Pearson v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Pearson v Minister for Home Affairs [2022] FCAFC 203   

File number: NSD 854 of 2022
Judgment of: ALLSOP CJ, RANGIAH AND SARAH C DERRINGTON JJ
Date of judgment: 22 December 2022
Catchwords:

MIGRATION – application for review of decision of Administrative Appeals Tribunal to affirm decision of delegate of Minister for Home Affairs to mandatorily cancel visa on character grounds – where invitation did not crystallise the time period to make representations for revocation – where representations nevertheless made within 28 days and were considered – whether invitation a nullity – whether Minister’s failure to comply with condition precedent to exercise of power material

MIGRATION  – visa mandatorily cancelled pursuant to s 501(3A) of Migration Act 1958 (Cth) on basis of aggregate sentence of 4 years and 3 months – whether aggregate sentence “a term of imprisonment of 12 months or more” within s 501(7)(c)

ESTOPPEL – Anshun estoppel – where applicant previously sought judicial review of same decision and appealed to Full Court – whether applicant “should” have raised new grounds in previous application – where applicant could lose right ever to reside in Australia – whether “special circumstances”
Legislation:

Acts Interpretation Act 1901 (Cth) ss 2(2), 23(b)

Migration Act 1958 (Cth) ss 441A, 441G, 501(3A), 501(6), 501(7), 501(7A), 501(12), 501CA(3), 501CA(4)

Migration Regulations 1994 (Cth) rr 2.52(2)(b), 2.52(4)

Crimes Sentencing Procedure Act 1999 (NSW) s 53A
Cases cited:

AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114

BC v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1669; 67 ALD 60

Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245

Clayton v Bant [2020] HCA 44; 272 CLR 1

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 288 FCR 158

EXT20 v Minister for Home Affairs [2022] FCAFC 72

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28; 289 FCR 72

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21

Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423

New South Wales v Kable [2013] HCA 26; 252 CLR 118

Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825

Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

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

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Details
Case
[2022] FCAFC 203
Decision Date

CaseChat Overview and Summary

The case of Pearson v Minister for Home Affairs involves a challenge by Ms Pearson against the Minister for Home Affairs regarding the cancellation of her visa on character grounds. Ms Pearson's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to her having been sentenced to a term of imprisonment of 12 months or more. The dispute centres on the validity of the notice provided to Ms Pearson regarding the cancellation and the subsequent representations she made in response. Additionally, the case examines whether the aggregate sentence constitutes a single sentence or multiple sentences for the purposes of the Migration Act. The Federal Court was tasked with determining the validity of the notice, the interpretation of the statutory requirement for aggregate sentences, and whether Ms Pearson was estopped from raising new grounds in her appeal.

The primary legal issues the court addressed were whether the notice given to Ms Pearson was invalid for not clearly specifying the timeframe for making representations and whether an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) qualifies as a single sentence or multiple sentences for the purposes of the Migration Act. Furthermore, the court considered whether Anshun estoppel applied to prevent Ms Pearson from raising new grounds in her appeal, potentially barring her from ever residing in Australia.

The court found that the notice was not invalid despite its failure to clearly specify the timeframe for making representations. The representations Ms Pearson made were within the 28-day period, and the Minister considered them, thus satisfying the statutory requirement. The court held that an aggregate sentence under the relevant NSW legislation is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment. Consequently, the court dismissed Ms Pearson's first and second grounds of appeal but upheld her third ground. The Anshun estoppel principle was not applicable as it was not appropriate to prevent Ms Pearson from raising the new grounds given the potential loss of her right to reside in Australia.

The court ordered that the parties provide proposed short minutes of order within 7 days, including details on costs, to reflect the substance of the court's reasons.

Orders

Orders of the court

1. Within 7 days, the parties provide the Full Court with proposed short minutes of order, including as to costs, reflecting the substance of these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the first question raised in the SFAOA should be answered “No”, and the second that it is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment. Consequently, Ms Pearson’s first and second grounds of appeal (which reflect the first question) must be dismissed. Ground three (which reflects the second question) must be upheld.Background On 17 July 2019, Ms Pearson was notified that a delegate of the Minister for the Department of Home Affairs had cancelled her class TY subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act because she had been sentenced to a term of imprisonment of 12 months or more (Cancellation decision). Ms Pearson was informed of that decision by letter dated 17 July 2019 and was invited to make representations to the Minister about revoking the decision to cancel her visa. The letter informed Ms Pearson that the representations:must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’. The letter made four claims relevant to the period in which she was required to make her representations:·any representations “must be made within 28 days after you are given this notice”.·the “Required Information” (which was defined to include the information specified in reg 2.52(4)) “MUST be received by the Department within 28 days after you are taken to have received this notice”. ·“As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice”.·“If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s 501CA(4)(a) of the Act”.(Emphasis added) Ms Pearson was also informed that once the Required Information had been received by the Department within the 28-day period, she was at liberty to provide any additional information which would be considered if received before the revocation decision was made. Ms Pearson was deemed to have received the invitation to make representations on 26 July 2019. By email on 22 August 2019 at 4:18:27 pm (being sent by Ms Pearson and received by the Department within 28 days of receipt of the invitation by Ms Pearson) Ms Pearson’s legal representatives made representations on her behalf to support her request for revocation of the Cancellation decision. The Department acknowledged receipt of Ms Pearson’s representations by email on 23 August 2019 which also said the Department “will consider them in due course”. Further information was provided to the Department by Ms Pearson’s legal representatives on 15 October 2019, 20 November 2019, 22 November 2019, and 25 November 2019.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 24 June 2020, Ms Pearson was notified that the Minister’s delegate had decided not to revoke the Cancellation decision (Non-Revocation Decision). Ms Pearson sought review of the Non-Revocation Decision by the Administrative Appeals Tribunal which, on 15 September 2020, affirmed the decision. On 22 July 2021, a judge of the Court dismissed an application for judicial review of the Tribunal’s decision (Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825). That decision was upheld by the Full Court on 1 March 2022 (Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22). These proceedings were commenced on 10 October 2022 subsequent to Ms Pearson’s being served with a notice of intended removal from Australia five days earlier.Section 501CA of the Migration Act Section 501CA(3) requires the Minister, as soon as practicable after making a decision to cancel under s 501(3A), to: (a) give the person, in the way that the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. Regulation 2.52(2) sets out the time period in which representations must be made: (2) The representations must be made:(a) for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and(b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act. The Minister’s authority to revoke the original decision is contained in s 501CA(4), which provides:(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. Section 501CA(3) requires the Minister to do two things before reaching the requisite state of satisfaction to revoke, or not to revoke, the original decision – to give a written notice to the person concerned, and to invite the person to make representations within a period of time and in a manner ascertained in accordance with the Migration Regulations. The verbs “give” and “invite” bear their common or ordinary meanings of “to deliver or hand over” and “to request politely or formally”: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 at [23]. The High Court held that, “The verbs ‘give’ and ‘invite’ connote only the performance of an act rather than the consequences of that performance…”: at [23].

Ratio Decidendi

Legal Principle Established

Ms Pearson’s application for judicial review raises two questions of some importance to the construction and application of the Migration Act 1958 (Cth) in circumstances where a person’s visa has been mandatorily cancelled under s 501(3A) of the Migration Act because the person has been sentenced to a term of imprisonment of 12 months or more. The first is whether the notice given to Ms Pearson of the cancellation of her visa was invalid because it failed to comply with the requirements of s 501CA(3)(b) of the Migration Act and reg 2.52(2)(b) of the Migration Regulations 1994 (Cth). The second is 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. Ms Pearson sought leave to raise the second question as a new ground in her Second Further Amended Originating Application for review of a migration decision (SFAOA) annexed to her outline of submissions filed on 15 November 2022. The Minister opposed the grant of leave relying, ultimately rather weakly, on the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun estoppel). As is discussed below, the principle was not engaged in the present case and leave should be granted to Ms Pearson to rely on the SFAOA. For the reasons that follow, the first question raised in the SFAOA should be answered “No”, and the second that it is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment. Consequently, Ms Pearson’s first and second grounds of appeal (which reflect the first question) must be dismissed. Ground three (which reflects the second question) must be upheld.Background On 17 July 2019, Ms Pearson was notified that a delegate of the Minister for the Department of Home Affairs had cancelled her class TY subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act because she had been sentenced to a term of imprisonment of 12 months or more (Cancellation decision). Ms Pearson was informed of that decision by letter dated 17 July 2019 and was invited to make representations to the Minister about revoking the decision to cancel her visa. The letter informed Ms Pearson that the representations:must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’. The letter made four claims relevant to the period in which she was required to make her representations:·any representations “must be made within 28 days after you are given this notice”.·the “Required Information” (which was defined to include the information specified in reg 2.52(4)) “MUST be received by the Department within 28 days after you are taken to have received this notice”. ·“As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice”.·“If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s 501CA(4)(a) of the Act”.(Emphasis added)