s 501(3A): cancellation invalid ab initio?

The Federal Court (FCA) described the background as follows:

13    On 15 January 2020, the applicant was convicted in the Magistrates’ Court of Victoria at Sunshine of offences including resisting a police officer, affray (3 counts), assaulting an emergency worker on duty (3 counts), assaulting a protective services officer, committing an indictable offence while on bail and failing to answer bail. He was sentenced to a period of imprisonment of 18 months.

14    On 11 March 2020, a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in a custodial institution for offences against State laws: see ss 501(3A)(b), 501(6)(a) and 501(7)(c) of the Act.

15    The Minister’s delegate invited the applicant to make representations about the revocation of the cancellation decision, and the applicant did so on 20 May 2020.

16    On 11 June 2020, the applicant was successful in an appeal to the County Court of Victoria against his sentence. The Magistrates’Court’s orders were set aside. The applicant was resentenced to a term of 10 months’ imprisonment, which was backdated to 15 January 2020.

17    On 5 October 2020, the applicant was invited to comment on further information received by the Department, including a transcript of the County Court appeal proceedings. The applicant, through his legal representative, made further representations to the delegate on 2 November 2020.

18    On 4 December 2020, the delegate declined, under s 501CA(4), to revoke the cancellation decision. Although the delegate accepted that the applicant passed the limb of the character test in ss 501(6)(a) and 501(7)(c), the delegate was not satisfied that the applicant passed the limbs in s 501(6)(d)(i) and (v), nor that there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii).

19    On 7 December 2020, the applicant sought review of the delegate’s non-revocation decision in the Tribunal pursuant to s 500(1)(ba) of the Act. On 1 March 2021, the Tribunal affirmed the non-revocation decision ...

54    The applicant argued before the Minister’s delegate and the Tribunal that the cancellation decision under s 501(3A) should be set aside, or that the power to revoke the cancellation decision under s 501CA(4) should be exercised in his favour, by reason of the reduction of his criminal sentence to less than 12 months.

Some of the questions to the FCA were as follows:

Question 1: Can it be said that, "at common law, the effect of the reversal of a conviction by proceedings in error is that the conviction is avoided ab initio"?

Question 2: Can it be said that "an exercise of power under s 501(3A) is invalid where, objectively, a sentence of imprisonment of 12 months or more existing at the date of the cancellation decision is subsequently reduced on appeal to less than 12 months"?

Question 3: In Parker, did the Full Court of the FCA distinguish Cavanough and reject a submission that "cancellation of a visa, under a power [namely s 501(2)] conditioned on the satisfaction of the Minister that the person did not meet the character test, was affected by jurisdictional error because of the subsequent annulment of a conviction"?

Question 4: If the answer to Question 3 is 'yes', are observations in Parker concerning when the Minister’s state of satisfaction is to be judged for the purposes of s 501(2) of the Act "affected by the judgment of the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1"?

Question 5: "The legislative scheme recognises, in s 501(10), that an appeal or a pardon may affect the basis of a cancellation decision under s 501(3A)". Does s 501(10) "require the Minister to await the determination of any appeal or any application for a pardon"?

Question 6: May the Minister "be satisfied that a person passes the character test for the purposes of s 501CA(4)(b)(i) in consequence of a successful appeal that sets aside a conviction (see s 501(10)) or reduces a sentence of imprisonment to below the 12-month threshold; or in consequence of the grant of a pardon"?

Question 7: May the Minister be satisfied that a reduction of a sentence of imprisonment to below the 12-month threshold contribute to the establishment of "another reason" for revocation within s 501CA(4)(b)(ii)?

Question 8: Can it be said that, "even though a person may no longer have a “substantial criminal record” by the time s 501CA(4) is considered, the Minister may nevertheless fail to be satisfied that the person passes the character test because of a different limb of s 501(6)"?

Question 9: Can it be said that "the effect of the statutory scheme is that reduction of a sentence of imprisonment to below the s 501(3A) threshold after cancellation cannot, of itself, be “another reason” requiring revocation of the cancellation decision under s 501CA(4)"?

Question 10: May a decision-maker consider under s 501CA(4) "the sentence and sentencing remarks of a lower court where the sentence has been set aside and the person resentenced by a higher court"?

Question 11: May HZCP have "provided support for a proposition that the decision-maker may not take into account the findings of the lower court to the extent they are contradicted by the findings of the higher court"?

Question 12: Can it be "expected that the sentencing remarks of a relevant court would ordinarily be considered by a decision-maker"?

Question 13: If the answer to Question 12 is 'yes', must the sentencing remarks of a relevant court necessarily be considered in every case?

Question 14: When the Tribunal is reviewing a decision made under s 501CA(4), can it be said that it is also reviewing a decision under s 501(3A) and has power to set aside any decision made under the latter provision?

Question 15: Is the purpose of s 501CA(4) to "remedy the difficulty caused by the fact that s 501(3A) will often require the exercise by the Minister of the power to cancel a visa at a time prior to the completion of any appellate process in respect of a conviction or sentence"?

Question 16: Was it "legally unreasonable for the Tribunal to fail to revoke a cancellation decision under s 501CA(4) where the original basis for the cancellation decision under s 501(3A) no longer exists"?

The FCA answered those questions as follows: