Federal Court. Due to s 500(6L), AAT had 84 days to decide under s 501CA(4) whether to revoke the mandatory cancellation of Applicant's visa. At the time of AAT's decision, Applicant still had about 6 years of imprisonment to serve. Could AAT make a legally reasonable decision about the risk the Applicant would present to the community upon release 6 years in advance? Did AAT have "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?
The questions to the Federal Court (FCA) were as follows:
Question 1: Subsection 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) provides that the Minister "may" revoke the mandatory cancellation of a visa if there is another reason for doing so. Does the word "may" suggest there is a 2 stage process, giving Minister discretion to refuse revocation even if there is another reason to revoke?
Question 2: Can it be said that the Applicant's argument that the Tribunal could not legally reasonably make a decision under s 501CA(4) 6 years in advance of the Applicant's release would make a mockery of the character test in ss 501(3A)(a) to (b) and of the definition of a “substantial criminal record” in s 501(6)(a) of the Act in that, "the more serious the offence, the longer the term of imprisonment, and the stronger the reason to defer an assessment of the offender’s risk to the Australian community [on the Applicant's argument]"?
Question 3: Can it be said that the Applicant's argument that the Tribunal could not legally reasonably make a decision under s 501CA(4) 6 years in advance of the Applicant's release goes against the legislative intention that an application pursuant to s 501CA(4) should be made within 84 days?
Question 4: Can it be said that the Applicant's argument that the Tribunal could not legally reasonably make a decision under s 501CA(4) 6 years in advance of the Applicant's release should not be accepted on the basis that, even if the Tribunal were not able to make an assessment of the risk the Applicant would pose, upon release, to the Australian community or arrive at a conclusion about that risk, that risk was not the only consideration that the Tribunal should take into account?
Question 5: Are the principles in Direction No 65 an "exhaustive list of factors to be applied in all cases to which any of the principles may be apposite"?
Question 6: Is there anything "in the principles [of Direction No 65] to suggest that if it is not possible, or practical, to make an assessment of a particular factor referred to in the Principles, the decision maker should defer making a decision until the factor in question can be assessed"?
Question 7: Paragraph 6(4) of Direction No 65 read: "In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa". Was the Tribunal justified by paragraph 6(4) of Direction No 65 "in rejecting the Applicant’s contentions that the primary decision should be set aside because of the countervailing consideration that it was not presently possible to determine the risk of harm of re-offending posed by the Applicant, or because of the countervailing consideration that to make a decision presently would deprive the Applicant of an assessment of his character, including any risk of harm posed by him, after he has been afforded the opportunity for rehabilitation while serving a lengthy term of imprisonment"?
Question 8: Are the principles in Direction No 65 "pre conditions which must be considered, or capable of being considered, before a decision may be made"?
Question 9: Did the Tribunal have the "power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment"?
The FCA answered those questions as follows:
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