Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involves the applicant, a citizen of New Zealand, who sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to not revoke the mandatory cancellation of his visa. The applicant's visa was cancelled on the basis that he had a substantial criminal record as defined in the Migration Act 1958 (Cth). Specifically, the delegate of the Minister was satisfied that the applicant had been sentenced to an aggregate term of imprisonment of 14 months, which, according to s 501(7)(c) of the Migration Act, constituted a substantial criminal record warranting mandatory cancellation of his visa. The applicant's contention was that the aggregate sentence did not properly ground a finding that he had a substantial criminal record.

The central legal issue in this case was whether an aggregate sentence, as defined in the Crimes (Sentencing Procedure) Act 1999 (NSW), could justify the mandatory cancellation of a visa under s 501(3A) of the Migration Act. The court had to determine if the aggregate sentence imposed on the applicant constituted a term of imprisonment of 12 months or more as per s 501(7)(c) of the Migration Act. The court was also required to consider the implications of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), which was enacted after the hearing in this matter.

The Federal Court, in dismissing the appeal, relied on the decision in Pearson. The court held that an aggregate sentence alone does not necessarily reflect the seriousness of individual offences and, therefore, could not be used to determine if a person had a substantial criminal record warranting visa cancellation. The court further noted that had Parliament intended for aggregate sentences to lead to mandatory visa cancellation, it would have explicitly stated so. Given the commencement of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) after the hearing, which validated the delegate's decision, the court found it unnecessary to further distinguish the case from Pearson. The court concluded that the appeal should be dismissed, and the applicant's visa cancellation decision upheld.

The final orders of the court included granting the applicant an extension of time to appeal on the specific issue of whether the delegate erred in considering the aggregate sentence as a substantial criminal record, but otherwise dismissed the application for an extension of time to appeal. The appeal was dismissed, and the applicant was ordered to pay the costs of the application and the appeal.