FEDERAL COURT OF AUSTRALIA

Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The mandatory visa cancellation scheme was introduced in 2014. In contrast to the pre-existing discretionary visa cancellation powers of the Minister, the additional scheme established a process by which a non-citizen’s visa would be mandatorily cancelled by the Minister in particular circumstances prescribed by statute. Where this occurred, the non-citizen would then be entitled to make representations to the Minister and request the revocation of the visa cancellation.

2    The circumstances in which a Minister is required to cancel a non-citizen’s visa are prescribed by s 501(3A) of the Migration Act 1958 (Cth) (Act), as informed by other provisions in s 501. Amongst other circumstances, the Minister must cancel a non-citizen’s visa if:

(a)    the Minister is satisfied that a non-citizen has a “substantial criminal record” because the non-citizen has been sentenced to a term of imprisonment of 12 months or more; and

(b)    the non-citizen 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.

3    What happens, then, where the non-citizen is serving a term of imprisonment at the time of the Minister’s decision (after the commencement of the mandatory visa cancellation scheme), but the non-citizen has a “substantial criminal record” only because of a different sentence of imprisonment that was served exclusively before the commencement of that scheme? Is the non-citizen’s visa liable to mandatory cancellation in these circumstances?

4    The appellant, a citizen of Thailand, is confronted by these circumstances. He argues that the mandatory cancellation scheme does not apply to him. He contends, in summary, that, because of the presumption against retrospective legislative operation, the mandatory visa cancellation scheme cannot operate based upon any sentence of imprisonment that was served exclusively before the commencement of that scheme. The respondent, the Assistant Minister for Immigration and Border Protection, argues that the provision validly applies to the appellant’s circumstances.

5    As explained below, a plain reading of the Act establishes that the mandatory cancellation scheme applies to the appellant. To start, there is no requirement for the term of imprisonment served by the non-citizen at the time of the Minister’s decision to be the same sentence of imprisonment that gave rise to the non-citizen’s “substantial criminal record”. And, contrary to the submission of the appellant, s 501(3A) does not have retrospective operation. It does not impose punishment additional to that already imposed for the appellant’s criminal offences. The operation of s 501(3A) is instead simply based on a factual state of affairs, including the non-citizen’s criminal record, at a particular point in time after the commencement of the scheme in 2014.

6    On this basis, the primary judge was correct to hold that the mandatory visa cancellation scheme applied to the appellant. The appeal is accordingly dismissed.

Background

7    As indicated, the appellant is a citizen of Thailand. He has lived in Australia since 1992. He arrived in Australia when he was 16 years old, and is now 43 years old. Until January 2016, his presence in Australia was authorised by a Class BB (Subclass 155) (Five Year Resident Return) visa.

8    The appellant has acquired an extensive criminal history during his time in Australia. His National Police Certificate records 20 court appearances. It is relevant to outline the outcome of a couple of these appearances.

9    On 16 February 2011, the appellant was convicted in the District Court of Queensland of the offence of “Wounding and similar acts”. This is referred to below as his “2011 conviction”. The appellant was sentenced to a term of imprisonment for 18 months, suspended for two years after serving four months of imprisonment. The appellant completed this sentence in full by 15 August 2012.

10    The mandatory visa cancellation scheme had not been enacted at the time of the commission of this offence. At that time, the Minister had a residual discretion to cancel the appellant’s visa under s 501(2) of the Act on character grounds. On 6 June 2011, the Minister considered the exercise of his discretion under that provision but decided not to cancel the appellant’s visa. The Minister instead issued a warning to the appellant that his visa was at risk of cancellation.

11    The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (Amending Act) received royal assent on 10 December 2014. Relevantly for current purposes, item 8 of Sch 1 to of the Amending Act, which commenced on 11 December 2014, introduced s 501(3A) into the Act. Section 501(3A) now provides the following:

(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.

12    At the same time, item 18 of Sch 1 to the Amending Act inserted a new s 501CA into the Act. That provision broadly provides that, where a Minister cancels a visa under s 501(3A), the non-citizen must be provided certain information in relation to that decision and be provided an opportunity to make representations about revocation of the visa cancellation. Where the non-citizen make representations in response to this invitation, the Minister may revoke the visa cancellation where the Minister is satisfied that either the non-citizen passes the character test, or there is another reason why the visa cancellation should be revoked. The existence of s 501CA is an important contextual consideration in the present case, although the primary focus of the appeal is the interpretation of s 501(3A).

13    The explanatory memorandum to the bill that became the Amending Act described that the Amending Act “will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison”: Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (Bill) at 1. It detailed that “the new mandatory cancellation of people in prison will ensure that the majority of people will go through these processes whilst they are still in prison”: ibid at 6. In relation to the insertion of s 501(3A), paragraph 34 of the explanatory memorandum explained that

[t]he 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.

14    The second reading speech to the Bill, given by the then Minister for Immigration and Border Protection, further summarised the operation of the mandatory visa cancellation scheme as follows:

The third key measure this bill seeks to introduce is mandatory visa cancellation under section 501 of the act where a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of the cancellation decision. … This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.

(Mr Morrison (Minister for Immigration and Border Protection), Migration Amendment (Character and General Visa Cancellation) Bill 2014 Second Reading Speech, 24 September 2014, Australian Parliamentary Debates House of Representatives p 10326–10327.)

15    It is necessary to explain the references in this passage to the “character test” and, relevant to the present case, the significance of a non-citizen being sentenced to a term of imprisonment of 12 months or more.

16     As can be seen from the extract above at [11], s 501(3A) of the Act refers to subsections (6) and (7) of s 501. Subsection 501(6) defines the circumstances in which a person will pass, or not pass, the “character test”. Two relevant circumstances in which a person will not pass the character test are prescribed as follows:

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

…

(e)     a court in Australia or a foreign country has:

(i)     convicted the person of one or more sexually based offences involving a child; or

(ii)     found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …

…

17    As noted in s 501(6)(a), subsection 501(7) defines the circumstances in which a person has a “substantial criminal record”. Those circumstances relevantly include the following:

Substantial criminal record

(7)     For the purposes of the character test, a person has a substantial criminal record if:

   (a)     the person has been sentenced to death; or

   (b)     the person has been sentenced to imprisonment for life; or

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; …

…

18    To interpolate, it may be observed that, as a result of the appellant’s sentence on 16 February 2011 to a term of imprisonment for 18 months, he had a “substantial criminal record” pursuant to s 501(7)(c) of the Act.

19    Turning to events after the commencement of the Amending Act, the appellant continued to offend on various occasions after the completion of his sentence arising from the 2011 conviction. In particular, on 1 October 2015, he was convicted of five offences, including common assault, assaults occasioning bodily harm and breaches of domestic violence orders. These are referred to below as his “2015 convictions”. Terms of imprisonment were imposed for each of these offences, namely terms of imprisonment of ten months, four months, four months, three months and one month respectively. These terms of imprisonment were ordered to be served concurrently (with an effective concurrent total of ten months), but cumulatively with an additional three month imprisonment term resulting from the activation of a separate suspended sentence imposed earlier in 2015. The result was the imposition of an effective 13 month term of imprisonment.

20    On 27 January 2016, a delegate of the Minister wrote to the appellant, who was in prison at that time. The delegate’s letter notified the appellant that his visa had been cancelled under s 501(3A) of the Act. The letter relevantly expressed the following:

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 s 501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s 501(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.

21    The appellant subsequently made representations to the Minister seeking revocation of this decision. On 8 March 2017, the Assistant Minister for Immigration and Border Protection decided under s 501CA(4) of the Act not to revoke the cancellation of the appellant’s visa. The Assistant Minister found that the appellant did not passed the character test and that the appellant represented an unacceptable risk of harm to the Australian community. The Assistant Minister’s view was that the protection of the Australian community outweighed the best interests of the appellant’s children and any other consideration.

