Federal Court (Full Court). Section s 501(3)(d) of the Migration Act 1958 (Cth) required cancellation of the Appellant's visa to be in the national interest. Can it be said that, although past criminal conduct is usually established by the fact of conviction, "that is not to say that evidence of conviction or evidence of conduct that is criminal to the criminal standard is necessary before it is open to the Minister to be satisfied that cancellation of a visa is in the national interest"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Section s 501(3)(d) of the Migration Act 1958 (Cth) required cancellation of the Appellant's visa to be in the national interest. Can it be said that, although past criminal conduct is usually established by the fact of conviction, "that is not to say that evidence of conviction or evidence of conduct that is criminal to the criminal standard is necessary before it is open to the Minister to be satisfied that cancellation of a visa is in the national interest"?
Question 2: Is the Ministerial satisfaction required by s 501(3)(d) evaluative and fact sensitive?
Question 3: Does s 501(3)(d) condition the exercise of the Ministerial power on satisfaction that a person has committed an offence?
Question 4: Does the Act impose a standard of proof that must be attained before it is open to the Minister to find that the appellant “has engaged in serious criminal conduct”, “notwithstanding the absence of convictions in relation to the majority of the conduct”?
Question 5: Does the expression “national interest” in s 501(3)(d) import a discretionary value judgment to be made by reference to undefined and wide-ranging factual matters?
The FCAFC answered those questions as follows: