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

[2023] AATA 9

Sio and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 9 (10 January 2023)

Division:GENERAL DIVISION 

File Number(s):      2022/9291

Re:Trevor Lokeni Sio  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mr S. Webb, Member

Date:10 January 2023

Place:Canberra

Application dismissed.

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Mr S. Webb, Member

Click here to enter decision.

Catchwords

MIGRATION – mandatory cancellation of visa – representations – decision not to revoke cancellation – effect of Pearson v Minister for Home Affairs – decision to cancel visa invalid – visa taken to be not cancelled – no authority to consider revocation – decision subject to review a nullity – proceeding with review misconceived – application dismissed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 42A, 42B
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A
Migration Act 1958 (Cth), ss 500, 501, 501CA

Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff S157/2002 v Commonwealth [2002] HCA 3
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6

REASONS FOR DECISION

Mr S. Webb, Member

10 January 2023

1. Trevor Sio is a citizen of New Zealand who was issued a Class TY Subclass 444 Special Category (Temporary) visa (Visa) on arrival in Australia. Mr Sio committed a number of criminal offences for which he was sentenced to an aggregate maximum term of imprisonment of 3 years and 2 months, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) decided, pursuant to the duty imposed under s 501(3A) of the Migration Act 1958 (Act), to cancel Mr Sio’s Visa (cancellation decision). Mr Sio made representations to the Minister. A delegate of the Minister decided not to revoke the cancellation decision (revocation decision). Mr Sio applied for review of this decision by the Tribunal.

3. In the course of the proceedings, on 23 December 2022, the Federal Court handed down its decision in Pearson v Minister for Home Affairs (Pearson).[1] The Full Court decided the aggregate sentence of 4 years and 3 months Ms Pearson was given for offences she committed did not amount to her being sentenced to a term of imprisonment of 12 months or more for the purposes of s 501(7)(c) of the Migration Act 1958 ((Migration Act). The Court said:

   45. … The aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given. Further, in the case where a sentencing judge fails to provide indicative sentences for individual offences, an aggregate sentence of imprisonment is not invalidated (s 53A(5)). In such circumstances, there could be no objective means by which the Minister could reach any reasonable suspicion, on the basis of s 501(7)(c), as to whether a person’s visa ought to be mandatorily cancelled.

   46    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28; 289 FCR 72 at [26], the Full Court said:

   The natural and ordinary meaning of the unqualified expression, “sentenced to a term of imprisonment”, as it is used within the definition of a substantial criminal record in s 501(7)(c), describes an objective state of affairs. That unqualified expression contrasts, for example, with the qualified expression of the nature of the sentence on which s 501(3A)(b) operates.

   47    Similarly, the unqualified expression can be contrasted with that in s 501(7)(d) – “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” – and with the explanation in respect of concurrent sentences in s 501(7A). 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.

   48    Ms Pearson was not sentenced (for an offence) to a term of imprisonment of 12 months or more. Consequently, her visa was not amenable to mandatory cancellation under s 501(3A). Of course, nothing would have prevented the Minister from exercising his discretion pursuant to s 501(2) or (3) to cancel her visa should he have been satisfied of the matters in that subsection.

   [1] [2022] FCAFC 203.

4. On 24 December 2022, I directed the parties to provide written submissions addressing the effect of Pearson on Mr Sio’s case in the Tribunal.

5. On 3 January 2023, the parties made written submissions. The Minister submits Pearson is applicable to Mr Sio’s case and, even though consideration is being given to seeking special leave from the High Court of Australia to appeal against the decision, the Full Court’s decision is presently binding on the Tribunal.

6. I understand Mr Sio was released from immigration detention on 27 December 2022 on grounds his Visa is taken not to have been cancelled.

7. In these circumstances, the parties each requested vacation of the hearing set down for 16 and 17 January 2023. The Minister asserts the application should be dismissed for want of jurisdiction under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

8. Nevertheless, Mr Sio has not withdrawn his application for review. On 9 January 2023, he consented to dismissal of the application.

