} Si (\ REVISED FROM ORAL TRANSCRIPT NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION IN THE FEDERAL COURT OF AUSTRALTA VICTORIA DISTRICT REGISTRY VG No. 180 of 1985 GENERAL DIVISION - TEA BETWEEN: NEVILLE ALLAN KING Applicant AND: MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS ' Respondent 1 7 AUGUST, 1985 KEELY J. EX TEMPOPE REASONS FOR JUDGMENT T think that the reasons for dismissing the application, which I treat as an application to extend the stay beyond 4.30 tonight, are probably sufficiently clear from what I have said. Putting it very briefly without any elaboration, I First of all reject the argument that Mr. Cavanough put primarily last Friday but again today which can be described loosely as being an argument that s. 8 of the Migration Act cuts down the effect of s. 16 of that Act. I said last Friday that I had considerable doubts as to that argument but I decided that the just course overall was to grant the stay to enable me to reflect upon that argument in the light of the context of the sections of the Act. Having done that and heard Mr. Cavanough again ta today, I am very firmly of the view, which I initially had last Friday, that the argument simply cannot be upheld. I have since last Friday had the opportunity of reading the transcript of the oral judgment of Mr. Justice Woodward in Samuels' case in which judgment was given on 1 August, 1985. IT have also looked with some care at the passages upon which Mr. Cavanough relied from Pearce's Statutory Interpretation in Australia, 2nd Edition. I read just very shortly one or two passages from that text~book which appear to me to rather run counter to the general thrust of counsel's submission for the applicant. At p. 139 the book, under the heading of present approach to interpretations of penal statutes, says : "The approach more frequently used nowadays by the courts was enunciated by Isaacs J. in Scott v Cawsey (1907) 5 C.L.R. 132 at 154." And then quotes a passage of his Honour which I will only quote part of in the interests of brevity. It begins :- "When it is said that penal Acts or fiscal Acts should receive a strict construction I apprehend it amounts to nothing more than this ..." And his Honour goes on to deal with public interest matters and says :- "... that a Court should be specially careful, in view of the conseguences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed." That is the end of the quotation from Mr. Justice Isaacs Pearce then immediately continues :- "Isaacs 7. here underlines the fact that the task of the court is neither to be too ready to convict nor to acquit. The mere discovery of an ambiguity in a penal statute should not automatically mean that a defendant must be acquitted. The court must go further in its inquiry. The 'mischief rule' is as applicable to penal statutues as it is to any other and the court must therefore ascertain the legislature's wishes as best it can and then carry out those wishes. Should there be any ambiguity in the statute the court must endeavour to resolve that ambiguity by the application of the various aids to construction that are applicable to all statutes. Then, and only then, if a doubt still remains as to the meaning of the penal provision should the issue be resolved in favour of the defendant." There is then a reference to R. v Adams (1935) 53 C.L.R. and then Pearce goes on to quote from Mr. Justice Gibbs he then was, in Beckworth v R. (1976) 12 A.L.R. 333 at the following passage :- "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost Much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences .... The rules is perhaps one of last resort." and as 4. That is the end of the quotation from the judgment and us also the end of the passages that I wanted to read from Pearce. Jt is a passage I referred Mr. Cavanough to earlier today. It seems to me that it 15 not proper to look at a statutory provision and say : Well, does it involve liberty of a subject, and if it does I should have a careful look and see if I can find something that might be an ambiguity and then resolve it in favour of the defendant. As both Sir Harry Gibbs and Sir Isaac Isaacs said, in the two passages quoted, you apply normal canons of constructions; your task is to find out what did the legislature mean as shown by the words, and it is only if, having done all that, there remains a real doubt in the matter, then in the last resort having found an ambiguity, you say: Well, it really is unclear, it might mean either of those, and then - only then - you give the benefit of the doubt to a defendant in relation toa penal statute. But I do not consider that, onan overall consideration of the matter, the passages in Pearce and the cases cited in it relied upon by Mr. Cavanough, support him in this present case. Accordingly, on that first issue in the case, I am not prepared to uphold Mr. Cavanough's argument. I agree with this passage from the decision of Mr. Justice Woodward given on 1 August, 1985 in Samuels v The Minister (page 5 of the typed copy of the revised judgment). His Honour said :- a "I can see no reason why the section ..... and, I interpolate, his Honour was referring to 5s. 16 of the Migration Act :- ".. why the section should not be read according to its plain words. It does not exempt New Zealanders, as it exempts Australian citizens, and 2t makes all persons who have been convicted of serious offences before entering the country prohibited non-citizens liable to deportation under s. 18 of the Migration Act 1958, unless they have obtained an appropriately endorsed entry permit. The fact that this particular non-citizen would not have required any entry permit were it not for his criminal record, seems to me to be quite irrelevant to the proper interpretation of the section." I agree with the conclusion expressed there by his Honour. I think that disposes of what I have called the first argument. It is perhaps not logically the first argument, but it was the argument first advanced last Friday. I perhaps should say at this stage that in considering each of the arguments, I have approached it on the basis that was discussed earlier this afternoon with Mc. Cavanough, taking into account what has been said in the cases including the Full Court decision in Dallikavak v The Minister in which judgment was given yesterday. I have obviously taken into account and am bound by the statement by the Full Court, and in particular the joint judgment (at p. 14), that the appropriate test is to enquire first whether there ius a serious question to be tried, those words having been taken from the case of Epitoma v A.M.IT.E.U. (1994) 3 F.C.R. 55. However, lest that test be thought to be not as helpful to the present applicant as some other test, I have also taken into account what Mr. Justice Jenkinson, the third member of the Full Court, said (at po. 6) in that case citing a passage from an earlier decision in Perkins v Cuthill (1981) 52 FP.G.R. 236 at 238, which said that s. 15(1){a) of the Judicial Review Act "requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought". If I may say so, with respect, I think there is much to be said for his Honour's view that the expression of the test as requiring an applicant to show "that there is a serious question to be tried" may at times, or in some particular circumstances, operate too harshly against an applicant e.g. in circumstances where, as Jenkinson J. said, it may be "impossible to form an opinion as to whether there is such a question to be tried". But, even giving the applicant the benefit of a somewhat lower test in that way, I am, in what I have said and what I am about to say, quite unable to reach the conclusion, on any of the arguments advanced that there is a serious guestion to be tried or that it is just that an order should be made in all the circumstances here. I turn to what might be called the second part of the case; not the second ground of the application, which I will come to later, but the second part of the case that has been dealt with this morning, which arose from material put in by Mr. Huttner, on behalt of the respondent Minister, by way of an affidavit including annexures to it. The particular document, (exhibit JFR3) is an extract from the Commonwealth of Australia Gazette, being an instrument signed by Senator Durack as the Minister for Immigration and Ethnic Affairs. That document is of course necessarily relied on by the applicant in this case. As at last Friday, the applicant was asserting, in circumstances of great urgency and without full material being before the court, that there was some such document in existence; however, the form of that document was only placed before the court at about 10 past 10 this morning. Now, Mr. Cavanough has argued valiantly and persistently for some hours that that document assists his client. I think it is sufficient if I say that, having regard to what has already been said from the Bench in the course of his argument, I am quite unable to accept that argument or to accept that it has any reasonable praspect of success. In my opinion, the instrument, where it exempts : "(1) A citizen of New Sealand who evidences his citizenship by production of a New Zealand passport." must be read in the light of the words immediately following zt, notwithstanding the existence of a full stop after the word "passport". Those words are : "Other than Any Person Being an Immigrant and Who (iv) at the time of entry is or was a person of any of the following descriptions namely : (b) a person who has been convicted of a crime and sentenced ... toa wae imprisonment for a period of not less than 1 year; (c) a person who has been convicted of two or more crimes and sentenced to zmprisonment for periods aggregating not less than 1 year;" So, that on my reading of that instrument made under s. 8(1)(e) af the Migration Act, a document does not exempt persons in the position of the present applicant, namely, persons who at the time of entry to Australia had been convicted of two or more crimes and sentenced to imprisonment for pericds aggregating not less than one year. I have said that as a matter of construction of the document. In my opinion its meaning is plain and it is not that attributed to it by the applicant. It only exempts citizens of New Zealand if they fulfil two other criteria: (1) that they have evidenced their citizenship by production of a New Zealand passport, and (2) if at the time of entry the person concerned had not been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than one year. I also reject the argument advanced by Mr. Cavanough that the Minister had no power to grant an exemption in those terms, in other words, terms defining the 9. clause in a way which left the applicant and persons in the similar position outside the class exempted. I think again I have made the reasons for that opinion clear in the course of discussion with Mr. Cavanough here today in Court. In my view, there is nothing in s. 8(1)(e) of the Migration Act, either in its own words or read in context, including s. 16 of the Act, which inhibited the Minister from describing that a class which he was exempting by the instrument contained in exhibit JFR3 in the way in which, in my view he has described it, namely, as New Zealanders, but not all New Zealanders; only New Zealanders who fulfil those two other criteria. 50 I reject the argument advanced by the applicant on that ground. Now, there is a second ground of the application under the Judicial Review Act and that is that "the making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purported to be made in that (a) irrelevant considerations were taken into account; and (b) relevant considerations were not taken into account; and (c) the power, being a discretinary power, was exercised in accordance with a rule of policy without regard to the merits of the particular case; and (d) the exercise of the power was so unreasonable that no reasonable person could have so exercised the power." I think it is fair to say that paragraph (c) of the ground which I have just read out was not pursued in the present hearing. Paragraphs (a) and (b) were treated as being sufficiently related that they could be treated as one and essentially that contention is that the Minister took into account as a relevant Factor a matter that was agrelevant. It was put in a number of ways, which perhaps need not be detailed here, but one way was that the Minister took into account that there was a deliberate circumvention of the policy of the Act. T am not prepared to uphold that submission. I have looked at the passage in question. Ir appreciate that the word "circumvention" could be read in that way, but I do not treat it in context as importing the concept of deliberate conduct. If, contrary to that view, it should be so interpreted, then nonetheless I would not be satisfied that the Minister took that factor into account. By that factor, I mean, any deliberate circumvention. I say that having regard to the material as a whole, including specific references in some of the material to the fact that there was no suggestion that the applicant had acted other than bona fide in coming to Australia. There appeared to be no suggestion, other than the words specifically relied on by Mr. Cavanough, that the applicant came to Australia with a deliberate intention to circumvent the relevant policy of the department. For substantially similar reasons - notwithstanding the discussion I had with Mr. Cavanough before lunch and the short additional submissions since lunch - I am not prepared to hold that the reference to the number of sentences, for example in relation to the offences in New Zealand was an error; for reasons that I then gave in the course of il. questioning Mr. Cavanough, Ido not treat the words in the way in which he seeks to have them treated. It seems to me they should be read as a reference to sentences imposed by the Court. It may be that there is a slight difference in relation to the question of sentences in Australia, but I am simply not persuaded that that was a factor taken into account by the Minister in any relevant sense as grounding relief in these proceedings. Lastly, I should add that as to paragraph (d) of this second ground of the application, that "the exercise of the power was so unreasonable that no reasonable person could have so execcised the power", I do not consider that that proposition is even arguable as 4a proposition on all the Material here. I think it is quite impossible to say that the exercise of power was unreasonable. Plainly the Minister could have reached and quite properly reached the decision which he did on the material before him. Now I think that covers all of the arguments that have been put to me in this matter on the two days. Accordingly, the application for an extension of the time of the stay granted by the Court last Friday, is refused. - aes ne we Mee, aan revisedl arf Keely Bs ies => FT Wunust G2 ,