Federal Court. In the context of s 501CA(4) of the Migration Act 1958 (Cth), is it possible to consider a non-citizen's criminal history without taking all of it, including a successful appeal on sentence, into account?
Sections 501(7)(c) and 501(7)(d) of the Migration Act 1958 (Cth) provided:
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In the context of s 501A of the Migration Act 1958 (Cth), can it be said that "it is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences"?
Question 2: In determining whether a jurisdictional error has been made, can it be said that "the first question to be determined is whether an error has occurred; and the second, was that error material"?
Question 3: In reviewing a decision made under s 501CA(4), was it open to the Tribunal to consider the sentencing remarks of the primary judge, even though that sentencing had been reduced on appeal?
Question 4: If the answer to Question 3 is 'yes', can it nevertheless be said that the fact that the Tribunal did not refer to the outcome or sentencing remarks on appeal supports the contention that it did not consider the Applicant’s proper criminal record?
Question 5: Is the focus of s 501(7)(c) and 501(7)(d) "on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served"?
Question 6: Was it open to the Tribunal to view the Applicant’s criminal history “very seriously”, as para 8.1.1(1)(a) of Direction 110 required the Tribunal to consider the nature and seriousness of the conduct “regardless of the sentence imposed”?
Question 7: If the answer to Question 6 is 'yes', would it nevertheless "not be possible to have proper regard to the Applicant’s criminal history without taking all of it – including a successful appeal on sentence – into account"?
Question 8: Can it be said that, unless the Court is affirmatively persuaded that the outcome would inevitably have been the same had the error not been made, then the materiality threshold has been met?
The FCA answered those questions as follows: