Pearson v Minister for Home Affairs (No 2)

[2023] FCAFC 4

FEDERAL COURT OF AUSTRALIA

Pearson v Minister for Home Affairs (No 2) [2023] FCAFC 4   

File number:

NSD 854 of 2022

Judgment of:

ALLSOP CJ, RANGIAH AND SARAH C DERRINGTON JJ

Date of judgment:

24 January 2023

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 mandatory cancellation found to be invalid

COSTS – where applicant enjoyed mixed success on grounds of appeal but where appeal ultimately successful – whether costs should be awarded   

Legislation:

Migration Act 1958 (Cth) ss 501(3A), 501(7)(c), 501CA(3)(b)

Migration Regulations 1994 (Cth) reg 2.52(2)(b)

Cases cited:

Pearson v Minister for Home Affairs [2022] FCAFC 203

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

4

Date of last submission:

19 January 2023

Date of hearing:

25 November 2022

Counsel for the Applicant:

Mr P Knowles SC

Counsel for the First and Second Respondents:

Mr C Lenehan SC, Ms N Wootton and Mr J Wherrett

Solicitor for the First and Second Respondents:

Australian Government Solicitor

ORDERS

NSD 854 of 2022

BETWEEN:

KATE PEARSON

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Third Respondent

ORDER MADE BY:	ALLSOP CJ, RANGIAH AND SARAH C DERRINGTON JJ
DATE OF ORDER:	24 JANUARY 2023

THE COURT ORDERS THAT:

1.Pursuant to s 477A of the Migration Act 1958 (Cth) (the Act), the time for making an application for a remedy in relation to the decision of the Third Respondent dated 15 September 2020 (the Tribunal Decision) affirming the decision of the delegate of the First Respondent made on 23 June 2020 (the Non-Revocation Decision) under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa be extended to 10 October 2022.

2.The Applicant be granted leave to rely on the Second Further Amended Originating Application filed on 5 December 2022.

3.The writs of certiorari be issued directed to:

(a)the First Respondent quashing the decision of a delegate of the First Respondent dated 17 July 2019 under s 501(3A) to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the Cancellation Decision); and

(b)the Third Respondent quashing the Tribunal Decision.

4.Declare that the Cancellation Decision, the Non-Revocation Decision and the Tribunal Decision are affected by jurisdictional error and invalid by reason of the fact that the relevant decision-makers erred in being satisfied that the Applicant’s aggregate sentence of imprisonment imposed by the District Court of New South Wales on 28 February 2019 resulted in her having a substantial criminal record for the purposes of s 501(6)(a) of the Act by reason of s 501(7)(c) of the Act.

5.The First Respondent pay the Applicant’s costs in an amount as agreed or taxed.

6.Pursuant to rule 4.19 of the Federal Court Rules 2011 (Cth), any costs referable to services performed by the Applicant’s pro bono lawyer be paid directly to the pro bono lawyer.

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

REASONS FOR JUDGMENT

THE COURT:

1. This matter concerns an application for judicial review in circumstances where the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because Ms Pearson had been sentenced to a term of imprisonment of 12 months or more. Ms Pearson’s application for judicial review raised three grounds: the first two grounds were directed to the question of 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 third ground, which Ms Pearson sought leave to raise by way of a Second Further Amended Originating Application, was directed to the question of whether the visa cancellation was invalid because Ms Pearson’s sentence to an aggregate maximum term of imprisonment of 4 years and 3 months in respect of 10 offences was not a sentence to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c) and hence did not engage s 501(3A) of the Migration Act.

2. On 22 December 2022, the Court delivered its reasons for judgment concerning the substantive issues in dispute in this proceeding: Pearson v Minister for Home Affairs [2022] FCAFC 203. The Court concluded that Ms Pearson’s third ground must succeed, but rejected grounds one and two. The Court invited the parties to provide proposed short minutes of order, including as to costs, reflecting the Court’s reasons for decision to dispose of Ms Pearson’s application. The parties were agreed on the appropriate orders to be made save as to costs. Ms Pearson contended that the First Respondent should pay her costs, while the First and Second Respondents contended that there should be no order as to costs.

3. Throughout the conduct of this matter, the parties and the Court were ably assisted by counsel, for which the Court is grateful.  Counsel put on brief and helpful written submissions on the question of costs.  These may be found on the Court’s electronic file and accordingly there is no need to set them out in detail here.

4. Bearing in mind the Court’s discretion to award costs and considering the applicable principles referred to in the parties’ submissions, in all of the circumstances of the case, including Ms Pearson’s success on the event and the interests of justice, the Court is of the view that Ms Pearson’s costs should be paid for the reasons expressed in Mr Knowles’ careful submissions.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Rangiah and Sarah C Derrington.

Associate:

Dated: 24 January 2023