Federal Court (Full Court). Can the Tribunal depart from convergent obiter dicta from both the Full Court and a single judge of the Federal Court? Section 501(7)(c) of the Migration Act 1958 (Cth) provided that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Did 501(7)(c) apply to sentences of imprisonment imposed by a foreign court?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can the Tribunal depart from convergent obiter dicta from both the FCAFC and a single judge of the Federal Court?
Question 2: Is s 501(3A)(a)(i) of the Migration Act 1958 (Cth) limited to "a geographical or jurisdictional nature to a sentence of imprisonment within s 501(7)(a), (b) or (c) as a component of a substantial criminal record"?
Question 3: Is the location of the offending relevant to s 501(3A)(a)(ii)?
Question 4: Section 501(7)(c) provided that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. Did 501(7)(c) apply to sentences of imprisonment imposed by a foreign court?
Question 5: Can it be said that "a person could be convicted and sentenced in a foreign jurisdiction for an offence that would not be, or be regarded as, a crime here, yet he or she would fail the character test automatically"?
Question 6: Would it be unsatisfactory for the FCAFC to simply dismiss the Minister's judicial review application on the basis that, if an error was made by the Tribunal, the error was immaterial, on the basis that such an error has consequences beyond this particular case?
Question 7: Can a court "grant an applicant declaratory relief to resolve a controversy between the parties, notwithstanding that it also concludes that the application for constitutional relief should be dismissed"?
The FCAFC answered those questions as follows: