Facts:
Ms Pearson’s visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act) on 17 July 2019 on the basis that had been sentenced to a sentence of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Act and she was serving a sentence of imprisonment.
The relevant sentence engaging s 501(7)(c) of the Act was an aggregate term of imprisonment of 4 years and 3 months in respect of 10 offences [44]. This aggregate sentence was made under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Ms Pearson’s notice of mandatory cancellations stated that her representations had to be received by the Department of Home Affairs within 28 days of receiving the notice, and that she was taken to have received the notice within 7 days of it being posted to her: [5].
Ms Pearson requested revocation of the mandatory visa cancellation on the 27th day after she was handed the notice. Her representatives then made four further representations after the 28-day period had expired, each of which were considered by the Department: [6]-[9].
On 24 June 2020 Ms Pearson was informed that the Minister’s delegate decided not to revoke the cancellation decision. Ms Pearson appealed the non-revocation decision to the Administrative Appeals Tribunal but was unsuccessful. [11]-[12].
Legal Issues
There were three grounds for legal error raised in this case, arising from two critical questions: [1]-[2].
The first question was whether the 501(3A) notice was affected by a legal error. Grounds one and two arose from this question.
The first ground as that the notice failed to properly crystallize the 28-day period by incorrectly stating the representations had to be received within the 28-day period. This was the error that impacted the notice in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9. [18]-[19].
The second ground was whether this failure to crystallize the period deprived Ms Pearson of properly respond to the notice [34].
The second question (and third ground on appeal) was “whether, for the purposes of s 501 of the Migration Act, an aggregate sentence of imprisonment, under a provision such as s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is a single sentence to a term of imprisonment or a sentence to “2 or more” terms of imprisonment, or is neither.” This was the third ground of appeal.
Outcome:
The unanimous decision Application succeeded on the third ground. The Court decided “For the reasons that follow, the first question raised in the SFAOA should be answered “No”, and the second that it [an aggregate term of imprisonment under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A] is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment.” [3]
The Court’s findings on the first ground:
The Court rejected the first ground for want of materiality.
The Court reasoned that the case precedent on a failure to crystallize the 28-day period, because the case precedent establishes that the representations must just be made within the 28-day period, not received [19]-[24]
However, the Court noted that Ms Pearson’s case was like that in Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423, and therefore distinguishable from EFX17. The reason for this is that Ms Pearson’s representations were received within the 28-day period, and not after the 28-day period as was the case in EFX17.
The Court said that the question was whether “the failure to crystallize the period within which representations are to be despatched invalidates the invitation for all purposes.” [26]
The Court applied Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [27] in saying that this question incorporates “a threshold of materiality,” such that not every failure to observe the condition would deny legal force to the decision. [26]-[28].
As such, the Court reason that this requirement that an error be material would not generally be met where complying with that requirement could have made no difference to the decision that was made [32]-[33].
The Court found that in this case, even though the Minister failed to properly crystallize the 28-day period in which Ms Pearson had to seek revocation of the mandatory visa cancellation, this failure was no material. This is because Ms Pearson sought revocation on the 27th day, which was within the 28-day period. [34]
The Court stated that had her representations been made after the 28-day period, then this first ground would have been successful. [35]
The Court’s findings on the second ground:
The Court also rejected the second ground for want of materiality.
With respect to the second ground the Court noted that not only did Ms Pearson respond within the 28-day period, but she also sent four additional representations via her legal representatives, all of which were considered by the Department [25], [34].
The Court’s finding on the third ground:
The Court accepted the third ground. In doing so, they relevant noted that Ms Pearson’s visa had been cancelled because she had a substantial criminal record for the purposes of s 501(6)(a) of the Act as a result of her aggregate sentence of 4 years and 3 months imprisonment for 10 offences: [40].
At [41] the Court noted this question is critical to a cancellation under s 501(3A) of the Act because the terms of s 501(3A) of the Act require the minister to reasonable suspect that a person fails the character test because they have a substantial criminal record as defined in ss 501(7)(a), (b), (c) or (e) of the Act:
Substantial criminal record
(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; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
The Court said is it clear from s 501 of the Act that mandatory cancellation is only reserved for the most serious offences, and that fact contextualizes the questions of whether or not an aggregate sentence of 12 months or more satisfies s 501(7)(c) of the Act: [42].
The Minister tried to argue that s 23(b) of the Acts Interpretation Act 1901 (Cth) compels the singular use of the term “sentence” in s 501(7)(c) of the Act to include the plural. The Court rejected this and stated that it is clear that Parliament made a “conscious choice about the use of singular and plural” in s 501(6)-(7) of the Act: [43].
The Court found that “In the context of s 501(7), it is apparent that Parliament has made a distinct choice about the nature of the sentence for an offence that was to be used as an objective proxy for a “substantial criminal record” that will lead to mandatory cancellation – that being an offence punishable by death, life imprisonment, or a term of 12 months.”[43]
The Court then examined the exact nature of an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44(2C), 53A, 54A(2), and 54B. At [44] The Court applied the made the following relevant observations on those sections from JM v R [2014] NSWCCA 297; 246 A Crim R 528 [39]:
Aggregate sentences resolve an issue in Pearce v The Queen [1998] HCA 57 and remove the need for sometimes laborious cascading sentences where the principle of totality requires the accumulation of sentences;
“When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order”
The indicative sentences enable the court to individually assess the criminality involved in each offence;
An aggregate sentence cannot be used to minimize offending conduct.
The Court also noted that indicative sentences cannot be appealed and are not operative. Only the aggregate sentence is the operative sentence [45].
This resulted in the Court concluding that “The aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given. Further, in the case where a sentencing judge fails to provide indicative sentences for individual offences, an aggregate sentence of imprisonment is not invalidated (s 53A(5)). In 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.” [45].
The Court noted that it would have been straightforward for Parliament to word the section to include aggregate sentences of 12 months or more, and noted that an aggregate sentence can be arrived at for convictions for serious of lesser offences which on their own might not render a person liable to cancellation [47].
As such, the Court held that Ms Pearson’s aggregate sentence of 4 years and 3 months did not render her liable to cancellation under s 501(3A) of the Act [48].
The Court concluded that the aggregate sentence satisfies neither s 501(7)(c) or 501(7)(d) of the Act: [3].
Applicability of this case prior to 17 February 2023:
Prior to 17 February 2023, whether this decision applied depended on the sentencing law of each jurisdiction, in particular, whether aggregate sentences are allowed. This case heavily relied on the sentencing law in NSW, where aggregate sentences exist.
The Sentencing Council of Victoria describes an aggregate sentence as “A single sentence (for example, a term of imprisonment or a fine amount) imposed for two or more charges within a case, without the individual sentence for each separate charge being specified...” (Source: https://www.sentencingcouncil.vic.gov.au/sacstat/user_information/glossary.html).
It does not extend to cumulative or concurrent sentences, as they both involve multiple, separate sentences of imprisonment.
Applicability of this case after 17 February 2023 - Migration Amendment (Aggregate Sentences) Act 2023 (Cth).
On 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Migration Amendment Act) amended the Migration Act. The Migration Amendment Act has had a significant impact for those who have received aggregate sentences. We have directly seen the devastating impact of the Migration Amendment Act on people and their loved ones, including the confusion it has created.
The effect of the Migration Amendment Act was to change the Migration Act so that the Pearson exception no longer applies. It did this by changing the relevant provisions of the Migration Act to make it clear that aggregate sentences can be relied upon for the purposes of considering whether someone has a substantial criminal record as defined in s 501(7) of the Migration Act.
It also retrospectively re-validated all cancellations and refusals that were invalidated by the Pearson decision. This is a very significant legal outcome, as generally the rule of law dictates that laws should not operate retrospectively. That is, the normal rule of law-making is that laws should only apply to future circumstances, not past circumstances. The Migration Amendment Act strays from this rule by undoing the past invalidity of visa cancellations and refusals impacted by Pearson.
We strongly recommend that anyone who has had their visa cancellation or removal impacted by Pearson get legal advice on their specific circumstances. Generally, most people have been thrown back to their legal position pre-Pearson. This means that their visa cancellation or refusal proceedings will continue as they were before Pearson intervened, as if Pearson never happened. Nonetheless, this may not be the case where someone has discontinued or withdrawn proceedings after Pearson came into effect and until the Migration Amendment Act.
If you or a loved one have been impacted by Pearson, please feel free to give us a call on 07 3394 8489.