Full Federal Court finds mandatory visa cancellation not triggered by aggregate prison sentence
Pearson v Minister for Home Affairs [2022] FCAFC 203
Summary
In an important judgment delivered on 22 December 2022, the Full Court of the Federal Court of Australia (Allsop CJ, Rangiah and S Derrington JJ) found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation powers at s 501(3A) of the Migration Act 1958 (Cth).
The judgment is an important reminder of the human consequences of mandatory visa cancellation – including prolonged detention and permanent exclusion from Australia. While it remains to be seen whether the Commonwealth will seek leave to appeal from the decision or attempt a legislative fix, in the meantime the judgment goes some way towards restricting the ambit of the mandatory cancellation powers to ‘only the most serious offending.’[1]
Facts
The appellant, Ms Pearson, is a citizen of New Zealand. She was granted a Special Category (Subclass 444) visa when she last entered Australia.
After her arrival in Australia, Ms Pearson received an aggregate sentence of 4 years and 3 months' imprisonment. That single aggregate sentence was imposed in relation to 10 offences, under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 17 July 2019, Ms Pearson, was notified that a delegate of the Minister for Home Affairs had cancelled her Special Category visa under s 501(3A) of the Migration Act 1958, as she had been sentenced to a term of imprisonment of 12 months or more (the cancellation decision). The notice given with the cancellation decision also advised that Mr Pearson could seek revocation of the decision by providing certain ‘required information’ within 28 days of the date she was taken to receive the notice.
On 22 August 2019, Ms Pearson, through her lawyers, made representations to the Department of Home Affairs, seeking revocation of the cancellation decision. The Department acknowledged receipt of those representations on 23 August 2019.
On 24 June 2020, Ms Pearson was notified that a delegate of the Minister had decided not to revoke the cancellation decision.
Ms Pearson sought review of that decision by the Administrative Appeals Tribunal. The Tribunal affirmed the decision. After that, Ms Pearson sought judicial review of the Tribunal’s decision in the Federal Court, but was unsuccessful.
On 10 October 2022, Ms Pearson commenced proceedings in the Federal Court again, challenging the validity of the cancellation decision itself. Those proceedings were commenced after Ms Pearson was served with a notice of intended removal from Australia.
Issues
Ms Pearson’s appeal raised two important issues for resolution.
The first was whether notice of the cancellation decision was invalid, as it failed to comply with the requirements of s 501CA(3)(b) and reg 2.52(2)(b), in that it failed to properly specify the date by which representations seeking revocation might be made. As that was resolved adversely to Ms Pearson, it will not be discussed in depth in this case note.
The second issue was whether an aggregate sentence constituted a single ‘term of imprisonment of 12 month or more,’ so as to attract the operation of the mandatory cancellation power. The Full Court found that it did not.
When the cancellation decision was made, the mandatory cancellation power at s 501(3A) of the Act read as follows:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) 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.
In accordance with s 501(3A)(a)(i), the mandatory cancellation power operated in relation to visa-holders who had a ‘substantial criminal record’ within the meaning of s 501(7)(a), (b) or (c), relevantly as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more
The question for the Full Court was whether an aggregate sentence constituted a ‘term of imprisonment of 12 months or more,’ for the purposes of 501(7)(c) of the Act.
The Full Court entered on that question by noting ‘the significance of the proper construction of the character test,’[2] given the consequences that flow from mandatory visa cancellation. Having regard to the limited grounds on which mandatory visa cancellation might occur, the Full Court found that it was ‘reserved for the most serious offences.’[3]
The Full Court found that the definition of ‘sentence’ in 501(12) (being punishment for ‘an offence’) informs the construction of s 501(7)(c), such that a term of imprisonment of 12 months or more must be for a single offence in order to attract the application of the mandatory cancellation provisions.[4]
The Full Court further found that an aggregate sentence – being a single sentence imposed in relation to multiple offences, where the individual sentence for each offence was not necessarily specified – did not constitute a single sentence to a term of imprisonment of 12 months or more. That was because ‘the aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given.’[5]
Importantly, that was found to be so even though the NSW legislation under which Ms Pearson was sentenced required the sentencing judge to give indicative sentences for each offence dealt with under the aggregate sentence – and even though, in Ms Pearson’s case, the sentencing judge gave indicative sentences for each of the ten offences, one of which was for a term of 18 months.[6]
Nonetheless, the Court observed that, under the NSW legislation, an aggregate sentence would not be invalidated by a failure to specify indicative sentences for each of the individual offences and that
[i]n such circumstances, there could be no objective means by which the Minister could reach any reasonable suspicion, on the basis of s 501(7)(c), as to whether a person’s visa ought to be mandatorily cancelled.[7]
Consequently, the Full Court concluded that Ms Pearson had not been sentenced to ‘a term of imprisonment of 12 moths or more’ within the meaning of s 501(7)(c) of the Act, and thus was not liable to have her visa mandatorily cancelled under s 501(3A)(a)(i) of the Act.
Commentary
The effect of the Full Court’s decision is to invalidate mandatory visa cancellation under s 501(3A) done on the basis of an aggregate sentence of imprisonment of 12 months or more – which, prior to the judgment, would have been treated as a sentence of imprisonment covered by s 501(7)(c).
Importantly, the judgment does not benefit:
people whose visas have been mandatorily cancelled on the basis of an aggregate sentence as well as a separate (non-aggregate) sentence of imprisonment exceeding 12 months;
people whose visas have been mandatorily cancelled on the basis of concurrent sentences of imprisonment (ie sentences for two or more offences, served at the same time) where one of those sentences was for 12 months or more;
people who have been subject to discretionary visa cancellation or refusal on the basis of an aggregate sentence of imprisonment of 12 months or more.
Even so, the consequences of the judgment are substantial – it was reported that ‘up to 100 people’ were released from immigration detention around the time that orders were made.[8] The government is considering the consequences of the judgment for people whose visas were previously cancelled on the basis of an aggregate sentence of imprisonment, including those who have subsequently been removed from Australia.
As final orders have not yet been made, the Commonwealth has not indicated whether special leave will be sought to appeal from the Full Court’s orders to the High Court.
A legislative ‘fix’ to the lacuna identified by the Full Court might also be possible – for instance, by clarifying how aggregate sentences are to be treated, in the same manner as concurrent sentences are dealt with at s 501(7A) – a move in this direction could not be easily reconciled with the Labor government’s commitment to reducing immigration detention numbers.[9]
According to the Department’s most recent statistics, over 60 percent of people in immigration detention have been subject to mandatory visa cancellation under s 501 of the Act.[10] The average time spent in immigration detention reached record highs in 2022, and was 774 days as at 31 October 2022.[11] More than half of the people in immigration detention have been there for over a year.[12]
While the Full Court’s decision restricts the ambit of the mandatory cancellation powers, the use of those powers particularly in relation to long-term residents,[13] and their connection with prolonged immigration detention, require urgent and sustained attention.
The full decision can be read here.
This summary was authored by Sanmati Verma and Scott Cosgriff from the Human Rights Law Centre.
[1] Pearson v Minister for Home Affairs [2022] FCAFC 203 [47].
[2] Ibid [41].
[3] Ibid [42].
[4] Ibid [43].
[5] Ibid [45].
[6] Ibid [44].
[7] Ibid [45].
[8] Paul Karp, ‘Up to 100 people released from immigration detention after Australian government loses Court case’ The Guardian 29 December 2022 available https://www.theguardian.com/australia-news/2022/dec/29/up-to-100-people-released-from-immigration-detention-after-government-loses-federal-court-case.
[9] Paul Karp, ‘Electronic monitoring in community could reduce immigration detention, document states’ 22 November 2022 The Guardian available https://www.theguardian.com/australia-news/2022/nov/22/electric-monitoring-in-community-could-reduce-immigration-detention-document-states.
[10] Department of Home Affairs, ‘Immigration Detention and Community Statistics Summary’ October 2022, p 8 available https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-october-2022.pdf.
[11] Ibid, p 12.
[12] Ibid.
[13] ABC Radio National, ‘Ahmed and Danice fell in love when he was in prison. Neither expected the biggest test to. come after his release’ 5 January 2023 available https://www.abc.net.au/news/2023-01-05/ahmed-and-danice-an-unlikely-love-story-earshot/101782498.