Application for judicial review

22    The appellant applied for judicial review in this Court on 7 April 2017. The appellant’s originating application challenged both the delegate’s decision under s 501(3A) to cancel his visa, and the Assistant Minister’s decision under s 501CA(4) to not revoke that cancellation.

23    In respect of the delegate’s decision, the appellant’s originating application specified 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.

24    In support of these grounds of review, the appellant submitted to the primary judge that, in circumstances where the term of imprisonment that gave rise to his “substantial criminal records” was served exclusively prior to the commencement of s 501(3A), the mandatory visa cancellation scheme did not apply to him. This was because, in the appellant’s submission, the presumption against retrospective operation of the Amending Act prevented it applying to that earlier sentence. The appellant moreover argued that a transitional provision in the Amending Act, item 32 of Sch 1 (which will be detailed below), demonstrated that the mandatory cancellation provision was not intended to apply to sentences of imprisonment before the commencement of the Amending Act. As a result, the appellant argued that the decision to cancel his visa was not a decision at all, and that he was accordingly entitled to be released from detention.

25    On 16 April 2019, the primary judge dismissed the appellant’s judicial review application: Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCA 516 (Primary Judge’s Reasons). Relevantly for this appeal, the primary judge rejected the appellant’s argument that the mandatory cancellation scheme did not apply to his circumstances: ibid at [27]-[43]. Her Honour held that a plain reading of s 501(3A) established that the conditions in that provision applied to the appellant. Item 32 of Sch 1 to the Amending Act did not change that plain reading. The primary judge moreover considered that the circumstances of the appellant’s case did not involve a retrospective operation of s 501(3A). The appellant’s rights and obligations prior to the commencement of that provision were not changed.

26    The primary judge also rejected the appellant’s challenges to the Assistant Minister’s decision not to revoke the visa cancellation: ibid at [45]-[48]. That decision, and the appellant’s challenges to that decision, are irrelevant for the purposes of this appeal.

Appeal to the Full Court

27    The appellant appealed the primary judge’s decision on 7 May 2019. The grounds of appeal set out in the notice of appeal contended the following:

1.     The learned trial justice erred by failing to properly apply and/or interpret the principles in relation to the retrospective application of Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cwth)

2.     The learned trial justice erred by failing to appreciate that 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.

3.     The learned trial justice erred by failing to appreciate or determine that the respondent did not properly interpret and apply s 501(3A) of the Migration Act 1958.

4.     The learned trial justice erred by failing to appreciate or determine that the respondent did not properly interpret and apply s 501CA and s 501CA(4) of the Migration Act 1958;

28    In submissions to the Full Court, the appellant accepted that these four grounds “coalesce into one”. The relevant question was, in short, whether the primary judge was correct to hold that s 501(3A) applied to the appellant.

29    The appeal was heard on 19 November 2019. The appellant was represented by Mr Boccabella of counsel. The Assistant Minister was represented by Mr Kennett SC and Mr McGlade of counsel. Detailed written submissions were filed on behalf of both the appellant and the Assistant Minister.

Summary of submissions

30    The appellant’s argument in the Full Court was summarised in the following passage from the written submissions filed on his behalf:

The basic proposition is:

(a)     For the purpose of this appeal, only sentences of 12 months or more are covered by s 501(3A), the mandatory visa cancellation scheme.

(b)     The appellant was sentenced to a term of imprisonment of 18 months which was served and completed before the amending legislation came into force.

(c)     A separate sentence of imprisonment for less than 12 months was imposed after the amendment came into force.

(d)     Because of the presumption against retrospectivity, the fact of the pre-amendment conviction does not fill the post amendment statutory matrix to require mandatory cancellation of the visa.

