Federal Court. Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished? Was the definition of “particularly serious crime” in s 5M of the Migration Act 1958 (Cth) limited to a “serious Australian offence” or a “serious foreign offence”?
In 2008, the Applicant was convicted of taking or detaining a person with the intention of obtaining an advantage and in the company of another under s 86(2)(a) of the Crimes Act 1900 (NSW). He was sentenced to a control order for a period of 2 years by the Children’s Court. Section 86(2)(a) of the Crimes Act carried a maximum penalty of 20 years’ imprisonment.
A delegate of the first respondent (Minister) refused to grant the Applicant a protection visa, pursuant to s 36(1C)(b) of the Migration Act 1958 (Cth), which read: “A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:… having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”
Section 5M(a) of the Act provided: “For the purposes of the application of this Act and the regulations to a particular person, s 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of: … a serious Australian offence.”
Section 5(1) of the Act included the following definition (original emphasis):
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
On review, the second respondent (Administrative Appeals Tribunal) determined that the Applicant’s conviction was a “serious Australian offence” within the meaning of s 5M and found that s 36(1C)(b) was not satisfied. The Tribunal also found that, even if the Applicant’s offending did not fall within the meaning of “serious Australian offence”, it was nevertheless open to it to determine that the Applicant had been convicted of a “particularly serious crime”.
As a result, the Tribunal affirmed the delegate’s decision. The Applicant then applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision, arguing, among other things:
- Ground 1: the offence heard by the Children’s Court was not a “serious Australian offence”, because under s 33(4) of the Children (Criminal Proceedings) Act 1987 (NSW), the Children’s Court could not impose a sentence of imprisonment;
- Ground 2: the definition of “particularly serious crime” in s 5M of the Act was limited to a “serious Australian offence” or a “serious foreign offence”.
Some of the questions to the FCA were as follows:
Question 1: Was the question under the definition of “serious Australian offence” whether the particular offence is “punishable by” a certain term of imprisonment, instead of whether the offender was capable of being so punished?
Question 2: Was the definition of “particularly serious crime” in s 5M of the Act limited to a “serious Australian offence” or a “serious foreign offence”?
The FCA answered those questions as follows: