Quasi-criminal, migration matters

Federal Court: This decision involved quasi-criminal AAT migration proceedings and might be a prelude to many more quasi-criminal matters to arise if & when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted, as anticipated in a submission made to Parliament by Sergio Zanotti Stagliorio and Marianne Dickie. That Bill deals with cancellation of any type of visas, not only protection visas. Here, AAT found there was a real risk Applicant would suffer significant harm if returned to Sri Lanka, but found under s 36(2C) that he was taken not to be owed protection as there were "serious reasons for considering that ... " he "committed a serious non-political crime before entering Australia". Should AAT be convinced beyond reasonable doubt? Is s 36(2C) constitutional? This decision seems to impliedly distinguish a previous FCAFC decision.

This decision might be a prelude to many more quasi-criminal proceedings that might take place in the context of migration matters if and when the Migration Amendment (Strengthening the Character test) Bill 2019 is enacted.

That was explained recently in a submission to Parliament made by Sergio Zanotti Stagliorio and Marianne Dickie.

The questions to the Federal Court (FCA) were as follows:

Question 1: Can it be said that, although strictly speaking an extension of time was required for the Applicant's judicial review application to the FCA, the FCA should grant a time extension as the Applicant had, in error, applied for judicial review to the Federal Circuit Court within time?

Question 2: How should s 36(2C) of the Migration Act 1958 (Cth) be interpreted?

Question 3: Although the FCA cited a decision of the Full Court in HZCP with approval, can it be said that it impliedly distinguished it?

Question 4: Is it against the Constitutional separation of powers for the Tribunal to determine, pursuant to s 36(2C), whether there were "serious reasons for considering that ... " the Applicant "committed a serious non-political crime before entering Australia"?

Question 5: In determining whether there were "serious reasons" in the context of s 36(2C), can it be said that there can be no trial on indictment in absentia in Australia and that therefore the Applicant's trial on indictment in absentia in Sri Lanka could not be a basis for those "serious reasons"?

The FCA answered those questions as follows:

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