Federal Court. In circumstances where the applicant 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 applicant was serving a sentence of full time imprisonment when the cancellation decision was made? If the cancellation occurred on the day of the applicant'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:
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(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 applicant's visa under s 501(3A) on the day that the applicant was released from prison.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In circumstances where the Tribunal had documents from a Child Protection Subpoena Unit of the Victorian Department of Families, Fairness and Housing which included three reports of the applicant perpetrating family violence towards his partner, was the Tribunal required to engage in analysis of whether or not the conduct constituted family violence for the purpose of Direction 90 and s 501CA(4) of the Migration Act 1958 (Cth)?
Question 2: Was the question under s 501(3A)(b) whether the applicant was still serving a sentence of imprisonment when his visa was cancelled?
Question 3: In circumstances where the applicant 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 applicant was serving a sentence of full time imprisonment when the decision to cancel the visa was made?
Question 4: If the answer to Question 3 is 'yes' and the Minister established that the cancellation decision was made prior to the applicant’s release, is the cancellation nevertheless invalid on the basis that the last day of the applicant’s sentence, the day on which he was released, does not satisfy the requirement of s 501(3A)(b) that the applicant be serving a sentence of imprisonment on a full-time basis?
The FCA answered those questions as follows: