Ball v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 699 (11 July 2003)

Last Updated: 11 July 2003

FEDERAL COURT OF AUSTRALIA

Ball v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 699

MIGRATION -visa cancellation pursuant to s 501 of the Migration Act 1958 (Cth) - want of good character - where decision made by the Minister for Immigration and Multicultural Affairs personally - New Zealand citizen resident in Australia since 1998 - where applicant did not receive registered letter containing notice of intention to cancel a visa - whether the Act requires that an applicant receive actual notice of intention to cancel a visa - Act clearly anticipates constructive notice by post, including registered post - meaning of substantial criminal record under s 501(7) - where a person sentenced to terms of imprisonment totalling two years or more will fail the test - whether the words "terms of imprisonment" requires the aggregation of every sentence imposed, or whether sentences imposed concurrently are only to be counted once - Minister erred in concluding the applicant had been sentenced to terms of imprisonment totalling two years or more - whether under certain circumstances procedural fairness requires protected information under s 503A to be provided to the applicant - where information presumably on public record and no reason to believe consent to the disclosure would be withheld - procedural fairness denied.

Migration Act 1958 (Cth) ss 201(c), 501, 503A

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1999

Migration Regulations 1994, Reg 2.55

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1113

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93

Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502

St Olave's Union v Canterbury Union [1897] 1 QB 682

Cadogan (Earl) v Guinness [1936] Ch. 515

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111; (1999) 88 FCR 264

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452

Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364

Pearson v Minister for Immigration Local Government and Ethnic Affairs (1992) 106 FLR 162

AMANDA BALL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 422 of 2003

RYAN J

11 JULY 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 422 of 2003

BETWEEN:	AMANDA BALL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	11 JULY 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS:

1. THAT certiorari issue to quash the decision of the respondent of 13 March 2003 to cancel the applicant's visa.

2. THAT the applicant forthwith be released from immigration detention.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 422 of 2003

BETWEEN:	AMANDA BALL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	11 JULY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 By her amended application under s 39B of the Judiciary Act 1903 (Cth) the applicant seeks;

`A. An order of or in the nature of certiorari to quash the decision made by the respondent on or about 13 March 2003 by which decision the respondent purported to exercise a discretion under section 501(2) of the Migration Act 1958 to cancel the applicant's visa ("the visa cancellation decision").

B. An order, in the nature of habeas corpus, that the applicant be released from immigration detention.' (original emphasis)

2 The grounds relied on in support of that application were;

`(1) The applicant was denied natural justice and/or procedural fairness in that she was not given notice of the Minister's intention to consider exercising his discretion pursuant to Section 501(2) of the Migration Act 1958.

(2) The visa cancellation decision was made without jurisdiction in that it was made without the applicant being given an opportunity to make submissions against the exercise of the power.

(3) The Minister denied the applicant natural justice and/or procedural fairness when he acted on the contents of a document entitled "CONSIDERATION OF LIABILITY FOR CANCELLATION OF PERMANENT RESIDENT VISA UNDER S.501(2) OF THE MIGRATION ACT' ("the issues paper"), without first giving the applicant an opportunity to consider, and comment on, it.

(4) The Minister failed to comply with his duty to provide a statement of reasons for his decision.

(5) The visa cancellation decision was tainted by jurisdictional error in that the Minister failed to take relevant matters into consideration when arriving at the visa cancellation decision.

(6) In making the decision the Minister slavishly followed a direction made under s499 of the Act and in doing so failed to give independent consideration to the merits of the applicant's case. He thereby unlawfully fettered the discretion conferred on him by subs 501(2).'

3 The applicant was born in New Zealand on 2 October 1975 and has lived in Australia since 1998. The decision to cancel her visa was made under s 501 of the Migration Act 1958 (Cth) ("the Act") which provides, so far as is relevant;

`Decision of Minister or delegate - natural justice applies

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

Decision of Minister - natural justice does not apply

(3) The Minister may:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person;

if:

(c) the Minister reasonably suspects that the person does not pass the character test; and

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

(4) The power under subsection (3) may only be exercised by the Minister personally.

(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Character test

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or

... ... ... ... ...

Otherwise, the person passes the character test.

Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

Periodic detention

(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

Residential schemes or programs

(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

(a) a residential drug rehabilitation scheme; or

(b) a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Pardons etc.

(10) For the purposes of the character test, a sentence imposed on a person is to be disregarded if:

(a) the conviction concerned has been quashed or otherwise nullified; or

(b) the person has been pardoned in relation to the conviction concerned.

... ... ... ... ...

Definitions

(12) In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.' (original emphasis)

4 On 29 January 2003 the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") sent by registered post to the applicant a "Notice of Intention to Cancel Your Visa Under Subsection 501(2)" of the Act ("the Notice"). The Notice was addressed to the applicant at 2B Davidson Street, South Kalgoorlie 6430 in the State of Western Australia. That address had been obtained by an officer of the Department from an officer of the Western Australian Police Service who said that it had been supplied by the applicant when she appeared before the Kalgoorlie Court of Petty Sessions in or about January 2003 on a charge of providing a false bail undertaking. It was also the address which had been supplied by the applicant to the Australian Taxation Office in March 2002 when she completed a Tax File Number Declaration.

5 The Notice forwarded to the applicant recited;

`It has come to the attention of the department that this visa may be liable for cancellation by the Minister under section 501 of the Migration Act 1958 (the Act). The relevant grounds are

* Subparagraph 501(6)(a)

* Subparagraph 501(6)(c)(i)

* Subparagraph 501(6)(c)(ii)

* Subparagraph 501(6)(d)(ii)

* Subparagraph 501(6)(d)(v)

I have attached the full text of section 501 for your information.

Before the Minister considers whether to cancel your visa under subsection 501(2), you are provide with an opportunity to comment. Matters to be taken into account include the following:

* Your substantial criminal record and/or

* Your past and present criminal conduct

* Your past and present general conduct

In reaching a decision whether to cancel the visa the Minister may have regard to the matters noted above and the attached Minister's Direction No 21 titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958."'

6 The Notice requested that any written comments and information be provided to a designated office of the Department by 20 February 2003. It ended with the warning that;

`If you do not respond by this date, a decision on whether there are grounds to cancel your visa will be made using information already held by the Department.'

7 By way of attachment to that Notice there was set out the text of s 501 of the Act and a copy of Direction No 21 under s 499 of the Act which was expressed to be framed to provide "guidance to decision-makers in making decisions to refuse or cancel a visa under Section 501" of the Act. The Notice did not contain any details of the matters said to constitute the applicant's "substantial criminal record". That omission has been explained as follows in an affidavit sworn by the responsible case officer;

`5. The Notice did not attach or contain details of the protected information because the agencies that provided that information provided the information to DIMIA in confidence. I would have ordinarily attached some of that information to the Notice if it were not provided to DIMIA in confidence.'

8 In fact, the applicant had left Kalgoorlie for Melbourne on 18 January 2003 and thereafter resided at 245 Reid Road, Reedy Creek in Victoria. As a result, she did not receive the Notice which Australia Post, after three attempts to deliver it or have it collected by her, returned "unclaimed" to the Department on or about 11 March 2003.

9 In the meantime, the "issues paper" referred to in paragraph 3 of the grounds of the application had been prepared on 21 February 2003 and put before the respondent Minister. It referred to s 501(2), s 501(6)(a) and s 501(7)(d) of the Act. After the reference to the last mentioned paragraph, the issues paper recited;

`Policy states that;

* It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed.'

10 It was then noted;

`[5] Additional evidence of relevance is set out in information that is "protected" for the purposes of section 503a of the Act (protected information). Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure. The protected information is set out at Annex E.

[6] It is open for you to find on the above facts that there is a reasonable suspicion that Ms BALL does not pass the character test due to the fact that she has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more.

Evidence of Grounds

[7] Ms BALL has convictions for the following offences in Western Australia:

Date	Crt	Offence	#	Penalty
29/3/2000	PS	Possess Prohibited Drug	2	1. $100 2. $200
29/3/2000	PS	Possess Smoking Implements	1	$150
10/01/2003	PS	False Bail Undertaking	1	$400

[8] Additional evidence of relevance is set out in information that is "protected" for the purposes of section 503a of the Act (protected information). Protected information may not be released to the applicant or to the Administrative appeals Tribunal (AAT), unless the Minister permits the disclosure. The protected information is set out at Annex E.

A copy of Ms BALL's Official Criminal History is at Annex B.

Finding Against the Character Test

[9] Based on the above information it is open for you to find that Ms BALL has a substantial criminal record and therefore cannot pass the character test.' (original emphasis)

11 Then, under the heading "Discretion", the issues paper set out a number of factors which were regarded as guiding the exercise of the Minister's discretion to allow Ms Ball to remain in Australia if he were satisfied that she did not pass the character test. That part of the issues paper was prefaced by this paragraph;

`[10] If you are satisfied that Ms BALL does not pass the character test you must consider the exercise of your discretion to decide whether Ms BALL should be permitted to remain in Australia. s.501 of the Migration Act 1958 provides you wish a discretion to cancel a visa. You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.'

12 The issues paper noted that Ms Ball had been notified by mail on 29 January 2003 of the intention to consider cancellation of her visa and that she had not responded to the invitation to submit any comment which she believed relevant. However, the issues paper, presumably because it had been prepared before the Notice was returned unclaimed on or about 11 March 2003, did not advert to that fact.

13 Still under the general heading "Discretion" the issues paper continued;

`Primary Considerations

Protection of the Australian Community

(a) seriousness and nature of conduct

[12] Paragraph 2.6 of the Direction states:

It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

(f) murder, manslaughter, assault or any other form of violence against persons;

(n) any other crimes involving violence or the threat of violence:

* such crimes are of special concern to the welfare and safety of the Australian community; and

[13] Additional evidence of relevance is set out in information that is "protected" for the purposes of section 503a of the Act (protected information). Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure. The protected information is set out at Annex E.

[14] Ms BALL's offences are listed as very serious offences under the Direction.

[15] Paragraph 2.7 states:

It is the government's view that the sentence imposed for a crime is an indication of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:

(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b) the repugnance of the crime:

* crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

[16] Ms BALL has convictions for the following offences in WA:

Date	Crt	Offence	#	Penalty
29/3/2000	PS	Possess Prohibited Drug	2	1. $100 2. $200
29/3/2000	PS	Possess Smoking Implements	1	$150
10/01/2003	PS	False Bail Undertaking	1	$400

A copy of Ms BALL's criminal history is at Annex B.

[17] On the basis of Ms BALL's criminal history it is open to you to find that his [sic] conduct against the community is serious.

(b) likelihood that the conduct may be repeated (including any risk of recidivism)

[18] In assessing Ms BALL's risk of recidivism it is open for you to take the following issues into account:

- whether the person has previously been warned about the risk of cancellation or deportation, and has since offended

- previous convictions in Australia

- extent of rehabilitation already achieved, prospect of further rehabilitation and positive contribution to the community the person may make

[19] Additional evidence of relevance is set out in information that is "protected" for the purposes of section 503a of the Act (protected information). Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure. The protected information is set out at Annex E.

[20] In regard to the risk of recidivism of Ms BALL, no professional assessments have been received regarding his [sic] risk of recidivism but you may wish to note her large number of convictions and her pattern of offending with convictions commencing in 1997.

[21] In consideration of the above factors, it is open for you to find that Ms BALL is at a moderate risk of recidivism.

(c) General deterrence.

[22] Paragraph 2.11 of the Direction states:

General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in two ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar offences.

[23] The offences committed by Ms BALL were very serious. It is open for you to find that cancellation of Ms BALL's visa would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.

A copy of Ms BALL's criminal history is at Annex B.

The Expectations of the Australian Community

[24] Paragraph 2.12 of the Directions states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

[25] The offences committed by Ms BALL are considered by the Government to be very serious. The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Ms BALL should be removed from Australia.

A copy of Ms BALL's criminal history is at Annex B.

The Best Interests of the Children

[26] Article 3.1 of the Convention on the Rights of the Child (CROC) states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or. legislative bodies, the best interests of the child shall be a primary consideration. "

[27] Ms BALL made no submission to the Department. There is no information on file to suggest that Ms BALL has any children, or that there are other children who would be affected by Ms BALL removal from Australia.'

14 The issues paper contained, amongst others, these paragraphs under the next heading "Other Considerations";

`[29] Ms BALL did not make a submission to the Department, and accordingly raised no other considerations why her visa should not be cancelled.

... ... ...

[32] Additional evidence of relevance is set out in information that is "protected" for the purposes of section 503a of the Act (protected information). Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless the Minister permits the disclosure. The protected information is set out at Annex E.' (original emphasis)

15 The Official Criminal History set out at Annex B to the issues paper, in substance, reproduced the information about Ms Ball's convictions in Western Australia on 29 March 2000 and 10 January 2003 which was contained in the body of the extract from the issues paper quoted at [10] above. Annex E to the issues paper did not form part of the copy which was later supplied to the applicant because it was regarded as containing information protected by s 503A of the Act. That section provides, so far as is relevant;

`Protection of information supplied by law enforcement agencies or intelligence agencies

(1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C:

(a) the officer must not divulge or communicate the information to another person, except where:

(i) the other person is the Minister or an authorised migration officer; and

(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and

(b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where:

(i) the other person is the Minister or an authorised migration officer; and

(ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C.

(2) If:

(a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or

(b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then:

(c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and

(d) if the information was communicated to an authorised migration officer - the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

(3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

Note: Commonwealth officer is defined by subsection (9).

(4) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration.

... ... ...

(9) In this section:

authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act.

Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914.

Note: A Minister is not a Commonwealth officer.

gazetted agency means a body, agency or organisation that is:

(a) responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence in, or in a part of, Australia or a foreign country; and

(b) specified in a notice published by the Minister in the Gazette .'

16 The information contained in Annex E from the issues paper had been supplied to the Department by the New Zealand Police which is a gazetted agency as defined in s 503A(9). The information was in the form of a computer printout which ended with the stipulation "This information should not be released without police consent." However, on 26 June 2003, a delegate of the Minister, pursuant to s 503A(3) of the Act, having consulted with the relevant gazetted agency declared that;

`Subsections 503A(1) and (2) of the Act do not prevent the disclosure of the information ..... (which is protected information for the purposes of section 503A of the Act) to the Federal Court of Australia in Victoria for the hearing of Ms Amanda Ball.'

Apart from the reference to the hearing of the present application, no circumstances were specified in that declaration by way of limiting the use to be made of the information after disclosure to this Court.

17 The information supplied by the New Zealand Police appeared to reveal that the applicant had been fined on 13 July 1993 for possession of cannabis seeds. On 22 October 1993 she had been convicted on some nine counts related to offences committed between July and September 1993. On each of those counts, the record indicates, she was ordered to "take treatment supervision" or "take counselling supervision" each for "1 year begin 22/10/1993." On four of those counts she was also ordered to make "total reparation" in monetary amounts of $83.45, $75.00, $110.00 and $80.00 respectively. On 15 November 1993, she was convicted of an offence of receiving property (under $500) said to have been committed before any of those for which she had been convicted on 22 October 1993. In the "result" column of the record of the conviction of 15 November 1993 it was indicated "sentence if call 6 months begin 15/11/1993 Order - return of prop." On 14 January 1994, the applicant was convicted of unlawfully being in an enclosed yard for which the result column indicates "sentence if call 6 months begin 14/01/1994." Finally, on 28 April 1994, the applicant was convicted on 49 counts, mostly of obtaining by cheque (over or under $500) by false pretences. In the result column related to 25 of those convictions it was indicated "Treat / Couns as direc Imprisonment 11 months begin 22/04/1994 Supervision 1 year." The result column for the remaining 24 convictions was in identical terms except that the expression "Imprisonment 2 months" appeared instead of "Imprisonment 11 months."

18 The issues paper ended with a section headed "Minister's Decision On Cancellation Under s 501(2)" which commenced with this recital;

"[39] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Ms Amanda Jane BALL's comments, and have decided that:

Please delete whichever is NOT applicable:'

19 Then followed four sub-paragraphs setting out alternative decisions said to be available to the Minister. The Minister struck out the first three of those sub-paragraphs leaving the following as embodying his decision which was dated 13 March 2003;

`(d) I reasonably suspect that Ms Amanda Jane BALL does not pass the character test and Ms Amanda Jane BALL has not satisfied me that he [sic] passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.'

20 On 16 May 2003, the applicant was taken into immigration detention in Victoria. She was then handed a letter dated 25 March 2003 addressed to her at 2/56 Harper Street Woodbridge WA 6056 advising that the Minister, on 13 March 2003, had cancelled her visa. Attached to that letter was a copy of the issues paper. The copy of the issues paper provided to Ms Ball did not contain Annex E comprising protected information which had been appended to the issues paper in its complete form.

21 Pursuant to an order of the Court made on 4 June 2003, there was filed and served a written statement signed by the Minister on 24 June 2003 of his reasons for the decision of 13 March 2003. However, neither party to the present proceedings has sought to put that statement into evidence.

A. Natural justice

22 It is now well-established that whether an administrative decision-maker is obliged to accord natural justice or, to use the expression preferred by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 "procedural fairness", is to be determined in the light of the legislation conferring the power to make the decision. It is also necessary to have regard to the relevant circumstances of the case before the Court. It is common ground in the present case that the Minister was bound to accord natural justice or procedural fairness to the applicant. What is in dispute is what procedural fairness required by way of giving notice to the applicant that she was at risk of having her visa cancelled and how far the Minister was obliged to inform her of the matters constituting the grounds on which that cancellation might occur.

(i) Were reasonable steps taken to notify the applicant?

23 In Osborne v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1113, the applicant, who had been in prison until September 2000, was sent two letters by registered post advising that the Minister was considering whether to cancel his visa under s 501(2) of the Act. Those letters were sent to the address which the applicant had given to the Department before he was imprisoned and to which he told a Departmental officer he intended to return after his release on parole. The address supplied was that of a house in Koondoola where the applicant's mother lived. However, she had been going to and from New Zealand and, according to the applicant, he received neither of the letters from the Department. As in the present case, the Minister, before cancelling the visa, had been informed that the applicant had been notified of the intention to consider cancellation of his visa and had not responded to the letters. French J observed at [19]-[20];

`..., there is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. Nevertheless, prior notice to the visa holder is to be implied as a necessary condition of the power for it cannot be exercised unless:

"The person does not satisfy the Minister that the person passes the character test."

It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even thought the Act does not set it out. Indeed the regulations seem to assume as much.

The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.'

24 The regulation to which his Honour referred in that passage is, for present purposes, Reg 2.55 of the Migration Regulations 1994 ("the Regulations"). So far as is relevant, Reg 2.55 provides;

`(1) This regulation applies to:

(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

... ... ...

(3) For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

(a) by handing it to the person personally;

(b) by handing it to another person who:

(i) is at the person's last residential or business address known to he Minister; and

(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii) appears to be at least 16 years of age;

(c) by dating it, and then dispatching it:

(i) within 3 working days (in the place of dispatch) of the date of the document; and

(ii) by prepaid post or by other prepaid means;

to the person's last residential address, business address or post box address known to the Minister;

... ... ...

(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or

(b) in any other case - 21 days after the date of the document.

... ... ...'

25 It was submitted on behalf of the applicant that the Notice from the Department had not been sent by prepaid ordinary post and had been sent to an address which was not her last residential address known to the Minister. The reasons for rejecting these contentions can be shortly stated. In the first place, the concept of a last known address in Reg 2.55(3)(c) does not depend on the Minister's knowledge coming from a particular source. Nor does it require that the Minister's knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant's residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa. The second argument under this head loses all force when it is remembered that Reg 2.55(3)(c)(ii) does not require dispatch by "prepaid ordinary post". Registered post is also "prepaid post" or "other prepaid means" and, because it involves delivery of the article personally to the addressee or somebody who signs when collecting it on his or her behalf, provides a greater degree of assurance that the article has, or will, come to the addressee's notice.

26 For these reasons, the implied requirement identified by French J in Osborne has been satisfied in the present case in the sense that, by force of Reg 2.55(7), the applicant is taken to have received it on 5 February 2003.

(ii) Did the applicant have an opportunity to know the case put against her in relation to the character test and the exercise of the Minister's discretion?

