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

[2021] HCATrans 49

[2021] HCATrans 049

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

THE MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

Application for a constitutional writ

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 26 MARCH 2021, AT 10.59 AM

Copyright in the High Court of Australia

MR M.T. BRADY, QC:   May it please the Court, I appear with MS K.E. SLACK for the plaintiff.  (instructed by Sentry Law)

MS A.M. MITCHELMORE, SC:   Your Honour, I appear for the defendant, with MS N.A. WOOTTON.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Brady, do you have a feel for how long you will need to be?

MR BRADY:   Probably about an hour, maybe an hour and a half on my side, your Honour.

HIS HONOUR:   Ms Mitchelmore, what about you?

MS MITCHELMORE:   I should be able to be much shorter, your Honour.  I would have thought in the order of about half an hour, 40 minutes.

HIS HONOUR:   I think that means that I would hopefully finish it in two hours.  Even if we do not finish within two hours, I would probably adjourn at what would be 1 o’clock Melbourne/Sydney time and 12 o’clock Brisbane time for an hour, and then we would finish it after that, if that is convenient to you both?

MR BRADY:   Thank you, your Honour.

MS MITCHELMORE:   Yes, your Honour.

HIS HONOUR:   Mr Brady, there are a number of affidavits which I take you wish to have read.  Ms Mitchelmore, I take it there is no objection to any of that?

MS MITCHELMORE:   No, there is no objection, your Honour.

HIS HONOUR:   There is an affidavit of Mr Birindwa affirmed on 15 October 2020, that will be taken as read; an affidavit of the plaintiff affirmed on 14 October 2020, that is taken as read.  There is an affidavit of Mr McComber affirmed on 22 October 2020, taken as read.  I think there was also an affidavit of service at some point.

MR BRADY:   That is another affidavit of Mr McComber, your Honour, but I do not need to rely upon that ‑ ‑ ‑

HIS HONOUR:   You do not need to have that read?  All right.  All of those are taken as read.  Yes, Mr Brady.

MR BRADY:   Thank you, your Honour.  Firstly, can I indicate that the plaintiff does require an extension of time in this matter.  The defendant has accepted that the plaintiff has provided an acceptable explanation for the delay and unless your Honour would be assisted by me explaining that, I was proposing simply to proceed to the merits of the case because that is the basis upon which the application for an extension of time is opposed, rather than because of a lack of explanation.  It is a matter for your Honour if you would be assisted by me briefly explaining the explanation, but I am ‑ ‑ ‑

HIS HONOUR:   No, there is no need to.

MR BRADY:   Okay.

HIS HONOUR:   Anyway, state your proposed appeal grounds.

MR BRADY:   There is another matter that I raise at the outset, that is the question of remittal.  Now, I apprehend, perhaps because your Honour is hearing the matter today, that the question of remittal does not remain extant.  I am happy to address it if you would be assisted by doing so, but at the moment I do not propose to say anything about it, given the fact that we are making these submissions before your Honour at this point.  But if for some reason it becomes apparent that my learned friend presses the matter of remittal then I would want to be heard on it, but I do not propose to say anything about it at the outset.

HIS HONOUR:   I have decided that today all of those issues are on the table, as it were, in the interests of efficiency.  Can I ask you this?  In April the Court is going to hear a case called Moorcroft.  Are you at all familiar with that?

MR BRADY:   Yes.  My junior is in that case, your Honour, yes.

HIS HONOUR:   Are you familiar with the issue in Moorcroft, Ms Mitchelmore?

MS MITCHELMORE:   I am afraid I am not, your Honour.

HIS HONOUR:   In Moorcroft one of the issues is whether the Minister correctly refused entry to an individual because they had previously been deported from Australia to New Zealand, from memory, and one of the issues is whether the Minister lawfully refused entry because of the historical fact of deportation in circumstances where the decision to originally deport was subsequently overturned.  So, it raises, in a different statutory context, a potentially analogous issue. 

What I wanted to know, and perhaps I can ask Mr Brady this, given that he is the plaintiff, is would you have any objection if I decided that I would reserve this matter pending whatever happened in Moorcroft, in other words, would it be safer to wait before I gave a decision in this matter?

MR BRADY:   I must confess, although I am broadly familiar with the facts that are raised in Moorcroft, I am certainly not across the detail of it because I am not in that matter myself.  I can certainly see the similarities in some senses between the two matters and it may ‑ ‑ ‑

HIS HONOUR:   Only in relation to your first ground, of course.

MR BRADY:   Yes, not in relation to the second ground. 

HIS HONOUR:   Have a think about it.  Your junior knows more about it.  You can have a think about it.

MR BRADY:   …..and give that some thought because – I mean, I wonder whether another alternative might be a referral of this matter to the Full Court to be determined at the same time as that.  I do not know whether that is possible or practical.

HIS HONOUR:   We will not be able to do it that quickly, I am afraid.  That will not be possible or practical.  I think probably the better thing to do, in the light of the fact that Ms Mitchelmore is not familiar with it, is I will let you both have a think about it and perhaps if you can also have a discussion amongst yourselves and then just respectively email my chambers on Monday next week.

MR BRADY:   Yes, thank you, your Honour.

HIS HONOUR:   All right, thank you for that.

MS MITCHELMORE:   Yes, certainly, thank you, your Honour.

HIS HONOUR:   All right, proceed.

MR BRADY:   Can I then proceed to deal with the fact of the matter, relatively quickly, I hope?  Can I ask your Honour, please, to turn up the affidavit of Mr McComber which was filed on 23 October 2020?

HIS HONOUR:   Yes.

MR BRADY:   I am not going to go through that in detail, but your Honour will see, from paragraph 3, that the plaintiff was born in Rwanda and is a citizen of Burundi.  He was:

granted a Woman at Risk (subclass 204) visa as a dependent –

That visa was granted to his mother and he was a dependent child at that point:

on 4 March 2006 –

and he entered Australia in April 2006.  The evidence of the applicant is that he has been in Australia since that time.  As your Honour will see from paragraph 4, between November 2011 and March 2017:

the plaintiff was convicted of a number of criminal offences –

but none of them involved any sentences of imprisonment.  There were two periods of probation, one good behaviour period and multiple fines.  I do not need to take your Honour to the police record.  It is sufficient to note that there were no sentences of imprisonment to be served.

On 2 July 2017, the plaintiff was arrested and charged with two counts of rape.  He was held on remand from the date of his arrest in July 2017 until he was convicted following a trial on 10 May 2018, but it was not then until 8 March 2019 that the plaintiff was sentenced, and he was sentenced to a five‑year term of imprisonment, to be suspended for five years after serving 30 months.  So, the chronology is he was convicted in May 2018 and sentenced in March 2019 to five years to be suspended after 30 months.

Now, the plaintiff filed a notice of appeal on 11 April 2019, so that is just over a month after he was sentenced.  That was an appeal against both his conviction and his sentence, so he needed an extension of time, particularly in relation to the conviction appeal because that was well out of time and the Court of Appeal extended his time to appeal as noted there – it was in September 2019.  I think that is at paragraph 11 of Mr McComber’s affidavit.  In the meantime, as you will see in paragraph 7 of the affidavit, on 8 May 2019, a delegate of the Minister:

purported to cancel the plaintiff’s visa under s 501(3A) of the Migration Act 1958 –

and I will take the Court to the detail of that section shortly.  In terms of the chronology then, I have already mentioned that the Court of Appeal extended the time for filing a notice of appeal on 2 September.  At paragraph 12 you will see that:

On 31 December 2019 –

So, this is after the Court of Appeal had extended time, but before the appeal was heard:

the plaintiff was released from correctional detention and immediately taken into immigration detention . . . 

On 3 April 2020 the Queensland Court of Appeal allowed the plaintiff’s appeal of his convictions and ordered that the charges be retried.

The order of the court is at page 46 of the court numbering for the Court book which should be the order of the Court of Appeal and your Honour will see there that there were two charges, both termed “Rape ‑ Domestic Violence Offence” and the court orders were:

1.The appeal is allowed.

2.A new trial is ordered.

3.The appellant’s application to adduce evidence in the appeal is refused.

Now, I should say that I skipped over, and I should not have, paragraph 8 of the affidavit, and that is where Mr McComber says that he is:

instructed that the plaintiff did not request that the [Minister] revoke the mandatory cancellation of his visa . . . within the time prescribed by s 2.52(2)(b) of the Migration Regulations 1994.

I will take your Honour to those regulations shortly.  [The applicant] explains why that is in his affidavit at paragraph – I do not need to take your Honour to this immediately, but at paragraph 8 of his affidavit the applicant explains that he did not request cancellation within 28 days of receiving the notice of cancellation – and these are his words:

This was because I do not read or write English very well and I didn’t understand the bundle of documents given to me. 

So, it is accepted that he did not make an application for a revocation of the cancellation decision within the required 28 days and, as he explains, that is because of his inability to read or write English.

Coming back then to the decision of the Court of Appeal on 13 April, at this point the applicant was represented by a migration solicitor by the name of Rouyanian.  He was the applicant’s solicitor before Mr McComber became his solicitor.  Your Honour will see then, starting at paragraph 14, that there is evidence about attempts by the plaintiff to obtain a subclass 866 visa.  I do not need to delay your Honour in relation to that, but there has been an application running parallel, in a sense, with these matters for a protection visa.  I do not need to say anything more really about that at this point other than just to point out that that is happening in parallel.

HIS HONOUR:   No delegate has made a decision about that issue yet?

MR BRADY:   A delegate has made a decision, which was…..but then it went to the AAT which set aside that decision.  That has gone back, I think, to the delegate but there has not been a further determination by the delegate as yet.  So that is where that stands at the moment.

HIS HONOUR:   The Minister is not seeking to seek review of the Tribunal decision?

MR BRADY:   Not that I am aware of.  No, your Honour – my solicitor says no.  I think the decision of the Tribunal was only fairly recently – December last year so the time for appeal has expired and I understand there is no appeal.

HIS HONOUR:   All right, thank you.

MR BRADY:   I do not need to go through the detail of paragraphs 16 to 20.  Your Honour will see at 21 that Ms Ildes, who is a legal advocacy and support worker, applied to LawRight, a community‑based legal service that provides pro bono services in Queensland, for assistance in relation to the plaintiff’s application to the Tribunal.

The affidavit then goes on to describe in paragraph 22 where Mr McComber says that he agreed to assist the plaintiff in his application to the Tribunal and in doing that he came to a view that the Court of Appeal’s decision to quash the plaintiff’s convictions might have had an effect on the initial cancellation of the plaintiff’s visa.

So, what Mr McComber then did, which he starts dealing with at paragraph 23, that really goes to the explanation for the delay and I probably do not need to say much more about that.  But at paragraph 25 your Honour will see that he wrote to the Australian Border Force officer in charge of the detention centre where the plaintiff was detained, on 9 October 2020, asking for him to be released from immigration detention on the basis that his conviction had been set aside.

I will take your Honour to that letter.  That should be at page 109 of the book.  That should be a letter from Mr McComber of Sentry Law to the Officer‑in‑Charge of the Australian Border Force at Yongah Hill on 9 October 2020.  Your Honour will see at the top of the second page of that letter, page 110 of the Court book, Mr McComber said:

We consider it long settled law that a criminal conviction overturned on appeal is void ab initio and that a person in our client’s position ‘cannot be considered ever to have been convicted’.

Then he sets out his reasoning in relation to that.  The Minister responded, through his solicitors, and that response can be seen at page 113 of the book.  You will see that the Minister’s response was, in the second paragraph:

We do not agree that the delegate’s decision to cancel [the applicant’s] subclass 204 . . . visa . . . is affected by jurisdictional error.  To the contrary, the Department considers the cancellation power was validly enlivened and exercised in respect of your client’s visa, with the consequence that he became an unlawful non‑citizen who is, and remains, liable for detention under s 189 of the Act.

I will not read the next paragraph, but the fourth paragraph is also relevant:

With respect, we consider that is not the appropriate inquiry. The Minister considers that the Court cannot examine for itself whether the ground for cancellation existed. The only question is whether the Minister (or his delegate) was subjectively satisfied that the ground for cancellation under s 501(3A) existed. Because the cancellation decision is underpinned by a state of satisfaction (rather than the relevant sentence as an objective fact), it does not avail your client to prove that he had not in fact been sentenced –

and they refer there to Ruddock v Taylor and HZCP.

For this reason, our client remains of the view that the delegate’s state of satisfaction was validly formed, and the decision is not affected by jurisdictional error.  Further, your client remains an unlawful non‑citizen and must be detained pursuant to s 189 of the Act.

If your client nevertheless seeks to commence proceedings, the extension of time and the substantive relief will be opposed.

That precipitated then a further letter from Mr McComber and this is to be found at page 116.  It is a letter to Ms Jackson of the Australian Government Solicitor dated 12 October 2020.  Mr McComber says, starting at the second paragraph:

we consider that this matter centres on whether the two jurisdictional facts required by s 501(3A) of the Migration Act 1958 existed at the time our client’s subclass 204 visa was cancelled on 8 May 2019.

He then sets out what the two facts were.  He refers in the next paragraph to the decision of the High Court in Commissioner for Railways (NSW) v Cavanough.  You will see on the next page that he continued to contend that the purported cancellation was void for jurisdictional error.  The Minister’s response to that letter is then seen starting on page 119 and in relation to the third paragraph, the longer paragraph, your Honour will see that the Minister’s solicitors say that:

The precondition in s 501(3A)(b) operates on the fact of your client serving a full time sentence of imprisonment, being a fact which existed at the time of the visa cancellation decision. The subsequent quashing of a conviction does not mean the fact never existed –

and refers to Parker where the Full Court distinguished Cavanough.  On the next page you will see the second paragraph from the top says:

We consider that the quashing of those convictions, and the sentences imposed, operates only from the date of the Court of Appeal’s orders –

and they refer there to DPP v TY (No 2) and:

Accordingly, at the time of the mandatory cancellation, it is beyond doubt that your client was serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against the law of a State.

The reason I took your Honour to that correspondence is it summarises, in effect, the Minister’s position which is maintained in these proceedings and that is, in effect, that the fact of the conviction being set aside, that is the conviction that formed the basis of the cancellation decision being set aside after the decision was made, is not relevant to the efficacy of the decision and my client remains liable to detention because he is an unlawful non‑citizen.

Can I then turn to the legislation? If I invite your Honour to take up the joint book of authorities and I want to start with section 501 of the Migration Act which your Honour will find on page 86.  Now, it is a lengthy section.  Your Honour will see that subparagraphs (1) and (2) fall under the heading “Decision of Minister or delegate‑natural justice applies”.  So, a decision under subsection (1), which is where:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test –

is a decision to which natural justice applies and similarly in relation to subsection (2):

The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test, and

(b)the person does not satisfy the Minister that the person passes the character test –

again, that is a decision where natural justice applies.  Subparagraphs (3) and (3A) are under the heading “Decision of Minister‑natural justice does not apply”.  Subsection (3) is a provision that deals with refusing or cancelling a visa where:

(c)the Minister reasonably suspects that the person does not pass the character test; and

(d)the Minister is satisfied that the refusal or cancellation is in the national interest.

Subsection (3A) is the section that is of most relevance to the resolution of this matter.  That provides that:

The Minister must cancel –

and I emphasise the word there, “must”:

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 –

and it is (i) or (ii).  It is (i) which is relevant for these purposes and I will just read that paragraph out:

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

So that is the first limb, the Minister’s satisfaction that the person does not pass the character test because of the substantial criminal record.  The second limb is that:

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 next subsection I wanted to take the Court to is subsection (6) which deals with the character test.  You will see there:

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) –

This is the relevant part of subparagraph (6) that applies to the applicant here.  There are obviously a number of other subparagraphs of (6), but I will not take the Court to all of them.  That is the relevant one for these purposes.  That then takes the Court to subparagraph (7):

For the purposes of the character test, a person has a substantial criminal record if -

and for these relevant purposes, subsection (c):

the person has been sentenced to a term of imprisonment of 12 months or more –

Working backwards from there you will see that if a person has been sentenced to a term of imprisonment of 12 months or more they have a substantial criminal record.  If they have a substantial criminal record then they do not pass the character test in subsection (6) and if they do not pass the character test in subsection (6) then they satisfy – well, the Minister may be satisfied the person does not pass the character test in subsection (3A)(a) of the Act.

Before we leave section 501, though, there is an important paragraph that needs to be drawn to the Court’s attention. That is subparagraph (10). That is under the heading “Pardons etc.”. Your Honour will see there at subsection (10):

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 –

relevantly for our purposes (a):

the conviction concerned has been quashed or otherwise nullified –

I will come back to why we say that is relevant to the interpretation that one applies to the other sections of section 501 shortly, but we say that is a significant indicator of legislative intention that when applying the character test in subsection (6), if an offence or a conviction has been quashed or otherwise nullified then it is to be disregarded and not taken into account. The next section I want to take the Court to is section 501CA ‑ ‑ ‑

HIS HONOUR:   I should add, for your convenience, Mr Brady, that if it helps you, most federal judges are pretty familiar with all of this legislation – 501 and 501CA.

MR BRADY:   Yes.  In that case I will not take much time in relation to 501CA, but can I make these points?  I should start with subsection (3):

As soon as practicable after making the original decision, the Minister must –

The point that we would want to make here in relation to this particularly is subsection (b), must:

invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

I will take the Court to the regulations shortly, but the effect of the regulations is that there is a strict 28‑day period within which it is possible to make representations under section 501CA.

HIS HONOUR:   You probably do not need to take me to the regulations.  I am familiar with ‑ ‑ ‑

MR BRADY:   Yes, okay…..these authorities that I am sure I do not need to take your Honour to that confirm that.

HIS HONOUR:   Yes.

MR BRADY:   Then at subparagraph (4):

The Minister may revoke the original decision –

and relevantly subparagraph (b), the Minister has to be satisfied of either (i) or (ii), that is a person passes the character test or that there is another reason why the original decision should be revoked.  I will take your Honour shortly to some authority about what might be another reason in this context, but the point really in relation to 501CA that we will make – and I will come back to 501CA in a little more detail shortly – (a) it has a strict time limit, (b) it involves the Minister having to be satisfied either that the person passes the character test – that is after a decision has already been made by the Minister that a person does not pass the character test, or that there is another reason why the original decision should be revoked.  I do not need to take your Honour to the regulations as you have said.  There is a direction that is made under ‑ ‑ ‑

HIS HONOUR:   You are talking about Direction 79 ‑ ‑ ‑

MR BRADY:   Yes.  Would it assist the Court if I took you to that briefly, or are you broadly familiar with it?

HIS HONOUR:   I am familiar with Direction 79, I am afraid.

MR BRADY:   The point that I wanted to make about Direction 79 ultimately is that nowhere in Direction 79 does it say anything about whether it is a primary or secondary consideration to be taken into account in a revocation decision that there is an appeal either on foot or one that has been determined.

HIS HONOUR:   I imagine that would have been relevant to assessing the risk to the community which Direction 79 directs the delegate to consider.

MR BRADY:   That is absolutely so, but the point is - my learned friend makes the point in her outline, well, the applicant could always apply for a revocation under section 501CA. Let us assume that he had done so, which obviously in this case he has not. By the time that a revocation decision was being made there is no reason to expect that the appeal would have been determined.

The fact of the matter is that in HZCP, which I will take the Court to shortly, it is made clear that the decision‑maker on the revocation decision cannot take account of facts that are inconsistent with the basis of the conviction that forms the cancellation decision. So it rather renders nugatory the idea that somehow an applicant (a) can file an application under section 501 – or make submissions under 501CA within the strict time limits that are required, but (b), even if, for example, in this case the applicant had made submissions, he could have said no more than that I am appealing, but the decision‑maker would have been precluded from using that, certainly as a basis for a suggestion that he passed the character test and – I will take the Court shortly to HZCP but we say also it would be precluded from saying that that is another reason why the original decision should be revoked.

Can I distil the issues in this way, your Honour? How is section 501(3A) to be interpreted, in effect, when a conviction is overturned on appeal? Now, the Minister’s argument is that that section has the effect that upon conviction at trial the Minister must cancel the visa if the person has a substantial criminal record and they are serving a sentence of imprisonment. The Minister focuses on a snapshot in time close to the time at which the decision was made at the trial.

In effect, what the Minister says in practical effect is that what comes afterwards in terms of the judicial process or the criminal process is not relevant to the cancellation decision.  One just takes a snapshot in time.  If you meet the requirements of that snapshot in time, then the cancellation decision has to stand.

Now, we say that is not consistent with the terms of subsection (10) in particular and also the apparent policy behind subsection (10).  It is hardly surprising that the Act would expressly make a provision such as subsection (10) because of the obvious unfairness to applicants who might have had their visas mandatorily cancelled even when the conviction which forms the basis for that decision has been quashed or otherwise nullified.

In the apparent recognition of that potential unfairness operating, the Minister says well, there is section 501CA. In relation to that I have already said that there is that strict 28‑day time limit and it is, in a practical sense, impossible to think that it would be other than in extremely rare circumstances that an appeal would be determined within that 28 days. I will come to the authorities like HZCP shortly, but the authorities indicate that it is not open to the decision‑maker under section 501CA to challenge the propriety or the correctness of the decision of the Criminal Court when they make a finding of “another reason”, to use the words of 501CA(4)(b)(ii), on facts that are necessarily inconsistent with the conviction and sentence.

But putting that to one side, though, what about the circumstances such as here where an applicant, for whatever reason, has not – sorry, where a visa holder who has been convicted for whatever reason does not make submissions under 501CA.  It might be because they cannot read, it might be because – there could be any number of reasons why they do not do that.  Does that mean that if you, within the strict 28‑day period, do not make submissions, that you are forever then precluded from any relief in the event that your conviction is ultimately overturned in six months’ time.

HIS HONOUR:   I think one possible answer to that conundrum, and subject to what Ms Mitchelmore might say, is that if, for example, upon the retrial of your client he is acquitted but remains in detention, he can apply, or the Minister can apply herself or himself to exercise the power in section 195A of the Act, which applies specifically to people in detention.  Subsection (2) says:

If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class ‑ ‑ ‑

MR BRADY:   But, of course, that requires the Minister’s satisfaction that it is appropriate to do so.  I would like to take this example, which is a pretty good example ‑ ‑ ‑

HIS HONOUR:   I might add Ms Mitchelmore will tell me if that has no possible application in the hypothetical I just mentioned.

MR BRADY:   It may.  It may have application, but it requires nevertheless – it puts someone in the position of the plaintiff here ‑ ‑ ‑

HIS HONOUR:   I understand the point.

MR BRADY:   They have to convince the Minister that it is effectively appropriate that they get a visa on some terms rather than – and the difficulty perhaps in this sort of case is this gentleman does have a history of minor offending prior to this and one can certainly see circumstances in which the Minister may say “Well, I do not consider this is an appropriate person to be in this country”.

HIS HONOUR:   I understand the point.  I think what you may have to grapple with in this part of your case is the fact that (3A) does not turn upon the legal quality of conviction or offence that turns upon, on one view, an historical fact that things have happened, namely, has a substantial criminal record and that then is defined to mean that the person has been sentenced to a term of imprisonment which, on its face, appears to make the discrimen turn upon things that have actually happened rather than the quality of the things that have happened and then the scheme of the Act may well be that where, as here, subsequently, there has been an appeal and a conviction that overturned your remedies might be, possibly, 501CA - you make a point about that being practically difficult to do – or under a provision like 195A.

MR BRADY:   Which then leaves it in the Minister’s discretion as to whether ‑ ‑ ‑

HIS HONOUR:   There is much of this Act that leaves much in the hands of the Minister.

MR BRADY:   I accept that, your Honour.  The difficulty from any perspective of someone in the position of the plaintiff is that the Minister might well, for whatever reason, make a decision that this person should not be in the country for reasons totally unrelated to the conviction, and that is the difficulty. 

I understand and I apprehend your Honour’s concern about the difference between the fact of conviction and sentence and the quality of conviction and sentence because that is a matter that, I must confess, I grappled with as I have looked at this case as well.  If one just looked at (3A) in isolation, one can see the force in the view, as your Honour articulated, that it really is just about the fact of conviction and the fact of ‑ ‑ ‑

HIS HONOUR:   No, the fact of being sentenced.  It is not conviction, it is being sentenced.

MR BRADY:   Yes.  The difficulty is, though, when one looks at subsection (10) and ‑ ‑ ‑

HIS HONOUR:   Subsection (10) on one view simply tells the delegate that (7)(c), for example, is wholly disabled if subsequent, but prior to the making of the decision, the convictions are set aside.

MR BRADY:   Yes, but in my submission subsection (10) really demonstrates that this really is about the quality of the facts, as you have put it, rather than the fact of the sentence because what else can (10) – why would (10) be there, what work does (10) have to do in relation to (CA)?

HIS HONOUR:   It has to be there because (7) on its face would deal with a distant historical imprisonment for more than 12 months, which may have, before the decision was made, been quashed or set aside.

MR BRADY:   That is so ‑ ‑ ‑

HIS HONOUR:   So, you need (10) to undo what would otherwise have been the work of (7).

MR BRADY:   That might be right ‑ ‑ ‑

HIS HONOUR:   That may be one way of looking at it.

MR BRADY:   That could be one way of looking at it, your Honour.  We would obviously look at it this way and that is to say that for (10) and (3A) to be read together – and that is really what effectively they are all trying to do – the only way they can sensibly be read together is for the – if a conviction is ultimately quashed or otherwise nullified, then that must have some impact upon the difficulty under section (3A) and we say that amounts to a jurisdictional error, in effect.

Now, it might well be that if (10) was not there, and our learned friend’s argument might be well, the legislature is perfectly entitled to pick any point in the criminal process at which time one can say the decision can be made to cancel or the person fails a character test, that may be right, but that simply, in my submission, ignores subparagraph (10) because it expressly provides that convictions are to be disregarded if they are quashed or otherwise nullified.