(e)     That is, without specific enabling provisions, the amendment cannot, reel in, past sentences (which were completely served) to enable a mandatory visa cancellation decision.

(f)     The transitional provision would allow a 12 months or more sentence straddling the amendment commencement date, to invoke mandatory cancellation, but its wording does not extend to a sentence ‘done and dusted’ before the amendment’s commencement.

(g)     Hence there is no statutory basis for mandatory visa cancellation of the appellant’s visa and the orders sought in the notice of appeal should be granted.

The principles that were said by the applicant to underpin this “proposition” are discussed in detail below.

31    The Assistant Minister contended that the mandatory visa cancellation scheme applied to the appellant’s circumstances. He argued, in summary, that s 501(3A) of the Act prescribed two independent conditions to trigger the Minister’s decision under that provision. In the Assistant Minister’s submission, there was no reason to conclude the particular conviction or sentence that leads to the non-citizen having failed the character test (for the purposes of s 501(3A)(a)) has to be the same sentence of imprisonment that the non-citizen is serving as at the date of the cancellation decision (for the purposes of s 501(3A)(b)).

32    Interpreted in this way, the Assistant Minister submitted that both conditions in s 501(3A) were satisfied in the appellant’s case as at the date of the delegate’s decision—27 January 2016. As at that date, the appellant had a “substantial criminal record” because of the 18 month term of imprisonment served arising from his 2011 conviction. And, as at that date, the appellant was serving a term of imprisonment due to his 2015 convictions.

33    The Assistant Minister moreover rejected the appellant’s characterisation of the mandatory visa cancellation scheme as having retrospective application to his circumstances. In the Assistant Minister’s submission, s 501(3A) did not readjust the appellant’s rights and burdens, but merely operated upon a factual state of affairs in relation to the appellant at a particular point in time after the commencement of the Amending Act.

34    By the time of the hearing of the appeal, we had read and considered the parties’ written submissions in detail. At the end of the hearing, having heard the parties’ oral submissions, we made orders dismissing the appellant’s appeal with costs. Our reasons for making those orders are set out below.

Consideration

Text of s 501(3A)

35    The appropriate starting point is the text of s 501(3A) of the Act. That provision is again set out for reference:

(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.

The other provisions referred to in this subsection, namely ss 501(6)(a) and (e) and 501(7)(a), (b) and (c), were extracted above at [16]-[17].

36    As apparent from s 501(3A), there are two conditions which must exist to enable the mandatory cancellation of a visa by the Minister. The first is paragraph (a) of s 501(3A). The second is paragraph (b) of s 501(3A).

37    As to paragraph 501(3A)(a), the delegate expressed satisfaction that the appellant did not pass the character test by reason of the appellant having a “substantial criminal record” as a result of his 2011 conviction and consequent 18 month sentence of imprisonment. This follows from ss 501(6)(a) and 501(7)(c) of the Act. The fact that the appellant’s sentence for his 2011 conviction was partly suspended is irrelevant for the purposes of s 501(7)(c): Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [11] per Rares J and [114] per Nicholas J.

38    From an ordinary reading of the language of s 501(3A)(a), and the supporting definitions in ss 501(6) and (7), there is no basis to confine the Minister to a consideration of events that influence the passing of the character test after, but not before, the commencement of the mandatory visa cancellation scheme on 11 December 2014. In particular, s 501(7)(c) prescribes that a person has a “substantial criminal record” if he or she “has been sentenced to a term of imprisonment of 12 months or more”. That language pre-existed the commencement of s 501(3A), and does not temporally confine the terms of imprisonment to those that straddle or operate exclusively after the commencement of the scheme.

39    As to paragraph 501(3A)(b), there is no requirement that the sentence of imprisonment that the non-citizen is serving for the purposes of that paragraph be the same sentence that gave rise to the non-citizen having a “substantial criminal record” for the purposes of paragraph (a). The events that may trigger paragraphs (a) and (b) may be distinct. There are various bases for this interpretation.

40    First, paragraph (b) refers to “a” sentence of imprisonment rather than “the” sentence of imprisonment. Should Parliament have intended for a non-citizen’s visa to only be mandatorily cancelled where he or she is serving the term of imprisonment that gave rise to the non-citizen having a “substantial criminal record”, then the language of paragraph (b) could have easily connected to the operation of paragraph (a).

41    Second, although paragraph (b) is inherently directed to a sentence of imprisonment, the satisfaction of paragraph (a) may not occur as a result of such a sentence. Paragraph (b) may alternatively be satisfied where the non-citizen is “merely” convicted or found guilty of a sexually based offence (s 501(6)(e)) or where the non-citizen has been sentenced to death (s 501(7)(a)). These events do not necessarily involve sentences of imprisonment. This tends to demonstrate that paragraph (b) has an operation distinct from that of paragraph (a).

42    Third, as evident from the text of the provisions, paragraph (a) requires a “positive state of satisfaction” on the part of the Minister (Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 (Falzon) at [46] per Kiefel CJ, Bell, Keane and Edelman JJ), while paragraph (b) operates upon a factual state of affairs at a particular point in time.

43    Fourth (and relatedly), having regard to the policy behind the introduction of the mandatory visa cancellation scheme, paragraphs (a) and (b) serve different purposes. Paragraph (a) is directed to the quality of the non-citizen’s character which, in this context, is determined objectively by reference to the non-citizen’s (past) criminal record. Paragraph (b), in contrast, is directed to a state of affairs at a particular point in time; namely (and broadly) whether the non-citizen is, at that time, in prison on a full-time basis for committing an Australian criminal offence. This makes sense when you have regard to the stated purposes behind the mandatory visa cancellation scheme. As explained in the relevant explanatory memorandum and second reading speech, which were relevantly extracted above at [13]-[14], the primary intention of the mandatory visa cancellation scheme was to ensure that the decision to cancel a non-citizen’s visa occurs before he or she is released from prison: see Falzon at [49]-[50]. The result is that, should the non-citizen subsequently request revocation of the mandatory cancellation, that request would be pursued while the non-citizen is in prison or, if released from criminal custody, in immigration detention.

44    Having regard to these matters, no aspect of a plain reading of the legislative text would justify the imposition of a limitation that s 501(3A) cannot apply to the appellant’s circumstances.

45    In truth, however, the appellant did not vigorously resist this plain reading of s 501(3A). He instead focussed elsewhere to advance his argument that the mandatory visa cancellation scheme was not intended to apply to the appellant’s circumstances.

Limitation in transitional provision?

46    The appellant argued that the operation of s 501(3A) was limited by a transitional provision in the Amending Act, namely item 32 to Sch 1, which provided as follows:

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.)

It should be recalled that item 8 to Sch 1, as referred to in this passage, was the item that introduced s 501(3A) into the Act.

47    The appellant focussed on the portion of item 32 emphasised above, namely that the introduction of s 501(3A) applied to decisions made on or after 11 December 2014 “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”. In the appellant’s submission, “the sentence of imprisonment on the basis of which the visa is cancelled” could only refer to the sentence being served by the non-citizen at the time of the cancellation decision.

48    Upon first glance, it is understandable why this argument appealed to the appellant. The reference to “sentence of imprisonment” in item 32 matches the reference to a “sentence of imprisonment” in s 501(3A)(b). And, at was explained above at [41], the event that gives rise to s 501(3A)(a) may not necessarily be a sentence of imprisonment. However, our view, for the following reasons, is that item 32 does not undermine the ordinary construction of s 501(3A).

