Federal Court (Full Court). Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention? Was the meaning of “sentenced to a term of imprisonment” in s 501(7) of the Migration Act 1958 (Cth) intended to depend on the different sentencing regimes in diverse jurisdictions? Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment?
While a minor, the Appellant was convicted in the Children’s Court of Victoria and ordered to be detained in a Youth Justice Centre for a period of 18 months (as an aggregate sentence).
Following that conviction, the Minister personally cancelled the Appellant’s visa under s 501(3) of the Migration Act 1958 (Cth). The Minister then refused to revoke, under s 501C(4), the visa cancellation. The basis for the non-revocation was that the Minister found that the Appellant failed the character test set out in s 501(6)(a) of the Act by reason of s 501(7)(c).
Section 501(6)(a) provided: “For the purposes of this section, a person does not pass the character test if… the person has a substantial criminal record (as defined by subsection (7))”.
Section 501(7)(c) provided: “For the purposes of the character test, a person has a substantial criminal record if … the person has been sentenced to a term of imprisonment of 12 months or more”. Section 501(12) provided that “imprisonment includes any form of punitive detention in a facility or institution” and that “sentence includes any form of determination of the punishment for an offence”.
The Appellant then unsuccessfully applied to the Federal Court for judicial review of the Tribunal’s decision and eventually appealed to the Full Court (FCAFC). On appeal, the Appellant argued that s 501(7)(c) only contemplated imprisonment that was punitive in nature and that his imprisonment was not punitive.
Some of the questions to the FCAFC were as follows:
Question 1: Did detention in a Youth Justice Centre involve an element of punishment, with the result that such a kind of detention was a form of punitive detention?
Question 2: Was the meaning of “sentenced to a term of imprisonment” in s 501(7) intended to depend on the different sentencing regimes in diverse jurisdictions?
Question 3: Did a “term of imprisonment” within the meaning of s 501(7)(c) also include non-punitive imprisonment, with the result that the Appellant’s imprisonment was contemplated by 501?
The FCAFC answered those questions as follows: