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

[2023] AATA 5

XSHM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 5 (4 January 2023)

Division:GENERAL DIVISION

File Number:          2022/8551

Re:XSHM

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:R Cameron, Senior Member

Date:4 January 2023

Place:Melbourne

The Tribunal dismisses the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

........................[sgd]................................................

R Cameron, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – Class WE Subclass 050 Bridging General (Temporary) visa – applicant non-citizen born in Egypt – substantial criminal record – impact of Pearson – decision not reviewable by the Tribunal – application dismissed

Legislation

Migration Act 1958 (Cth)
Administrative Appeals Act 1975 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases

Pearson v Minister for Home Affairs [2022] FCAFC 203

REASONS FOR DECISION

R Cameron, Senior Member

4 January 2023

INTRODUCTION

1. The applicant seeks review of a decision made on 11 October 2022 by a delegate of the respondent, not to revoke the mandatory cancellation of the applicant’s Class WE Subclass 050 Bridging General (Temporary) visa (“the visa”) under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) (“the reviewable decision”).

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was both oral and documentary evidence before the Tribunal. The applicant gave oral evidence and was cross examined.

3. The applicant lodged with the Tribunal an array of documentary evidence which included several Mental Health Assessments, an undated letter of support from his former employer, a further statement made by him on 23 November 2022, and a psychiatric report from Dr Goodison dated 9 August 2022.

4. Additionally, there were in evidence the “G” documents provided by the respondent.

5. All the documents lodged by the applicant, together with the G documents, were helpfully incorporated into a Hearing Folder that was received in evidence by the Tribunal in its entirety.

   LEGISLATIVE FRAMEWORK

6. Under s 501(3A) of the Act, the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii) paragraph (6)(e) (sexually based offences involving a child); and

   (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

7. The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]

   [1] Migration Act 1958 (Cth) s 501(7)(c).

   THE IMPACT OF PEARSON v MINISTER FOR HOME AFFAIRS

8. Since the conclusion of evidence in this application, the Full Court of the Federal Court of Australia has delivered its reasons in the case of Pearson v Minister for Home Affairs (“Pearson”).[2] In those reasons the Full Court addressed the question of whether, “for the purposes of s 501 of the 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”.[3]

   [2] [2022] FCAFC 203 (“Pearson”).

   [3] Ibid [1].

9. The effect of the Full Court’s reasoning in Pearson, when applied to the facts of this case, is that the applicant was not sentenced to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c) of the Act.[4] This is, of course, contrary to the contentions advanced by the respondent in its Statement of Facts, Issues and Contentions that the applicant has a substantial criminal record. It was submitted that although the applicant’s sentence was to be served by way of an Intensive Corrections Order, it was nevertheless a prison sentence of more than 12 months for the purposes of s 501(7) of the Act.[5] Following the decision of the Full Court in Pearson, which the respondent admitted this Tribunal is bound by, this contention was no longer advanced by the Minister, as is noted below.

   [4] Ibid [40]–[49].

   [5] Paragraph 7 of the respondent’s Statement of Facts, Issues and Contentions are referred to.

10. Amongst other things, the Full Court of the Federal Court of Australia in Pearson observed as follows:

    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.[6]

    [6] Pearson [47].

11. In the Local Court at Fairfield the applicant had imposed upon him an aggregate sentence for 10 offences of 24 months imprisonment, with a non-parole period of 14 months. Indicative sentences for each such offence were pronounced by the Magistrate at the time of the imposition of such sentence. The maximum indicative sentence imposed by the Magistrate was 10 months for two offences.[7]

    [7] Details of the offences for which the applicant was convicted, the sentence imposed, and the individual indicative sentences are to be found at pages 57-59 of the Hearing Folder.

12. Upon appeal to the District Court of New South Wales at Parramatta, the judge hearing the appeal accepted the Magistrate’s indicative terms with the exception of the charge of receiving stolen property on 23 April 2021, and replaced that indicative term of 10 months with one of 6 months. The appellate judge also set aside the aggregate term of imprisonment. In lieu thereof, he sentenced the applicant to a term of imprisonment of 18 months to be served by way of an Intensive Correctional Order.[8]

    [8] The appellate judge’s reasons and details of the sentence imposed are found at pages 50-52 of the hearing folder. Although not specifically stated in the transcript of proceedings both in the District Court of New South Wales at Parramatta on 31 August 2021 or in the Local Court at Fairfield 11 August 2021, by reason of its examination of such transcripts of those proceedings the Tribunal infers that in each court when sentencing the applicant, the applicable provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) were followed.

13. By reason of the foregoing the applicant was not sentenced for an offence to a term of imprisonment of 12 months or more. This fact has two direct consequences. Firstly, his visa was not amenable to mandatory cancellation under s 501(3A) of the Act. Secondly, the applicant did not fail the character test as provided for in s 501(7)(c) of the Act.

14. The respondent on 3 January 2023 lodged with the Tribunal supplementary submissions regarding the impact of Pearson. In those submissions the respondent conceded that the applicant has not been sentenced to any other period of 12 months or more imprisonment. Therefore, it does not consider there is another basis upon which s 501(7)(c) of the Act would be engaged in this case. The Tribunal agrees.

15. Further, the respondent in the supplementary submissions of 3 January 2023 conceded that as a consequence of the Full Court’s decision in Pearson, the reviewable decision is invalid. Accordingly, the applicant’s visa was reinstated. This submission is correct because, as noted earlier, the applicant’s visa was not amenable to mandatory cancellation. Subsequently, the applicant was released from immigration detention on 29 December 2022.

16. The Tribunal also agrees with a contention of the respondent, made in the supplementary submissions, that the reviewable decision was not legally effective. Therefore, if there is no legally valid cancellation decision, there is no power to review and revoke the reviewable decision. By reason of the foregoing, it is therefore contended by the respondent that the reviewable decision cannot be subject to review by the Tribunal, and that the application ought to be dismissed under the provisions of s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Tribunal also agrees with this contention.

    CONCLUSION AND DECISION

17. For the reasons articulated above, the Tribunal is satisfied that the decision is not reviewable by the Tribunal. Accordingly, the application will be dismissed pursuant to s 42A(4) of the AAT Act.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

..................[sgd]...............................

Associate

Dated: 4 January 2023

Date of hearing:

15 December 2022

Applicant:

Advocate for the Respondent:

Self-represented

Mr Ingmar Duldig

Solicitor for the Respondent:

Clayton Utz