49    To start, even if the appellant’s construction of item 32 were to prevail, it is not clear, in light of the way in which item 32 is drafted, that item 32 would override the plain interpretation of s 501(3A) to impose an addition limitation on the application of the latter provision. This is because the language in item 32 is not clearly drafted in a manner that seeks to restrict the operation of s 501(3A). Item 32 does not express that the relevant amendments are only to apply in certain circumstances. It instead reads as if it was intended to define the application of the relevant amendments inclusively. In other words, it non-exhaustively specifies particular circumstances in which s 501(3A) is to apply.

50    Regardless of whether that is so, our view is that the phrase “the sentence of imprisonment on the basis of which the visa is cancelled” is sufficiently broad to capture both the sentence that the non-citizen is serving at the time of the cancellation decision (for the purposes of s 501(3A)(b)), and any past sentence that founds the non-citizen’s “substantial criminal record” (for the purposes of s 501(3A)(a)). In this regard, we agree with the conclusion of the primary judge at [31] of her Honour’s reasons that “[e]ither sentence could properly be described as “the sentence of imprisonment on the basis of which the visa is cancelled” … because both are necessary to trigger the operation of s 501(3A)”. Consistent with this interpretation, our view is that the purpose of item 32, properly construed, was to communicate, for the avoidance of doubt, that the timing of any sentence of imprisonment underpinning the operation of s 501(3A) was not to impose a limitation on the operation of that provision should the conditions be satisfied.

Retrospective operation?

51    The appellant moreover argued, in conjunction with the submissions addressed above, that s 501(3A) ought not be construed in the manner contended by the Assistant Minister because this would, in the absence of clear legislative expression, result in the retrospective application of the mandatory visa cancellation scheme.

52    To support his contention, the appellant raised the following statement by Dixon CJ in Maxwell v Murphy [1957] HCA 7; 96 CLR 261 (Maxwell) at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect.

53    The appellant also referred to the following statement by Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188 (Fisher) at 194:

There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement.

54    Borrowing language from these passages, the appellant argued that, should the Assistant Minister’s interpretation of s 501(3A) be accepted, the operation of the mandatory visa cancellation scheme, as introduced by the Amending Act, would be, in the absence of clear words, to attach new legal consequences to “facts or events” that occurred prior to the commencement of that Act. However, with respect to the appellant, our view is that this argument miscomprehends the operation of s 501(3A).

55    It is critical to draw a distinction between, on one hand, legislation that changes rights or obligations prior to the commencement of that legislation and, on the other hand, legislation that treats events prior to commencement as a basis for creating rights or obligations in the future. This distinction was identified by Jordan CJ 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.

This passage was cited in Commonwealth v SCI Operations Pty Limited [1998] HCA 20; 192 CLR 285 at [57] per McHugh and Gummow JJ. See also Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) pp 399-402.

56    The mandatory visa cancellation scheme does not apply retrospectively to the appellant’s circumstances. It does not change the rights and obligations of the appellant existing prior to the commencement of the Amending Act. It instead uses a past “fact or event”—in the appellant’s case, his 2011 conviction—as one basis, amongst others, to govern his rights and obligations after the commencement of that Act.

57    To illustrate, the appellant’s rights or obligations were not changed on the day the mandatory visa cancellation scheme commenced in 2014. From that date, the appellant continued to lawfully reside in Australia pursuant to his visa. However, as soon as the appellant started to again serve a sentence of imprisonment, the conditions in s 501(3A), subject to the Minister’s satisfaction under s 501(3A)(a), were met. It was only once the Minister reached that state of satisfaction, that the conditions were met and the consequence contemplated by that provision crystallised. This event does not involve the retrospective application of the mandatory visa cancellation scheme.

58    Moreover, contrary to the submission of the appellant, the mandatory cancellation of his visa does not constitute punishment additional to that already imposed by the District Court of Queensland for his 2011 conviction. That is clear from Falzon, in which the High Court rejected the challenge by the plaintiff in that case to the constitutional validity of s 501(3A). Kiefel CJ, Bell, Keane and Edelman JJ explained as follows:

47    The exercise of a power of cancellation of a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power. …

48    The power to cancel a visa by reference to a person’s character, informed by their prior offending, is not inherently judicial in character. It operates on the status of the person deriving from their conviction. By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment.

…

53    … On its face s 501(3A) is simply a provision which mandates the cancellation of a visa if the conditions stated are present.

(Emphasis added.)

See also [89] per Gageler and Gordon JJ and [93] per Nettle J.

59    Consistent with this analysis, the cancellation of the appellant’s visa in the present case was simply the statutory consequence of a particular state of affairs, as prescribed by Parliament, which occurred after the commencement of the Amending Act in 2014. As such, this application of s 501(3A) is, for example, relevantly analogous to the construction given to s 74AAA of the Corrections Act 1986 (Vic) (Corrections Act) by Gordon J in Minogue v Victoria [2018] HCA 27; 264 CLR 252 (Minogue). Section 74AAA was expressed to apply to “a prisoner convicted and sentenced … to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer”. The section provided that parole may not be granted to such a prisoner except in certain circumstances. The plaintiff in Minogue, a prisoner, argued in the High Court, among other things, that s 74AAA, which was inserted into the Corrections Act after the plaintiff had made his parole application, should not be construed to operate retrospectively so as to affect the parole board’s consideration of that application.

60    The High Court unanimously held, albeit on a separate basis, that s 74AAA did not apply to the plaintiff. Gordon J, in obiter, rejected the plaintiff’s argument that s 74AAA operated retrospectively to the plaintiff’s circumstances. Her Honour expressed the following at:

110    Section 74AAA operates prospectively. It did not seek to, and does not, “readjust rights and burdens … and upset otherwise settled expectations” that have existed for any period, let alone any significant period. On its proper construction, s 74AAA takes the prisoner as it finds them – convicted and sentenced for an offence of a particular kind. …

111    Retrospective legislation is somewhat “distasteful” – even more so when retrospective legislation takes away accrued rights. But this is not a matter where society in general, or this plaintiff in particular, has ordered their affairs on a basis that is withdrawn, infringed or negatived retrospectively by legislation.

(Citations omitted.)

61    Similar comments are applicable in the present case. The enactment of s 501(3A) of the Act did not readjust the “rights and burdens” of the appellant. As at 27 January 2016—the date of the delegate’s decision—the delegate, applying s 501(3A), took the appellant, a prisoner, as the delegate found him—someone who, as at that date, had a “substantial criminal record” as defined.

62    There is accordingly no need to consider in detail the principle discussed by Dixon CJ in Maxwell and Fullagar J in Fisher, which merely constitute an interpretative presumption. Moreover, even if s 501(3A) is to be construed as a provision affecting a person’s liberty, as was contended by the appellant, there is no need in this case to apply “the established principle of statutory construction that a … statute … affecting a person’s liberty, should be construed strictly”: Minogue at [47] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ. This is because the language of the Act is clear that the mandatory visa cancellation scheme does not apply retrospectively in the relevant sense.

Disproportionality of visa cancellation

63    In support of his argument, the appellant also alerted us to the consequences of the Assistant Minister’s interpretation of s 501(3A). By way of example, the appellant’s written submissions stated that the Assistant Minister’s interpretation

would mean that a person could have committed an offence 30 years ago as a youth and was given a term of imprisonment of 12 months (even for example, suspended or to serve 3 months), that person would be otherwise caught by the mandatory visa cancellation scheme if later in life was serving a term of imprisonment no matter how small ….

64    Subject to the precise wording of s 501(3A) being met, that premise is correct. Mandatory cancellation of that person’s visa would follow. That is the result of the statutory scheme that Parliament has implemented. And, ultimately, “it is for Parliament to select the “trigger” for legislative consequences and especially so in the case of deportation”: Falzon at [95] per Nettle J, citing Ex parte Walsh; In re Yates [1925] HCA 25; 37 CLR 36 at 94-6 per Isaacs J; Baker v The Queen [2004] HCA 45; 223 CLR 513 at [9] per Gleeson CJ, [43] per McHugh, Gummow, Hayne and Heydon JJ and [170] per Callinan J.

