Federal Court. Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?
Section 501(6)(d)(i) of the Migration Act 1958 (Cth) provided as follows:
(6) For the purposes of this section, a person does not pass the character test if:
…
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or …
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?
Question 2: In determining whether the Applicant satisfied s 501(6)(d)(i) of the Act, was the Tribunal bound by the Minister's views regarding the risk that the Applicant would engage in criminal conduct in Australia?
Question 3: Clause 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) provided as follows: "The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it." Given that the Minister had granted the Applicant a BVE (meaning that cl 050.223 was satisfied), can it be said that "the only inference that could be drawn by the grant of a bridging visa was that the Minister concluded that the Applicant was “not a risk to the Australian community”"?
Question 4: Can it be said that, because the penalty imposed for the Applicant's sexual offending was $2,500 and without conviction, it was not open to the Tribunal to find that the offending was "very serious"?
The FCA answered those questions as follows: