Federal Court (Full Court). The respondent gave evidence that, at the time he received notice of a decision to cancel his visa under s 501(3A) of the Migration Act 1958 (Cth), he had been processed and released from prison, and waiting in a cell. Does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the respondent's release, was s 501(3A)(b) necessarily not met?
Section 501(3A)(b) of the Migration Act 1958 (Cth) provided as follows:
(3A) The Minister must cancel a visa that has been granted to a person if:
...
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A delegate of the Minister cancelled the respondent's visa under s 501(3A) on the day that the respondent was released from prison.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the respondent's "sentence expired at the stroke of midnight, at the moment 21 October 2020 ended and the next day began, and that he ceased serving that sentence in prison when he was released from the custody of the Secretary into the custody of the ABF officers and taken away"?
Question 2: In circumstances where the respondent gave evidence in Court that, at the time he received notification of a decision to cancel his visa, he had been processed and released from prison, and waiting in a cell, does the onus of proof shift to the Minister to establish the fact that the respondent was serving a sentence of full time imprisonment when the decision to cancel the visa was made?
Question 3: Can the finalisation of paperwork for release properly be equated with release itself by which a sentence ceased to be served?
Question 4: Can it be said that "serving a sentence of imprisonment on a full-time basis as required by s 501(3A)(b) is a reference only to that imprisonment taking place for an entire day"?
Question 5: Was the cancellation invalid on the basis that the last day of the respondent's sentence, the day on which he was released, does not satisfy the requirement of s 501(3A)(b) that the respondent be serving a sentence of imprisonment on a full-time basis?
The FCAFC answered those questions as follows: