Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs

In the matter of Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs, the Federal Court of Australia was tasked with reviewing the decision of the Administrative Appeals Tribunal (AAT) affirming the decision by the Minister not to revoke the cancellation of the appellant's visa under section 501(3A) of the Migration Act 1958 (Cth). The appellant, who had been sentenced to an aggregate of 12 months' imprisonment for several offences, was facing visa cancellation on character grounds. The primary issue before the court was whether an "aggregate sentence of imprisonment" of 12 months, imposed under section 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), could trigger the mandatory visa cancellation requirement under section 501(3A) of the Migration Act.

The court examined the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203, which held that an aggregate sentence of imprisonment of 12 months did not constitute a sentence of imprisonment of 12 months or more, and thus did not trigger the visa cancellation provision. The Minister's delegate argued that the Pearson decision was plainly wrong, but the court chose to follow the Pearson decision. Additionally, although a bill to validate with retrospective effect any decision made under section 501(3A) on the basis of an aggregate sentence had passed both houses of Parliament, Royal Assent had not yet been given. The court granted the application for judicial review, declaring the decision to cancel the appellant's visa invalid and affirming that the appellant continues to hold a Class TY Subclass 444 Special Category (Temporary) visa. The Minister was ordered to pay the appellant's costs as agreed or assessed.