…mandatory visa cancellation where aggregate sentence – notice provisions – estoppel
In Pearson v Minister for Home Affairs [2022] FCAFC 203 (22 December 2022), the Full Court considered whether an aggregate sentence of imprisonment that was longer than 12 months met the definition of “substantial criminal record” under s501(7)(c) of the Migration Act 1958 (Cth) (Act), so as to require the Minister to cancel the applicant’s visa under s501(3A).
Allsop CJ, Rangiah and Derrington JJ unanimously found it did not. Their Honours considered that it is clear from the text of s501 of the Act that mandatory cancellation of a person’s visa on character grounds is reserved for the most serious offences (at [42]).
Their Honours reviewed the case law on the principles for aggregate sentencing and the requirement to provide an indicative sentence for each offence (at [44]-[45]). They stated that an aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given (at [45]).
Their Honours noted that it was self-evident that an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled (at [47]).
They also considered that the lack of reference in s501(3A) to inclusion of an aggregate sentence was consistent with the apparent purpose of the section – that only the most serious offending would subject a person to mandatory cancellation of a visa (at [47]).
The applicant had been sentenced to an aggregate maximum term of imprisonment of more than four years in respect of 10 offences. The court held that, as the applicant had not been sentenced for an offence to a term of imprisonment of 12 months or more, her visa was not amenable to mandatory cancellation under s501(3A). The applicant’s appeal was therefore upheld.
In reaching this conclusion, the court also addressed two other matters. First, whether the notice advising of the visa cancellation incorrectly expressed the date within which the applicant was required to respond, and therefore should be declared invalid. The court accepted that the notice failed to comply with the requirements of s501CA(3)(b), but declined to declare the notice invalid.
The court considered that in circumstances where the applicant had responded to the invitation, the error was not material (at [34]) and did not meet the test for determining whether the condition was jurisdictional (at [28]). The applicant’s appeal on this ground failed.
The final issue addressed by the court was whether the review ground based on the aggregate sentencing argument was estopped for failing to raise it during an earlier judicial review. The court determined that the principles of Anshun should not apply, in large part due to the matter being of such human importance – specifically the loss of a right to reside, likely forever, in this country (at [55]).
Shanta Martin is a barrister at the Victorian Bar, ph 03 9225 7222 or email shanta.martin@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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