Plaintiff B65-2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] HCATrans 118

[2021] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B65 of 2020

B e t w e e n -

PLAINTIFF B65/2020

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON WEDNESDAY, 4 AUGUST 2021, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   I heard this matter on 26 March 2021.  I have determined that the plaintiff’s application for an extension of time should be dismissed.  I publish my reasons. 

The orders of the Court will be:

1.The plaintiff’s application for an extension of time made by writ filed 23 October 2020 be dismissed.

2.The plaintiff pay the defendant’s costs of this proceeding.

I publish those orders.  I direct that my reasons be incorporated into the transcript.

Introduction

The plaintiff requires an extension of time to apply for a constitutional or other writ to quash a decision of a delegate[1] of the defendant (“the Minister”) to cancel the plaintiff’s Subclass 204 visa under s 501(3A) of the Migration Act 1958 (Cth). The plaintiff also seeks consequential orders for his release from detention and costs.

[1]Migration Act 1958 (Cth), s 496.

The facts

The plaintiff was born in Rwanda on or around 1 January 1994 and is a citizen of Burundi.  He first arrived in Australia on 26 April 2006 as a dependant of his mother who was granted a Woman at Risk visa (Subclass 204).  He has remained here ever since.  On 10 May 2018, the plaintiff was convicted of two counts of rape of his then seven-year-old daughter.  He was sentenced by the Queensland District Court to a total effective sentence of five years’ imprisonment, to be suspended for five years after serving 30 months.  On 11 April 2019, the plaintiff filed a notice of appeal against conviction and an application for an extension of time to appeal in the Court of Appeal of the Supreme Court of Queensland.  The Queensland Court of Appeal granted the plaintiff the extension of time on 2 September 2019[2].

[2]R v Tan [2019] QCA 169.

Prior to this, on 8 May 2019, a delegate of the Minister cancelled the plaintiff’s visa under s 501(3A) of the Migration Act whilst he was serving a sentence of imprisonment on a full‑time basis[3].  The decision was made on the ground that the plaintiff did not pass the character test because he had a substantial criminal record[4]. Critically, the plaintiff did not seek, pursuant to s 501CA, revocation of that decision. It was not in dispute that the plaintiff had been invited, pursuant to s 501CA(3), to make representations to the Minister to seek revocation of the visa cancellation decision. The plaintiff explained that he made no such representations because he does not “read or write English very well” and that, as a result, he did not “understand the bundle of documents”, comprising the notice of visa cancellation, given to him.

[3]Migration Act, s 501(3A)(b).

[4]Migration Act, ss 501(3A)(a)(i) and 501(7)(c).

On 2 July 2019, pursuant to s 501E(2) of the Migration Act, the plaintiff applied for a Protection visa (Subclass 866), which was refused on 14 April 2020. The plaintiff applied to the Administrative Appeals Tribunal for review of that decision. Earlier this year, the Tribunal decided that the plaintiff is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Migration Act and remitted the matter to the Minister for reconsideration on that basis.  As at the date of this hearing, the Minister had yet to decide whether to grant a protection visa to the plaintiff.

On 31 December 2019, the plaintiff was released from correctional detention and immediately taken to Yongah Hill Immigration Detention Centre[5], where he has remained ever since.

[5]Migration Act, s 189(1).

On 3 April 2020, the Queensland Court of Appeal (Fraser and McMurdo JJA and Callaghan J) allowed the plaintiff’s appeal against conviction[6].  The Queensland Court of Appeal decided that the absence of a Kirundi interpreter for the plaintiff on the second day of the hearing “compromised the fairness of the trial” and ordered a new trial[7].  Fraser JA referred[8] to the following passage from this Court’s reasons in Ebatarinja v Deland[9]:

[6]R v Tan [2020] QCA 64.

[7]R v Tan [2020] QCA 64 at [31], [35]-[36], [41].

[8]R v Tan [2020] QCA 64 at [31] (McMurdo JA and Callaghan J agreeing).

[9](1998) 194 CLR 444 at 454 [26]-[27] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

“On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her.

...

If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.”  (Footnotes omitted).

Between 9 and 13 October 2020, the plaintiff’s solicitor petitioned the Australian Border Force at Yongah Hill Immigration Detention Centre and the Australian Government Solicitor for the plaintiff’s release consequent on his successful appeal against conviction.

The plaintiff filed this application on 23 October 2020, some 16 months out of time[10]. The proposed grounds of appeal are two‑fold. First, the plaintiff contends that the decision to cancel the plaintiff’s visa was void for jurisdictional error (“proposed ground one”). Secondly, the plaintiff alleges that s 501(3A) of the Migration Act is inconsistent with Ch III of the Constitution for a reason said not to have been considered by this Court in Falzon v Minister for Immigration and Border Protection[11] (“proposed ground two”).

[10]Migration Act, s 486A(1).

[11](2018) 262 CLR 333.

The extension of time

Pursuant to s 486A(2) of the Migration Act, this Court has the power to grant an extension of time upon an application made by a plaintiff if it is satisfied that it is “necessary in the interests of the administration of justice”[12].  In so considering, and unexceptionally, the Court will have regard to[13]:

[12]Migration Act, s 486A(2)(b).

[13]See, for example, Wei v Minister For Immigration and Border Protection (2015) 257 CLR 22 at 36 [38]-[39] per Gageler and Keane JJ (Nettle J agreeing at 41 [52]); Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790 at 792-793 [10]-[13] per Crennan J; Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740 at 742 [10]-[11], 744 [30] per Hayne J. See, generally, Jackamarra v Krakouer (1998) 195 CLR 516 at 520 [4] per Brennan CJ and McHugh J, 529-530 [36] per Gummow and Hayne JJ, 542-543 [66] per Kirby J.

(a)      whether the delay has been satisfactorily explained;

(b)      the burden imposed on, or prejudice suffered by, the defendant; and

(c)      the merits of the application.

For the purposes of considering the merits, Brennan CJ and McHugh J in Jackamarra v Krakouer observed that appellate courts should only assess the merits of an application for an extension of time in a “fairly rough and ready way” and not by reference to “the details of the evidence ... or the lack thereof”[14].  Any further in‑depth analysis would turn such applications to extend time for appeals into “full rehearsals for those appeals”[15].  Thus, all that is required of this Court is to consider the prospects of success at a “reasonably impressionistic level”[16].

[14]Jackamarra v Krakouer (1998) 195 CLR 516 at 522 [9]-[10] per Brennan CJ and McHugh J.

[15]Jackamarra v Krakouer (1998) 195 CLR 516 at 522 [9] per Brennan CJ and McHugh J.

[16]MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598 [62], 599 [66] per Mortimer J.

The Minister accepted that the plaintiff had a valid explanation for the delay in filing this application.  I am further satisfied that the Minister has suffered no sufficient burden or prejudice occasioned by reason of the delay.  Indeed, the Minister made no submissions on this issue.  However, the Minister contended that an extension of time should be refused because the plaintiff’s proposed grounds of appeal lack sufficient merit.  Alternatively, the Minister submitted that if an extension of time were to be merited, this Court should remit the matter to the Federal Circuit Court of Australia[17].

[17]Migration Act, s 476B(1).

Proposed ground one — the decision was void for jurisdictional error

The submissions of the plaintiff

Section 501(3A) of the Migration Act relevantly provides:

“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); ... 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.”

Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if that person “has a substantial criminal record” (emphasis added). Section 501(7)(c) provides that a person “has” a substantial criminal record if that person “has been sentenced to a term of imprisonment of 12 months or more” (emphasis added).  The term “imprisonment” is defined in s 501(12) as including “any form of punitive detention in a facility or institution”.  The same subsection defines “sentence” as including “any form of determination of the punishment for an offence”.

The plaintiff also placed considerable reliance upon s 501(10) of the Migration Act, which relevantly provides:

“For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)the conviction concerned has been quashed or otherwise nullified; ...”

Proposed ground one relied upon two propositions:

(a)First, the legal effect of the quashing of the plaintiff’s conviction by the Queensland Court of Appeal was that the conviction was necessarily void ab initio and a nullity.

(b)Secondly, it followed that a pre-condition to the exercise of the Minister’s power to cancel the plaintiff’s visa had never existed for the purposes of s 501(3A)(b) of the Migration Act, namely the serving of a sentence of imprisonment on a full‑time basis.

For the first proposition, amongst other authorities, the plaintiff relied upon Commissioner for Railways (NSW) v Cavanough[18]. That case concerned the conviction of Mr Cavanough, an officer of the defendant Commissioner for Railways, for stealing. Section 80 of the Government Railways Act 1912 (NSW) provided that an officer convicted of a felony was “deemed to have vacated his office”. Subsequently, the conviction was set aside on appeal and Mr Cavanough’s employment was re‑instated. He sued for the payment of his salary for the period between his conviction and re‑instatement. Mr Cavanough’s claim was upheld. Rich, Dixon, Evatt and McTiernan JJ said[19]:

[18](1935) 53 CLR 220.

[19]Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 224-225.

“In our opinion he is [entitled to recover the unpaid salary] because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office.

An appeal is not a common law proceeding.  It is a remedy given by statute (Attorney-General v. Sillem; Victoria Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan).

The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it.  But the power given to the Quarter Sessions includes authority to quash and set aside convictions.  These are familiar expressions and describe a jurisdiction exercisable at common law by Courts of error.  The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal.  The conviction is avoided ab initio.  ‘The judgment reversed is the same as no judgment’ (per Coleridge J., R. v. Drury).” (Footnotes omitted).

Here it was submitted, on the basis of the foregoing passage, that “[u]pon a conviction being set aside, the conviction is void ab initio”.  The plaintiff also argued that under the Criminal Code 1899 (Qld) (“the Criminal Code”), a sentence cannot be imposed without an antecedent conviction[20], and that a re‑trial could not occur if the plaintiff had previously been convicted or acquitted of the offence charged[21].

[20]The plaintiff relied on the definition of "sentence" in s 4 of the Penalties and Sentences Act 1992 (Qld), which is relevantly defined as "a penalty or imprisonment ordered ... by a court after an offender is convicted ..." (emphasis added).

[21]The plaintiff relied on s 17 of the Criminal Code 1899 (Qld), which provides: "It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged."

As to the second proposition, the plaintiff argued that the jurisdictional fact necessary to enliven the power under s 501(3A)(b) of the Migration Act did not exist.  As the plaintiff had not been properly convicted of an offence, following his successful appeal against conviction, it was said that the plaintiff could not have been serving a sentence of imprisonment at the time his visa was “purportedly” cancelled.  That decision was thus said to be void for jurisdictional error.

As already mentioned, in this context, the plaintiff placed considerable reliance upon the terms of s 501(10) of the Migration Act. He submitted that the inclusion of this provision was a recognition by the Commonwealth that the purpose of s 501 is not to exclude from Australia a person whose conviction has been set aside. He urged that ss 501(7) and 501(10) needed to be read together. Doubtless that must be so; but, for the reasons expressed below, s 501(10) applies at the time of the exercise of the power conferred by s 501(3A).

During argument, a number of suggestions were put to Senior Counsel for the plaintiff about the scheme of operation of the Migration Act.

It was suggested, for example, that s 501CA of the Migration Act might be a way whereby a person could bring the existence of an appeal from conviction to the attention of the Minister. Sections 501CA(3) and (4) provide:

“(3)As soon as practicable after making the [decision to cancel a person’s visa under s 501(3A)], the Minister must:

(a)give the person, in the way that the Minister considers appropriate in the circumstances:

(i)a written notice that sets out the original decision; and

(ii)particulars of the relevant information; and

(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations[22], about revocation of the original decision.

[22]Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) provides that a representation made pursuant to s 501CA(3)(b) of the Migration Act must be made within 28 days after a person is given notice pursuant to s 501CA(3)(a).

(4)      The Minister may revoke the original decision if:

(a)the person makes representations in accordance with the invitation; and

(b)the Minister is satisfied:

(i)that the person passes the character test (as defined by section 501); or

(ii)that there is another reason why the original decision should be revoked.”

(Footnote added).

Accordingly, it was suggested that the fact of an appeal against conviction, and its possible merits, might be “another reason” why a visa cancellation decision should be revoked.

The plaintiff accepted that the existence of an appeal could be brought to the attention of the Minister but contended that the Minister would practically be in no position to assess, at that time, the prospects of any successful appeal. That is because of the 28‑day time period prescribed by reg 2.52(2)(b) of the Migration Regulations 1994 (Cth). Any appeal, it was said, was unlikely to have progressed very far, if at all made, during that period. The plaintiff also referred to HZCP v Minister for Immigration and Border Protection[23]. One of the issues for consideration in that case was whether evidence inconsistent with a conviction or sentence could be validly considered by a decision maker in exercising the power of revocation conferred by s 501CA of the Migration Act.  McKerracher J concluded that a decision maker could not impugn or question the essential factual findings underpinning a conviction or sentence which led to the cancellation of a visa[24]. The plaintiff submitted that this demonstrated the practical futility of relying upon s 501CA as a means of bringing to the attention of the Minister the fact of any appeal against conviction.

[23](2019) 273 FCR 121.

[24]HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at 135 [63].

It was also suggested during argument that the plaintiff could seek another visa pursuant to s 195A of the Migration Act.  That provision, in general terms, permits the Minister to grant a visa to a person in detention “[i]f the Minister thinks that it is in the public interest to do so”[25].  So much so was accepted by Senior Counsel for the Minister.  But it was noted that this was a non‑compellable power held by the Minister[26]. The plaintiff also pointed out that the Minister’s own guidelines (“the Minister’s Guidelines”) concerning s 195A proclaim that “generally” it is expected that the power would not be exercised where a visa has previously been cancelled pursuant to s 501[27]. It was further submitted by the plaintiff that there was, in any event, no guarantee that the Minister would, in his case, grant him a visa pursuant to s 195A because of his “history of minor offending”. In this respect, the plaintiff said that the Minister may not consider the plaintiff (or persons in similar situations) to be an “appropriate person to be in this country” to merit such a visa.

[25]Migration Act, s 195A(2).

[26]Migration Act, s 195A(4).

[27]Minister for Immigration and Border Protection (The Honourable Peter Dutton MP), Guidelines on Minister's detention intervention power - section 195A of the Migration Act 1958 (18 August 2017) at [4].

The plaintiff also relied upon the “principle of legality” to inform the construction of s 501(3A) of the Migration Act.  He referred to Attorney-General (SA) v Adelaide City Corporation[28] and to Plaintiff S157/2002 v Commonwealth[29] for the proposition that this Court should prefer a construction of s 501(3A) that preserved the liberty of the plaintiff.

[28](2013) 249 CLR 1 at 30 [41] per French CJ, 66-67 [148]‑[150] per Heydon J.

[29](2003) 211 CLR 476 at 492 [30] per Gleeson CJ.

The submissions of the Minister

The Minister’s main contention was that s 501(3A) of the Migration Act relevantly turns upon the fact that the plaintiff had been sentenced to a term of imprisonment of 12 months or more and was in fact serving a sentence of imprisonment on a full-time basis when the plaintiff’s visa was cancelled.  It mattered not that the plaintiff’s conviction was, following the Minister’s exercise of the power, quashed.  Moreover, and in any event, the effect of that quashing did not here result in a nullity.  This was because, it was said, there is no provision in the Criminal Code which supports the proposition that a successful appeal operates retrospectively. To that end, s 668E(2) of the Criminal Code relevantly provides:

“Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction ...”

In support of this contention, the Minister relied on this Court’s decision in Re Culleton [No 2][30]^.  The plurality there held[31] in the context of s 8 of the Crimes (Appeal and Review) Act 2001 (NSW)[32]:

[30](2017) 263 CLR 176.

[31]Re Culleton [No 2] (2017) 263 CLR 176 at 187 [28] per Kiefel CJ, Bell, Gageler and Keane JJ.

[32]Section 8 relevantly provides that a local court, on application by the prosecutor or defendant, must grant an "application for annulment" of a conviction in defined circumstances.

“The annulment of the conviction was not apt to expunge the legal rights and obligations arising from it, save in relation to the future and in the reversal of things done under it.  The provisions of the Appeal and Review Act to which reference has been made indicate that a conviction is annulled only for the future:  these provisions do not purport to operate retroactively to deny legal effect to a conviction from the time it was recorded.”

The Minister also relied on R v Rasmussen; Ex parte Attorney‑General (Qld), where Mackenzie J held[33] that an order quashing a sentence of imprisonment, made pursuant to s 668E(3) of the Criminal Code, operates prospectively.  His Honour said, “subject to any provision affecting the time at which the order of the appellate court begins to operate, it operates from the time it is made, and the order for which it is substituted ceases only for the future”[34].  In so concluding, Mackenzie J followed[35] Hancock v Prison Commissioners[36], a decision of the Queen’s Bench Division of the High Court of England and Wales, concerning the meaning of the phrase “shall ... quash” in s 4(3) of the Criminal Appeal Act 1907 (UK)[37].  In that case, Winn J decided that the act of quashing a sentence had prospective effect only and did not render that sentence void ab initio. Winn J said[38]:

[33][2002] 1 Qd R 299 at 305 [34].

[34]R v Rasmussen; Ex parte Attorney-General (Qld) [2002] 1 Qd R 299 at 304-305 [33]-[34].

[35]R v Rasmussen; Ex parte Attorney-General (Qld) [2002] 1 Qd R 299 at 304-305 [33].

[36][1960] 1 QB 117.

[37]Hancock v Prison Commissioners [1960] 1 QB 117 at 125 per Winn J.

[38]Hancock v Prison Commissioners [1960] 1 QB 117 at 125.

“When one finds those words in the section and considers the context in which they are used, and the subject matter to which those words must be applied, one is inevitably driven to the conclusion that the word ‘quash’ is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, ‘to annul’, ‘make null or void’, but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.”

A similar conclusion was reached by the Court of Appeal of the Supreme Court of Victoria in Director of Public Prosecutions v Ty [No 2], which rejected a submission that the effect of quashing a murder conviction “was that both conviction and sentence were to be treated as if they had never existed...”[39].  The Victorian Court of Appeal also followed Hancock and described the reasoning set out above as a “compelling analysis”[40].

[39](2009) 24 VR 705 at 710 [21] per Maxwell P, Ashley and Neave JJA.

[40]Director of Public Prosecutions v Ty [No 2] (2009) 24 VR 705 at 711-712 [25]-[27] per Maxwell P, Ashley and Neave JJA.

Similar principles, it was said, also applied to the Migration Act.  In Parker v Minister for Immigration and Border Protection[41], the Minister cancelled the appellant’s visa pursuant to s 501(2) of the Migration Act following the appellant’s conviction of a certain offence. That conviction was later annulled pursuant to s 10 of the Crimes (Appeal and Review) Act.  The appellant claimed that the Minister’s decision was legally unreasonable because of the annulment.  That submission was rejected.  Griffiths and Perry JJ said[42]:

[41](2016) 247 FCR 500.

[42]Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 515-516 [60] (Mortimer J agreeing at 518 [74], [77]).

“The appellant was unable to point to any authority to support his submission that, in reviewing the Minister’s cancellation decision under the rubric of unreasonableness in the legal sense, evidence was admissible to establish facts which occurred after that decision was made.  That is hardly surprising.  Such evidence would risk drawing the Court into an impermissible review of the merits of the Minister’s decision by reference to material which was not before the Minister when the decision was made.”

The Minister also distinguished Cavanough on the basis that the case did not concern the effect of setting aside a conviction on an administrative decision; nor did the case concern s 668E of the Criminal Code.  Cavanough was similarly distinguished in Parker where Griffiths and Perry JJ said[43]:

[43](2016) 247 FCR 500 at 515 [58] (Mortimer J agreeing at 518 [74] and further distinguishing Cavanough on the basis of the terms of s 10(1) of the Crimes (Appeal and Review) Act 2001 (NSW) at 518 [75]).

“The facts and relevant statutory provisions in Cavanough are far removed from those here, where s 10 of the Crimes (Appeal and Review) Act is relied upon to impugn an administrative decision by the Minister to cancel the applicant’s visa at a time when the 2014 conviction was prima facie valid and the applicant did not draw the Minister’s attention to the possibility of him applying to have the conviction annulled. The Minister’s administrative decision, which was made on the basis of all the material which was then before the Minister, is of a very different nature to a statutory deeming provision such as s 80 of the Government Railways Act.”

As for the principle of legality, the Minister relied upon the following passage from the reasons of Kiefel CJ, Bell, Keane and Edelman JJ in Falzon for the proposition that the principle has diminished application to an alien[44]:

[44](2018) 262 CLR 333 at 346 [39].

“The joint judgment in Lim did not suggest that the Constitution, and laws made under it, offer the same protection to an alien as they do to a citizen.  The joint judgment pointed out that, whilst an alien present in this country enjoys the protection of our law, his or her status, rights and immunities under the law differ from those of an Australian citizen in a number of important respects.  Relevantly, the most important difference lies in the vulnerability, arising under the common law and provisions of the Constitution, of an alien to exclusion or deportation.  The effect is significantly to diminish the protection which Ch III provides a citizen against detention otherwise than pursuant to judicial power.  The sovereign power to make laws providing for the expulsion and deportation of aliens extends to authorising the Executive to restrain them in custody to the extent necessary to make their deportation effective.” (Footnotes omitted).

The decision in Moorcroft

On 16 June 2021, this Court published its reasons for judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft[45].  The plaintiff asked this Court to defer the giving of judgment until after Moorcroft had been handed down.

[45][2021] HCA 19 per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

Ms Moorcroft was a New Zealand citizen who had been refused a special category visa because she was considered to be a “behaviour concern non-citizen” pursuant to s 32(2) of the Migration Act. That term is relevantly defined by s 5(1) to include a non‑citizen who had previously “been removed or deported from Australia”. This had occurred to Ms Moorcroft. She was removed by the Australian Government to New Zealand on the basis that she was thought to be an unlawful non-citizen because her special category visa had been previously cancelled. Following Ms Moorcroft’s removal, the Federal Circuit Court of Australia quashed the visa cancellation decision (by consent between the parties). Thereafter, the Minister accepted that the decision to cancel her visa had been “‘retrospectively nullified’”[46]. On this basis, Ms Moorcroft contended that she was not a behaviour concern non‑citizen because she had never been removed from Australia in accordance with Div 8 of Pt 2 of the Migration Act (which deals with the removal of unlawful non‑citizens) or had not otherwise been lawfully removed.

[46]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [7] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

This Court unanimously rejected those contentions. It decided that, properly construed, the word “removed” in s 5(1) of the Migration Act referred to the historical fact of removal by the Government.  It did not matter if the removal had been based on an invalid exercise of power.  This Court, in that respect, approved[47] of the following passage from the reasons of Gageler J in New South Wales v Kable[48]:

[47]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [20] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

[48](2013) 252 CLR 118 at 138-139 [52].

“[A] thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact.  That is so whether or not it has been judicially determined to be invalid.  The thing is, as is sometimes said, a ‘nullity’ in the sense that it lacks the legal force it purports to have.  But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences.  The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law.  The factual existence of the thing might have led to the taking of some other action in fact.  The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself.  For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.” (Footnotes omitted).

In reaching its conclusion, this Court observed that Ms Moorcroft could have sought injunctive relief before her removal from Australia (although it was acknowledged that the opportunity to do so was limited)[49].

[49]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [29] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

There is a similarity between the contentions of Ms Moorcroft and the plaintiff here.  Both sought to impugn the legal efficacy of a prior decision by reference to events which took place after that decision.  However, unlike Moorcroft, the prior visa cancellation decision here has not been quashed by court order.  Nor does the Commonwealth concede that this decision has been “retrospectively nullified”.  On the contrary, the Commonwealth submitted that the visa cancellation decision was entirely valid.  Ultimately, as the reasons in Moorcroft confirm, it will be a question of statutory construction in each case as to what is required for a migration decision to be validly made.

The application of s 501(3A) of the Migration Act

Section 501(3A) of the Migration Act is mandatory in its terms[50].  The Minister does not possess a discretion to decide not to exercise the power once she or he is satisfied that the necessary jurisdictional facts are present[51].  The power is relevantly predicated upon a state of satisfaction about the existence of two facts.  The first fact is that the person “has been sentenced to a term of imprisonment of 12 months or more”[52]. The use of the past tense here mandates the prior existence of such a sentence at the time the Minister must exercise the power conferred by s 501(3A). The second fact — namely the serving of a sentence of imprisonment on a full‑time basis — must be in existence when the power is exercised[53].  As Middleton, Reeves and Anderson JJ said in Ketjan v Assistant Minister for Immigration and Border Protection (a case concerning s 501(3A))[54]:

[50]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 347 [44] per Kiefel CJ, Bell, Keane and Edelman JJ.

[51]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 353 [72] per Gageler and Gordon JJ.

[52]Migration Act, ss 501(3A)(a)(i) and 501(7)(c).

[53]Migration Act, s 501(3A)(b).

[54](2019) 273 FCR 105 at 114 [42].

“[A]s evident from the text of the provisions, para (a) requires a ‘positive state of satisfaction’ on the part of the Minister (Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 (Falzon) at [46] per Kiefel CJ, Bell, Keane and Edelman JJ), while para (b) operates upon a factual state of affairs at a particular point in time.” (Emphasis added).

In other words, when the power in s 501(3A) of the Migration Act is engaged, the Minister’s state of satisfaction looks to the past (“has” the person “been sentenced” for the relevant period) and to the present (“is” the person “serving full‑time imprisonment” when the power is exercised).  Neither fact is expressed to depend on the person’s valid conviction of the crime that has led to her or his imprisonment.  The Minister is not obliged to second‑guess the past conviction or sentencing; nor is she or he required to confirm the validity of any ongoing imprisonment.

That s 501(10) of the Migration Act expressly refers to, amongst other things, the quashing of a person’s conviction compels no contrary conclusion. That provision exists to undo, at the time of the exercise of the power under s 501, an historical sentencing which might otherwise have justified the cancellation of, or refusal to grant, a visa. Indeed, the existence of s 501(10) supports the Minister’s contention that s 501(3A) is relevantly premised upon satisfaction of two facts, and no more. If the plaintiff’s submissions were correct, s 501(10) would not be needed. It follows that once the plaintiff was sentenced to a term of imprisonment of more than 12 months and remained incarcerated on a full‑time basis, the Minister was required to cancel his visa.

In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty.  The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament[55].  Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made.  Ruddock v Taylor[56] is an example of this principle. In that case, a visa had been twice cancelled pursuant to s 501(2) of the Migration Act on the basis that the defendant visa holder had failed the character test in s 501(6).  Mr Taylor was detained pursuant to s 189 following each decision to cancel his visa.  Section 189 relevantly empowers an officer to detain a person where the officer knows or reasonably suspects that the person is an “unlawful non-citizen”[57].  Both decisions to cancel these visas were quashed by orders of this Court[58].  Mr Taylor made a claim for damages for false imprisonment.  This was based on the proposition that the quashing of each cancellation decision demonstrated that each decision was “legally infirm”[59].  That proposition was rejected by this Court.  Gleeson CJ, Gummow, Hayne and Heydon JJ said[60]:

[55]Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [39] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.

[56](2005) 222 CLR 612. See also Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 518 [77] per Mortimer J.

[57]Migration Act, ss 5 and 14.

[58]Ruddock v Taylor (2005) 222 CLR 612 at 617 [2] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

[59]Ruddock v Taylor (2005) 222 CLR 612 at 620 [18] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

[60]Ruddock v Taylor (2005) 222 CLR 612 at 626 [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

“The short answer to the contention is that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. ... what were reasonable grounds for effecting the respondent’s detention did not retrospectively cease to be reasonable upon the Court making its orders in [the earlier quashing decision] or upon the Court later publishing its reasons in that case.”

Here, the plaintiff candidly conceded that when the Minister decided to cancel his visa, that decision was, at that time, entirely valid. He did not dispute that, at that time, each of the matters upon which a lawful exercise of the power conferred by s 501(3A) of the Migration Act depended were then in existence.  That being so, that is the end of the matter.  The legal efficacy of a decision cannot be undone by events which did not exist when the decision was made.

Moreover, and in any event, the plaintiff’s conviction was not a nullity.  For the reasons given by the Minister, that is not the effect of the provisions of the Criminal Code set out above.  Those provisions do not expressly provide for any retrospective effect of an appellate decision.  As was said by the majority in Cavanough, “[t]he scope and effect of an appeal must in the end be governed by the terms of the enactment creating it”[61].  Mackenzie J's analysis[62] of s 668E of the Criminal Code in Rasmussen was, in that respect, correct[63]. When a sentence is quashed pursuant to s 668E, it is not void ab initio; it is not a nullity.  Cavanough is otherwise distinguishable for the reasons expressed by the Minister.

[61]Commissioner for Railways (NSW) v Cavanough (1953) 53 CLR 220 at 225 per Rich, Dixon, Evatt and McTiernan JJ.

[62]R v Rasmussen; Ex parte Attorney-General (Qld) [2002] 1 Qd R 299 at 304-305 [33]-[34].

[63]A similar observation in respect of s 10(1) of the Crimes (Appeal and Review) Act was made by Mortimer J in Parker. Her Honour there said, "[t]he text of s 10(1) does not suggest that a conviction is made, retrospectively, invalid. Rather, it 'ceases to have effect' on being annulled": Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 518 [75].

This is a difficult case.  It may be accepted that the plaintiff may suffer an injustice if he is acquitted following his re-trial.  A similar difficulty might be faced by others who seek to appeal a conviction following the cancellation of their visa.  However, as was said in Moorcroft, “[h]arsh consequences are not an inevitable result of the Minister’s interpretation” of the relevant provisions of the Migration Act, “although they may occur in some cases”[64]. This is because the possibility or likelihood of a subsequent acquittal on appeal may, in my view, legitimately be the subject of representations made to the Minister pursuant to s 501CA(3)(b). That possibility or likelihood is not necessarily the same matter as an attack, of the kind addressed by McKerracher J in HZCP, on the fundamental facts upon which a person was convicted.  What McKerracher J said[65] in that case did not address the relevance of possible or likely success in a subsequent appeal. Having said that, the plaintiff’s submission that practically it may be difficult to persuade the Minister that the existence of an appeal against conviction is “another reason” for revocation of the visa cancellation decision, pursuant to s 501CA(4)(b)(ii), may well be correct. One practical way of avoiding this disadvantage might be to request the Minister to defer the exercise of her or his power under s 501CA(4) until the outcome of any appeal is known. The Minister, in that respect, is under no time limitation for the purposes of exercising that power.

[64]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [29] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

[65]HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at 135 [63].

Another possible remedy that may be available is to seek a protection visa pursuant to s 45, as permitted by s 501E(2)(a), of the Migration Act. That is a remedy which the plaintiff has already sought here. Finally, there is also s 195A. The Minister's Guidelines, informing the exercise of this power, do not foreclose a grant of a visa where a conviction, which has triggered the application of s 501(3A), has been subsequently quashed.

For the foregoing reasons, proposed ground one is bound to fail. It lacks sufficient merit to justify an extension of time.

Proposed ground two — s 501(3A) violates the Constitution

The plaintiff’s proposed ground two was, with great respect, difficult to follow. The plaintiff’s case was put in two ways. First, he submitted that s 501(3A) of the Migration Act is inconsistent with Ch III of the Constitution because it obliges the Minister to ignore the outcome of any subsequent judicial proceedings whereby a person may successfully appeal her or his conviction. Alternatively, it was submitted that s 501(3A) was beyond the legislative power of Parliament because it invested in the Executive branch of government an arbitrary power to cancel a visa by reason of a conviction which is subsequently set aside. Put another way, it was said that it was beyond the power of Parliament to invest the Executive with power to ignore the full judicial function of determining guilt, including any appeal against conviction.

The plaintiff’s case eschewed any proposition that s 501(3A) of the Migration Act wrongfully invested the Executive with Ch III power. He also did not contend that s 501(3A) involved an element of punishment in a way that offended the principle from Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[66]; the plaintiff recognised that Falzon foreclosed any such submission.  Rather, the plaintiff emphasised that his particular contentions had not been considered in Falzon. The nub of his concern appeared to be that s 501(3A) was beyond the legislative competence of Parliament because it confined the Minister to a consideration of the criminal justice system at one point in time. In that respect, the plaintiff submitted that this Court in Falzon had correctly observed that the purpose of s 501(3A) is to exclude aliens from Australia due to their record of criminal offending[67].  Here, however, it was said the plaintiff could not pose a risk to the community in circumstances where his conviction has been quashed.

[66](1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

[67]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 349 [52] per Kiefel CJ, Bell, Keane and Edelman JJ.

The Minister submitted that the first ground of inconsistency was misconceived. He relied upon the statutory review mechanism provided by s 501CA of the Migration Act. By this section, it was said, the plaintiff was provided with an opportunity to raise any factor, including the prospect of an appeal, which the Minister could consider when deciding whether or not to revoke the decision, made under s 501(3A), to cancel the plaintiff’s visa. The Minister otherwise noted that the plaintiff did not support his argument with any authority.

As to the second ground, the Minister submitted that Parliament has a “broad choice” as to the basis upon which to cancel a visa under s 501(3A) of the Migration Act.  In that respect, the Minister relied upon Gageler and Gordon JJ's observation in Falzon[68]:

[68](2018) 262 CLR 333 at 357 [89].

“The Parliament has a broad choice as to the factum upon which a power to cancel a visa will operate. The factum relevantly identified in s 501(3A) is the Minister’s state of satisfaction that a non-citizen has a ‘substantial criminal record’ and is serving a full‑time custodial sentence. The need for a person to have a substantial criminal record and to be serving a custodial sentence does not mean that the cancellation of a visa is directed to the imposition of punishment for criminal guilt. The purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of the Parliament, should not be permitted to remain in Australia. Cancellation of a visa for that purpose does not involve any determination or punishment of criminal guilt and does not involve the exercise of judicial power.”

Here, it has not been demonstrated that the requirements for the cancellation of a visa under s 501(3A) of the Migration Act were beyond the legislative competence of Parliament.  On the contrary, Falzon is authority for the proposition that the legislative choice expressed in s 501(3A) is entirely valid.

For the reasons set out above, the contention that s 501(3A) of the Migration Act obliges the Minister to ignore the outcome of any subsequent judicial proceedings should not be accepted. This provision does not require the Minister to look at the criminal justice system at just one point in time. Nor does it empower the Executive to cancel a visa where a conviction has been previously quashed. By its terms, it obliges the Minister to determine whether a person has been sentenced to a particular term of imprisonment and remains in prison. No part of the statutory scheme obliges the Minister to ignore the future outcome of any judicial proceedings. Such outcomes do not form part of the criteria in s 501(3A) but may otherwise be considered for the purposes of s 501CA. In that respect, the scope and operation of s 501(3A) cannot be divorced from the scope and operation of s 501CA. Considered together, the statutory scheme is not “arbitrary” in the sense alleged by the plaintiff.

In any event, Falzon governs the outcome here.  The “broad choice as to the factum”[69] upon which to cancel a visa was decisively found by the plurality to be “those upon which a sovereign State may properly decide to exclude non-citizens in the interest of protecting the peace, order and good government of the Commonwealth”[70].

[69]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 357 [89] per Gageler and Gordon JJ.

[70]Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 349 [52] per Kiefel CJ, Bell, Keane and Edelman JJ.

Further, and contrary to what was submitted by the plaintiff, the Minister’s submission that the Migration Act permits a plaintiff’s prospects of appeal, and the outcome of an appeal, to be considered by the Minister for the purposes of ss 501CA, 501E(2) and 195A should be accepted. Whilst in some cases those opportunities may practically be of a limited nature, those limitations do not deny the validity of s 501(3A).

In my view, proposed ground two is also bound to fail.  It has insufficient prospects of success to merit an extension of time.

Disposition

The application for an extension of time should be dismissed with costs.

AT 9.30 AM THE MATTER WAS CONCLUDED