Retrospective Response: Pearson v Minister for Home Affairs
17.03.2023
In its important judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203 (delivered on 22 December 2022), the Full Court of the Federal Court found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation power at s 501(3A) of the Migration Act 1958 (Cth).
Since their introduction in 2014, the mandatory cancellation powers have caused a ten-fold increase in visa cancellation decisions and generated what has been referred to as a ‘labyrinth of authority’ regarding their proper application.
The judgment in Pearson should be understood in context of other recent decisions such as XJLR [2022] FCAFC 6 as an important attempt by the Full Court to restrict the creep of mandatory cancellation powers by limiting their ambit to ‘the clearest of situations, pursuant to an exceptional, closely confined power’ (XJLR, [68]) and ‘only the most serious offending’ (Pearson, [47]).
This entry discusses the Full Court’s decision in Pearson, the immediate legislative response by way of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), and the implications of that response – particularly for the people taken back into immigration detention as a result.
The Full Court Judgment
The appellant, Kate Pearson, is a citizen of New Zealand. She was granted a Special Category (Subclass 444) visa when she last entered Australia.
After her arrival in Australia, Ms Pearson received an aggregate sentence of 4 years and 3 months' imprisonment. That sentence was imposed in relation to 10 offences, under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 17 July 2019, Ms Pearson was notified that a delegate of the Minister for Home Affairs had cancelled her Special Category visa under s 501(3A) of the Act, as she had a ‘substantial criminal record’ within the meaning of s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more (the cancellation decision). The notice given with the cancellation decision also advised that Ms Pearson could seek revocation of the decision by providing certain ‘required information’ within 28 days of the date she was taken to receive the notice.
On 22 August 2019, Ms Pearson, through her lawyers, made representations to the Department of Home Affairs, seeking revocation of the cancellation decision.
On 24 June 2020, Ms Pearson was notified that a delegate of the Minister had decided not to revoke the cancellation decision.
Ms Pearson sought review of that decision by the Administrative Appeals Tribunal. The Tribunal affirmed the decision. After that, Ms Pearson unsuccessfully sought judicial review of the Tribunal’s decision in the Federal Court.
On 10 October 2022, Ms Pearson commenced new proceedings in the Federal Court, challenging the validity of the cancellation decision itself. Those proceedings were commenced after Ms Pearson was served with a notice of intended removal from Australia. Ms Pearson’s new application was heard and determined by the Full Court of the Federal Court.
The proceedings raised two important issues for resolution.
First, whether notice of the cancellation decision was invalid, as it failed to comply with the requirements of s 501CA(3)(b) and reg 2.52(2)(b) by failing to properly specify the date by which representations seeking revocation might be made. The Full Court found that the cancellation decision was not invalid as a result of this defect.
Secondly, whether an aggregate sentence constituted a single ‘term of imprisonment of 12 month or more,’ so as to attract the operation of the mandatory cancellation power. The Full Court found that it did not. This issue will be the focus of this post.
When the cancellation decision was made, the mandatory cancellation power at s 501(3A) of the Act read as follows:
(3A) The Minister 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.
In accordance with s 501(3A)(a)(i), the mandatory cancellation power operated in relation to visa-holders who had a ‘substantial criminal record’ within the meaning of s 501(7)(a), (b) or (c), relevantly as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
The question for the Full Court was whether an aggregate sentence constituted a ‘term of imprisonment of 12 months or more,’ for the purposes of s 501(7)(c) of the Act.
The Full Court entered on that question by noting ‘the significance of the proper construction of the character test’ ([41]), given the consequences that flow from mandatory visa cancellation. Having regard to the limited grounds on which mandatory visa cancellation might occur, the Full Court found that it was ‘reserved for the most serious offences’ ([42]).
The Full Court found that the definition of ‘sentence’ in s 501(12) (being punishment for ‘an offence’) informed the construction of s 501(7)(c), such that a term of imprisonment of 12 months or more must be for a single offence in order to attract the application of the mandatory cancellation provisions ([43]).
The Full Court further found that an aggregate sentence – being a single sentence imposed in relation to multiple offences, where the individual sentence for each offence was not necessarily specified – did not constitute a single sentence to a term of imprisonment of 12 months or more. That was because ‘the aggregate sentence of itself will say little to nothing about the seriousness of the individual offences for which indicative sentences have been given’ ([45]).
Importantly, that was found to be so even though the NSW legislation under which Ms Pearson was sentenced required the sentencing judge to give indicative sentences for each offence dealt with under the aggregate sentence – and even though, in Ms Pearson’s case, the sentencing judge gave indicative sentences for each of the ten offences, one of which was for a term of 18 months ([44]). The Court observed that, under the NSW legislation, an aggregate sentence would not be invalidated by a failure to specify indicative sentences for each of the individual offences and that ([45])
[i]n 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.
Consequently, the Full Court concluded that Ms Pearson had not been sentenced to ‘a term of imprisonment of 12 months or more’ within the meaning of s 501(7)(c) of the Act, and thus was not liable to have her visa mandatorily cancelled under s 501(3A)(a)(i) of the Act.
Legislative Response
After the Full Court published its reasons, the Minister moved promptly to release a total of 163 people from immigration detention. Anecdotally, lawyers in Melbourne observed that the visas of a smaller, undisclosed number of people from that group were cancelled again under the Minister’s personal ‘national interest’ powers at s 501(3) of the Act, on the basis that they presented an unacceptable risk to the community. The majority, however, were allowed to remain at large and rebuild their lives – in some cases, after a lengthy period in immigration detention.
On 7 February 2023, the government introduced the Migration Amendment (Aggregate Sentences) Bill 2023 in the Senate. In his second reading speech, Minister Giles explained its purpose as ‘confirm[ing] the long-held bipartisan understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act.’ The retrospective application of its provisions was described by the Minister as ‘important to enable those decisions that were to protect the Australian community to stand.’
The Bill was agreed to by the Senate on 9 February, by the House of Representatives on 13 February, and came into effect on 17 February 2023. The amending legislation inserted a new provision, s 5AB, into the Migration Act, clarifying that:
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Part 2 of Schedule 1 of the amending legislation provides for s 5AB to have retrospective effect. Part 2, item 4(1) applies to
a thing done, or purportedly done, before commencement under a law … [that] would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.
To ‘do a thing’ is defined at Item 2 to mean ‘make a decision (however described); and… exercise a power, perform a function, comply with an obligation or discharge a duty; and… do anything else.’ Item 4(3) provides that such a ‘thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.’
Part 5, Item 5 details the application of the provisions to review rights impacted by the amending legislation. Item 5(1) provides that, where the Act or Regulations allowed for representations to be made seeking revocation of a cancellation or an application for review or to a court in relation to the validated decision, and such action had not been taken by the former visa holder before 22 December 2022, then such action could be taken ‘as if the period for taking the action... started on commencement [of the amending legislation]… and were the same length as the original period.’
In relation to a revocation process or merits or court proceeding that was withdrawn or discontinued following the Pearson judgment on 22 December 2022, the amending legislation allows for the taking of ‘fresh action’. Item 5(2)(d) provides that, where the Act or Regulations prescribed a period within which certain action was to be taken (ie the making of a revocation request, lodgement of a review application, or commencement of proceedings), then ‘fresh action’ of that kind may be commenced as if the prescribed period started at commencement of the amending legislation.
Implications of the Amending Act
On 17 February 2023, many if not all of the people who had been released from immigration detention following the Pearson judgment received correspondence from the Australian Border Force, advising that the decision to cancel their visa made under s 501(3A) had been re-validated and accordingly, that they were ‘unlawful non-citizens’ liable to be returned to immigration detention. It is unclear how many of those people have subsequently been detained.
Whatever the merits of closing the legislative gap identified in respect of aggregate sentences by Pearson, the retrospective application of the amending legislation has been of significant concern for people subject to it and their representatives. There is sound basis for that concern.
Persons subject to mandatory visa cancellation under s 501(3A) of the Act must remain in immigration detention while pursuing a revocation request and related appeal processes. The time spent in immigration detention by people subject to mandatory visa cancellation has grown exponentially. This is for several reasons. First, the sheer number of cancellation decisions, coupled with resourcing decisions made by the Department, mean that revocation requests typically take more than twelve months to decide. Secondly, errors in the review process at the Tribunal are frequent, meaning that visa holders must endure extended court proceedings in order to have their matters remitted for reconsideration. On remittal to the Tribunal, the 84-day time limit imposed by s 500(6L)(c) no longer applies – meaning that the Tribunal may hear and decide the matter at its leisure.
Many of those released from immigration detention following Pearson had already been detained for upwards of twelve months. Some were at advanced stages of the review and appeal processes. In one case brought to our attention, for instance, the Tribunal had concluded its review hearing with an indication that the non-revocation decision would be set aside, when the applicant was released from detention in response to Pearson – requiring the Tribunal to conclude that it no longer had jurisdiction to conduct the review. Likewise, judicial review proceedings relating to decisions of the Tribunal were discontinued by applicants whose visas were reinstated following Pearson. In accordance with the amending legislation, these people will now be required to recommence their review and appeal proceedings. This may mean that the time spent in immigration detention will be significantly longer than if they had not been released at all.
There is a real prospect that many of those subject to the amending legislation might have missed the period allowed to take ‘fresh action,’ including by way of a review application. The Act prescribes a strict period of 9 days to seek review of a non-revocation decision made under s 501CA. In accordance with Item 5(2)(d) of the amending legislation, that period would have expired on 26 February 2023. Sub-section 500(6D)(b) of the Act expressly excludes the Tribunal’s power to extend time beyond the prescribed 9 days. The generic correspondence sent to former visa holders on 17 February 2023 said nothing of the recommencement of the review period: it is likely that many missed their opportunity to seek review.
It remains to be seen whether those affected by the retrospective application of s 5AB of the Act will seek to challenge it – for instance, on the basis that it infringes the separation of powers enshrined by Chapter III of the Constitution. It might be argued that the amending legislation constitutes an impermissible interference with the exercise of judicial power, noting that an application for special leave to appeal from the Full Court’s decision remains on foot before the High Court. But the force of such an argument may be doubtful. Ch III jurisprudence recognises that there is no general ‘prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action’ but draws the line at legislative ‘direction to the judicial branch which interferes with its independent adjudication in the pending case, or directs the exercise of judicial discretion therein.’ While the concept of legislative ‘direction’ is not fixed, it seems reasonably clear that the amending legislation was not intended to dictate the outcome of the pending proceedings before the High Court, and simply constituted a change to the substantive law to be applied by the court in its resolution of those proceedings.
While these arguments play out, there will be little immediate comfort for the people who have been re-detained. At the time of writing, around 60 percent of people in immigration detention have been subject to visa cancellation under s 501 of the Act. The average time spent by people in immigration detention is at record levels, at 806 days.
In this light, the government’s response to Pearson is difficult to square with its commitment to reducing immigration detention numbers. It also begs the question, posed by the Senate Standing Committee on Human Rights:
If the risk posed by Australian citizens who have been sentenced to an aggregate term of imprisonment can be adequately managed in the community, such that they do not require further detention and removal from Australia following the completion of their sentence… why similar measures could not adequately mitigate the potential risk posed by noncitizens…
The mandatory cancellation regime – its operation in relation to long-term residents and connection with prolonged and indefinite detention – requires urgent and sustained attention.
Sanmati Verma is a Managing Lawyer at the Human Rights Law Centre and a Law Institute of Victoria accredited specialist in immigration law.
Suggested citation: Sanmati Verma ‘Retrospective Response: Pearson v Minister for Home Affairs’ on AUSPUBLAW (17 March 2023) <https://www.auspublaw.org/blog/2023/3/retrospective-response-pearson-v-minister-for-home-affairs/>