Ketjan v Assistant Minister for Immigration and Border Protection

The appellant, a citizen of Thailand, challenged the decision to cancel his visa under section 501(3A) of the Migration Act 1958 (Cth). He had served a sentence of 18 months for a 2011 conviction prior to the commencement of the mandatory visa cancellation scheme on 11 December 2014. The Federal Court of Australia dismissed the appellant's application for judicial review, and the appellant appealed to the Full Court of the Federal Court. The appeal centred on whether the mandatory visa cancellation scheme applied to his circumstances and whether it had retrospective application. The court also considered whether the mandatory visa cancellation constituted further punishment for his criminal guilt.

The court held that the mandatory visa cancellation scheme applied to the appellant's circumstances. It found that the appellant's 18-month sentence for the 2011 conviction qualified him for a "substantial criminal record" under section 501(7)(c) of the Act. The court further found that the scheme did not apply retrospectively to the appellant because the relevant offence and sentence predated the commencement of the scheme. The court also concluded that the mandatory visa cancellation did not constitute further punishment for the appellant's criminal guilt.

The court dismissed the appeal and held that the primary judge was correct to find that the mandatory visa cancellation scheme applied to the appellant's circumstances. The court did not consider the issue of appropriate orders further, as the appeal was dismissed.

The court's decision clarifies the scope of the mandatory visa cancellation scheme and confirms that it does not apply retrospectively. The court's interpretation of the relevant statutory provisions ensures that the scheme is applied consistently and fairly. The decision also reinforces the distinction between the mandatory visa cancellation scheme and further punishment for criminal conduct.