Federal Court. Could a subsequent s 501(3A) cancellation decision rely on a conviction if that conviction was previously taken into account when deciding to revoke a mandatory cancellation?
The Federal Court (FCA) summarised the events as follows:
4 On 6 September 2018, a delegate of the Minister cancelled Mr Nkani’s Visa pursuant to s 501(3A) of the Act (First Cancellation Decision). The First Cancellation Decision was based on:
(a) the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to being convicted on 1 May 2012 of breaking and entering and being sentenced to 15 months imprisonment; and
(b) the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of a conviction on 8 September 2017 of two counts of breaking and entering (and parole having been revoked).
5 The First Cancellation Decision is not the subject of challenge in this proceeding.
6 On 4 December 2018, Mr Nkani was convicted, under the alias Jean Patrice Aime, of “Commit s 114 offence, having previous conviction”. The sentencing remarks of the Magistrate record that the conviction was under s 114(1)(d) of the Crimes Act 1900 (NSW) which proscribes entering or remaining in or upon any part of a building with intent to commit an indictable offence in or upon the building. Mr Nkani was convicted of being at a residential building with the intent to commit an indictable offence in that building, being break, enter and steal, and also being in possession of another person’s credit card which was reasonably suspected of being stolen or otherwise unlawfully obtained. Mr Nkani was sentenced to an aggregate term of three years imprisonment, which was reduced on appeal to an aggregate sentence of 18 months imprisonment (2018 Conviction).
7 On 24 February 2020, a delegate of the Minister decided to revoke the First Cancellation Decision pursuant to s 501CA(4) of the Act (Revocation Decision). It is an agreed fact that, as at the date of the Revocation Decision, the delegate was aware of and considered the 2018 Conviction, but nevertheless decided to revoke the First Cancellation Decision.
8 On 22 February 2021, Mr Nkani was convicted of “Assault occasioning actual bodily harm (DV)” and sentenced to 12 months’ imprisonment (2021 Conviction). The sentencing remarks of the Magistrate record that the offending conduct involved domestic violence towards a woman with whom Mr Nkani was in a relationship.
9 On 8 April 2021, the Minister’s delegate again cancelled Mr Nkani’s Visa pursuant to s 501(3A) of the Act (Second Cancellation Decision). The Second Cancellation Decision was based on:
(a) the delegate’s satisfaction that Mr Nkani had a substantial criminal record, and did not pass the character test, due to the 2018 Conviction; and
(b) the fact that Mr Nkani was serving a sentence of imprisonment on a full-time basis as a result of the 2021 Conviction.
10 The Second Cancellation Decision is indirectly the subject of challenge in this proceeding.
11 On 10 April 2021, Mr Nkani made representations seeking revocation of the Second Cancellation decision.
12 On 15 February 2022, a different delegate of the Minister decided not to revoke the Second Cancellation Decision pursuant to s 501CA(4) of the Act (Non-Revocation Decision).
13 On 18 February 2022, Mr Nkani applied to the Tribunal for review of the Non-Revocation Decision, pursuant to s 500(1)(ba) of the Act. Mr Nkani was not legally represented before the Tribunal.
14 On 10 May 2022, the Tribunal affirmed the Non-Revocation Decision.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Could the Second Cancellation Decision rely on the 2018 Conviction in circumstances where the 2018 Conviction had been taken into account when the Revocation Decision was made?
Question 2: If the answer to Question 1 is 'no', did the 2021 Conviction provide an entirely separate basis for the Second Cancellation Decision in satisfaction of s 501(3A)(a)(i) of the Migration Act 1958 (Cth), with the result that the delegate was required to make the Second Cancellation Decision, regardless of the 2018 Conviction?
Question 3: Did the Tribunal's statement that the Applicant had "no diagnoses of significant physical or mental health problems" mean that the Tribunal wrongly believed that a health issue could only be taken into account if it was supported by medical certification?
The FCA answered those questions as follows: