Azevedo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 45
•25 January 2023
Azevedo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 45 (25 January 2023)
Division:GENERAL DIVISION
File Number: 2022/9770
Re:Nelson Azevedo
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:R Cameron, Senior Member
Date:25 January 2023
Place:Melbourne
The Tribunal dismisses the application pursuant to section 42A(4) of the AdministrativeAppeals Tribunal Act 1975 (Cth).
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R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa in respect of aggregate sentence – decision not to revoke cancellation – effect of Pearson v Minister for Home Affairs [2022] FCAFC 203 – decision to cancel visa not legally valid – decision not reviewable by the Tribunal – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Cases
Pearson v Minister for Home Affairs [2022] FCAFC 203
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256
REASONS FOR DECISION
R Cameron, Senior Member
25 January 2023
INTRODUCTION
The applicant seeks a review of the decision made on 24 November 2022 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class BF Transitional (permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) (‘the reviewable decision’).
Since the applicant lodged his application for review of the reviewable decision before the Tribunal, the Full Court of the Federal Court of Australia (‘the Full Court’) delivered its reasons in the case of Pearson v Minister for Home Affairs (‘Pearson’).[1]
[1] [2022] FCAFC 203.
The Full Court in Pearson considered the question of whether, for the purposes of s 501 of the 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, a sentence to 2 or more terms of imprisonment or neither. The Full Court held that an aggregate sentence of 12 months or more is not ‘a term of imprisonment of 12 months or more’ for the purposes of s 501(7)(c) of the Act.
Amongst other things, the Full Court in Pearson observed as follows:
Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, 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.[2]
[2] Pearson at [47].
In a document headed ‘Application for Dismissal’, lodged with the Tribunal on 17 January 2023, the respondent conceded that Pearson applies in relation to the reviewable decision. The respondent acknowledges that the sentencing decision, which was the subject of consideration by the delegate of the respondent when deciding to cancel the applicant’s visa under s 501(3A) of the Act, was a sentence imposed on the applicant at the Dandenong Magistrates’ Court on 19 May 2021 for an aggregate of 512 days’ imprisonment.[3] By reason of this fact, the respondent does not consider that
s 501(7)(c) is engaged. The Tribunal agrees with this contention advanced on behalf of the respondent.[3] Although not relied upon by the delegate of the respondent, the applicant was also sentenced to a term of 18 months’ imprisonment in the Dandenong Magistrates’ Court on 10 March 2021. However, this was also an aggregate sentence.
By reason of the application of Pearson to this matter, the applicant was not sentenced for an offence to a term of imprisonment of 12 months or more. This fact has two implications with respect to the application made by the applicant to this Tribunal.
Firstly, his visa was not amenable to mandatory cancellation under s 501(3A) of the Act. As the respondent has properly acknowledged, in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘XJLR’),[4] the Full Court concluded that s 501CA relies upon a jurisdictional fact, being the existence of a legally effective cancellation decision under s 501(3A) of the Act, with a legally effective decision required in order for the decisionmaker to exercise the power under s 501CA(4) to revoke the cancellation decision.[5] Therefore, the respondent accepts that the Tribunal is bound by the findings of the Full Court in XJLR. By reason of this fact, there is no legally valid cancellation decision and, therefore, no power to review and consider the revocation of the cancellation decision. The Tribunal accepts this submission on behalf of the respondent.
[4] (2022) 289 FCR 256.
[5] XJLR per Rares J at [80] and [83], and Yates J at [95] – [96].
The second implication arising from the aforementioned analysis of Pearson, as applied to this application, is that the applicant does not fail a character test as provided for in s 501(6)(a) of the Act because he does not have a substantial criminal record.
By reason of the application of Pearson to this matter, the respondent has accepted that the decision cancelling the applicant’s visa was invalid. Accordingly, the applicant’s visa has been reinstated. Perhaps, more accurately, it should be said, as was observed by Rares J in XJLR, that the visa has remained in full force and effect at all times. Additionally, as a logical consequence of this fact, the applicant has been released from immigration detention.
CONCLUSION AND DECISION
As a result of the above analysis, the respondent contends that the reviewable decision is not reviewable in this Tribunal. The Tribunal agrees with this contention. In the circumstances, because the Tribunal has no jurisdiction to entertain the application for the reasons articulated above, the Tribunal accepts the respondent’s submission that the application should be dismissed pursuant to the power contained in s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The Applicant has informed the Tribunal that he agrees for the application to be dismissed. It is a proper step to take in the circumstances. Therefore, the application is dismissed.
11. I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
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Associate
Dated: 25 January 2023
Date of hearing: Hearing on the papers
Applicant:
Mr Nelson Azevedo
Respondent
Minister for Immigration, Citizenship and Multicultural Affairs
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