Do suspended sentences count for the character test?

Federal Court (Full Court): the Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). The Appellant argued that a suspended sentence is not a sentence for the purposes of the definition of "substantial criminal record" under s 501(7).

Summary and discussion

The Appellant was sentenced to 12 months’ imprisonment, suspended on a bond in NSW. As a result, the Minister cancelled his visa pursuant to s 501(3A) of the Migration Act 1958 (mandatory character cancellation).

Subsections 501(3A), 6 and 7 read as follows (underlining emphasis added):

(3A)  The Minister must cancel a visa that has been granted to a person if:

(a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)  paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); ...

(6)  For the purposes of this section, a person does not pass the character test if:

(a)  the person has a substantial criminal record (as defined by subsection (7)) ...

(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

The Appellant made representations to the Minister under s 501CA(3) to the effect that the cancellation should be revoked pursuant to s 501CA(4), but the Minister did not revoke the cancellation. The Appellant then applied to the AAT for merits review of the non-revocation decision and the AAT affirmed that decision. The Appellant subsequently applied to the Federal Court (FCA) for judicial review of the AAT's decision, but that application was dismissed. The Appellant eventually appealed the FCA decision to the Full Court of the FCA (FCAFC).

The Appellant argued to the FCAFC that a suspended sentence is not a sentence for the purposes of the definition of "substantial criminal record" under s 501(7), with the result that the AAT fell into jurisdictional error.

The FCAFC held as follows...

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