Federal Court (Full Court). Do the terms 'end of the day' mean end of daylight hours for the purpose of the reference to 12 months' imprisonment in ss 501(7)(c)-(d) of the Migration Act 1958 (Cth), due to s 47(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW)? Before cancelling the visa under s 501(3A), was Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision? Did 8.1.1(1)(a) of Direction 90 require the Tribunal to make its own assessment of the seriousness of the offending?
The applicant was sentenced in NSW to a term of imprisonment of 12 months imprisonment, to commence on 14 January 2016 and expiring on 13 January 2017.
Section 47(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) provided that a sentence of imprisonment 'commences … on the day on which the sentence is imposed'. Section 47(6) provided (emphasis added): "A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires."
Para 8.1.1 of Direction 90 read:
The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
…
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
…
(ii) crimes committed against … government representatives or officials due to the position they hold, or in the performance of their duties;
…
The Federal Court (FCA) said as follows:
61 As to the nature and seriousness of offending (being a primary consideration), Direction 90 provides that in considering the nature and seriousness of criminal offending of the person whose visa has been cancelled, decision-makers must have regard to various matters listed in the direct (para 8.1.1(1)). One such matter is expressed as follows (para 8.1.1(1)(a)):
without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Some of the questions to the Full Court of the FCA (FCAFC) were as follows:
Question 1: Do the terms 'at the end of the day' in s 47(6) of the Sentencing Procedure Act mean the end of daylight hours or otherwise allow for the possibility that the end of the day is not the precise moment before the next day, with the result that the applicant was sentenced to less than 12 months' imprisonment?
Question 2: Can it be said that, "before exercising the power to cancel the appellant’s visa under s 501(3A), the Minister was required to make an anterior decision whether to exercise power under a different provision, such as s 501(2), and afford the appellant the opportunity to be heard about that anterior decision"?
Question 3: Was the Tribunal required to form its own assessment as to whether any of the types of crimes or conduct described in para 8.1.1(1)(a) of Direction 90 should be considered as 'serious'?
The FCAFC answered those questions as follows: