Federal Court. Does s 501(10)(a) of the Migration Act 1958 (Cth) apply to a formal act or judicial act or order of conviction, but not to a finding of guilt? Can it be said by reason of s 38(2) of the FCA Act and r 25.13.4 of the High Court Rules 2004 (Cth) that, as the Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a writ of mandamus should be returned, "unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ"?
The Federal Court (FCA) described the relevant facts as follows:
4 On 12 February 2020, after a trial on indictment in the Supreme Court of Queensland before a judge and jury in respect of the alleged offence of murder, the applicant was found guilty of that offence by the jury and consequentially convicted and sentenced by the trial judge to imprisonment for life. He appealed against that conviction. Whilst that appeal was pending a delegate of the Minister, on 18 August 2020, acting under s 501(3A) of the Act, cancelled the applicant’s visa.
5 On 6 November 2020, the Queensland Court of Appeal quashed the applicant’s conviction and in lieu thereof ordered that a verdict of acquittal be entered. The applicant, in response to an invitation issued on behalf of the Minister and as a sequel to the cancellation of his visa, made a representation in accordance with s 501CA that the cancellation of the visa be revoked. That representation was made promptly and as a sequel to the judgment of the Queensland Court of Appeal ...
One of the ways in which a visa cancellation could be revoked under s 501CA(4) of the Migration Act 1958 (Cth) was if the Minister was satisfied "that the person passes the character test (as defined by section 501)": s 501CA(4)(b)(i).
Section 501(10)(a) provided: "For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if ... the conviction concerned has been quashed or otherwise nullified".
Some of the questions to the FCA were as follows:
Question 1: Does s 501(10)(a) apply to the formal act or judicial act or order of conviction, but not to the finding of guilt?
Question 2: Does a formulation such as "is to" or "to be" carry an imperative quality?
Question 3: If the answer to Question 2 is "yes", does that mean that, to have regard in the context of a decision under s 501CA(4)(b)(i) to the conviction that has been quashed would be to take into account an irrelevant consideration?
Question 4: Can it be said that, "had the Minister confined himself to that noting of a judicial act it could not at all have been put that he had in any way taken into account an irrelevant consideration as forbidden by s 501(10)"?
Question 5: If the answer to Question 3 is "yes", did the Minister take into account an irrelevant consideration?
Question 6: Can it be said by reason of s 38(2) of the FCA Act and r 25.13.4 of the High Court Rules 2004 (Cth) that, as the Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a writ of mandamus should be returned, "unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ"?
Question 7: If the answer to Question 6 is "yes", should the court extend the deadline for the return of the writ by 7 days due to the COVID-19 crisis, despite the fact that the Minister adduced no evidence as to an impossibility of compliance within the time specified in the High Court rule?
Question 7: If the answer to Question 7 is "yes", should the court abstain from extending the deadline any further, due to the "axiomatic importance which our society places on personal liberty"?
The FCA answered those questions as follows:
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