FEDERAL COURT OF AUSTRALIA Sinclair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 571 MIGRATION – judicial review – cancellation of visa – failure to pass character test – substantial criminal record – jurisdictional error conceded – global sentence of eighteen months imprisonment for multiple offences – whether "a term of imprisonment of twelve months or more" for purposes of character test – concession by Minister – term of imprisonment limited to one offence – consent order – within power and appropriate – order made – certiorari issued Migration Act 1958 (Cth) s 501(2) and (7) Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 cited Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323 cited Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 cited CALLUM ROSS SINCLAIR v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W58 OF 2003 FRENCH J 9 JUNE 2003 (Publication of Reasons) 19 MAY 2003 (Orders Made) PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W58 OF 2003 BETWEEN: CALLUM ROSS SINCLAIR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 19 MAY 2003 WHERE MADE: PERTH BY CONSENT THE COURT ORDERS THAT: 1. A writ of certiorari issue directed to the respondent to quash the decision made by the respondent on 14 January 2003 to cancel the applicant's Transitional (Permanent) visa. 2. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W58 OF 2003 BETWEEN: CALLUM ROSS SINCLAIR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 19 MAY 2003 (Orders Made) 9 JUNE 2003 (Publication of Reasons) PLACE: PERTH REASONS FOR JUDGMENT ON CONSENT ORDER Introduction 1 On 19 May 2003 I made an order that certiorari issue directed to the Minister for Immigration and Multicultural and Indigenous Affairs to quash a decision made by him on 14 January 2003 to cancel Mr Sinclair's visa on the basis that having had a sentence of imprisonment of eighteen months imposed upon him in March 2001 he did not pass the character test under s 501 of the Act. The consent order was made on the basis of the Minister's concession as to error in the departmental submission upon which he based his decision to cancel Mr Sinclair's visa. I was satisfied that the proposed consent order was within power and appropriate. I now publish my reasons for so concluding. Factual History 2 Callum Ross Sinclair is a citizen of the United Kingdom and a British subject. He was born in Scotland on 20 August 1981. At the age of twelve weeks he was adopted in Scotland by Stewart Ross Sinclair and Elsie Joy Sinclair, both Australian citizens. They returned to live permanently in Australia in 1983 about two years after the adoption. They have brought Mr Sinclair up as a member of the Australian community. He has not, however, taken out Australian citizenship. His arrival in Australia was authorised by a visa Class 1021 (Migrant Visa). He has not left Australia since he came here as a child in 1983. 3 On 14 January 2003 the Minister for Immigration and Multicultural and Indigenous Affairs made a decision under subs 501(2) of the Migration Act 1958 (Cth) to cancel Mr Sinclair's visa. The basis for this decision was that Mr Sinclair did not pass the character test specified in s 501. 4 On 13 March 2001 Mr Sinclair had been convicted in the Taree Local Court on one count of larceny and on a number of counts of breaking and entering buildings. The transcript of proceedings on that day indicates that he had been in custody on remand since 6 December 2000. He was sentenced to three months and seven days in respect of the larceny conviction, backdated to 6 December 2000. This meant that his term of imprisonment in respect of that conviction expired upon the day that the sentence was imposed. He was then sentenced for a number of offences of breaking and entering. Only one sentence was imposed and was expressed by the sentencing magistrate to be a form of "global sentencing". This was a sentence of eighteen months imprisonment backdated to 6 December 2000 with a non-parole period of three months and seven days. This allowed for Mr Sinclair's release on parole in respect of these offences on the date upon which the sentence was imposed. Conditions were attached relating to psychiatric assessment, treatment and counselling. 5 The submission from the Department of Immigration and Multicultural and Indigenous Affairs upon which the Minister made his decision to cancel Mr Sinclair's visa contained the following passage: "[6] On 13 March 2001, Mr Sinclair was sentenced by Taree Local Court for the following s 501(7)(c) applicable offence: . Break and Enter Building and Commit Felony. Sentenced to 18 months imprisonment with a non parole period of three months, seven days. [7] Further evidence that Mr Sinclair does not pass the character test is set out in information that is 'protected' for the purposes of s 503A of the Act (protected information). Protected information may not be released to the applicant or to the Administrative Appeals Tribunal (AAT), unless you permit the disclosure. [8] It is open for you to find on the above facts that there is a reasonable suspicion that Mr Sinclair does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more.' The Proceedings in this Court 6 Following the Minister's cancellation of Mr Sinclair's visa an application was filed on 14 March 2003 for prerogative and injunctive relief in relation to the Minister's decision and for review of that decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977. 7 The first ground of the application was that Mr Sinclair, having been absorbed into the Australia community, is no longer a migrant and is not and never has been an alien within the meaning of s 51(xix) of the Constitution. On that basis he was said to fall outside the Minister's power to cancel his visa, hold him in detention and remove him from Australia. The other ground of the application related to the Minister's failure to provide reasons for his decision to cancel the visa as required by s 501G(1)(e). Directions were made to progress the matter to trial. A motion was filed on 8 May 2003 returnable on 19 May 2003 seeking interlocutory relief by way of the release of Mr Sinclair from immigration detention pending the hearing of the application and to restrain the Minister from removing him from Australia pending that hearing. In the event, on 19 May 2003, counsel for the parties informed the Court that the Minister would consent to an order quashing his decision. 8 The consent order was based upon the proposition that the submission upon which the Minister acted in cancelling Mr Sinclair's visa was in error in so far as it submitted that Mr Sinclair did not meet the character test because he had a substantial criminal record. Statutory Framework 9 Section 501 empowers the Minister to cancel visas on character grounds and relevantly provides: '501(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.' The character test is defined by reference to the grounds upon which a person is said not to pass it (s 501(6)). One of those grounds, which is a sufficient ground, is that "the person has a substantial criminal record (as defined in subsection (7))". That is the ground relied upon in the submissions to the Minister in the present case. 10 Subsection 501(7) provides: '(7) 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; …' Whether the Consent Order is Within Power and Appropriate 11 The departmental submission to the Minister relied upon the sentence imposed upon Mr Sinclair on 13 March 2001 as a sentence for a term of imprisonment of twelve months or more within the meaning of s 501(7)(c). Counsel for the Minister in explaining his client's consent to a quashing order, said that the Minister takes the view that the term of imprisonment of twelve months referred to in s 501(7)(c) is a term of imprisonment in respect of a single offence. Counsel's instructions were that the term of eighteen months imprisonment imposed at the Taree Court was really in respect of nine separate breaking and entering offences. The Minister's decision therefore proceeded on a false factual premise as the submission gave the impression that the sentence imposed upon Mr Sinclair was in respect of a single offence. 12 In the circumstances, and having regard to the Minister's concession, it appears that a jurisdictional fact upon which he relied to exercise the power under s 501 did not exist. The case indicates jurisdictional error and on the basis of the decision of the High Court in Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 prerogative relief is available. The quashing of the Minister's decision by certiorari is within power and appropriate, matters of which the Court has to be satisfied before making the order proposed – see Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323 at 329; Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265; Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142; cf the discussion in Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129 at 132-136. 13 For the reasons outlined above, I was prepared to order certiorari to quash the respondent's decision. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 9 June 2003 Counsel for the Applicant: Mr HH Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: Mr P Corbould Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 May 2003 Date of Orders: 19 May 2003 Date of Publication of Reasons: 9 June 2003