Australia, Nov. 12 -- The Federal Court of Australia issued the following judgement on Nov. 7:

1 The applicant seeks judicial review of a decision of the second respondent (the Tribunal), under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), affirming a decision of a delegate of the first respondent (the Minister) to not revoke a decision to cancel the applicant's visa.

2 I will summarise the relevant background and the legislative scheme before considering the parties' submissions.

Background

3 The applicant is a citizen of India. On 13 April 2021, he was sentenced to a term of 16 months' imprisonment, suspended for 18 months. On 17 November 2022, he was sentenced for various offences, including a number of sentences of 12 months' imprisonment for fraud offences. He was also ordered to serve the previously suspended term of imprisonment.

4 On 14 December 2023, the applicant's visa was cancelled under s 501(3A) of the Act. The Tribunal affirmed the decision of the Minister's delegate to not revoke the cancellation decision, but that decision was set aside by the Federal Court of Australia on 18 December 2023.

5 On 14 May 2024, the Tribunal again decided to affirm the non-revocation decision. That is the decision of which the applicant seeks review.

6 I will summarise the salient parts of the Tribunal's reasons in the course of considering the grounds of appeal.

The legislative scheme

7 Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the holder does not pass the character test because of the operation of para (6)(a) on the basis of para (7)(a), (b) or (c), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

8 Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined by subs (7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. As the applicant had been sentenced to imprisonment for a term in excess of 12 months, the Minister was satisfied that he did not pass the character test.

9 Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to provide representations about revocation of the original decision. The applicant made representations in response to the invitation.

10 Section 501CA(4) provides:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

11 Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, "comply with a direction under subsection (1)".

12 At the time of the Tribunal's decision, the Ministerial directions under s 499(1) of the Act for the making of decisions under s 501CA of the Act were contained in Direction No 99 - Migration Act 1958 - Direction under 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1273)

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