FEDERAL COURT OF AUSTRALIA

Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCA 516

ORDERS

THE COURT ORDERS THAT:

1.    The Orders of 22 June 2018 be vacated.

2.    The originating application filed on 7 April 2017 be dismissed.

3.    The interlocutory application filed on 18 May 2017 be dismissed.

4.    The Applicant pay the costs of the Respondent in respect of the originating application filed on 7 April 2017 and the interlocutory application filed on 18 May 2017, to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    There are currently two applications before the Court. They are:

    an originating application for relief filed on 7 April 2017 (originating application) for review of a decision of the Assistant Minister for Immigration and Border Protection (Minister) of 8 March 2017 made under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act), (revocation decision), and;

    an interlocutory application filed on 18 May 2017 (interlocutory application) seeking orders including that the applicant be released on bail on such terms or conditions as the court considered appropriate until the final determination of the matter, and consequential or other interlocutory orders to release the applicant from detention on such terms or conditions as the Court considered appropriate.

2    On 8 March 2018 I ordered by consent that the interlocutory application and the originating application be listed for hearing together.

3    In the revocation decision the Minister decided not to revoke an earlier decision of 27 January 2016 made under s 501(3A) of the Migration Act (the original decision) to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa (visa). Mr Ketjan seeks, in particular, an order for certiorari quashing the revocation decision, as well as declaratory relief, a mandatory injunction, prohibition and costs.

4    Mr Ketjan submits that in this case the key issue is whether a criminal sentence imposed and completed prior to the commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (Amendment Act) can result in the mandatory cancellation of the visa. The Amendment Act commenced on 11 December 2014.

5    In his originating application Mr Ketjan relies on the following grounds of review:

1.    The sentence which activates the mandatory cancellation decision was completed before the commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014 and hence the presumption against retrospectivity applies to prevent a valid decision being made under s 501(3A) of the Migration Act 1958.

2.     The respondent did not properly interpret and apply s 501(3A) of the Migration Act 1958.

3.     The respondent did not properly interpret and apply s 501CA and s 501CA(4) of the Migration Act 1958;

4.     The respondent failed to properly exercise his discretion under s 501CA and s 501CA(4) of the Migration Act 1958;

 5.     The respondent's decision was unreasonable;

 6.     The respondent took into account irrelevant considerations;

7.     The respondent failed to take relevant considerations into account;

8.     There was insufficient evidence or no evidence to support various findings made by the respondent;

9.     The respondent's decision was otherwise an improper exercise of power;

10.     The respondent addressed the wrong question or questions in making the decision;

11.     The respondent's decision involved an error of law;

12.     The respondent's decision was otherwise contrary to law.

6    On 8 May 2017 Mr Ketjan filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) in the following terms:

Nature of Constitutional matter

A.    (1) Whether subsections 196(3), (4) and (5)(b) the Migration Act 1958 (Cwth) [sic] are valid;

(2) If those provisions prevent a court considering bail as interlocutory relief to an application for habeas corpus, then those provisions would be inconsistent with the Constitution's doctrine of the separation of judicial from executive and legislative power and its exclusive vesting of judicial power in the courts and as such, would be in conflict with Ch.III of the Constitution.

Facts showing that section 78B Judiciary Act 1903 applies

1.    The sentence which purportedly activated the Minister’s power to under s 501(3A) of the Migration Act 1958 to cancel the applicant’s visa, was imposed and completed before s501(3A) came into force (ie prior to the commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014).

2.     The presumption against retrospectivity applies hence there was no power to cancel the Applicant’s visa under s 501(3A).

3.     The purported decision to cancel his visa is of no effect so that the applicant was and remains at all material times a lawful non-citizen.

7    Before turning to the legal issues before the Court it is helpful to examine the background to the present proceedings.

Background

8    The applicant is a citizen of Thailand. He has lived in Australia since he was 16 years old, and is currently in his forties. Most recently his presence in Australia has been pursuant to a Class BB (Subclass 155) (Five Year Resident Return) visa.

9    During his time in Australia Mr Ketjan has acquired a lengthy criminal history. He has been convicted of serious offences including wounding, assault occasioning bodily harm, and assault on a police officer.

10    On 16 February 2011 Mr Ketjan was convicted in the Queensland District Court of the offence of “Wounding and Similar Acts”. That conviction pertained to an offence where Mr Ketjan, after being removed from a nightclub, returned with a broken bottle and struck the nightclub bouncer three times with it, including in the face. Mr Ketjan was sentenced to a term of imprisonment for 18 months, suspended for two years after serving four months of imprisonment. The sentence was completed in full on 15 August 2012. As a result, Mr Ketjan had a “substantial criminal record” within the meaning of s 501(7)(c) of the Migration Act.

11    At the time of his conviction, the mandatory cancellation provision in s 501(3A) had not been enacted. The Minister had a residual discretion to cancel the Applicant's visa under s 501(2) of the Migration Act. On 6 June 2011, the Minister considered the exercise of his 501(2) discretion however decided not to exercise that power, but rather to issue a warning to Mr Ketjan that he was at risk of visa cancellation.

12    Unfortunately, Mr Ketjan continued to offend. This included a conviction and sentence on 1 October 2015 in respect of the contravention of a domestic violence order and the commission of violence, resulting in terms of imprisonment being imposed on Mr Ketjan for each of six offences, totalling 13 months imprisonment. In particular, I note the following sentencing comments of Magistrate Warfield in Police and Somphong Ketjan of 1 October 2015:

…

Having said all of that, terms of imprisonment are warranted, Mr Ketjan, you can’t escape that. You’re on a suspended sentence; in my opinion, obviously it’s not unjust to activate that suspended sentence, because it was for a similar offence of breaching a protection order, so you’re ordered to serve the three months in relation to that order. In relation to penalty for the offences before the court, for the offence of the breach of order on the 25th of April, you’re sentenced to imprisonment for 10 months. For the assault bodily harm charge, you’re sentenced to imprisonment for three months, and for the common assault, a sentence to imprisonment for one month. And for the two other breaches which involved the text messages, you’re sentenced to imprisonment for four months.

They’re all concurrent with each other, but cumulative with the suspended sentence that’s been activated, so in total, that’s a total of 13 months….

13    The Amendment Act commenced prior to Mr Ketjan’s 1 October 2015 sentence. The Amendment Act introduced s 501(3A) of the Migration Act, which provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 6(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph 6(e) (sexually based offences involving a child); and

(b)    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, a State or a Territory.

14    On 27 January 2016 a delegate wrote to Mr Ketjan, who was in prison at that time. The delegate referred to s 501(3A) of the Migration Act, and communicated the original decision informing him that his visa had been cancelled pursuant to that section on that date. The letter relevantly continued:

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 16 February 2011 you were convicted of Wounding And Similar Acts and sentenced to 18 months imprisonment. On 1 October 2015 you were convicted of Breach of Domestic Violence Act and sentenced to 10 months imprisonment, for which you are currently serving a full time sentence of imprisonment in a custodial institution.

The information based on which the decision maker was satisfied that you do not pass the character test is File Note dated 27 January 2016.

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. In particular, regard was had to Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services, created on 20 October 2015.

…

15    Mr Ketjan made representations to the Minister seeking revocation of the original decision. In the revocation decision the Minister decided not to revoke the original decision. In summary the Minister stated:

    On 16 February 2011 Mr Ketjan was convicted in the District Court of Queensland of Wounding and Similar Acts, for which he was sentenced to 18 months imprisonment, which constituted a “substantial criminal record”. Mr Ketjan did not dispute the information to that effect in the National Police Certificate dated 29 January 2016 regarding his criminal convictions and sentences, or that he did not pass the character test. Accordingly, the Minister was not satisfied that Mr Ketjan passed the character test as defined by s 501, with the result that s 501CA(4)(b)(i) of the Migration Act was not met.

    Because the Minister was not satisfied that Mr Ketjan passed the character test, the Minister then considered whether he was satisfied there was another reason why the original decision should be revoked. In particular the Minister had regard to the best interests of minor children; the strength, nature and duration of ties; the extent of impediments if removed; and the need to protect the Australian community including having regard to Mr Ketjan’s criminal conduct and the risk to the Australian community.

    In relation to the best interests of minor children, the Minister stated in summary:

•    The interests of Mr Ketjan’s minor children was a primary consideration, and it was in the best interests of those minor children that the original decision be revoked.

•    Mr Ketjan’s biological children were under the age of 10. It was unlikely that the children’s mother would take them to Thailand to visit him if he were removed. The absence of further direct physical contact with their father would be to the children’s detriment, and would psychologically harm them.

•    Mr Ketjan has step-children from another relationship, and it would be important to their material needs and ongoing development to continue their relationship with Mr Ketjan in the future.

    In relation to the strength, nature and duration of ties, the Minister stated in summary:

•    Mr Ketjan has made positive contributions to the Australian community through paid employment. Further, Mr Ketjan had resided in Australia for some 25 years from the age of 16 years, although he first appeared before Australian courts some 13 months later. Australia has a low tolerance of criminal conduct for people such as Mr Ketjan who participated in the community for a relatively short period before offending. Accordingly the Minister gave less weight to this consideration.

•    Mr Ketjan had family ties to Australia, including his de facto partner, children, step-children and half-sister. The Minister recognised the emotional hardship Mr Ketjan’s immediate family would experience if he were removed from Australia.

    In relation to the extent of impediments Mr Ketjan would experience in establishing himself and maintaining basic living standards if he were removed from Australia to Thailand, the Minister stated in summary:

•    Mr Ketjan is in his early forties and had not disclosed any medical or psychological conditions to the Department.

•    Mr Ketjan had concerns about no longer being fluent in the Thai language.

•    Mr Ketjan had spent a number of years in paid employment in Australia and his work skills could assist him to find employment in Thailand

•    Mr Ketjan’s mother and grandmother lived in Thailand, and there was no available information suggesting he could not obtain some support and assistance from these relatives.

•    Overall, any hardship faced by Mr Ketjan on being removed to Thailand would not be undue.

    In relation to the protection of the Australian community, the Minister noted in summary:

•    Mr Ketjan’s claim that he was rehabilitated.

•    In relation to Mr Ketjan’s criminal offending, that the violent offences were very serious. In particular the Minister stated:

38.    On 16 February 2011 Mr KETJAN was convicted in the District Court of Queensland at Southport of Wounding and Similar Acts and sentenced to imprisonment for 18 months, suspended for two years after serving a term of four months imprisonment. The offence was committed on 26 December 2000, but he subsequently absconded, resulting in the considerable delay in the matter coming to court.

39.    Sentencing remarks indicate that Mr KETJAN had been ‘dealt with… rather severely by a bouncer’ at a nightclub and was very angry. He subsequently picked up a bottle and broke it, and then used that bottle as a weapon when the victim crossed the street to confront him. The Judge noted the victim ‘displayed a level of aggression’ and the pair was arguing when Mr KETJAN used the bottle to strike the victim two to three times on the face and shoulders. I have had regard to His Honour’s statement that it was fortunate the victim’s eye was not injured, and that Mr KETJAN ‘may have a real problem with anger management’.

•    The Minister had regard to Mr Ketjan’s 2015 common assault offence which involved violence against Mr Ketjan’s former partner and her father, and his repeated convictions for breaching orders designed to protect his former partner from him. The Minister noted:

42.    On 1 October 2015 in the Magistrates Court of Queensland at Richlands, Mr KETJAN was again convicted of Contravention of Domestic Violence Order and sentenced to 10 months imprisonment. On the same occasion he was also convicted of Common Assault (one month imprisonment), Assaults Occasioning Bodily Harm (three months imprisonment), and an additional two counts of Contravention of Domestic Violence Order (four months imprisonment). All sentences were cumulative and his parole release date was set at 1 February 2016. In addition, the suspended sentence handed down for Mr KETJAN’s March 2015 conviction was fully invoked and he was resentenced to three months imprisonment, to be served concurrently.

43.    I find that the sentences Mr KETJAN received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I consider that the numerous custodial sentences imposed by the Courts in response to Mr KETJAN’s offending, of up to 18 months duration, reflect the serious nature of the offences.

•    Insofar as concerned the risk to the Australian community through re-offending, the Minister had regard to any mitigating or causal factors in his offending, the steps Mr Ketjan had undertaken to reform and address his behaviour, his overall conduct and his insight into his offending. The Minister considered that aspects of Mr Ketjan’s childhood did not justify his continued and frequent offending as both a minor and an adult, and that his strained relationship with his former partner did not justify his sometimes violent actions in a domestic context. The Minister considered that there was an ongoing likelihood of Mr Ketjan reoffending, and that if he did it could result in psychological and physical harm to vulnerable members of the Australian community.

    The Minister concluded that Mr Ketjan had not passed the character test, and ultimately that Mr Ketjan represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other consideration.

The interlocutory application

16    In the interlocutory application, Mr Ketjan sought relief by way of “bail”, and release from detention pending determination of his hearing. The notice of a constitutional matter under s 78B of the Judiciary Act, filed 8 May 2017, referred to this issue.

17    The relief sought by Mr Ketjan in his interlocutory application mirrored the relief sought in paragraph 4 of Mr Ketjan’s originating application, where he sought the following order:

4.     Orders in the nature of habeas corpus to release the applicant from detention forthwith including interim or interlocutory relief by way of bail on such conditions as the court considers appropriate to release the applicant from detention until the final determination of the matter.

18    To the extent that Mr Ketjan consented to orders that his interlocutory application for bail be heard with the originating application, it appeared that he was no longer pressing for orders in the nature of habeas corpus. Further, in written submissions filed on 12 June 2018 the Minister stated that, on 5 June 2018, Mr Ketjan had notified the Minister that he was no longer seeking bail, and in those circumstances the interlocutory bail application ought be dismissed with costs. Submissions in reply on behalf of Mr Ketjan were filed on 18 June 2018, and no issue was taken with the submission of the Minister concerning Mr Ketjan’s abandonment of the application for bail. I also note that no submissions were made, either in writing or orally, by Mr Ketjan in respect of the interlocutory application after this date (or, indeed, in respect of paragraph 4 of his originating application).

19    In the circumstances the appropriate order is that the interlocutory application be dismissed.

the originating application

20    At the hearing Mr Ketjan did not press grounds of review 6, 7, 8, 9, 10, 11 and 12.

21    In relation to grounds 1, 2 and 3, Mr Ketjan’s case primarily relied on one proposition. This was whether, in circumstances where the Minister cancelled a visa pursuant to s 501(3A) of the Migration Act, in light of the Minister’s satisfaction that the visa holder had failed the character test because of the “substantial criminal record” of the visa holder, it was necessary that the prison sentence of more than 12 months on which the Minister relied was completed following the commencement of the Amending Act enacting s 501(3A).

22    Relevantly Counsel for Mr Ketjan submitted that his relevant prison sentence had been served before the commencement of the Amendment Act, and the presumption against retrospective operation of the Amending Act prevented it applying to a sentence fully completed prior to the commencement of the Amending Act. Accordingly, Mr Ketjan submitted that the mandatory visa cancellation regime did not apply to him, that he was entitled to be released, and that the decision to purportedly cancel his visa was not a decision at all. In particular, Mr Ketjan submitted that if the Amending Act applied to sentences completed in the past, then a person could have done something 30 years ago as a young person and be sentenced to a term of imprisonment of 12 months, and then 30 years later (after 11 December 2014) committed a relatively minor offence leading to a short term of imprisonment with the consequence that the Minister must cancel that person’s visa.

23    In the Minister’s submission it followed, on a plain reading of item 32(1), that s 501(3A) has operation with respect to sentences imposed prior to 14 December 2014. The Minister submitted that he was compelled to cancel Mr Ketjan’s visa as a consequence of the sentence of 1 October 2015.

24    The Minister submitted that the revocation of the mandatory cancellation decision turned on the Minister’s satisfaction of the matters outlined in s 501CA(4)(a) and (b) of the Migration Act, and conclusions that Mr Ketjan did not pass the character test and there was no other reason why the original decision should be revoked. Further, the Minister submitted that although the Court had jurisdiction to make the first order sought by Mr Ketjan, in respect of the other orders sought:

    The relief sought by draft order 2 concerned a power vested in the Minister, not the Court, and as a matter of law the Minister could not be compelled to make a favourable decision to Mr Ketjan.

    The relief sought by draft order 3 was not available because there was no public duty in the Minister to exercise his powers under s 501CA(4) in Mr Ketjan’s favour.

    With respect to the relief sought by draft order 4, a writ of habeas corpus is only available where a person has been unlawfully detained, which is not the case here.

25    In relation to Mr Ketjan’s contention that his sentence the subject of his 15 February 2011 conviction could not be taken into account by the Minister because it was completed prior to the date s 501(3A) commenced, the Minister submitted that s 501(3A) was triggered by the Minister being satisfied that a person had a substantial criminal record whenever it occurred, and second that at the relevant time the person was serving a term of imprisonment on a full- time basis.

26    Counsel for Mr Ketjan at the hearing also submitted that grounds 4 and 5 coalesced, and in particular contended that [67] of the Minister’s reasons did not conform with decisions of this Court.

Grounds 1, 2 and 3

27    It is convenient to commence consideration of Mr Ketjan’s originating application by examining the issue he raises referable to grounds 1, 2 and 3, namely whether Mr Ketjan’s sentence of 18 months imprisonment, following his 15 February 2011 conviction, could not be taken into account by the Minister in concluding that Mr Ketjan had a substantial criminal record, because he had served it before s 501(3A) commenced. Section 501(7)(c) provides that for the purposes of the character test a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

28    First, item 32(1) of Sch 1 to the Amendment Act provided:

32.    Application of amendments made by items 3, 4, 7, 8, 9, 17, 18 and 20 to 24

(1)    The amendments made by items 3, 4, 7, 8, 9, 17, 18 and 20 to 24 of this Schedule apply to a decision made on or after the commencement of this item to cancel a visa under subsection 501(3A) of the Migration Act 1958, whether the sentence of imprisonment on the basis of which the visa is cancelled was imposed before, on or after the commencement of this item.

(Emphasis added.)

29    Section 501(3A) was introduced by an amendment made by item 8 of Sch 1 to the Amendment Act (to which reference is made in item 32) – it follows that the terms of item 32(1) are relevant to the interpretation of s 501(3A).

30    The question arises as to what is meant by “the sentence of imprisonment on the basis of which the visa is cancelled” within the meaning of item 32(1), by reference to cancellation of a visa under s 501(3A). Insofar as it refers to “the” sentence “on the basis of which the visa is cancelled”, the language in item 32(1) is ambiguous. The only specific reference to a “sentence of imprisonment” in s 501(3A) is to the sentence identified in s 501(3A)(b) which the person is serving on a full-time basis in a custodial institution, such as to trigger the mandatory cancellation of the visa. However, section 501(3A)(a)(i) refers to the “substantial criminal record” of the person (s 501(7)(a),(b) and (c)), and s 501(7)(c) refers to a “sentence” of the person “to a term of imprisonment of 12 months or more”.

31    Despite the persuasive argument of Mr Boccabella for the applicant, and the somewhat unhappy ambiguity of item 32(1), I am persuaded that the plain language of the item encompasses either or both the sentence of imprisonment which the person is serving full time in a custodial institution (s 501(3A)(b)) and the sentence of imprisonment giving rise to the substantial criminal record (ss 501 (3A)(a)(i) and 501 (7)(c)). Either sentence could properly be described as “the sentence of imprisonment on the basis of which the visa is cancelled” for the purposes of s 501(3A), because both are necessary to trigger the operation of s 501(3A). Further, item 32(1) could legitimately contemplate circumstances where either sentence was imposed before, on or after the commencement of the item – and indeed this is precisely the circumstances of Mr Ketjan in relation to the sentence he was serving at the date of the visa cancellation (which was imposed after the commencement of s 501(3A) on 14 December 2014), and the sentence giving rise to his substantial criminal record (which was imposed, and completed, before the commencement of s 501(3A)).

32    Second, there is nothing in the plain language of s 501(3A) (or in the Amendment Act, which focuses on the date of imposition of sentences) which has the result that a sentence for a criminal conviction imposed prior to the commencement of the section on 14 December 2014, and giving rise to the “substantial criminal record” of the person, would need to be completed after 14 December 2014.

33    Third, other than arguably through the language of item 32(1) and its reference to “the sentence of imprisonment on the basis of which the visa was cancelled” s 501(3A) does not purport to link the requirement that the Minister be satisfied the visa holder failed the character test because he or she has a substantial criminal record (s 501(3A)(a)(i)), and the requirement that the visa holder be serving a sentence of imprisonment on a full-time basis in a custodial institution (s 501(3A)(b)). Materially in this case, the effect of s 501(3A) is that if a visa holder has a substantial criminal record, the requirement that the Minister cancel his or her visa is triggered if the visa holder serves a sentence of imprisonment on a full-time basis in a custodial institution.

34    On balance, I am satisfied that the sentence of imprisonment giving rise to a substantial criminal record for the purposes of s 501(3A)(a)(i) need not arise from the conviction for which the visa holder is sentenced for the purposes of s 501(3A)(b). This is made further clear by the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 which relevantly provided:

Item 8     After subsection 501(3)

30.    This item inserts new subsections 501(3A) and 501(3B) in Part 9 of the Migration Act.

31.    New subsection 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

•    the Minister is satisfied that the person does not pass the character test because of the operation of:

•    paragraph 501(6)(a) (substantial criminal record), because of the operation of paragraphs 501(7)(a), (b) or (c); or

•    paragraph 501(6)(e) (sexually based offences against children); and

•    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, a State or a Territory.

32.    This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.

33.    A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CA inserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.

34.    The intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.

…

35    It follows from the Explanatory Memorandum that a visa must be cancelled if the visa holder has a substantial criminal record or conviction for a sexually based offence involving a child, and if the visa holder is serving a custodial sentence. Neither the date the visa holder completed his or her sentence giving rise to a substantial criminal record, nor the date the visa holder completes his or her custodial sentence for the purposes of s 501(3A)(b), is relevant to whether the requirements of s 501(3A) are met. Mr Boccabella raised the spectre of a person serving a sentence of more than 12 months, 30 years in the past, and then after 14 December 2014 whilst imprisoned for an unrelated matter having his or her visa mandatorily cancelled. In my view this is the effect of the legislation. The Minister, of course, is empowered to revoke that decision if the Minister considers there are grounds to do so under the Migration Act.

36    Fourth, Mr Ketjan also relied on observations of the High Court of Australia in Minogue v Victoria [2018] HCA 27, a case involving State provisions relating to prisoner parole. At [47] the High Court said:

47.    The consequence of s 74AAA(4) applying is effectively to deny a prisoner an opportunity for parole. In Smith v Corrective Services Commission (NSW) reference was made to the established principle of statutory construction that a penal statute, or one affecting a person's liberty, should be construed strictly. The Court was there dealing with a provision concerning the remission of a period of imprisonment with respect to a prisoner where parole had been revoked. It is unnecessary to decide whether this principle should be viewed as a general rule of construction, as a subsidiary rule of construction, or merely as a matter of context because, however this strict approach to construction is viewed, it reinforces the limited role for the Board with respect to s 74AAA(1). That is so regardless of the fact that the plaintiff has no right, as such, to parole, as previously discussed.

(Footnotes omitted, emphasis added.)

37    Mr Ketjan’s case was that Minogue was relevant because (in summary) the mandatory visa cancellation power under s 501(3A) affected a person’s liberty similarly to the opportunity for parole considered in Minogue, the legislation governing mandatory visa cancellation must be construed strictly, and therefore the sentence of imprisonment on the basis of which the visa is cancelled could only be the one the visa holder was serving at the date of mandatory cancellation.

38    Mr Boccabella for Mr Ketjan also submitted that it was no function of the courts to fill in gaps in legislation. In particular, I note the statements of the sentencing Magistrate on 1 October 2015 to the effect that Mr Ketjan’s sentences were concurrent and, cumulative with the suspended sentence, totalled 13 months. Counsel submitted that accumulation of sentences was only relevant for the purposes of s 501(7)(d), not for the purposes of s 501(3A) (which was specifically activated where a person had a substantial criminal record on the basis of s 501(7)(a), (b) or (c)).

39    In my view the comments of the High Court in Minogue do not assist Mr Ketjan. Whilst there is ambiguity attendant on item 32(1), ultimately there is no ambiguity in the language of s 501(3A), and no gaps, such that there is room for construction of the legislation other than in terms of the plain language of the section. Indeed, while there were submissions from both parties concerning the proper characterisation of Mr Ketjan’s sentences following his 1 October 2015 conviction, and whether they should be treated as cumulative such as to exceed 12 months, in my view whether those sentences cumulatively exceeded 12 months was irrelevant. Section 501(3A) plainly contemplates that the Minister must cancel a visa in circumstances where the visa holder has a substantial criminal record (as was the case here, referable to Mr Ketjan’s 2011 conviction) and was serving a sentence of custodial imprisonment not referable to any particular length of time (as was the case here, referable to Mr Ketjan’s 2015 convictions).

40    Further, and in any event, I am not satisfied that the circumstances of the present case involve a retrospective operation of s 501(3A). This is because it could not be said that the events triggering s 501(3A) were entirely in the past, such that the mandatory cancellation of Mr Ketjan’s visa operated retrospectively. While the sentence giving rise to the substantial criminal record of Mr Ketjan did relate to an historical conviction, the legislation contemplates such an event in that s 501(3A)(a) refers to a criminal record. However, the event which triggered the mandatory cancellation, namely Mr Ketjan’s 2015 convictions and sentence of imprisonment, clearly post-dated the commencement of s 501(3A). As the Full Court observed in Interhealth Energies Pty Ltd as Trustee of the Interhealth Superannuation Fund v Commissioner of Taxation [2012] FCAFC 185; (2012) 209 FCR 33, adopting the comments of Professors Pearce and Geddes:

59.    There is no relevant impact upon existing rights or liabilities. The section merely made provision for the regulation of those matters for the future. In those circumstances, there is not a retrospective operation – see the discussion in Statutory Interpretation Australia by Pearce DC and Geddes RS (7th ed, LexisNexis, 2011) (at [10.3] and [10.4]) where the learned authors say:

[10.3]    All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law. (This statement was approved by the High Court: Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 at 33; [2007] HCA 37; 237 ALR 482 at 507.) It cannot therefore be said that in this sense legislation is retrospective because this is true of all legislation. Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation. The statement of the law advanced by Dixon J in Maxwell v Murphy (see [10.1]) in referring to ‘rights or liabilities which the law had defined by reference to the past events’ confirms this view.

...

[10.4]    Future operation based on past events

...

60.    The Victorian Full Supreme Court put the matter succinctly in Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824: ‘[The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that’.

41    I also note the following comments of Professors Pearce and Geddes in a subsequent edition of their learned treatise:

10.4    It is important when considering the question of retrospectivity to draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events. Jordan CJ contrasted these circumstances in Colman v Shell Co of Australia Ltd (1943) SR (NSW) 27 at 31:

… as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of future particular rights or liabilities.

(Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014)

42    These comments are applicable in this case. Mr Ketjan’s rights and obligations prior to the commencement of s 501(3A) were not changed. Although his substantial criminal record was a requirement of s 501(3A), it was his sentence of imprisonment after 14 December 2014 which triggered the visa cancellation. The 2011 sentence was treated by s 501(3A) as relevant to the cancellation of his visa after he was subsequently imprisoned in 2015 and s 501(3A) triggered. This did not constitute a retrospective application of s 501(3A), as submitted by Mr Ketjan.

43    It follows that Mr Ketjan’s contention that the mandatory visa cancellation regime did not apply to him and that the decision of the delegate to purportedly cancel his visa was not a decision at all, has no merit. Grounds 1, 2 and 3 are not substantiated.

44    The Minister further submits that even if Mr Ketjan were correct, the decision which would be infected by jurisdictional error would be the delegate’s mandatory cancellation decision, and it is unclear how jurisdictional error would flow into the Minister’s revocation decision. If the mandatory visa cancellation regime did not actually apply to Mr Ketjan, but the Minister had assumed that it did, then it is difficult to conclude otherwise than that the Minister’s consideration of whether to revoke the visa cancellation decision was founded on an incorrect premise. However in circumstances where I am satisfied that the regime did apply to Mr Ketjan, it is unnecessary for me to make any conclusive findings in relation to this issue.

Grounds 4 and 5

45    In relation to grounds 4, 5 and 6 Mr Ketjan refers to [67] of the Minister’s decision which was as follows:

67.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr KETJAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other considerations as described above. These include his lengthy residence in and familial ties to Australia, his contributions to the Australian community through paid employment, and the hardship Mr KETJAN and his family will endure in the event the original decision is not revoked.

46    Counsel for Mr Ketjan submitted that, to the extent that the weighing exercise by the Minister was in [67] of his decision, it was done “quite cursorily”. He relied in particular on the following observations of Kerr J in McCutcheon v Minister for Immigration and Border Protection [2018] FCA 828:

65.    I reject that I am entitled to find that the global statements contained at [11], [60] and [69] that the Minister “assessed all of the information”, “considered Mr McCutcheon’s representations and the documents he has submitted in support”, “considered all relevant matters” and had “given full consideration to all of these matters” are sufficient in the absence of any contextual links in the Minister’s reason as a basis for the Court to be satisfied that the Minister had validly discharged his statutory duty pursuant to s 501CA(4) of the Migration Act. I rely on the cases cited by Flick J in Baudromo at [27] in support of that conclusion, while acknowledging, as I held in Isley v Minister for Immigration and Border Protection [2018] FCA 632 at [129] that where a Minister specifically asserts that they have taken a matter into account there must be something in his or her reasons (whether expressly or by necessary implication) to require a court to draw a contrary inference. In this review, the vacuum of findings and reasoning entitles this Court to draw such a contrary inference.

47    Mr Ketjan submitted that, at [67], the Minister made a similar error to that identified by Kerr J in McCutcheon, and did not give “proper, genuine and realistic consideration” to Mr Ketjan’s case.

48    I do not agree. In his statement of reasons the Minister specifically referred to the relationship between Mr Ketjan and his children, and the effect on his children of any decision to remove Mr Ketjan from Australia. In this regard, the Minister concluded that it was in the children’s best interests that the original decision be revoked. It was, however, open to the Minister to conclude that Mr Ketjan posed an unacceptable risk of harm to the Australian community, and accord greater weight to the protection of the Australian community than to the best interests of Mr Ketjan’s children. The Minister evaluated the competing considerations at [59]-[67] of his reasons. In my view this was not a cursory consideration, and I am not satisfied that the Minister failed to give proper, genuine and realistic consideration to Mr Ketjan’s circumstances.

Orders of 22 june 2018

49     On 22 June 2018 I made the following orders by consent:

1.    With respect to the Court’s reserve judgment in this proceeding, the Court is to deliver judgment of all issues it considers appropriate or necessary to deal with – except for the issues the subject of paragraphs 70 to 72 of the Respondent’s Outline of Submissions filed in this proceeding on 12 June 2018.

2.    Within seven days of the delivery of judgment that parties are to confer as to any appropriate future orders and/or directions to be made in respect of the finalisation of the proceeding and correspond with the Court with respect to any agreed orders and/or directions.

3.    In the event that agreement cannot be reached within the time prescribed by order 2 above, the parties are to seek that the matter be listed before the Court for a Case Management Hearing.

50    Relevantly, [70]-[72] of the Minister’s Outline of Submissions related to grounds 1, 2 and 3 of the application, and provided as follows:

70.    Second, even if the Applicant is correct (which is denied), the decision which would be infected by jurisdictional error would be the delegate’s mandatory cancellation decision.

71.     The Applicant has not explained how jurisdictional error would flow into the Assistant Minister’s subsequent non-revocation decision (particularly bearing in mind that s 501CA does not oblige the Assistant Minister to consider the correctness of the mandatory cancellation decision – only the issue of whether or not “the person passes the character test”) (s 501CA (4)(b)).

72.    This creates an added issue for the Applicant in circumstances where, to challenge such a decision the Applicant would need to seek an extension of time to do so (s477A) (and, further, would have to add the Minister [being the decision-maker the subject of the s 501 (3A) decision] to this proceeding).

51    For reasons I have given however, the application should be dismissed, and it is not necessary for me to consider issues contemplated by Orders 1, 2 and 3 of 22 June 2018. In my view, the appropriate approach is to vacate those orders.

Conclusion

52    In circumstances where Mr Ketjan has been unsuccessful in his originating application, and did not press his interlocutory application, it is logical that both the originating application and the interlocutory application be dismissed. Costs should follow the event.

53    The appropriate orders are that:

(1)    The Orders of 22 June 2018 be vacated.

(2)    The originating application filed on 7 April 2017 be dismissed.

(3)    The interlocutory application filed on 18 May 2017 be dismissed.

(4)    The Applicant pay the costs of the Respondent in respect of the originating application filed on 7 April 2017 and the interlocutory application filed on 18 May 2017, to be taxed if not otherwise agreed.

Associate:

Dated:    16 April 2019