65    Part of that scheme, however, is the corresponding entitlement of the non-citizen to subsequently make representations in support of the revocation of the visa cancellation under s 501CA(4). The design of the scheme was that, should the effect of the mandatory cancellation be considered disproportionately harsh in the circumstances of the non-citizen, then this unfairness could be rectified by the Minister by revoking the visa cancellation. Indeed, page 6 of the explanatory memorandum to the Bill expressed that “[a]ny questions of proportionality will be resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a person’s visa, or whether to revoke a mandatory cancellation decision”.

66    To the extent that the Assistant Minister, on behalf of the Minister, viewed the mandatory cancellation of the appellant’s visa as disproportionately harsh in the appellant’s circumstances, that is a matter that could have been considered in determining under s 501CA(4) whether the visa cancellation should be revoked. However, as recounted, the Assistant Minister decided that the cancellation of the appellant’s visa should not be revoked. That decision is not challenged on this appeal.

67    For the reasons expressed above, there is no valid objection to the mandatory visa cancellation scheme applying to the appellant’s circumstances. Although the sentence of imprisonment giving rise to the appellant’s “substantial criminal record” occurred prior to the commencement of that provision, s 501(3A)(a) validly applied to the appellant’s criminal record at a particular point in time after commencement after the scheme. This follows from a plain reading of the Act.

Appropriate remedy (if appellant had succeeded)

68    We note one further matter in passing by way of conclusion. If, contrary to the analysis above, we had held that s 501(3A) did not apply to the appellant’s circumstances, the consequent task would have been to identify the appropriate orders resulting from that conclusion. In the circumstances of this case, this may have raised additional complexity given the Assistant Minister had, as a consequence of the delegate’s decision, subsequently decided not to revoke the cancellation of the appellant’s visa.

69    To explain, should the appellant had succeeded in arguing that s 501(3A) did not apply to him, he sought the following relevant orders:

…

2.    The orders of the [primary judge] be set aside in lieu therefore orders that:

a.     In respect of the decision of [the Assistant Minster under s 501CA(4) not to revoke the visa cancellation], orders for certiorari to quash that decision, prohibition directed to the respondent to restrain giving effect to that decision; and mandamus requiring the respondent to reconsider, according to law, the appellant’s application for a revocation of the appellant’s visa.

b.     A mandatory injunction requiring the respondent, under s 501CA(4) of the Migration Act 1958 (Cth), to revoke the decision to cancel the appellant’s visa.

c.     Orders in the nature of habeas corpus to release the appellant from detention forthwith.

d.     To any extent necessary in order to give effect to the primary orders sought, a declaration that the decision [of the delegate] to cancel the appellant’s visa made on 27 January 2016 is null and void.

…

70    In response to the appellant’s claim for relief, the Assistant Minister had argued before the primary judge that, even if the appellant were correct, the decision which would be infected by jurisdictional error would be the delegate’s mandatory cancellation decision, and that it was unclear how jurisdictional error would flow into the Minister’s subsequent non-revocation decision.

71    As the mandatory visa cancellation scheme was held by the primary judge not to apply to the appellant, the issue as to the appropriate orders was not addressed by her Honour: Primary Judge’s Reasons at [44] and [49]-[51]. Likewise, given the preliminary focus of the appeal was on the applicability of s 501(3A), this issue was not the subject of submissions on appeal. In these circumstances, and given we have found that the mandatory visa cancellation scheme applied to the appellant, it is unnecessary to consider these issues further.

Conclusion

72    For the reasons expressed above, the primary judge was correct to hold that the appellant’s visa was subject to mandatory cancellation under s 501(3A) of the Act. The appeal is accordingly dismissed with costs.

Associate:    

Dated:        26 November 2019