Federal Court. Will a cancellation decision under s 501(3A) be invalid if it is based on the existence of a “term of imprisonment of 12 months or more” under s 501(3A)(a), and the term of imprisonment on which it is based is later set aside or reduced to a period of less than 12 months?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Will a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) be invalid if it is made in respect of an invalid cancellation decision under s 501(3A)?
Question 2: Can it be said that "the mere fact that the prison sentence is objectively determinable does not operate to displace Parliament’s choice in adopting the state of satisfaction as the relevant trigger for the Minister’s power under s 501(3A)"?
Question 3: Can it be said that the criterion in s 501(3A)(a) (a “term of imprisonment of 12 months or more”) is objective, with the result that the Minister’s state of satisfaction will be irrelevant, and that it will be for the Court to review the jurisdictional fact of the term of the sentence?
Question 4: Does the criterion in s 501(3A)(a) contain no temporal element, meaning that "the fact that the sentence was subsequently reduced may be said to operate to alter or remove the existence of the statutory requirement even after its initial operation"?
Question 5: Will a cancellation decision under s 501(3A) be invalid if it is based on the existence of a “term of imprisonment of 12 months or more” under s 501(3A)(a), and the term of imprisonment on which it is based is later set aside or reduced to a period of less than 12 months?
The FCA answered those questions as follows: