Mandatory cancellation: retrospective effect & more (Appeal)

Federal Court (Full Court): The mandatory cancellation provision, s 501(3A), was inserted into the Migration Act 1958 (Cth) in 2014 and obliges the Minister to cancel a visa if he/she is satisfied that a non-citizen has a substantial criminal record and is serving a full-time sentence of imprisonment. "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?"

In February 2011, the Appellant was convicted and "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".

The Full Court of the Federal Court (FCAFC) said the following about the relevant provision in question:

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.

The FCAFC said the following about the relevant transitional provision in the Amending Act:

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 [in the FCAFC decision].)

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.

The Appellant continued to offend and was convicted of other offences in October 2015 which led to an effective term of imprisonment of 13 months.

In January 2016, a delegate of the Minister mandatorily cancelled the Appellant's visa under s 501(3A), while he was in prison, and invited him to make representations seeking revocation of that cancellation, which he did.

However, the Assistant Minister decided not to revoke the cancellation of the Appellant's visa, who then applied to the Federal Court (FCA) for judicial review of the Assistant Minister's decision.

The FCA dismissed that application and the Appellant eventually appealed the FCA's decision to the FCAFC.

The questions to the FCAFC were as follows:

Question 1: Can it be said that "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))", with the result that, as in this case the sentences and convictions in question were not the same, s 501(3A) did not apply to the Appellant?

Question 2: Should the FCAFC accept the appellant’s submission, namely that the portion of item 32 emphasised above according to which "'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", with the result that "item 32 would override the plain interpretation of s 501(3A) to impose an addition limitation on the application of the latter provision"?

Question 3: Can it be said 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 [the Amending Act]"?

Question 4: Did the mandatory cancellation of the Appellant's visa constitute punishment additional to that already imposed for his 2011 conviction?

Question 5: Can it be said that the Assistant Minister's interpretation of s 501(3A) is unwarranted in that it could have disproportionately harsh effects because it would mean that a person who "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)... would be ... caught by the mandatory visa cancellation scheme if later in life was serving a term of imprisonment no matter how small"?

The FCAFC answered those questions as follows:

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