Ground 4: The exercise of power by the officers of the Commonwealth abrogated and curtailed the sentence and parole orders of the District Court of NSW and the State Parole Authority NSW in violation of the principle of State immunity
39 These grounds are appropriately addressed together.
40 The amended grounds dated 7 August 2020 each refer to the "decisions" which are identified as being (1) the decision of the delegate to cancel the visa on 19 September 2020, (2) the delegate's decision to detain the applicant in Villawood pursuant to s 189(1) of the Migration Act, and (3) the decision by the Tribunal to uphold the decision of the delegate not to revoke the cancellation of the visa (the decisions). In the amended grounds the applicant does not distinguish between the decisions but rather alleges each ground as relating collectively to the decisions.
41 As the respondent submitted, this Court has no jurisdiction to review the delegate's decision made on 19 September 2018 to cancel the applicant's visa. The cancellation decision under s 501(3A) can only be challenged in the Federal Circuit Court because it was a decision made by a delegate of the Minister, unless proceedings instituted in that Court challenging the decision are transferred to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth): s 476(1) and s 476A(1)(a) of the Migration Act: Azar v Minister for Immigration and Border Protection [2018] FCA 1175; (2018) 261 FCR 1 at [7]. This Court would only have jurisdiction in relation to that decision if the applicant had filed an application within the 35-day time limit in the Federal Circuit Court of Australia and that Court had then referred the proceeding to this Court: s 476A(1)(a) of the Migration Act. That did not occur. This challenge is now made in this Court two years after the delegate's decision.
42 It follows that this Court has no jurisdiction in relation to the first of the decisions referred to.
43 Despite the fact the respondent, quite properly, made the submission as to jurisdiction in its written submissions, the applicant chose not to address the submission in either the written submissions filed without leave on 22 September 2020 or orally during the hearing. His assertion during the hearing that this was a new submission is plainly incorrect. Moreover, it is the applicant who is bringing this application and ought to have considered the jurisdiction to bring the claim before doing so.
44 The applicant's reference to the second decision is also flawed. There is no evidence that there was any decision by the delegate to detain the applicant. As noted above at [28], the applicant's detention was the inevitable result of the delegate's decision: Uolilo at [54], as the applicant became an unlawful non-citizen and was subject to the lawful operation of s 189 of the Migration Act. Section 189(1) of the Migration Act relevantly provides that "if an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person". That inference can be drawn from the surrounding circumstances and direct evidence of an officer's state of mind is not required in a case such as this where it is capable of being inferred: Commonwealth of Australia v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [151], [325]; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [135], [147] (McHugh); Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 at [68], [80]. Given that the applicant was an unlawful non-citizen "an officer could and would have formed the reasonable suspicion referred to in s 189(1) …": Fernando at [81] cited with approval in Uolilo at [54]. As such, there is no evidence before me that there was any decision by the delegate to detain the applicant.
45 It follows that only the third decision, that is the non-revocation decision of the Tribunal, is within this Court's jurisdiction. For the reasons articulated in Raibevu at [114]-[116] referred to at [53] below, the consequence of that being the sole basis of the challenge for these grounds is that the visa would remain cancelled. The applicant would remain an unlawful non-citizen subject to the operation of the Migration Act.
46 Up until the further amended grounds dated 7 August 2020, the grounds alleged error by the Tribunal. The further amended grounds on 7 August 2020 broadened the grounds to refer to the collective decisions as opposed to the Tribunal's decision. I assume that the applicant's inclusion of the decision of the delegate in the relief sought in the amended application in this case was an attempt to overcome the Court's criticisms in Raibevu. However, as explained above at [41], this Court has no jurisdiction in this case in respect to the delegate's decision. The issue is not simply overcome by making an allegation about the delegate's decision.
47 In any event, even if the decisions could be challenged, the arguments are flawed. The applicant has not identified an arguable basis on which to grant leave.
48 The applicant contended that there is a fundamental right to conditional parole, based on the principle of legality, and that those rights have been curtailed. The applicant contended that the decisions referred to above at [40] were not enlivened "until after the applicant's conditional release on parole and a period of supervision and rehabilitation had been completed and the applicant was discharged from the supervision of the District Court of NSW". It was alleged the decisions "abrogated, interfered or dissolved the sentence and parole orders of the District Court of NSW in violation of the separation of powers". It was submitted that the Parole Board is a judicial body. It was also submitted that the decisions amounted to a reversal of the District Court's orders. That submission was said to be based on revisiting the Kable principles (see Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (Kable)), and involved having "a new principle set". It was further submitted that the decisions curtailed the independence of the District Court and the Parole Board in breach of s 106 and s 107 of the Constitution, that argument was said to rely on the application of Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 (Melbourne Corporation).
49 The applicant's submission, despite the lengthy grounds of review, the two lengthy written submissions and oral argument did not address matters which were fundamental to his application.
50 As a starting point, the applicant's submissions do not address the terms of the Migration Act, and in particular, the provisions which were central to the cancellation and non-revocation decisions. Although the applicant's submission relies on the principle of legality it is a general assertion that the decisions violated the principle of legality, with the principle not being applied to any legislation at issue in this case. The violation of this principle is alleged as the jurisdictional error in ground two.
51 The applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act. That provides that the Minister must cancel a visa that has been granted if satisfied that the person has a "substantial criminal record" as defined in s 501(7)(c): s 501(3A)(a)(i), and, at the time of making the decision, the person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is not in issue that those matters were satisfied. The Migration Act therefore expressly provides that the cancellation decision occurs while the applicant is serving the sentence in the custodial institution. The applicant simply did not address the text of the provision. That precondition having been satisfied triggered the mandatory cancellation in this case. The applicant does not challenge the validity of that, or any other, provision.
52 Rather, and without reference to the Migration Act, or that the applicant would be an unlawful non-citizen as a result of the mandatory cancellation, the applicant asserts, as noted above, that the collective decisions "were not enlivened or operative until after the applicant's conditional release on parole and a period of supervision and rehabilitation had been completed and the applicant was discharged from the supervision of the District Court of NSW" (identified as the jurisdictional error in ground three).
53 Significantly, the types of arguments in this application were raised by the applicant's counsel in Raibevu with the Full Court concluding they lacked merit so as to refuse an application for leave to amend the grounds of appeal. Although the passage is lengthy it is appropriate to recite the Full Court's reasoning in full at [109]-[121] (emphasis in the original):
109 This proposed ground was included in the further amended notice of appeal emailed to the members of the Court on 9 February 2020. It asserts several discrete jurisdictional errors. It, too, is supported by lengthy "particulars" which appear to allege further discrete errors, including an allegation that the Minister failed to have regard to a report of the New South Wales Department of Corrective Services dated 17 January 2017 ([2(c)]), failed to take into account that Mr Raibevu would have been on parole if the revocation decision was made and would be subject to supervision ([2(e)]) and denied Mr Raibevu procedural fairness "and the respondent did not have the benefit of any decisions or reports of the parole board to grant the appellant parole" ([2(f)]). The particulars otherwise do no more than to assert background facts and to repeat the words of the ground.
110 The content of the argument in connection with the Constitution was diffuse and unclear. We take it has having these two elements:
(1) The Minister's decision under s 501CA(4) had the effect of undermining the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. This was because that Court had examined the prospects of Mr Raibevu's rehabilitation and had concluded that he should be released upon the expiry of the non-parole period. The effect of the Minister's decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant's release into the community in the following month.
(2) If the Minister's decision under s 501CA(4) did not interfere with the institutional integrity of the District Court, then it instead had the effect of frustrating the exercise of the Parole Board's power to order Mr Raibevu's release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
111 Both arguments suffer from a significant initial difficulty.
112 The Minister's decision made on 24 July 2018 under s 501CA(4) was a decision not to revoke the earlier decision of the delegate made on 1 February 2017 to cancel Mr Raibevu's visa under s 501(3A). It was the cancellation decision that operated in a practical sense to bring about his detention at Villawood pursuant to s 189 of the Act.
113 The only challenge in this proceeding is to the Minister's later non-revocation decision. No challenge was made at first instance to the anterior decision of the delegate to cancel the visa in the first place. That this is so is apparent from the originating application. It sought an order setting aside the Minister's decision of 24 July 2018 but made no reference at all to the delegate's decision of 1 February 2017. Before the Full Court no submission was received to the effect that Mr Raibevu should now be permitted to amend his originating application to include a challenge to the delegate's cancellation decision.
114 This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate's cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).
115 Such an outcome would have no utility. To put it another way, Mr Raibevu's constitutional challenge is incapable of yielding any relief.
116 It is established that a court should not embark upon the determination of the validity of an Act of Parliament unless it is necessary to do so: Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 473 - 474 (Gummow and Hayne JJ); Attorney-General (NSW) v Brewery Employees' Union of NSW (1908) 6 CLR 469 at 590 (Higgins J) ("It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury" (emphasis added)). This doctrine of judicial restraint in relation to constitutional questions is an aspect of deference between the separate branches of government and reflects a recognition of the solemnity involved in declaring invalid laws made by a representative legislature.
117 In this case, the failure of Mr Raibevu to challenge the decision to which his constitutional argument actually relates has the consequence that that challenge is pointless. There was perhaps a recognition of this problem at [55] of Mr Raibevu's amended written submissions where it was said that:
… the executive decision by the delegate to cancel the visa and the executive decision by the respondent not to revoke that decision, interfered with the administration of justice …
118 But this submission goes nowhere if no challenge is made to the delegate's decision. Further, it reveals a certain looseness of thought because, if the delegate's decision were invalid, then the Minister's decision not to revoke it would be irrelevant. The present constitutional argument can only be coherently pitched at a cancellation decision under s 501(3A) for it is only the cancellation decision which can have any impact on Mr Raibevu's ability to apply for parole.
119 Even if the arguments were capable of being directed at the non-revocation decision, they would confront other realities, for which Counsel for Mr Raibevu could supply no coherent answer.
120 First, the order sentencing Mr Raibevu to imprisonment did not require that he be released on the expiry of the non-parole period: Knight v Victoria (2017) 261 CLR 306 at [8] and [25]. Rather, upon the expiration of the non-parole period, Mr Raibevu was eligible to apply for conditional release: Crimes (Administration of Sentences) Act, s 126. The question of whether Mr Raibevu might be released on parole (and, if so, on what conditions) was not a question arising before any court, let alone a court vested with federal jurisdiction. It was a matter for the Executive government of the State of New South Wales. No issue arises under Ch III of the Constitution.
121 Second, to the extent that Mr Raibevu relied on the principles stated in Melbourne Corporation, the submissions did not identify an arguable case that s 501CA(4) was a law of general application which operated to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State.
54 That passage reflects that the submissions in Raibevu were relevantly to the same effect as in this case. The passage also reflects that the submission is predicated on a fundamental misconception. As noted above, it is of significant concern that the applicant's counsel, who appeared as counsel in that matter, did not refer to this decision in his written submissions in support of the grant of leave in this case. Legal representatives have an obligation to assist courts to perform their functions in accordance with the law. In New South Wales the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) expressly requires counsel to inform the Court of relevant authority contrary to their client's case: r 29.
55 Rather, only after the respondent in its written submission referred to and relied on Raibevu did the applicant address the case, and it did so in the submissions filed on 22 September 2020 attaching the special leave application in that matter, filed in the High Court on the same date, while submitting the two cases are distinguishable. It was submitted by the applicant that this case relies on the three identified grounds while Raibevu only relied on one ground. So much is true. The applicant also submitted that the argument is now more advanced than that presented in Raibevu. However, as is apparent from the Full Court's summary of the submission set out at [53] above the argument is to the same effect, although it can be accepted that from the applicant's view the argument is more advanced and may have been presented in this Court in more detail. The argument is underpinned by the same propositions.
56 The Full Court's observations in Raibevu are at least, seriously considered dicta: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134]. I agree with the Full Court's observations in Raibevu.
57 The applicant's ultimate approach was to ignore the reasoning and conclusions in Raibevu and the authorities referred to therein, in particular Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 at [8], [25] (Knight).
58 The applicant's failure to address Raibevu, and in particular the reference to Knight, is particularly significant as the applicant's submission is based on an erroneous, but for the purpose of his argument necessary, premise that there is a fundamental right "to conditional release on parole and rehabilitation for non-citizens". As Knight makes clear such a right does not exist. Despite the applicant's oral submission to the contrary, the applicant's written submission reflects that this proposition underpinned all of the grounds. The submission also proceeds on assertions as to the nature of the orders of the District Court, parole, and the Parole Board, which are contrary to the decision in Knight. In that context it is appropriate to refer briefly to that decision.
59 The circumstances in Knight were that Mr Knight had a non-parole period imposed and when the expiration of the non-parole period was imminent, the Parliament of Victoria enacted the Corrections Amendment (Parole) Act 2014 (Vic) to insert s 74AA into the Corrections Act 1986 (Vic) (Corrections Act). The effect of s 74AA of the Corrections Act was to prevent the Parole Board from ordering that Mr Knight be released on parole unless satisfied of certain matters. The argument was referred by special case to the High Court asking the single question, whether s 74AA was invalid on the ground that it is contrary to Ch III of the Constitution. Mr Knight advanced two arguments, each invoking Kable, that a law which substantially impairs the institutional integrity of a court so as to be incompatible with its role as a repository of federal jurisdiction under Ch III of the Constitution is invalid. The first argument was that the section interfered with the sentences imposed by the Supreme Court. The Court answered the question in the negative. The first argument failed "because neither in its legal form nor in its substantial practical operation does the section interfere with the sentences imposed by the Supreme Court": Knight at [6].
60 In Knight the Court observed at [8]:
When sentencing Mr Knight in the Supreme Court, Hampel J correctly characterised a minimum term not as a period at the end of which the prisoner was to be released but rather as "a period before the expiration of which, having regard to the interest of justice, he cannot be released" [citation omitted]...
61 And at [25]:
The conclusion in Crump that s 154A "did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty" applies equally to s 74AA. That conclusion reflected the nature and purpose of a court's determination of a minimum term of imprisonment in the context of a statutory regime for parole as explained in Power v The Queen and as correctly identified by Hampel J to have been applicable to the fixing of a minimum term under s 17 of the Sentences Act [citation omitted]
62 And at [28]-[29]:
Whether or not Mr Knight would be released on parole at the expiration of the minimum term was simply outside the scope of the exercise of judicial power constituted by imposition of the sentences. The sentences imposed by Hampel J could not, and did not, speak to that question.
By making it more difficult for Mr Knight to obtain a parole order after the expiration of the minimum term, s 74AA does nothing to contradict the minimum term that was fixed. Nor does it make the sentences of life imprisonment "more punitive or burdensome to liberty". The section did not replace a judicial judgment with a legislative judgment. It does not intersect at all with the exercise of judicial power that has occurred [citation omitted].
63 It follows that the question of whether a person might be released after serving a minimum term is "simply outside the scope of the exercise of judicial power constituted by imposition of the sentences": Knight at [28]; Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1 at [28] (Crump). The exercise of judicial power with respect to a trial on indictment is spent on the imposition of the sentence in relation to the offence(s), and the responsibility for the prisoner passes to the executive branch of the government of the State: Crump at [58] citing Elliot v The Queen [2007] HCA 51; (2007) 234 CLR 38 at [5].
64 Those decisions reflect that the premise underlying the applicant's submission is incorrect as to the consequence of the sentence imposed on him, the nature of parole, who bears the responsibility for the prisoner after sentence, and the status of the Parole Board. It reflects that the underlying proposition that the applicant has a fundamental right to conditional parole is incorrect (ground 2), as is the submission that the visa cancellation interfered with or impaired the judicial power of the State court (grounds 3 and 4). Those propositions underpin each of these three amended grounds.
65 The applicant was aware of Knight given the decision in Raibevu, and was aware that the respondent was relying on that aspect of Raibevu in opposing the grant of leave. In that context, as observed above at [58], the applicant did not address Knight. During the hearing when the applicant was asked about Knight he submitted that it was not relevant as this is not a criminal case and if it was relevant, that case was wrongly decided. That authority is a recent decision of the High Court. The fact that this is not a criminal case does not affect the reasoning in Knight, nor its applicability to this case. The applicant has not identified any arguable basis why that would be so. This Court is bound by that authority.
66 Moreover, the authorities the applicant relied on to raise an arguable case that he has a fundamental right to parole do not support that proposition. For example, the applicant's reliance on The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 (Shrestha) does not assist his argument. I note that although the applicant sought to distinguish Knight as it was a criminal matter that context did not appear to trouble the applicant in relation to Shrestha or the other criminal cases he relied on. In any event, consistently with the later decision in Knight, it is clear in Shrestha that a non-parole period is not an order that the applicant serve a period of his sentence on parole, rather, it is an order that he be eligible to apply for parole upon the expiry of the non-parole period. Indeed, Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, one of the authorities relied on by the applicant, was relied on by the Court in Knight to support its conclusion as to the true nature of a non-parole period.
67 The applicant's visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act, with the validity of that provision not being challenged. As a result, on the applicant being released from prison he was an unlawful non-citizen and was therefore required to be detained pursuant to s 189 of the Migration Act.
68 The decisions did not abrogate or curtail or dissolve or reverse the applicant's "sentence and parole orders of the District Court of NSW", which is the premise underpinning each proposed ground of review. The applicant has not identified any arguable case in support of that premise, and that the decisions had that effect in violation of the principle of legality (ground two), Ch III of the Constitution (ground three), or the principle of State immunity (ground four).
69 More particularly, as explained above, the only decision under review within this Court's jurisdiction in this case is the decision of the Tribunal affirming a decision of the delegate not to revoke the cancellation of the applicant's visa under s 501CA(4) (a provision not addressed by the applicant). That decision did not have the effect contended for in violation of the principle of legality, Ch III of the Constitution or State immunity. The applicant has not identified any arguable case that it did so. Moreover, a challenge to the Tribunal's decision would still leave the delegate's cancellation in place: Raibevu at [114], [118].
70 As the Court in Raibevu concluded, no issue under Ch III of the Constitution arises. The applicant has not identified any arguable case that the decision(s) raise any issue of state immunity pursuant to s 106 and s 107 of the Constitution.
71 In addition to the issues raised above at [40]-[46], these grounds, as argued, are without merit and do not properly justify the grant of leave.