your Honour the presiding Judge raising an eyebrow.

McHUGH J:   No, no, when Drake’s Case was decided I must say at the time I probably raised my eyebrows at the time, Mr Nash.  But it has stood for 20 years now.

MR NASH:   It has, your Honour, and it has stood for 20 years.  There is not a great deal of authority at an appellate dealing with Drake’s Case and what we would say, your Honour, is that even if Drake’s Case stands, the present case is different.  If you have a sentence of imprisonment for 12 months – perhaps take the simple case:  a sentence of 12 months wholly suspended.  It is not the imprisonment which is suspended; it is in fact the sentence which is suspended.  In the present case, under the Victorian legislation, what you have is a situation that I am sentenced to 12 months, three months suspended.  It is three months of the sentence suspended.  I am not trying to play verbal games with the Court ‑ ‑ ‑

McHUGH J:   No, I know, what you say is that in Drake, the majority threw all the weight of the argument on the word “sentenced” and did not give enough weight to the use of the term “imprisonment”.

MR NASH:   Yes, your Honour.  But we go further and say that even if Drake is correct, there is a clear distinction between a situation where my being subject to imprisonment for 12 months is, in fact, subject to a condition precedent and the situation where, as in Drake, the fact whether I served 12 months imprisonment or not was subject to a condition subsequent.  In Victoria, that sentence of imprisonment, the suspended sentence of imprisonment, does not take effect not only pending my misbehaviour in some way, but also pending a further curial hearing which may or may not – and I use the words of the legislation – restore the suspended sentence.  If one becomes very semantic in relation to the Victorian legislation, it would seem that there is no – and I appreciate the difficulties raised by section 27(8), but leaving that to one side ‑ ‑ ‑

McHUGH J:   Section 27(8) says:

A partly suspended sentence of imprisonment must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court.

MR NASH:   Yes, your Honour, and that has to relate, of course, only to Victorian legislation, it cannot govern section 200 and section 201, nor has the Victorian court – the Victorian Court of Appeal has had difficulty with that in relation – I apologise to the Court, it is not in the outline and not in the authorities that have been provided – but section 11 of the Sentencing Act provides for the mandatory fixing of a non-parole period. 

In an unreported case of Lowe, which was in the original outline and which I mistakenly removed, and in a decision in of Hatch, copies of which I do have for the Court, and although I hand them up, the proposition is a very simple one, the Court of Appeal on two occasions has held that – I did not actually want to take the Court to the provisions because it is very peripheral – that they have held that section 11, which requires a mandatory non-parole period, cannot apply to a partly or wholly suspended sentence under section 27(8).  So that all I am saying is that 27(8) presents problems even within the Victorian legislation.  I cannot take it any further than that.

But when you have a situation where a person is sentenced to be imprisoned for 12 months, the appeal court reduces that sentence, has he still then sentenced to be imprisoned for 12 months for the purpose of section 201(c)?  Our submission is that he has not, particularly where, as here, he ‑ ‑ ‑

KIRBY J:   What is the point of distinction from Wan’s Case?  Is it that by the special terms of the Victorian statute the situation is different than it is at common law or – you remember, that was the case where it was held that the sentence continued to run, although the prisoner was at large.

MR NASH:   Yes, your Honour, but it is different because of the word – it is not a suspension of the period of imprisonment, it is a suspension of the sentence.  The sentence itself is restored under section 31 in order to order the person to be imprisoned pursuant to ‑ ‑ ‑

KIRBY J:   So, what is the status of the person during that period, vis-à-vis the original sentence?  I mean, it has not disappeared into the ether, it is still there.

MR NASH:   It is still there, your Honour.

KIRBY J:   It is still liable to be revived, so why cannot it be said that the person is sentenced to imprisonment but the imprisonment is suspended, is that not the correct analysis?

MR NASH:   With respect, your Honour, it goes further than that because it is similar to the situation where I obtain an injunction and the injunction is suspended for three years.  I am not subject to that injunction during that period.