Now, I accept that that comes with potential problems for the Minister.  It might mean that there is a potentially lengthy period of time before ultimately you know whether a cancellation decision was going to stand or not, but ‑ ‑ ‑

HIS HONOUR:   Can I ask you this, Mr Brady?  Was your client in prison prior to the Court of Appeal’s decision, that is not in migration detention but in prison ‑ ‑ ‑

MR BRADY:   No, he was in migration detention at that point.

HIS HONOUR:   Yes, okay.

MR BRADY:   He ceased being a prisoner under State law on 31 December 2019.

HIS HONOUR:   Thank you.

MR BRADY:   The Court of Appeal took on the matter in April 2020.

HIS HONOUR:   The next question might then be, is there anything to stop a client placed in your position from, in their subsection (3) submissions under 501CA, asking the Minister to suspend the making of her or his decision under (4) pending the outcome of the appeal?

MR BRADY:   …..only assumes that an appeal has been lodged by the time those submissions are made, which may or may not be the case.

HIS HONOUR:   Yes.

MR BRADY:   I am certainly not aware of any authority that would say that that request could not be made of the Minister.

HIS HONOUR:   Thank you for that.

MR BRADY:   Of course, the fact that that request might be made of the Minister does not foreclose what the Minister’s delegate’s duty is under 501CA(4).  It also does not take account of the fact – and this is something that is recorded in the direction – that these matters are to be determined expeditiously.  One can understand at one level why that is.  Of course, expedition also cuts across the potential that injustices are caused because exactly these sorts of circumstances arise.

Can I proceed to deal then quickly with the first ground.  I have already dealt with it to a considerable extent.  We say that, firstly, the effect of the decision of the High Court in Cavanough is that the conviction is void ab initio.  That is the first point.  I will take the Court to that in a moment. 

HIS HONOUR:   There is no need to take me to it; I have read it.

MR BRADY:   Okay.  The second point we make is that the view expressed by the High Court in Cavanough is consistent with the terms of section 501 and, in particular, section 501(10), for the reasons that I have just articulated before.

The third point we make is a more general one and that is that this is also consistent with the general purpose of the Migration Act.  It is to…..place people into detention whom the judicial system has ultimately adjudged to be guilty of crimes and can be sentenced in relation to….. 

The purpose of the Act does not extend to…..the cancellation of visas for people whose convictions are ultimately quashed.  If that was the purpose of the Act, then in our submission that would require clear words in the Act and we say that those clear words do not exist, particularly when one has regard to the fact that subsection (10) is there.

I will not take your Honour to Cavanough in light of your Honour’s intimation.  Can I indicate for the record that Cavanough is to be found at joint book of authorities volume 3, page 179. In relation to the second point that we make, as I say that is consistent with the text and structure of section 501, that is to say Cavanough – the view of the Court in Cavanough is consistent with the text and construction of section 501.

One point that I think is made in our written outline is that there is a potential that submissions would need to be made under section 501CA even before a notice of appeal is filed. There is a 28‑day period under the regulations. In Queensland there is a one calendar month period for appeals.

Now, it depends on how long it takes for the cancellation decision to be made.  It depends on how long it takes for service of the decision to be effected upon the relevant party, but one can certainly see circumstances in which it would be necessary to make submissions under the regulations even before an appeal is made.  Putting that to one side, we say that the almost overwhelming majority of cases would involve matters where submissions are made under 501CA before the determination of any appeal.

One principle that we do call in aid in reflecting upon the way in which one resolves the apparent conflict between subsection (10) and subsection (3A) is what the cases refer to as the principle of legality.  I am sure I do not need to take the Court to that.  I am happy to – I will just give you some references in the material.

We refer particularly to Attorney‑General (SA) v Adelaide City Corporation which is joint book of authorities 3, page 86, and in particular we rely upon what the Chief Justice said at paragraph 42 of that decision.  In effect, what his Honour said was that where different constructional choices are open statutes should be construed so that they do not encroach upon fundamental rights and freedoms at common law.  Similarly, we also refer to Plaintiff S157 v The Minister which is at joint book of authorities volume 3, page 251, in particular at page 267 – these are pages, not in the decision but pages in the book of authorities, I should mention.

HIS HONOUR:   Yes.

MR BRADY:   In particular at paragraphs 30 and 31. Here, to the extent that the Court might consider that there are alternative constructions open, we say that the principle of legality means that one ought not interpret section 501(3A) as requiring cancellation of a visa based on a conviction which has been set aside because it is effectively the fundamental – it is a fundamental right of, in this case, the plaintiff to determination of guilt or innocence under the criminal justice system and as things stand today, he is not convicted and it is necessary to consider the totality of the criminal justice system and not simply a snapshot in time. So, we say that the legality principle conformed with what we have already submitted about the relevance of subsection (10)’s interpretation of section (3A).

Finally, the purpose of the Migration Act generally – we were going to take the Court to the decision in Falzon – I do not think I need to.  It is enough simply to indicate that Falzon is at joint book of authorities volume 3.  The case starts at page 190 and the relevant page is 205 and in particular ‑ ‑ ‑

HIS HONOUR:   Did you say 205, Mr Brady?

MR BRADY:   Yes, at 205, paragraph 49 – this is Falzon. You see there that there is an extract – their Honours refer there to the explanatory memorandum to the Bill which introduced section 501(3A):

“[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”. In the course of the Second Reading Speech the then Minister said that s 501(3A) was calculated to ensure that “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”.

So we emphasise there that the Act is directed at non‑citizens who pose a risk to the community or subsection (3A) is pointed at non‑citizens who pose a risk to the community and if someone does not present a risk to the community because the basis upon which the cancellation decision was made has been set aside, then we say that is consistent with the purpose of subsection (3A) and, indeed, the Migration Act more generally.

Indeed, we say – we hear what your Honour says about other possibilities, that is the possibility of asking for more time under 501CA or seeking a further visa under section 195A, but all of those things, as I have attempted to articulate to your Honour, really rely upon the exercise of discretion by the Minister or the Minister’s delegate in relation to those things.

HIS HONOUR:   Can I ask you this, Mr Brady?  When the time came for the Minister to make a decision here, he was under an ultimate duty to exercise the power of 501(3A) based upon the considerations which existed then and at that time your client had been sentenced and his conviction had not been overturned.

MR BRADY:   Yes.

HIS HONOUR:   At that time, what do you say the Minister should have done?

MR BRADY:   We do not say that at that time the Minister could have done anything differently.

HIS HONOUR:   Does that mean that the Minister’s – the legal efficacy of the Minister’s decision could not be called into question at that time?

MR BRADY:   At that time that is right ‑ ‑ ‑

HIS HONOUR:   So, if the visa has been lawfully cancelled are not your remedies now, subject to your constitutional points, confined to, as a matter of logic, the Minister granting a visa pursuant to another power in order to undo the effect of that which was lawfully done at the time which it was done?

MR BRADY:   If the Court accepts what we submit in relation to the effect of the conviction being set aside having effect ab initio, as it were, having retrospective effect, then that is the basis upon which we say the Court can conclude nevertheless that there was a ‑ ‑ ‑

HIS HONOUR:   Ignore the Court for the moment.  Which power would you point to in the Act which would permit the Minister to either undo that which he has already done lawfully at the time he did it – yes, well, that is the question really?

MR BRADY:   In terms of the Minister we do not point to an act.  We say that the relief is to come from this Court to quash the original decision.  We do not point to ‑ ‑ ‑

HIS HONOUR:   This is not something the Minister himself can do.

MR BRADY:   The only revocation power – express revocation power ‑ ‑ ‑

HIS HONOUR:   Under 501CA.

MR BRADY:   ‑ ‑ ‑ under 501CA – we looked, and we have been unable to find any other provision in the Act, or indeed anywhere else, that would give the Minister power to revoke his earlier decision other than under 501CA.

HIS HONOUR:   But he can issue a visa, for example, a protection visa?

MR BRADY:   He could, yes, absolutely.  Can I then proceed to our second ground, your Honour – sorry, before we do that, I was going to very briefly address 501CA and how it works in the real world.  In a sense I have already done that, but I did want to take your Honour to the decision of HZCP which you will find in the joint book of authorities volume 5, starting at page 31.

HIS HONOUR:   Yes.

MR BRADY:   Now, the facts in that case were that the appellant arrived in Australia and was granted a protection visa.  He was later sentenced to two and a half years of imprisonment for grievous bodily harm and unlawful wounding.  The visa was subject to mandatory cancellation.  The appellant there had made submissions under 501CA.  The Minister’s delegate had declined to revoke that decision and it was that decision to decline to revoke cancellation which was the subject of these proceedings.  Your Honour will see that the main issue in the case is described by Justice McKerracher at paragraph 2 as:

the question of whether (and for what purposes), when considering to make a revocation decision, evidence inconsistent with the relevant conviction or sentence may be considered by an administrative decision‑maker.

The passages that I particularly wanted to take the Court to start at paragraph 63 on page 45 of the joint book of authorities.

HIS HONOUR:   Can you give me a paragraph number, I am sorry, Mr Brady.  My numbering is different for some reason.

MR BRADY:   Paragraph 63 of the decision of Justice McKerracher.

HIS HONOUR:   Got it.

MR BRADY:   Your Honour will see there that:

Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends.  That is the point of the deportation cases, as recently succinctly summarised in LLF.

Then, going on to paragraphs 67 and 68 - could I just invite your Honour to read paragraphs 67 and 68.

HIS HONOUR:   Yes.  Do you want me to do it now or ‑ ‑ ‑

MR BRADY:   Well, I suppose the point is a simple one and that is that the authorities – sorry, those paragraphs demonstrate that the quote “another reason” – remember those are the words that are used in CA(4)(b)(ii) – what does that mean in practical terms.  So, his Honour says – the start of 68:

To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention.  These provisions were introduced against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision‑maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed.

HIS HONOUR:   I think these passages address a familiar problem in 501CA cases where the applicant says to the court, well, it is true I was convicted of whatever it was, but as it happens I think I was not truly convicted, I was actually innocent, I deny that I did the things that I was found to have done.  These cases say, in the 501CA category, you cannot retry, in effect, the individual.  But that might be different from an individual who says I was convicted but you should know I am appealing it, and these are my grounds of appeal which I ask you to consider for the purpose of seeing whether there is another reason.

MR BRADY:   The difficulty with – I accept what your Honour says in relation to the existence of an appeal and perhaps even these are my grounds of appeal, but what, in effect, the decision‑maker would be being asked to do would be to look at those grounds of appeal and form a view about whether those grounds of appeal ‑ ‑ ‑

HIS HONOUR:   That might be the Minister’s job when assessing risk.

MR BRADY:   Well, that is not consistent, we say, with the view that one, under the rubric of another reason, should be considering an argument that this appeal is going to succeed because, for example, there might be any number of different grounds, but one ground might be an evidential ground, for example.  One ground might be the jury was given wrong information.  We say that the effect of this decision is that the Minister, or the Minister’s delegate, whoever is making the decision, is precluded positively from actually considering those matters and really, we say, the Minister or the Minister’s delegate is not in a position to even form a view about the prospects of success of the appeal because that requires consideration of, depending if obviously it is going to be fact sensitive, but that will often require whether a determination by the Minister or his or her delegate of factual matters that might be in dispute.

This really just underscores the difficulty for someone who does make application under 501CA if the basis of the application or the basis of the submissions is “I’ve got an appeal”.  Clearly that does not meet the first limb of 501CA(4) which is that your – exact language ‑ ‑ ‑

HIS HONOUR:   …..character test.

MR BRADY:   Yes, pass the character test.  The question is whether this is another reason and this case is – it would be, I would have thought, a very brave decision‑maker in the face of this case who said “I see you’ve got an appeal, I think you might have reasonable grounds here.  I’m going to say that’s another reason why this decision should be set aside”.  In our submission, in a practical sense, that is just not going to happen.  That is not the effect of this decision.  It really prevents the decision‑maker from going beyond the fact that this conviction has been recorded, this sentence has been imposed and you cannot go beyond that except perhaps, as your Honour says, to recognise that there is an appeal.  But you cannot delve into the facts of many of the appeal points that might be made.

So that is why we say that 501CA does not really provide the balm, as it were, that the Minister says we understand the concern, but 501CA cures it.  We say in a practical sense 501CA does not cure it.  In any event, and I have already made this point, what of those cases where people do not make submissions under 501CA for whatever reason within the 28 days.  Your Honour says well it might be appropriate to make an application under a different provision of the Act, but that then relies upon the Minister’s discretion and in our submission that does not take account of the fact that the original conviction and sentence, having been set aside, should have been disregarded in accordance with subsection (10).

HIS HONOUR:   All right.

MR BRADY:   Can I then proceed to the second ground of appeal?

HIS HONOUR:   Yes.

MR BRADY:   The argument that we put is in the alternative to the first ground.  It is only if the Court finds that the effect of the legislation is that notwithstanding the underpinning conviction being set aside or the sentence being set aside, the cancellation decision must stand.  The second argument, in essence, is that if one adopts the Minister’s interpretation, it requires the Minister to proceed to cancel the visa before a final determination is made by the criminal justice system. 

So, it is a focus on a point in time.  Rather than a focus on the outcome of the criminal justice system, it is a focus on what happens at a midway point, if one likes to put it that way, in the criminal justice system.  The Minister’s position – and the legislation to be fair, certainly (3A), seems to proceed from an assumption that upon conviction after trial, that is effectively the end of the matter, which of course it is not. 

Now, it is trite to say that the adjudgment and punishment of criminal guilt is an exclusively judicial function.  We do not say that this involves, for example, in Falzon, an element of punishment, as was the argument that was put in Falzon.  The point that we make is that the Minister’s interpretation would require the Minister to look at the adjudgment of guilt at only one point midway through the criminal process.  In effect, what it invites is to take out of the consideration the appellate structure of the courts.

The question ultimately then is whether Parliament should be permitted to require the Executive to make a cancellation decision based on a conviction whilst effectively ignoring the appeal process.  That is what we say the effect of (3A) is if it is interpreted the way that the Minister would have it interpreted.

HIS HONOUR:   How is that proposition tied to some form of constitutional anchor?  Is it said that it is inconsistent with executive power to do so or it is said to be some kind of interfering with Chapter III, or how is it put?

MR BRADY:   We say it requires the Executive to not have regard to the Chapter III judicial process.  It is requiring the Executive to make a decision, purportedly in reliance upon an exercise of the judicial power, but in truth it is not.  It is at a point of the judicial process but not the outcome of the judicial process.  We say that is the difficulty with it. 

That is inconsistent with Chapter III because the Chapter III courts – let us take this case as an example.  The Court of Appeal might have ultimately adjudged – I know there is a retrial ordered – but they might have ultimately decided that this man was not guilty and imposed a decision that completely quashed the conviction and set aside the decision and entered verdicts of not guilty.  Now, if that had happened, effectively what this legislation requires the Minister to do is to ignore that, or at least subsection (3A) requires the Minister to ‑ ‑ ‑

HIS HONOUR:   Why is that unconstitutional?

MR BRADY:   Because that is substituting for the judicial process the Minister’s decision about, in effect, guilt and innocence.  That is the Minister saying I am going to accept part of the process, this part of the process as evidence and guilt of this person, but I am not going to take account of what the rest of the judicial process does.

HIS HONOUR:   That…..is not quite strictly true because, as we have discussed, the ability to consider the role to be played by the fact of an appeal may at least in part be considered by the Minister under 501CA.

MR BRADY:   Only in terms of when a decision is made under 501CA.

HIS HONOUR:   Yes.

MR BRADY:   But not going beyond that, in our submission. What if an application is not made under section 501CA? What happens then? I am sorry, that is a rhetorical question. I was not asking your Honour to answer it.

HIS HONOUR:   But if someone fails to invoke and accept the invitation to make representations then that will have consequences for them.

MR BRADY:   It does have consequences for them, but in circumstances where they might be – and the courts might have adjudged that they are not guilty of the matters that form the basis of the earlier decision.  That is the difficulty.  I accept the force of what your Honour says in relation to making decisions and suffering the consequences for the decisions that you make about not making submissions under 501CA, but that does not get away from the fact that if a conviction has been set aside, the conviction has been set aside regardless of whether you have made representations under 501CA or not, in our submission.

That is really the hook that we rely upon.  We are not making an argument, as was made in Falzon, as I hope we have made clear in our reply written submissions.  Of course, Falzon – factually it is quite different to this.  Falzon was a case – I am sure your Honour is probably familiar with it, but Falzon was a case where there was no successful appeal. The case that was put was effectively that the plaintiff was being further punished by operation of section 501(3A) and that was an exercise of the judicial power of the Commonwealth.

Now, that argument was rejected.  We do not make that argument.  What we do say is that – I should say really that the Minister makes two responses to our argument in this regard.  The first is that the statutory scheme contemplates an appeal can be taken into account in the manner that your Honour has just articulated.  For the reasons that I have already dealt with, we say in a practical sense that simply does not operate.  I should say the practicality of it is important.  It is not something that can just be overlooked.  We have an authority that I was going to mention – I will just pull that out in a moment. 

The second argument that the Minister makes to this aspect of the matter is that Falzon is authority for the proposition that to cancel a visa by reference to a person’s character, informed by their prior offending, is not inherently judicial.  Again, I hope I have made it sufficiently plain that we

are not saying that this is an exercise of judicial power on the part of the Executive, but what it is requiring the Executive to do is to ignore the exercise of judicial power or at least substantially ignore the exercise of judicial power and to focus only on one point of that process.

Those are our submissions, if it please the Court.

HIS HONOUR:   Thank you, Mr Brady.  Yes, Ms Mitchelmore.

MS MITCHELMORE:   Yes, thank you, your Honour. Your Honour, the provision with which we are primarily concerned, section 501(3A), mandates cancellation if two conditions are present and it was the subject of significant consideration in the decision of Falzon, to which my friend has already taken your Honour, Falzonv Minister for Immigration and Border Protection (2018) 262 CLR 333.

One of the things that Justices Gageler and Gordon recognised in that case – this is at paragraph 89, it is in the joint book of authorities, Part B, tab 12 - was that the two conditions are, in essence, the factum on which the power to cancel operates.  I will come back to that because it is of significance for ground 2, but for present purposes, as my friend has said, the challenge in Falzon was to the constitutional validity of 501(3A) on the basis that the provision conferred judicial power on the Minister, contrary to Chapter III.

In analysing that argument, the Court spent some time addressing the scheme around section 501(3A) and we say that the scheme is important, particularly when seeking to evaluate my friend’s arguments as to the consequences of cancellation under section 501(3A). What Justices Gageler and Gordon observed at paragraph 84 is that:

Both legally and practically, s 501(3A) requires the Minister to cancel the visas of certain non‑citizens in certain circumstances. Once a visa is cancelled under s 501(3A), the visa holder becomes an unlawful non‑citizen.

So, it marks a change in the status of the non‑citizen from lawful to unlawful. 

At that point, and by reason of that status, s 189 requires the person to be taken into immigration detention. The duration of their detention is then governed by s 196.

The critical point for present purposes is that section 501(3A) effects the cancellation. The consequences of the cancellation are addressed elsewhere in the Act and it was one of the reasons that the High Court dismissed the argument that there was an improper exercise of judicial power in section 501(3A) because all that it does is it effects the cancellation. That was the only provision that the plaintiff in Falzon was challenging and so it was the only one that was in issue for the judicial power point. Can I give your Honour a reference to the other reasons of the judgment that discussed the scheme – paragraph 12 of the plurality’s decision and Justice Nettle’s decision at paragraph 96.

If I can come then to section 501(3A) and looking first at paragraph (a). It is formulated by reference to a state of satisfaction on the part of the Minister as to whether or not a person – that the person does not pass the character test on the basis, relevantly, that the person has a substantial criminal record.

Now, section 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more, and “sentence” and “imprisonment” are of course defined in section 501(12). I am not sure my friend took your Honour to subsection (12) but I raise it because that is where the terms “sentence” and “imprisonment” are defined. In our submission it is of significance that 501 is defined by reference to “imprisonment” and “sentence” as opposed to conviction.

If I could just come to section 501(10) upon which the plaintiff places some reliance, particularly in the reply submissions, and has done today. Your Honour will see it applies to the character test, so when is one looking at section 501(3A) it is only looking at paragraph (a) of that subsection. It has nothing to say about paragraph (b) and, indeed, it is of some significance, in our submission, that while there is a carve‑out for the character test in section 501(10), there is no equivalent carve‑out in relation to section 501(3A)(b), which is the paragraph with which the plaintiff is centrally concerned in the present circumstances.

One issue that is of significance, in our submission, is the language of section 501(10). Your Honour will see that it provides that a sentence imposed on a person is to be disregarded if the conviction has been quashed or nullified or a person has been pardoned or the effect of a pardon is the person is taken never to have been convicted of the offence.

One is looking, in our submission, in subsection (10) prospectively, so in circumstances where one might be considering cancelling a visa or refusing to grant a visa under subsection 501(1) or 501(2) when one is looking at the character test and looking at the relevant sentences imposed, one is to disregard a conviction that has been quashed. So, it limits the scope of section 501(7)(c). That is its purpose, in our submission, and it has no application to paragraph (b) and there is no equivalent for section 501(3A)(b).

In our submission, one can pick up from subsection (10) that it is contemplating that if a conviction has been quashed, that will operate prospectively for a decision under section 501, but not retrospectively. It is a prospective one, in our submission, relating to prospective decisions to cancel.

HIS HONOUR:   You say what it does is it tells a decision‑maker that notwithstanding the fact of having been sentenced for more than 12 months, it requires making the decision - if the conviction has been quashed, for example, then you turn off (7)(c)?

MS MITCHELMORE:   Yes, and, indeed, you would turn off – I know, looking at subsection (7) there are a number of references to sentences and imprisonment and the like, so it is not just (7)(c), but we are talking about (7)(c) here because that is the relevant paragraph.  One also has, for example, paragraph (d), which is sentenced to two or more terms of imprisonment where you can accumulate the tallies to get to 12 months or more.  So that is where it comes in in that context, but yes, in considering whether or not to cancel or refuse, when looking at sentences of imprisonment one has to disregard a sentence that has been imposed pursuant to a conviction that has been quashed or otherwise nullified or where there has been a pardon or an annulment of the conviction.

If I can come then to section 501(3A)(b). Again, looking at the language, what the Minister has a duty to do is to cancel if, relevantly:

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.

So, it is very much focused, in our submission, your Honour, on the time of decision is the person serving a sentence of imprisonment on a full‑time basis for an offence as described.  One is looking, in our submission, at the time of decision what is the state of affairs for which the paragraph makes provision.  Does that state of affairs obtain and if it does then there is an obligation on the Minister to cancel the visa.

We have given your Honour a reference in our written submissions to a decision of Ketjan v Assistant Minister for Immigration and Border Protection (2019) 273 FCR 105. It is in the joint book of authorities in Part D at tab 22. We have given your Honour, I think, a reference in our written submissions to paragraph 43 where the Full Court observed that paragraph (b) is directed to “a state of affairs at a particular point in time”, perhaps reflecting the language, and referred in that context to the purpose of the provision which, of course, I think my friend has taken your Honour to by reference to Falzon, that Parliament’s intention was to ensure that the decision to cancel a visa occurs before the person is released from prison.

That is a point that was made in Falzon that any revocation or request is to be pursued from prison or immigration detention, but this person is not to circulate in the community.  So that is the purpose behind doing it at the point of the person serving the sentence of imprisonment.

Your Honour, in our submission, when one looks at the factual circumstances of this case, the plaintiff’s case engaged section 501(3A)(b) at the particular point in time of the cancellation decision. He was serving a sentence of imprisonment on a full‑time basis but the plaintiff contends that the cancellation decision was void for jurisdictional error because the fact subsequently came not to be correct, if I can put it that way. So, it is at some event into the future of which the Minister is not aware at the point in time of the decision.

That is said to arise because of the effect of quashing the conviction, that the plaintiff’s conviction is set at nought and that is to retrospectively infect the decision of the Minister. But, in our submission, one cannot construe the terms of section 501(3A) as operating in that manner. It is one by reference to a particular point in time that requires particular circumstances and it just is not conducive to any retrospective affecting of that decision by reference to the subsequent quashing of a conviction. The decision is made that has consequences but in terms of the actual decision, in our submission, it is not affected by the quashing of a conviction.

I am sorry, did your Honour have a question?

HIS HONOUR:   I was just going to ask you two things, I think.  Firstly, assuming that you are led to read the provision in the way Mr Brady would like me to read it, and assuming further that the effect of quashing here was to lead to the conviction being void ab initio, what, nonetheless, does that mean in judicial review proceedings where the question is whether the decision being reviewed was lawful when it was made?

MS MITCHELMORE:   Yes.

HIS HONOUR:   You do not take into account things that take place after the decision in judicial review cases ‑ ‑ ‑

MS MITCHELMORE:   Yes, it is a difficulty with the argument, your Honour, because it is lawful at the time it is made.

HIS HONOUR:   I am not aware of any judicial review case which said that the decision‑maker got a big tick on the day the decision was made, but then subsequently something happened, and it rendered the decision subject to certiorari.

MS MITCHELMORE:   Yes, I mean certainly things can happen before the date that can lead to the decision.

HIS HONOUR:   Yes.

MS MITCHELMORE:   But your Honour is right, with respect, that a decision that is lawfully made, in my submission, cannot become unlawful by reason of events that have occurred after the date.  In my submission, one would have to read in in some way some limitation – or carve‑out in subsection (3A) to operate in some way for the decision to operate in the way that my friend has sought to articulate or to give some work for the conviction to do after the event.  I do struggle, though, your Honour, with articulating what that is.

HIS HONOUR:   It is just that Mr Brady complains about this taking place at a point of time, but that is what judicial review is all about.  It is about a particular point in time.  So, for example, it is not unusual that the correctness of a decision is, in this area, in the protection visa area, based upon the country information at the time the decision was made.

MS MITCHELMORE:   Yes.

HIS HONOUR:   If the country information changes afterward it is neither here nor there.

MS MITCHELMORE:   That is right, yes.

HIS HONOUR:   Let me ask you this.  What if Mr Brady’s client is acquitted, leaving aside his protection visa application, what is his remedy?  Can he apply under section 195A?

MS MITCHELMORE:   Yes.  Your Honour, your Honour was right in relation to section 195A.  That, of course, is a non‑compellable power on the Minister to consider ‑ ‑ ‑

HIS HONOUR:   …..

MS MITCHELMORE:   It has all of the facets or aspects of that that are well recognised.  But the Minister could be invited to consider the exercise of the discretion under section 195A.  Of course, I cannot, sitting here, talk about whether that ‑ ‑ ‑

HIS HONOUR:   No, no, I am not asking you to do that.

MS MITCHELMORE:   Indeed, your Honour would be aware there are guidelines that are generally operative in relation to whether the Minister even embarks upon consideration of one of these matters and then whether or not he decides to exercise the power.

HIS HONOUR:   Yes.

MS MITCHELMORE:   There are often two stages to those guidelines so I cannot – sitting here, I could not say whether or not this particular plaintiff would get through the first or the second stages or the like.  But as a matter of structure of the legislation, that power is available in addition to section 501E which does permit the making of an application for a protection visa in circumstances where the visa is one other than that type.

HIS HONOUR:   Are you able to tell me anything about where the plaintiff’s protection visa application is at?

MS MITCHELMORE:   No, I think my information was consistent with Mr Brady’s, that the Tribunal had made a decision that the applicant satisfied the refugee criteria, if I can put it that way, and it has gone back to the Department.  As I understand it, there has not been a decision of the delegate as to the protection visa application, noting of course that there are criteria other than the protection visa criteria that the Minister considers that the Tribunal does not.

HIS HONOUR:   I understand, okay.

MS MITCHELMORE:   Of course, your Honour, the other matter on which my friend’s argument rests is that whole – well, the analysis in the decision in Cavanough that the quashing operates to have an effect ab initio and we have given your Honour a number of references in our written submissions as to why we say that is not the case.

HIS HONOUR:   Yes, can I ask you about that?

MS MITCHELMORE:   Yes.

HIS HONOUR:   The proposition from Kable (No 2) is that an order of a superior court remains efficacious until set aside.

MS MITCHELMORE:   Yes.

HIS HONOUR:   The conviction here was an inferior court.

MS MITCHELMORE:   Yes.

HIS HONOUR:   Does the Kable (No 2) principle still apply in those circumstances?

MS MITCHELMORE:   Your Honour, in my submission it is perhaps not so much a question of analysing or applying Kable.  It is more a question of analysing what consequences does the statute, being the criminal appeal provisions ‑ ‑ ‑

HIS HONOUR:   You are referring to, for instance, the Victorian Court of Appeal decision and that English decision that conviction ‑ ‑ ‑

MS MITCHELMORE:   Yes, that is right.

HIS HONOUR:   All right.

MS MITCHELMORE:   Yes, exactly.  We have given your Honour a reference, I think, to the decision in Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500, a decision of the Full Federal Court, in Part D of the book of authorities at tab 24. An argument was made – perhaps I will just take your Honour to that.

HIS HONOUR:   Yes, of course.

MS MITCHELMORE:   Your Honour, there were a number of arguments in this case relating to – it was a 501(2) cancellation.  Relevantly, for present purposes, what happened was that the decision to cancel was made subsequent to conviction for a further offence that happened in 2014.  There had been offending before – I think the appellant had been given a warning but subsequently his visa was cancelled.  Your Honour will see in the headnote that:

The appellant later sought, and was granted, an annulment of the 2014 conviction.

So, one of the…..that was relied upon by the Minister for the purposes of the cancellation was annulled.  The appellant - your Honour can see this at page 514 of the report, paragraph 54 - what was submitted in that case was:

that the visa cancellation decision was unreasonable because it was “triggered” by a particular, and particularly legal event which now must be treated as a nullity for all relevant purposes –

That is paragraph 54 of the reasoning of Justices Griffiths and Perry.  Your Honour will see that:

The appellant contended that to uphold the validity of that decision would fail to give effect to the annulment, which would be contrary to s 10 and common law principle, citing Commissioner for Railways (NSW) v Cavanough –

and in declining at paragraph 55 to accept that submission, Justices Griffiths and Perry observed that:

Section 10 of the Crimes (Appeal and Review) Act is conspicuously silent on the effect of an annulment on a previous administrative decision which took into account a conviction before it was nullified.  There is nothing in the terms of the provision to support the appellant’s sweeping submission.

Indeed, over the page, Justices Griffiths and Perry gave some content to the decision in Cavanough, but observed at paragraph 58 that:

The facts and relevant statutory provisions . . . are far removed from those here, where s 10 of the Crimes (Appeal and Review) Act –

that was the relevant provision, and their Honours observed that:

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 –

which was in issue in Cavanough.  So, what their Honours were there focused on was the relevant provision pursuant to which the convictions were annulled.  That is consistent, your Honour, with the decision of the High Court in Re Culleton (No 2) (2017) 263 CLR 1 and that is in the joint book of authorities in Part C at tab 15. It concerned the same provision.

There was an annulment pursuant to section 10 of an offence for which Senator Culleton was convicted in his absence, but what the case was dealing with was section 44(ii) of the Constitution and he was convicted in his absence on 2 March 2016.  In August he was elected a senator and I think six days later the conviction was annulled.  He sought to argue that the effect of the annulment was to render the conviction void ab initio and to restore the status quo ante and that was rejected by this Court.  If your Honour looks at paragraph 25, what the Court observed was that:

Whether an annulment operates retrospectively or prospectively inevitably depends upon the statutory context in which the term is used. 

Their Honours go on to refer to the particular statutory context that was being considered in that case, section 10(1) of the Appeal and Review Act, as they shortened it, and took the view that the provision was prospective only.  Their Honours noted at paragraph 30 that Senator Culleton had sought to rely upon Cavanough and took the view that:

that case was concerned with the effect of an order made upon an appeal, setting aside a conviction which was deemed to have the effect of vacating an office of employment.  It has nothing to say about the operation of an annulment of a conviction under the Appeal and Review Act.

In our submission, your Honour, it is important to look at the relevant statute that empowers the Court of Appeal to quash the conviction in the present case, that being the Criminal Code (Qld). If your Honour has that legislation – I think it is in Part B of the joint book of authorities, tab 7 - your Honour will observe – I think it is at pages 155 to 156 of the book of authorities your Honour will find sections 668D and E, which are the source of the Court of Appeal’s power to quash the conviction. Section 668E gives the court the power to set aside the verdict of the jury on the ground that it is unreasonable, et cetera, or on any ground whatsoever if there was a miscarriage of justice. Your Honour will see in subsection (2) that:

Subject to the special provisions of this chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

That, as it says, is subject to the special provisions of the chapter.  Your Honour will see in section 669, over the page, that there is the power to grant a new trial.  So, 669(1):

On an appeal against a conviction on indictment, the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make.

In our submission, there is nothing in that provision which operates to deny the conviction, legal or factual effect, up to the point when the conviction is set aside.  There is a discussion of analogous legislative provisions in a decision in the Victorian Court of Appeal in DPP v TY (No 2) (2009) 24 VR 705, and that, your Honour, is at Part D of the joint book of authorities at tab 20.

Your Honour, in that case the respondent had been convicted of murder.  That conviction was quashed.  He was retried and convicted and, in sentencing for the conviction on the retrial, the trial judge included, or the sentencing judge included a period of 11 months’ imprisonment as pre‑sentence detention that the respondent had served at first instance until the quashing of his first conviction. 

One of the arguments that the DPP made – it was a manifest inadequacy appeal – was because the conviction was quashed the original sentence had never been such that that 11‑month period should not have been counted as pre‑sentence detention for the murder.  He was serving a sentence for another offence at that time so that was all that was happening, and the fact that he was serving a sentence for murder at that time should not be counted as pre‑sentence detention.

In rejecting that argument - your Honour will see that at paragraph 22 of the court’s reasons at page, I think, 818 of the book of authorities – what their Honours observe is:

First, as a matter of form alone, TY was under sentence between [those particular dates].  It was only from the latter date – following the quashing – that he was remanded in custody.

Secondly, counsel for the director ultimately submitted that, in every instance where a conviction is quashed on the ground of miscarriage of justice and a retrial ordered, the sentence which was imposed following the conviction was as if it never had been.  That was a radical contention, as was counsel’s submission that what had been a period of imprisonment under sentence in this case was recharacterized as a period on remand once the conviction was quashed.  The disposition of criminal appeals is governed by statute.  One would need to find very clear words or plain authority to accept either submission.

Their Honours observed in paragraphs 25 and 26 – I will not read it all, but I would invite your Honour to read what Justice Winn said in Hancock v Prison Commissioners, which their Honours, over the page, in the Court of Appeal described as compelling:

as a matter of statutory interpretation and as a matter of both principle and policy.  It is necessary that a court order imposing sentence be – and be treated as – valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal).

So, in other words, it does not matter if it is just a sentence being quashed or it is the conviction which will take the sentence with it.  One, in the Court of Appeal’s decision, view was it is valid and enforceable unless and until it is set aside.  In our submission, on the reasoning of those cases, it is not a situation where Cavanough is really directly applicable.

We have, I think, also given your Honour at paragraph 18 of our written submissions a reference to a decision of the Queensland Court of Appeal in R v Rasmussen; Ex parte Attorney‑General (Qld) (2002) 1 Qd R 299. I do not need to take your Honour to it, but if I could refer your Honour to paragraph 33 where Justice Mackenzie was dealing with section 668E(3) where his Honour took the view that subject to any provision affecting the time at which the order of the appellate court begins to operate, a quashing of a sentence operates from the time it is made and the order for which it is substituted ceases only for the future and we would say the same follows in relation to the quashing of a conviction on an appeal. The language is not relevantly different, in our submission. We have also given your Honour some further references in footnote 14, which I will not take the Court to.

In our submission, the question for the Court is whether the exercise of power pursuant to 501(3A)(b) at the time of its exercise exceeded jurisdiction or was otherwise affected by error.  We say no.  We say that subsequent setting aside of the plaintiff’s conviction does not retrospectively affect the objective fact of his serving a sentence of imprisonment at the date of the Minister’s decision.

I should just say something briefly, your Honour, about the principle of legality to which my friend referred and its impact on common law rights.  One needs to be a little bit careful in this area because one is dealing with non‑citizens and one of the arguments that was made in Falzon related to – perhaps not directly relying on the principle of legality, but nonetheless was saying that there were significant infringements of the plaintiff’s rights in that circumstance. 

I just simply give your Honour a reference to paragraph 39 of Falzon where their Honours made the observation in relation to the aliens power and noted that – it was dealing with Lim but what their Honours were observing was that there is a:

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.

So, dealing very much with judicial power but, in our submission, it does have force for the argument that my friend was seeking to make in relation to legality where one is dealing with non‑citizens and the very purpose of the legislation is to effect detention.  So, the question of legality operating in that circumstance, in our submission, is very much reduced.

Your Honour, that was all I wished to say about ground 1.  In relation to ground 2, it is quite difficult to anchor my friend’s submissions in a constitutional concept or a specific contravention of the Constitution. It is said, I think, that it is inconsistent with Chapter III because the defendant is obliged to ignore the outcome of the successful appeal against conviction and sentence. Of course, one is not dealing with a conviction or sentence at the time of the decision. That only happens subsequently. So this idea of ignoring it is a little jarring because one is not actually – one does not have that at the time and, indeed, if one did have it at the time then there would be a question as to whether the person passes the character test or does not pass the character test because of section 501(10).

So, it is difficult to see precisely how this comes into play.  Ultimately, your Honour, I would go back to what the Court said in Falzon, and as Justices Gageler and Gordon made clear, Parliament has a broad choice as to the factum on which a power to cancel a visa will operate.  It has that power under the aliens power of the Constitution.

In this case Parliament has made a legislative judgment that a class of persons identified by two features, relevantly serving a particular sentence of imprisonment, are not to remain in Australia. A non‑citizen’s release from such imprisonment as a result of appellate intervention after the cancellation has occurred does not involve ignoring the decision because the cancellation has already taken place and it has certain consequences. Now, the Minister may have the power to alleviate those consequences but not through the mechanism of section 501(3A) because that ‑ ‑ ‑

HIS HONOUR:   That is why I asked about power.

MS MITCHELMORE:   Yes.

HIS HONOUR:   If Mr Brady is right, what is the power that the Minister - he says, should be exercised now to undo that which has been done?

MS MITCHELMORE:   Yes.  Well, your Honour, we have referred obviously to the mandatory cancellation power that accompanies a power to

revoke. Now, it is correct that representations made in response to an invitation from the Minister under section 501CA(3) must be made within a specific time limit, but it does not necessarily follow from that that the decision needs to be made in that same 28‑day period, although I accept what my friend says about these things sought to be done expeditiously.

If a person made a submission in the context of revocation that he or she was appealing their conviction, that would be a representation which itself, in our submission, would be a mandatory relevant consideration regardless of whether it goes to (b)(i) or (b)(ii) of section 501CA(4), whether it is going to the character test or going to another reason

It may also be, your Honour, that a decision‑maker would be required to consider deferring their decision and a failure to do so might be legally unreasonable.  Now, I say “might” because I do not think it could be said that a failure to defer would be unreasonable in every case because…..necessarily depends on the particular circumstances of the case.

The point I am seeking to make though is that the plaintiff’s practical issues do not gainsay the availability of the power of revocation when considering the place of section 501(3A) in the legislative scheme and the alleged inconsistency with Chapter III which is being put. Apart from revocation, as your Honour has put to me, there is the availability of non‑compellable power. Section 195A would be the primary one in that context. Of course, section 501E which permits the making of an application for a protection visa.

But, in our submission, one has to focus on the scheme for which the legislature…..provision and is there an inconsistency in that scheme in any way with the judicial power of the Commonwealth.  In our submission, the plaintiff has not identified an inconsistency between that scheme and the courts’ decisions through the appellate hierarchy in the exercise of judicial power.  There just, in my submission, is not an inconsistency that arises when one looks at the terms of the Act and its structure and the matters to which my friend has sought to draw the Court’s attention.

Unless there was anything further, your Honour, those are our submissions.

HIS HONOUR:   Thank you, Ms Mitchelmore.  Yes, Mr Brady, anything in reply?

MS MITCHELMORE:   I think he might be muted, your Honour.

HIS HONOUR:   Yes, I think he might be.

MR BRADY:   My apologies.  That is the expression of 2020, I am told – “You’re on mute”.  I wanted to deal briefly with section 195A.  Now, this is not in the material.  It has only been sent to me now.  There is a ministerial detention intervention power document which is – it is an instruction and guidelines on ministerial detention intervention, and we can provide a copy to the Court.  Section 195A of course requires the Minister’s exercise of discretion and, as our learned friend has noted, it is not compellable. 

But section 4 of that guidelines document says this – the heading is “4 - Cases that should not be brought to my attention” – “I would generally not expect to have the following types of cases referred to me for my consideration of my detention intervention power”. The second bullet point under that is “people whose visa has been refused or cancelled under section 501 of the Act”. So those guidelines seem to specifically contemplate that people whose visas have been refused or cancelled under section 501 should not be referred to the Minister. Now, that ‑ ‑ ‑

HIS HONOUR:   I think you mentioned when you read it at the start it said “generally”.

MR BRADY:   Yes.  I was going to say that is what is said there.  That does not mean necessarily that in all the circumstances it would not, but that is the general expectation of the Minister.  Those are the submissions on behalf of the plaintiff.  The only matter that remains outstanding, I think, is the Moorcroft matter.  Can I just have ‑ ‑ ‑

HIS HONOUR:   Did you have a think about that?

MR BRADY:   We are in your Honour’s hands.  I am happy to have a quick chat to my junior now and I mean we could come back within a minute or more.

HIS HONOUR:   No, no, do not rush it because I am not going to give you a decision today.  You might as well have a think about it, and I would like Ms Mitchelmore to have a think about it.

MR BRADY:   Yes.

HIS HONOUR:   You can both talk to each other about it if you want to.  The only other thing I want to say to you, Mr Brady, is that if, for whatever reason, a protection visa is granted by the Minister before judgment is delivered in this matter, what would you say about the utility of this matter?  Would it remain practically significant to your client?

MR BRADY:   I think the answer to that question is yes because if there is an extant decision cancelling a visa under section 501, I think that is likely

to have consequences - even if a protection visa is ultimately granted, for example, entry into this country, potentially other countries, there might be other consequences. I must confess I am not aware what they are, but I suspect that the consequences of cancellation under section 501 are likely to be myriad.

HIS HONOUR:   All right.  Thank you for that.  Can I thank both counsel and their instructing solicitors for the assistance they have given the Court today.  I propose to reserve my decision.

Adjourn the Court.

AT 12.59 PM THE MATTER WAS ADJOURNED