9. The Tribunal’s jurisdiction was enlivened by Mr Sio’s application for review of the revocation decision under s 501CA(4) of the Migration Act. The revocation decision was in respect of a discretion to revoke the cancellation decision where the essential preconditions in s 501CA(4) are satisfied. The discretion only arises in the limited circumstances where s 501CA applies:

   (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

10. Following Pearson, the cancellation decision was affected by jurisdictional error. It follows as a matter of general principle, the cancellation decision is taken to be no decision at all under s 501(3A) of the Migration Act, albeit capable of correction in a subsequent decision by the decision maker.[2]

    [2] Plaintiff S157/2002 v Commonwealth [2002] HCA 3 at [76]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, per Gaudron and Gummow JJ at [51]-[52].

11. Absent a valid decision being made under s 501(3A), s 501CA does not apply and the discretion conferred by s 501CA(4) is not enlivened. So much was made clear by the majority (Rares J with whom Yates J agreed) in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (XJLR). [3] Rares J said at [59]:

    In my respectful opinion, the primary judge erred in characterising the scheme of ss 501(3A) and 501CA as providing, in substance, merits review of a cancellation of a visa under s 501(3A). A s 501CA decision whether to make a revocation is based on different criteria and material to that on which the duty to cancel the visa operated pursuant to s 501(3A). There is no merits review of the s 501(3A) decision available under the Act: rather, s 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of s 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the s 501(3A) decision to cancel the visa was of no legal effect because, in the words of s 501CA(1), it was not made under s 501(3A) (Plaintiff S157/2002 [2003] HCA 2; (2003) 211 CLR 476 at 506 [76]) then the delegate under s 501CA(4) and, later, the Tribunal under s 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and s 501CA(1) could not be satisfied. The exercise of functions under s 501CA depends on there being a decision made “under s 501(3A)” so that, by force of s 501CA(1) “this section” will then apply.

    [3] [2022] FCAFC 6.

12. From this it follows, while the Minister’s delegate in fact made a decision not to revoke the cancellation decision, the delegate’s decision is a nullity and the Tribunal has no authority to review it.

13. The Tribunal’s jurisdiction is conferred by s 500(1)(ba) of the Migration Act:

    (1)  Applications may be made to the Administrative Appeals Tribunal for review of:

    (a)  …; or

    (b) …; or

    (ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or

14. As can be seen, the jurisdiction conferred is specific to a non-revocation decision under s 501CA(4).

15. In some cases, where a reviewable decision is in fact made and the decision is subsequently found to be legally flawed and nugatory, the flaw may not be determinative of the Tribunal’s jurisdiction, where the legal flaw may be amenable to correction by the Tribunal for example.[4] No such remedy is available in this case, however. The majority in XLJR applied the principle Black CJ and Allsop J discussed in SZGME v Minister for Immigration and Citizenship[5] when distinguishing the ability of the Tribunal to cure the exercise of power affected by jurisdictional error where the original decision maker could never have made the particular decision under the relevant legislation.[6]

    [4] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21.

    [5] [2008] FCAFC 91.

    [6] Ibid at [33]-[36].

16. The foundation on which the revocation decision was made no longer exists and the Tribunal’s jurisdiction enlivened by Mr Sio’s application for review has no further currency. Even if some element of jurisdiction might persist as Mr Sio has not withdrawn his application, and no such argument has been made, continuing with the review would be misconceived as there is no further utility in the proceedings.

17. Consequently, there are grounds to dismiss Mr Sio’s application under s 42A(4) and s 42B(1) of the AAT Act. Nevertheless, as both parties have consented to dismissal of the application, and being satisfied it is appropriate to do so in the circumstances, Mr Sio’s application is dismissed under s 42A(1) of the AAT Act.

    Decision

18. Application dismissed.

1.       I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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Associate

Dated: 10 January 2023

Date final submissions received:	3 January 2023
Solicitor for Applicant:	Ms Marta Mamarot, Southwest Migration and Legal Services
Solicitor for Respondent:	Mr Aaron Taverniti, SPARKE HELMORE