KIRBY J:   I wonder if it is the same.  I mean, a sentence of imprisonment does, in one sense, affect status.  An injunction is something – purely a civil remedy between parties.  We are talking about an order of a court affecting the status of a person, made by a court on behalf of the community.

MR NASH:   We would say, your Honour, that if a person is the subject of a wholly suspended sentence, for the moment, then he cannot - unlike a prisoner who is at large, he cannot be imprisoned on breach of an undertaking or anything else, he has to be brought before the court and the court has to rule in relation to the restoration – I am taking the words of the Victorian legislation – the restoration of the sentence.  The suspension appears - in our submission, does appear to be concerned with the sentence, not just with the imprisonment.  This is why I try to make it analogous to an injunction.

McHUGH J:   I know, but I think you concede, in effect, that these arguments about how various regimes in various jurisdictions operate really does not throw much light, if any, on the construction of 201.  What do you say to the fact that Drake has stood for 20 years, no subsequent case has thrown any doubt on it, and the legislature has amended this Act on numerous occasions since 1979 without seeking to interfere with it in any way?

MR NASH:   There are, I suppose, three points we could make, your Honour, the first being, of course, the convention that the legislature really does take note of things is a convention that we are stuck with, I suppose. 

McHUGH J:   Sir Owen Dixon said once – I just cannot remember his phrase – but he said, in effect, it was close to a myth.

KIRBY J:   The Court has said that many times recently, too. 

MR NASH:   The second is that there is, in our submission, a clear difference between Drake and Carngham.  I do not need to elaborate that we say Drake is not consistent with the reasoning in Carngham.  It can be reconciled. We say that if one looks at it carefully, it is very difficult to say that it is reconciled properly.

The third is that Drake is concerned with a condition subsequent:  “I am sentenced to 12 months imprisonment and in certain circumstances I am going to get out in nine months.”  That is different from a situation which we have here where the court has said that the appropriate sentence is a sentence less than the original sentence of 12 months imprisonment simpliciter.  We say that one has to look at the qualification imposed on the 12 months imprisonment, to read it as a whole; that not to do so is to give the Minister, not the subject, the benefit of the ambiguity and that the need to treat it as a serious difference stems from the fact that the Victorian Court of Appeal has said that where a suspended sentence is imposed, it follows that the sentence of imprisonment simpliciter is no longer the appropriate penalty.

The thrust of our argument really is that what one should look at in interpreting section 201(c) is the question of what was the appropriate penalty imposed by the court, in other words, what did the court treat as the appropriate penalty.  Here it treated something less than 12 months imprisonment as the appropriate penalty. 

If the Court pleases, subject to questions, they are the submissions.

McHUGH J:   Thank you, Mr Nash.  Yes, Mr Mosley.

MR MOSLEY:   Thank you, your Honour.  Your Honours, our submission fundamentally is that section 201 refers to the period of imprisonment as imposed as being the appropriate one and here that period being one year, and that sentence is not affected by whether the applicant in this case was given a suspension of part of that sentence or whether there is any fixing of a non-parole period or whether, as in Drake’s Case, he was released on a bond or undertaking.  In our submission, section 201 is directed at the length of the sentence imposed and not the length of time that has been served.   I put that on this basis, your Honours, that if the legislature had intended that the relevant period was to be the actual period of imprisonment, it would have and could easily have said so.  In other words, it could have said, in section 201(c) - - -

McHUGH J:   Could have said, “who has been imprisonment for a period of - - -“

MR MOSLEY:   - - - “served a term of imprisonment of not less than one year”.  In fact, it says, “sentenced to imprisonment for not less than one year”.  What my learned friends seek for this Court to do is to suggest there is some ambiguity in that.  In our submission, Drake makes clear that there is not any ambiguity in that.  In order to arrive at the conclusion that they wish the court to arrive to, one needs to add something to the end of section 201(1)(c) by saying, “and served a term of imprisonment for not less than one year”, to make it clear.  Now, that would be another way in which it would be made clear that it was the service of the period of imprisonment that was relevant and not the sentence imposed.

KIRBY J:   Well,. you latch on, principally and mainly, to the reasons but what do you say in relation to the suggestion that one should look at what the purpose of Parliament was in enacting this provision, and its purpose was to deal with relatively serious cases and that, therefore, if there is an ambiguity, one would construe it in a way that advanced that purpose and that that would allow taking into account the type of construction urged by the applicant.

MR MOSLEY:    Well, your Honour, we submit here that there is no ambiguity, as I submitted, in the legislation and, in any event - - -

KIRBY J:   Well, that is, really, the beginning and the end of your argument.  You say that the focus is on what the sentence was and that what happens after that, it cannot detract from what the sentence was that was imposed and that is the way the Federal Parliament decided to deal with it.

MR MOSLEY:   Yes.  In terms of this sentence, in our submission, where your Honour said that one looks at relatively serious offences or that the legislature intended this to refer to relatively serious offences, in our submission, this would be such a case in any event.

KIRBY J:   It does fall somewhat harshly on the present applicant, although I realise he did re‑offend.

MR MOSLEY:   He did.

KIRBY J:   But he was a member of the Australian community for a long time and - - -

MR MOSLEY:   That may be so, your Honour, but, in our submission, it is no reason to – if there is no ambiguity in the legislation, there is no reason to give the applicant any benefit of any doubt where there is no ambiguity, in our submission.  The term “suspended” does not mean rendered wholly inoperative which, in our submission, is what our learned friends seek to suggest, or extinguished in some way.  That part which is suspended is still live and capable of being activated.  The word itself, “suspension”, necessarily connotes a continuing existence of that which is suspended.

McHUGH J:   We need not hear you any further, Mr Mosley.

MR MOSLEY:   If your Honour pleases.

McHUGH J:   Anything in reply, Mr Nash.

MR NASH:   Despite that indication, your Honour, if I might just draw the Court’s attention to the fact that at page 418, at point 5, in Drake itself, the type of distinction that I was attempting to make seems to be made.

McHUGH J:   My copy is a bit - - -

MR NASH:   I am afraid, your Honour, I apologise for the quality of the photocoyping.

McHUGH J:   Page 418, is it?

MR NASH:   Page 418 at point 5.

McHUGH J:   Yes, I have it.

MR NASH:   They start off talking about triumph of the word over substance and then go on:

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 –

et cetera.  There are two points:  one, it is the appropriate sentence, once again; and, secondly, the fact that he was sentenced to imprisonment for 12 months with a condition subsequent which he could satisfy.  That is the only point I wish to make.

McHUGH J:   Thank you, Mr Nash.

We think that this case fell squarely within the interpretation of section 201(c) of the Migration Act expounded in Drake v Minister for Immigration and Ethnic Affairs (1976) 47 FLR 409, a decision that has stood for 20 years. We think that case was correctly decided. In those circumstances, the application for special leave to appeal is refused.

MR MOSLEY:   Costs, your Honours?

McHUGH J:   The applicant asks that costs not be awarded because he is an indigent person in custody.  What do you say about that?  Do you still press?

MR MOSLEY:   Yes, we do press for costs, your Honours.

KIRBY J:   What chances are that you will get the costs?

MR MOSLEY:   Of recovering those costs?

McHUGH J:   Zilch, would they not be?

MR MOSLEY:   I cannot comment on that.

KIRBY J:   Thumb screws cannot be applied.  The lash is out of vogue.

MR MOSLEY:   I know nothing about the applicant’s ability to meet such an order but, having in mind ‑ ‑ ‑

KIRBY J:   You say that, as a matter of principle, the Court should order it.  Whether or not it can be recovered or it would be pressed is a matter that should take its course.

MR MOSLEY:   Yes.

McHUGH J:   Mr Nash, do you want to say anything?

MR NASH:   There is nothing in addition to the words your Honour has ‑ ‑ ‑

McHUGH J:   Yes.  The application is dismissed with costs.

AT 12.15 PM THE MATTER WAS CONCLUDED