RCLN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by RCLN for review of a decision not to revoke the mandatory cancellation of his visa. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The case came before Mr S. Webb, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the decision to cancel RCLN's visa was legally effective, particularly in light of the Federal Court's decision in *Pearson v Minister for Home Affairs*. This required the Tribunal to consider the proper construction of the character test provisions within the *Migration Act 1958* (Cth), specifically concerning what constitutes a "substantial criminal record" and the circumstances under which a visa is amenable to mandatory cancellation. The Tribunal also had to assess whether any error in the decision-making process was material.

The Tribunal's reasoning was heavily influenced by the Full Federal Court's interpretation in *Pearson*, which clarified that an aggregate sentence of imprisonment does not, in itself, satisfy the requirement of being "sentenced to a term of imprisonment of 12 months or more" for the purposes of mandatory visa cancellation under s 501(7)(c) of the *Migration Act*. The Court in *Pearson* emphasised that this provision refers to an objective state of affairs and that Parliament would have expressly provided for aggregate sentences if that was its intention. Applying this principle, the Tribunal found that RCLN's 2012 sentence, which involved concurrent terms, did not meet the threshold for mandatory cancellation under s 501(3A) as it was not a sentence to a single term of 12 months or more, nor was it a sentence to two or more terms where the total exceeded 12 months.

Consequently, the Tribunal determined that the decision to cancel RCLN's visa on 21 July 2021 was not legally effective. As the visa was taken to be not cancelled, there was no authority to consider a revocation of a cancellation that had no legal force. The Tribunal concluded that the decision under review was a nullity and that it therefore had no current jurisdiction to consider the application. The application was dismissed.