Federal Court (Full Court): A person fails the character test under s 501(6)(b) if they have been a member of, or have been associated with, a group, organisation or person that has been involved in criminal conduct. Does the Acts Interpretation Act 1901 set up a presumption that a piece of legislation that is silent about its territorial operation, as is the case with s 501(6)(b), only applies within Australia? If so, does the object of the Migration Act 1958 rebut that presumption?
The Applicant's protection visa application was refused pursuant to s 501 of the Migration Act 1958 (Cth), based on a finding that he failed the character test set out in s 501(6)(b), which relevantly read as follows:
(6) For the purposes of this section, a person does not pass the character test if:
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
The reason for failing the character test was the Minister's finding that the Minister reasonably suspected that the Applicant had an association involving some sympathy with the Taliban, which the Minister considered to have been or to be involved in criminal conduct.
The Minister decided to use his discretion under s 501 against the Applicant, thus refusing to grant him a visa.
The Applicant applied to the Federal Court (FCA) for judicial review of the Minister's decision.
The questions to the FCA were as follows:
Question 1: Did s 21(1)(b) of the Acts Interpretation Act set up a presumption according to which "the criminal conduct of the group or organisation referred to in s 501(6)(b) [of the Migration Act] would be taken to be conduct in Australia, and the group or organisation itself would be one operating in Australia"?
Question 2: if the answer to Question 1 is "yes", is that presumption rebutted in relation to s 501(6)(b), and if so, why?
The FCA answered as follows:
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