Federal Court: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)? Can a failure to treat like cases in a like way constitute jurisdictional error? If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept the tender?
The Tribunal affirmed the Minister’s delegate’s decision to refuse the Applicant a Bridging Visa because the Applicant failed the character test under s 501(7) of the Migration Act 1958 (Cth), which read as follows:
(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 ...
Although the Applicant had been sentenced to 12 months imprisonment, that sentence was wholly suspended, meaning that the Applicant did not serve term in jail. The Tribunal nevertheless found that the wholly suspended sentence enlivened s 501(7)(c).
Further, the Applicant sought to tender copies of earlier Tribunal cases relating to matters factually similar to his matter for the purpose of how the discretion under s 501 should be exercised, but the Tribunal refused to accept the tender of those cases, based on the following provisions of s 500:
(6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.
The questions to the FCA were as follows:
Question 1: Is a wholly suspended sentence nonetheless a sentence for the purposes of s 501(7)(c) of the Migration Act 1958 (Cth)?
Question 2: Can a failure to treat like cases in a like way constitute jurisdictional error?
Question 3: If a merits review applicant seeks to tender copies of earlier Tribunal cases relating to matters factually similar to the applicant's matter, is it a denial of procedural fairness for the Tribunal to refuse to accept those cases for the purposes of the exercise of its discretion under s 501?
Question 4: If the answer to Question 3 is "yes", did the Tribunal make that error in this case?
Question 5: If the answer to Question 4 is "yes", was that error material to the Tribunal's decision?
The FCA answered those questions as follows: