Seyfarth v Minister for Immigration & Multicultural & Indigenous Affairs

Extracts from the Direction were then set out together with comments made by Magistrate Carney when sentencing the appellant.

8 The submission continued: "(21) Mr Seyfarth's response to the Department included his offences as stated in Charge Sheets from the New South Police Service: Date Court Offence 24 October 2002 Sutherland Local Court Obtain money by deception Make false instrument with intent to use 20 December 2002 Parramatta Local Court Use false instrument with intent - 2 counts Make false instrument with intent Blackmail by threat to publish 6 February 2003 Parramatta Local Court Obtain money by deception - 6 counts Use false instrument with intent - 5 counts

(22) On the basis of Mr Seyfarth's criminal history it is open to you to find that his conduct against the community is serious. (23) Mr Seyfarth's offences are listed as very serious offences under the Direction." 9 On 4 March 2003, the Minister decided to cancel the appellant's visa. In his decision he said: "I reasonably suspect that Mr Seyfarth does not pass the character test and Mr Seyfarth has not satisfied me that he 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." 10 On 8 March, Mr Hinderry sent the appellant a letter notifying him of the decision. The letter included the following: "The [Minister] has after exercising his discretion, decided to cancel your visa on 4 March 2003 pursuant to section 501(2) of the Act. The particular grounds under which you do not pass the Character Test are subsections 501(6)(a) & (c) of the Act." 11 The appellant's criminal history is recorded in a document supplied by the New South Wales Police Service to the Australian Federal Police titled "Criminal History - Bail Report" (the Bail Report). As summarised by the primary judge the record is as follows: [1996] On 15 August 1996 he was convicted in the Lithgow Local Court on charges of make false statement to obtain financial advantage (2 counts), pass valueless cheque (16 counts) and larceny. Various concurrent sentences of imprisonment were imposed effectively resulting in a minimum term of 9 months commencing on 15 August 1996 and an additional term of 3 months commencing on 14 May 1997. Mr Seyfarth appealed to the Parramatta District Court against these convictions. The convictions were confirmed by the District Court on 10 November 1997 …. [2001] On 20 December 2001 he was convicted at the Parramatta Local Court on a number of charges of making a false statement to obtain a financial advantage and using false instruments. Four sentences of 4 months imprisonment were imposed (to be served concurrently) with another sentence of one month to commence on the expiration of the concurrent 4 month terms. Mr Seyfarth was also given a 2 year good behaviour bond in relation to other similar offences dealt with at the same time. - On 3 separate occasions in 2001 he received fines for entering into enclosed lands, possessing a prohibited drug and possessing a prohibited weapon. [2002] On 28 November 2002 he was committed for sentence by the Parramatta Local Court on a number of charges of making false instruments and having false instruments with intent to use."

THE LEGISLATION 12 Section 501 of the Act provides, so far as presently relevant: "(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 … (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 … (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character … Otherwise, the person passes the character test. (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 …."

BEFORE THE PRIMARY JUDGE 13 The primary judge identified the three principal issues that emerged in the course of proceedings before him. The first was whether the appellant was sentenced to a term of imprisonment for 12 months or more, and if not, the legal significance of that fact. The second was whether the Department had failed to place before the Minister material the appellant had provided to the Department. This issue was not pursued on the appeal. The third was whether Mr Hinderry undertook to pursue enquiries of the New South Wales Police in relation to assistance extended to them by the appellant, but failed to do so. This was the subject of an application to adduce new evidence on the appeal. Upon the failure of that application, the ground of appeal applicable to this issue was abandoned. Thus the appeal concerns only the first issue.

Twelve months or more 14 In dealing with the first of the principal issues, the primary judge noted that the DIMIA submission proceeded on the basis that the four 4 month convictions in 2001 satisfied s 501(7)(c): see [5] above. This, his Honour said, was not maintainable in view of the Full Court decisions in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 and Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 114. 15 The primary judge recorded that the Minister also relied on the 1996 sentence: see [5] and [11] above. His Honour said that the evidence as to whether this sentence satisfied s 501(7)(c) was "less than complete or clear". In this connection he examined four sources of information: the Bail Report, the Sentence Administration Report, the warrant issued for the appellant's committal to prison and a record prepared by a District Court Judge's Associate. 16 The Bail Report, which was before the Minister, records the Lithgow Local Court convictions: "Minimum term: 9 months commencing 15/08/1996 Additional term: 3 months commencing 14/5/1997 (Appealed)"

In relation to the appeal to the Parramatta District Court, it records:

"Appealed against conviction conviction confirmed : in lieu minimum term : 9 months commencing 10/11/1997 concluding 03/08/1998 Additional term : 3 months commencing 04/08/1998 concluding 3/11/1998." 17 The Sentence Administration Report, which was also before the Minister, shows the Lithgow Local Court sentence of 12 months with a 9 month non parole period, and the sentence on appeal of 11 months and 25 days, with a non parole period of 8 months and 25 days. It also records that the appellant was admitted to the Bathurst Correctional Centre on 15 August 1996 and released for "Bail at Court" on 20 August 1996. His Honour observed that the discrepancy between the Local Court and District Court sentences "is thus explained by the six days that Mr Seyfarth had already spent in gaol between 15 and 20 August 1996". 18 The fourth source of information was the warrant, which was not before the Minister. It recorded the 9 month sentence and the additional 3 month sentence imposed by the Local Court, and the confirmation of the Magistrate's orders by the District Court "IN ALL RESPECTS EXCEPT IN SO FAR AS TO THE DATES. THE SIX DAYS THE APPELLANT HAS ALREADY SPENT IN CUSTODY ARE TAKEN INTO ACCOUNT."

The warrant went on to require the Keeper of the prison to keep the appellant to hard labour

"for a minimum term of imprisonment of NINE MONTHS to commence on 10/11/97. AND the Court specified an additional term of THREE MONTHS to commence at the end of the minimum term. The earliest day on which the offender may be eligible to be released on parole under this order is 3/8/98. The additional term expires on 3/11/98." 19 The associate's record was in part as follows: "Appeals dismissed + Magistrate orders are confirmed in all respects except insofar as to the dates. - In respect of 16 charges of cheque not met on presentation. In relation to each charge convicted and sentenced to 12 months. Min term of 9 months to commence on 10/11/97 + to expire 3/8/98 + additional term of 3 months to commence 4/8/98 and to expire on 3/11/98. (This is taking into account 6 days the appellant has already spent in custody) - In respect of 2 charges of make false statement convicted and sentenced to 12 months imprisonment. Min term of 9 months to commence 10/11/97 and to expire 3/8/97 + additional term of 4/8/98 and to expire 3/11/98." 20 The primary judge then referred to s 8 of the Sentencing Act 1989 (NSW) which provided: "(1) When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole. … (4) The purpose of this section is to require the Court to give information about the likely effect of a sentence." 21 The primary judge accepted the Minister's submission that the dates in the District Court's sentence were not part of the definition of the term of imprisonment, but were incorporated pursuant to s 8 of the Sentencing Act as an explanation of the likely practical effect of the sentence. His Honour said: "On the basis of the associate's record, I conclude that Holt DCJ sentenced Mr Seyfarth to a term of imprisonment of 12 months comprising a minimum term of 9 months and an additional term of three months. That was the sentence which Holt DCJ determined to be the appropriate punishment for Mr Seyfarth's crimes. It may be that the specific dates nominated in the sentence as being the period in which the applicant was to be held in custody are erroneous, or that some further surgery was required to the language of the sentence in order to ensure that Mr Seyfarth was released on the nominated dates. Another possible view is that the sentence was implicitly backdated in part to 15 August 1996. But there is insufficient foundation for a conclusion that Holt DCJ 'discounted' what would otherwise have been a 12 month sentence to allow for the period spent in custody, particularly as the Associate's record expressly states that Mr Seyfarth was convicted and sentenced to 12 months. Section 125 of the Justices Act empowered the Court hearing an appeal to confirm the sentence of the lower Court. Holt DCJ confirmed the sentence of imprisonment imposed by the Local Court which was unequivocally one of 12 months imprisonment."

Suspicion that character test not passed 22 The primary judge then considered whether the Minister was entitled to suspect that the appellant did not pass the character test. This would appear to be the stage at which his Honour considered what the position would be if, contrary to his view, the appellant had not been sentenced to imprisonment for 12 months: see [13]. He noted that the DIMIA submission, under the heading "Grounds", referred to both pars (a) and (c)(i) of s 501(6), although the section headed "Reasonable suspicion" referred only to s 507(7)(c) and thus inferentially to subs (6)(a). His Honour was of the view that there was no reason why the Minister should confine his attention to s 501(6)(a) to the exclusion of s 506(6)(c)(i) "as each subsection is concerned with a person's criminal conduct" and both "go naturally together as a particular set of facts may fall within either or both". 23 The primary judge first dealt with the matter on the assumption that the Minister based his decision on s 501(6)(a) alone. His Honour concluded that on the material before the Minister, namely the Bail Report and the Sentence Administration Report, it was open to him to form the requisite suspicion, with the result that jurisdictional error was not established. He said: "There is at least a superficial inconsistency between the two reports, as the former records that on 10 November 1997 Mr Seyfarth was sentenced to a minimum term of 9 months and an additional term of 3 months, whereas the latter identifies the 'term' as '11m 25d'. It was the Bail Report which was put before the Minister in the DIMIA submission as evidencing Mr Seyfarth's criminal record. The Sentence Administration Report provided by the Department of Corrective Services was put forward in that submission as describing (as in part it does) offences committed whilst Mr Seyfarth was in custody. The Sentence Administration Report may be an accurate report of the term which Mr Seyfarth was required to spend in prison in consequence of the sentence imposed on him, but nonetheless may not accurately record that sentence. The Bail Report and the Sentence Administration Report are not necessarily in conflict. There was thus material before the Minister capable of grounding a reasonable suspicion that Mr Seyfarth was sentenced to a term of imprisonment of 12 months. The fact that there was other material before the Minister which, if taken at face value, may suggest otherwise, is not sufficient to establish the requisite jurisdictional error." 24 His Honour distinguished Goldie v Commonwealth (2002) 117 FCR 566 on the ground that the reports in the present case were not necessarily conflicting, and because if further enquiry had been made in relation to the 1996 sentence, it would have emerged that the term of imprisonment was in fact 12 months. 25 The primary judge was of the view that he should not infer, purely on the basis of the DIMIA submission, that the Minister based his decision only on the ground specified in s 501(6)(a). His Honour concluded that there was material before the Minister on which it was open to him to find that having regard to the appellant's past and present criminal conduct he was not of good character. He added that even if the Minister's decision was based only on the s 501(6)(a) ground, there was material before him on which it was open to find that this ground was made out.

ISSUES ON APPEAL 26 The appellant claims that the primary judge fell into error in two respects:

(a) in concluding that the 1996 convictions resulted in a 12 month sentence, and

(b) in holding that the 12 month sentence was only a matter about which the Minister had to be reasonably satisfied, and was not an independent test to be determined by reference to objective facts.

12 month sentence? 27 Section 501(7)(c) is concerned with the sentence that has been imposed on a person rather than the term of imprisonment actually served: Te v Minister for Immigration and Multicultural and Ethnic Affairs (1999) 88 FCR 264 at 272. There a Full Court said, in a passage quoted by the primary judge: "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."

To the same effect is the judgment of Jacobson and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 at [47] to [51]. See also Drake v Minister for Immigration and Multicultural and Ethnic Affairs (1979) 46 FLR 409 and Minister for Immigration and Multicultural and Indigenous Affairs v Hicks [2004] FCAFC 114 at [13], [14] and [18] per Hill J. We do not consider that anything turns on the slight differences between the language of the legislative provisions under consideration in Drake, Te, Ball and the present case to which the appellant drew attention.

28 The appellant submitted that in concluding that the dates incorporated into the District Court's sentence were not part of the definition of the term of imprisonment, but were incorporated pursuant to s 8 of the Sentencing Act as an explanation of the likely practical effect of the sentence, the primary judge failed to give proper effect to s 8, which is set out at [20]. Reliance was placed on Whan v McConaghy (1984) 153 CLR 631 and Reg v Nunan (1999) 108 A Crim R 1 for the proposition that the specification of dates by a judge under s 8, whilst not forming part of the sentence, fixes the period of the sentence. 29 Whan v McConaghy concerned s 8 of the Periodic Detention of Prisoners Act 1981 (NSW) which provided that a sentence of imprisonment "shall commence on the date specified in the order of the court imposing the sentence as the date on which the sentence shall commence". An offender was sentenced to imprisonment for three months, the sentence to commence on 19 August 1983. After the expiration of the three months, the Court of Appeal ordered that the time the offender had been on bail should not count as part of his sentence, and directed that the sentence should commence on 16 December 1983. The High Court held that the term of imprisonment began on 19 August 1983, the orders for bail did not prevent the commencement of the term or interrupt it after it had commenced, the sentence had thus run its course by the time the Court of Appeal made its order, and it had no jurisdiction to order that the term of imprisonment commence on a future date. Mason, Murphy, Wilson and Deane JJ said at 636: "On our reading of the Periodic Detention of Prisoners Act, the specification of a commencing date does not itself form part of the sentence. The commencing date must however be identified by the sentencing court in order that the procedures of that Act may be applied to the sentence of imprisonment. Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence 'shall commence' on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date." 30 In Reg v Nunan the applicant was sentenced to ten weeks imprisonment on 4 December 1997. The sentencing judge said that the term commenced on that date and would expire on 11 February 1998. On 15 December the applicant was granted bail. The bail was granted on the erroneous assumption that an appeal had been lodged on her behalf. On discovering that no appeal was on foot, the applicant surrendered herself and applied for bail on 18 August 1998. Bail was granted, and the time within which the applicant could lodge an application for leave to appeal against the original sentence was extended. When the application for leave came before the Court of Criminal Appeal, the applicant submitted that her sentence having expired, there was no need to deal with her application for leave to appeal. The Court accepted that submission. Their Honours applied Whan v McConaghy, and held that the applicant's sentence commenced on 4 December 1997 and ended on 11 February 1998. The case was said to be indistinguishable from Whan, and s 8 of Sentencing Act was said to be to the same effect as the provision considered in Whan. The Court then dealt with a contention by the Crown that the sentence had not expired because of s 18(2) of the Criminal Appeal Act 1912 (NSW), which provided that: "The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment or penal servitude under the appellant's sentence."

It rejected this contention, in reliance on another part of Whan. Section 18(2) required the time a person was at liberty on bail not to be counted only when there was an appeal to the Court on foot. Accordingly, time continued to run under the sentence during that time.

31 The question at issue in the present case is whether the appellant had been sentenced to a term of imprisonment of 12 months or more. Whan and Nunan were not concerned with that issue. In neither case was there a disconformity between different sources of information about the length of the sentence, and thus no issue as to the duration of the term. In Whan the starting point of the three month term was stated, and thus effectively the termination date as well. In Nunan the starting and finishing dates were stated. In each case the question was whether anything had happened that stopped time running, so that the term did not expire on the date stated by the sentencing judge. No such issue arises here. 32 We have made our own examination of the material set out at [15] to [20]. The view propounded by the appellant, namely that the sentence fell short of 12 months, is supported only by the Sentence Administration Report. That is a document prepared by the Department of Correctional Services and, as the primary judge observed, may contain an accurate statement of the time the appellant was required to be kept in prison in consequence of the sentence imposed on him, without accurately stating the sentence itself. The distinctly preferable view of the relevant documents is that adopted by his Honour. The appellant has not established any error in his conclusion that Holt DCJ had not discounted, so as to reduce, the sentence that he "confirmed" and described as one of 12 months imprisonment, with the consequence that the appellant was sentenced to imprisonment for 12 months. The fact that the proceeding before the District Court was a hearing de novo does not assist the appellant. The primary judge held, correctly, that at the end of that hearing a sentence of 12 months imprisonment was imposed by Holt DCJ. 33 The appellant submitted that in construing the terms of the Sentencing Act, the presumption should be against the deprivation of liberty. The presumption has no place in the present case. There is no question of construction that affects how much time the appellant or anyone else must spend in gaol.

Reasonable satisfaction 34 Since we are of the view that no error has been shown in his Honour's conclusion that the appellant had been sentenced to imprisonment for 12 months, we need not pursue the second alleged error identified at [26].

Section 501(6)(c)(i) 35 For the same reason we need not resolve another issue canvassed before us, namely whether, as the primary judge held, the Minister based his decision on s 501(6)(c)(i) as well as on sub‑s (7)(c).

CONCLUSION 36 The appeal must be dismissed. 37 We wish to record our appreciation for the assistance given to us by Mr Prince who appeared pro bono as counsel for the appellant. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Jacobson and Bennett.

Associate: Dated: 2 June 2005 Counsel for the Appellant: Mr SEJ Prince, appearing pro bono

Solicitor for the Respondent: Australian Government Solicitor