27 It was clearly an essential part of the case against the applicant which was notionally put to the Minister by the Department that she did not pass the character test. Because a reasonable suspicion by the Minister that the applicant did not pass the character test was a positive condition precedent to the cancellation of the visa, it cannot be denied that the applicant was critically interested in the facts said to give rise to that suspicion. Indeed, the respondent acknowledged the nature and extent of that interest when Mr Hutchinson was constrained to concede in the evidence quoted at [7] above that he would ordinarily have attached to the Notice of Intention to Consider Cancellation some of the information related to whether the applicant had a substantial criminal record. The correctness of that concession is underlined by the observations of McHugh J in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 where his Honour said, at 631 (footnotes omitted);

`There is no doubt that the Tribunal member was under a duty to accord Mr Muin procedural fairness. Whenever a statute confers on a public official or tribunal the power to do something that affects a person's rights, interests or legitimate expectations, the official or tribunal must accord procedural fairness to the person affected unless the statute plainly indicates a contrary intention. This Court has already held that the rules of procedural fairness govern the exercise of power by the Tribunal. The content of the obligation and whether it was in fact complied with are issues here.

Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". What is required to discharge this duty depends on the circumstances of the particular case.'

See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.

28 However, the respondent seeks to escape from the application of those principles by pointing out that the information about the applicant's convictions in New Zealand was protected information which s 503A specifically contemplates may be used in making decisions on the cancellation of visas. Nevertheless, in my view, it may be necessary, in order to accord natural justice, for the decision-maker to consider what it is that attracts to critically relevant information the character of protected information and whether it can reasonably be divested of that character and supplied to the visa holder. In the present case, what attracted the protection of s 503A to the information was the fact that it had been obtained from a gazetted agency and had been supplied by that agency on condition that it be treated as confidential information. That condition was imported by the stipulation that "this information should not be released without police consent."

29 However, it was not the source of the information or the circumstances in which it had been obtained by the New Zealand Police that was significant to the Minister's decision. It was the information itself. As Gleeson CJ said in Muin (supra) at 611;

`... It is not the submissions of the Department, but the information referred to in them, or accompanying them, and the other adverse documentary material produced after the delegate's decision, that is significant. The stated fact that there was a failure to bring the substance of that material to the attention of the plaintiff, and the disadvantage that followed, entitles the plaintiff to succeed on this ground.'

The question for the Minister to ask in the course of ensuring that natural justice was accorded to the present applicant was what steps could reasonably have been taken to bring to her attention the substance of the material obtained from the New Zealand Police. To my mind, two obvious answers suggest themselves. In the first place, a request could have been made in response to the invitation implied in the stipulation quoted at the end of [28] above for the New Zealand Police to consent to the provision of the information to the applicant. It is difficult to conceive, since it was presumably information available on the public record, why such consent should have been withheld. Secondly, all of the convictions had been recorded in the same court, "DC" (which I take to mean District Court) at "Dunedin". It should therefore have been reasonably practicable for the Department to have obtained extracts from the register of that Court in order to supply the information to the applicant free of the embargo imposed by s 503A.

30 Reference was made by Dr Donaghue of Counsel for the Minister to WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 where R D Nicholson J considered s 501G of the Act. That section requires the Minister, after deciding to cancel a visa that has been granted to a person, to give the person a written notice that sets out the decision and the reasons "(other than the non-disclosable information)" for it. His Honour noted at [46] that;

`... ... non-disclosable information is not required to be provided to an applicant. The consequence is, in accordance with the well established law previously referred to, it was not a breach of the rules of natural justice for the respondent to refuse to disclose annexure J.'

31 However, that was a case which concerned the procedures to be followed after a decision had been made under, amongst others, s 501(2); see Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281. R D Nicholson J was not called on to examine what information was required to be provided to the person before the decision whether to cancel a visa and whether steps could reasonably have been taken to render disclosable information which had been supplied subject to a condition that made it non-disclosable.

32 The supply of information to a visa holder where a decision to cancel under s 501(2) is contemplated obviously provides an opportunity to contend that the information does not support a conclusion that the person does not pass the character test. That may be done, for example, by seeking to demonstrate that the visa holder is not the person who has been sentenced to terms of imprisonment answering one or other of the descriptions in s 501(7)(b), (c) or (d). Alternatively, the visa holder may wish to advance the contention discussed below that the term or terms to which he or she has been sentenced do not answer any of those descriptions. However, it is important to bear in mind that information adverse to a visa holder does not bear only on whether he or she passes the character test. It may also be relevant to the exercise of the Minister's discretion whether or not to cancel the visa notwithstanding a failure to satisfy the Minister that the person passes the character test. For example, the person may seek to demonstrate that mitigating circumstances attended one or more sentences which incontrovertibly constituted a substantial criminal record, or that an unblemished record for a long period after those sentences indicates complete rehabilitation. The relevance of these considerations in the present case is borne out by paragraphs 12 - 25 of the issues paper quoted at [13] above. (I note parenthetically that paragraph 20 of that document erroneously referred to her "pattern of offending with convictions commencing in 1997." In fact, the recorded convictions in New Zealand commenced in July 1993 and ended in April 1994 almost nine years before the Minister was called on to make his decision.) However, it is significant that not even Annex B containing the record of Ms Ball's convictions in Western Australia, which was never claimed to be protected information, had been forwarded to her with the Notice of 29 January 2003.

33 It was submitted on behalf of the Minister that, provided reasonable steps have been taken to notify an applicant of the possible cancellation of a visa (as I have found in Pt A(i) of these reasons they were), if the visa holder is not contacted, then "any complaint about the content of the documents that the applicant never received is moot. The applicant could not show any practical unfairness". Reference was made in this context to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 where Gummow J observed, at 511;

`A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 638-639 was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 655 per Deane J, 665 per Toohey J, 684 per McHugh J. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.'

34 In the present case, by force of Reg 2.55(7) the applicant is taken to have received the letter of 29 January 2003. In that sense, she had the opportunity to advance a case to the Minister, but, for the reasons explained above, she was not given an opportunity to know the material adverse to her on which the Minister might have relied. Accordingly, she was not accorded that degree of procedural fairness which, on the authority of the cases cited at [27] above, I consider, the Act, on its proper construction and in the circumstances of the case, required.

B. Was the Minister entitled to suspect that the applicant did not pass the character test?

35 It will be recalled that s 501(6) provides that;

`For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)):'

36 Subsection (7), in turn, provides, so far as is relevant;

`For the purposes of the character test, a person has a substantial criminal record if:

... ... ...

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;'

37 It is accepted that the Minister considered, on the basis of the information from the New Zealand Police, that the applicant had, on the one occasion on 28 April 1994, been sentenced to two or more terms of imprisonment the total of which was more than two years. The view was apparently taken that the total of the terms of the imprisonment to which the applicant had been sentenced for 11 months each to be served concurrently beginning on 28 April 1994 was 275 months or slightly less than 23 years. Similarly, it seems, the 24 convictions which attracted sentences of 2 months each, also to be served concurrently beginning on 28 April 1994, were regarded as resulting in the total of those terms being exactly 4 years.

38 In my view, the expressions "term of imprisonment" and "terms of imprisonment" in s 501(7)(c) and (d) denote respectively a period having a fixed or ascertainable beginning and end, and an aggregation or accumulation of such periods. The plural expression "terms of imprisonment" is not apt to refer to the same period for which several sentences have been directed to be served concurrently. This accords with the accepted meaning of "term" in the relevant sense as a matter of ordinary English which the Oxford English Dictionary gives as "a portion of time having definite limits; a period esp. a set or appointed period; the space of time through which something lasts or is intended to last." It is also consistent with the meaning given to the expression "term" by courts concerned to apply it in other statutory contexts or in relation to the law of landlord and tenant; see eg St Olave's Union v Canterbury Union [1897] 1 QB 682 and Cadogan (Earl) v Guinness [1936] Ch. 515.

39 In support of the contrary interpretation favoured by the Minister, Dr Donaghue pointed out that the parenthetical reference in s 501(7)(d) contemplates that a person may be sentenced to two or more terms of imprisonment "on one ..... occasion". That much may be conceded, but that contemplation is fulfilled by acknowledging the practice of sentencing courts of imposing on one occasion sentences to be served cumulatively, ie where the term of the second or later sentence is directed to commence immediately after the expiration of the first or preceding sentence. Reference was also made to paragraph 53 of the Explanatory Memorandum accompanying the Bill which became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1999. That paragraph recited;

`New subsection 501(7) defines a `substantial criminal record' for the purposes of the new character test (as defined in new subsection 501(6)) as:

* a sentence to death;

* one sentence of 12 months or more;

* a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment. It is intended that sentences be `totalled' irrespective of the time and place at which each sentence was imposed; ...'

40 In my view, that paragraph is at least equally consistent with an intention that what are to be totalled are separate terms of imprisonment to which a person has been sentenced whether on different occasions or at one and the same time. The practice of sentencing courts of differentiating between concurrent and cumulative terms of imprisonment is so well-established and widely known that, had the framers of s 501(7) in its present form or the Explanatory Memorandum intended concurrent terms to be "totalled", they could easily have said so.

41 The respondent sought to derive support from two decisions of Full Courts of this Court. In the first, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Court considered what was then s 12 of the Act which authorised the making of a deportation order in respect of an alien convicted in Australia "of any other offence for which he has been sentenced to imprisonment for one year or longer." The applicant had been sentenced to imprisonment for twelve months with a direction that he be released after three months on entering into a bond to be of good behaviour. The majority (Bowen CJ and Deane J) held that he had been sentenced to imprisonment for one year within the meaning of s 12. Their Honours' observed, at 586;

`It would seem clear that the sentence referred to in s 12 of the Migration Act is the sentence of imprisonment imposed and not the term of imprisonment actually served. The fact that a person who had been sentenced to be imprisoned for a term of one year was, by reason of remissions or release on parole, not required to serve the full term of imprisonment imposed would not affect the fact that he had been sentenced to imprisonment for one year for the purposes of s 12 of the Migration Act. In such a case, the remissions could not properly be regarded as part of the sentence imposed. They are the result of the context in which the sentence imposed operates. Similarly, in the case of premature release on parole, the release itself - even when consequent upon the fixing of a minimum non-parole period - cannot properly be regarded as altering the character of the sentence of imprisonment imposed. The fixing of a non-parole period neither confers any right of premature release upon the person sentenced nor qualifies the nature or term of the sentence of imprisonment actually imposed. In the event that the person sentenced is prematurely released on parole, the residue of the sentence of imprisonment is not extinguished. If the conditions of parole are broken, the person released can be returned to prison to serve the residue of the term imposed.'

42 It is clear from that passage that their Honours considered that the proper focus for purposes of the Act is on the term of imprisonment actually imposed and not on any potential for that term to be cut short by premature release on parole or by some similar mechanism. That focus, I consider is consistent with my interpretation of s 501(7) which is reinforced by the express use of the words "term" and "terms" neither of which appeared in s 12 in its original form.

43 Bowen CJ and Deane J in Drake went on to observe, at 588;

`Plainly, it was the intention of the magistrate who sentenced the plaintiff that he should serve but three months in prison. In the ordinary course it was to be expected that he would enter the recognizance and be released from prison after he had served three months. In fact, at the time the deportation order was made, it was known that the plaintiff had entered into the recognizance and had served no more than three months in prison under the sentence imposed. The fact that he had served no more than three months in prison was the direct result of the terms and operation of the composite sentence itself.

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, sentenced 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 of 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.'

44 The relevant remarks in that passage can be paraphrased to apply with equal force to the construction which I favour in the application of s 501(7)(d) to concurrent sentences although there is nothing to indicate that the sentencing judge in Dunedin intended the applicant to serve any shorter period of imprisonment than the term of eleven months actually imposed. In the present case, the fact remains that the sentencing judge determined, on 28 November 1994, that the appropriate sentences to be imposed for the offences of which the applicant was guilty were a term of imprisonment of eleven months to be served concurrently. The applicant was "under the composite sentences imposed" sentenced to a term of imprisonment of eleven months.

45 Drake was followed by another Full Court (Sackville, North and Merkel JJ) in Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111; (1999) 88 FCR 264 where the appellant had been sentenced for drug trafficking to twelve months imprisonment, three months of which was suspended. It was held that the offence was one "for which the person was sentenced to imprisonment ..... for a period of not less than one year" within the meaning of s 201(c) of the Act. The Full Court first noted that the legislature had effectively repeated in s 201(c) the words which had been judicially construed in Drake. It can be observed that, because of the references to "term of imprisonment" and "terms of imprisonment" in s 501(7), the same cannot be said of that subsection. Moreover, their Honours in Te continued, at 272;

`In any event, we are not persuaded that the majority judgment in Drake v Minister was wrong and should not be applied to the circumstances of the present case. There are a number of factors which suggest that, upon the proper construction of s 201(c) of the Migration Act, the sentence imposed on the appellant brought him within the section.

1. First, as Bowen CJ and Deane J said, s 201(c) must refer to the sentence of imprisonment imposed on a non-citizen and (contrary to Mr Tehan's submissions) not to the term of imprisonment actually served by the non-citizen. It would have been very simple for Parliament to say that the precondition for the issue of a deportation order is to actual imprisonment for a term not less than twelve 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 s 201 and s 202(1) any period for which "a person was confined in prison" is to be disregarded (s 204(1)).

2. The language used by Parliament in s 201(c) of the Migration Act directs attention not merely to the sentence imposed on the non-citizen, but to the quality of the offence committed by him or her, reflected in the sentence imposed by the court. It requires the offence to be one for which the non-citizen was sentenced to imprisonment for a period of not less than one year. It focuses upon the sentence which the sentencing court has determined is the appropriate punishment for the offence. The County Court in the present case was not entitled to impose a suspended sentence of imprisonment on the appellant unless the sentence of imprisonment, if unsuspended, was regarded as appropriate in the circumstances: Sentencing Act, s 27(3). Thus the offence for which the appellant was sentenced was one for which the court considered a sentence of imprisonment for twelve months to be appropriate. This strongly suggests that the offence for which the appellant was sentenced was "an offence for which [he] was sentenced...to imprisonment...for a term of not less than one year," within the meaning of s 201(c) of the Migration Act.

3. As we have explained, the circumstances of the present case provide an even stronger argument for the application of s 201(c) of the Migration Act than those in Drake v Minister. When the appellant was sentenced, it could not be said that he would actually be incarcerated for a period of less than twelve months. Whether he would be required to serve the full term of twelve months imprisonment depended upon whether he re-offended and, if so, whether a court would have considered it unjust to restore that part of the sentence held in suspense.

4. On the appellant's argument it is necessary for the Minister to wait for a considerable period after a suspended sentence has been imposed before being able to determine whether an offender is within s 201(c) of the Migration Act. Under Victorian law, as in force in 1992, that period could be up to four years from the date of the order: see Sentencing Act, ss 27(6), 31(1)(b), and definition of "operational period" in s 3(1). It would be surprising if the Parliament intended that the deportation process provided for in the Migration Act should be held in suspense for up to four years after a sentence of imprisonment has been pronounced on a non-citizen.' (original emphasis)

46 When that reasoning is examined, it becomes apparent that it contains nothing to contradict the intention which I have imputed to Parliament that sentences directed to be served concurrently are to be assessed having regard to the length of the single term for which they were imposed. It would have been very simple to say that the precondition for cancellation of a visa was the imposition of sentences, whether concurrent or cumulative or partly both, which, in the aggregate, totalled two years or more regardless of the term to be served.

47 The construction which I favour focuses no less on the "quality of the offences" committed by the person than that discussed in Te. It directs attention to what the sentencing Court has determined to be the appropriate term for which the sentences have been imposed without taking account of reductions in that term which might occur as a result of partial suspension, remission for good behaviour, release on parole or the like. By contrast with the observation of the Full Court in paragraph 3 of the extract just quoted, when the applicant was sentenced in November 1994, it could be said that she would actually be incarcerated for a period of less than two years because the full term which she was then required to serve for all the offences was eleven months. There was no necessity or occasion to wait for any period to see whether she was within s 501(7)(d).

48 I have derived no assistance in the task of construction with which I have been faced from the authorities to which I was referred on principles of sentencing adverting to wholly or partially concurrent sentences. Cases like Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 direct attention to the desirability of fixing a sentence appropriate to each individual offence and then making them wholly or partly concurrent to give effect to the "totality principle." However, they provide no warrant for paying any attention to the aggregate of the appropriate sentences for all offences before they were made concurrent.

49 On the other hand, I am reinforced in the conclusion to which I have come by the dicta of Burchett and Lee JJ who, in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364, were required to construe what was then s 20(1)(d) of the Act which provided that s 20(1) applied to a person 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 2 or more crimes and sentenced to imprisonment for a period totalling at least one year.'

50 Their Honours observed at 375;

`There is a further ambiguity in the amendment, which we should mention. It is sufficient, in itself, to indicate that the draftsman may have been somewhat less than careful to make an exact statement. If so, there is all the more reason why the court should not hesitate to apply the appropriate presumptions in the construction of the legislation. The point is that subpar (iii) makes no express distinction between cumulative and concurrent sentences. Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: see R v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction. Similarly, the draftsman appears not to have adverted to the possibility that a sentence may have involved periodic detention, rather than a continuous period of imprisonment. It has been held judicially, and we respectfully agree with the decision and think it must have been acknowledged by the draftsman of the 1989 amendments who made no relevant change, that periodic detention does not fall within the provision: see Mere Akuhata-Brown v Chesley (unreported, Gallop J, 20 March 1981).'

51 It is significant that the words "(whether on one or more occasions)" have been inserted in s 501(7)(d) to overcome the result in Sciascia and subsection (8) has been included to accommodate periodic detention to which attention was drawn in the passage just quoted. However, no attempt has been made to remove the ambiguity which Burchett and Lee JJ identified in respect of concurrent sentences.

52 The view which their Honours took in Sciascia was approved by Martin J in the Supreme Court of the Northern Territory in Pearson v Minister for Immigration Local Government and Ethnic Affairs (1992) 106 FLR 162 where his Honour said, at 166;

`I cannot see how a person sentenced to imprisonment for concurrent periods of six months on each of two charges for a crime falls within the statutory description as being a person "sentenced to imprisonment for a period totalling at least one year". He was not sentenced to a period of imprisonment totalling at least one year, he was sentenced to imprisonment for a period totalling six months and in those circumstances the Minister had no jurisdiction to make a deportation order. It was invalid. The plaintiff was not a deportee, because he was not a person in respect of whom a deportation order was in force (s 4), and there was no authority in the Minister to have him kept in custody pending deportation. I note the same view has been taken of the provision by French J in Sciascia v Minister for Immigration and Ethnic Affairs (1991) 101 ALR 321 and by Burchett and Lee JJ in the Minister's appeal against that decision in the Full Court of the Federal Court, Minister for Immigration & Ethnic Affairs v Sciascia (1991) 31 FCR 364. All of their Honours pay regard to the legislative history of s 20(1)(d)(iii) which goes to reinforce the view I take based upon the plain meaning of the words.'

53 For the reasons explained in this section, I have been led to conclude that the Minister applied an erroneous construction of s 501(7)(d) when he formed the suspicion required by s 501(2)(a) that the applicant did not pass the character test.

C. Conclusion

54 It will be apparent from the conclusions reached in Sections A(ii) and B above that the Minister's decision of 13 March 2003 was invalid for two separate and independent reasons. In the first place, it was vitiated by a failure to accord procedural fairness to the applicant by giving her an opportunity to know the matters adverse to her on which a cancellation of her visa might be based. Secondly, the decision was infected by error of law, being, as I have endeavoured to explain in Section B, a wrong construction of s 501(7)(d).

55 These conclusions make it unnecessary for me to consider the remaining grounds of the amended application which were actually pressed at the hearing. In any event, as those grounds went to matters internal to the Minister's reasons, it would be inappropriate to canvass them in the absence of any attempt on behalf of the applicant to analyse the written reasons dated 26 June 2003. In the result, I shall order that the respondent's decision of 13 March 2003 be quashed and the applicant be forthwith released from immigration detention. My tentative view is that the respondent should pay the applicant's costs of the application, other than the costs of the hearing on 4 June as to which there should be no order. However, I shall hear Counsel on the question of costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 11 July 2003

Counsel for the Applicant:	Mr D A Perkins
Solicitor for the Applicant:	Access Law
Counsel for the Respondent:	Dr S Donaghue
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	3 and 8 July 2003
Date of Judgment:	11 July 2003