Pearson v Minister for Home Affairs [2022] FCAFC 203
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File number: |
NSD 854 of 2022 |
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Judgment of: |
ALLSOP CJ, RANGIAH AND SARAH C DERRINGTON JJ |
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Date of judgment: |
22 December 2022 |
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Catchwords: |
MIGRATION – application for review of decision of Administrative Appeals Tribunal to affirm decision of delegate of Minister for Home Affairs to mandatorily cancel visa on character grounds – where invitation did not crystallise the time period to make representations for revocation – where representations nevertheless made within 28 days and were considered – whether invitation a nullity – whether Minister’s failure to comply with condition precedent to exercise of power material
MIGRATION – visa mandatorily cancelled pursuant to s 501(3A) of Migration Act 1958 (Cth) on basis of aggregate sentence of 4 years and 3 months – whether aggregate sentence “a term of imprisonment of 12 months or more” within s 501(7)(c)
ESTOPPEL – Anshun estoppel – where applicant previously sought judicial review of same decision and appealed to Full Court – whether applicant “should” have raised new grounds in previous application – where applicant could lose right ever to reside in Australia – whether “special circumstances” |
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Legislation: |
Acts Interpretation Act 1901 (Cth) ss 2(2), 23(b) Migration Act 1958 (Cth) ss 441A, 441G, 501(3A), 501(6), 501(7), 501(7A), 501(12), 501CA(3), 501CA(4) Migration Regulations 1994 (Cth) rr 2.52(2)(b), 2.52(4) Crimes Sentencing Procedure Act 1999 (NSW) s 53A |
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Cases cited: |
AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 BC v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1669; 67 ALD 60 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 Clayton v Bant [2020] HCA 44; 272 CLR 1 EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 288 FCR 158 EXT20 v Minister for Home Affairs [2022] FCAFC 72 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28; 289 FCR 72 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21 Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 New South Wales v Kable [2013] HCA 26; 252 CLR 118 Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825 Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 288 FCR 180 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 Tapiki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 391 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 ; 259 CLR 212 Vaughan v The Queen [2020] NSWCCA 3 XJLR v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 |
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Division: |
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Registry: |
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National Practice Area: |
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Number of paragraphs: |
58 |
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Date of last submissions: |
2 December 2022 |
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Date of hearing: |
25 November 2022 |
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Counsel for the Applicant: |
Mr P Knowles SC |
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Counsel for the First Respondent: |
Mr C Lenehan SC and Mr J Wherrett |
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Solicitor for the First Respondent: |
Australian Government Solicitor |
ORDERS
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NSD 854 of 2022 |
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BETWEEN: |
KATE PEARSON Applicant
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AND: |
MINISTER FOR HOME AFFAIRS First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Third Respondent
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order made by: |
ALLSOP CJ, RANGIAH AND SARAH C DERRINGTON JJ |
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DATE OF ORDER: |
22 December 2022 |
THE COURT ORDERS THAT:
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Within 7 days, the parties provide the Full Court with proposed short minutes of order, including as to costs, reflecting the substance of these reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction-
Ms Pearson’s application for judicial review raises two questions of some importance to the construction and application of the Migration Act 1958 (Cth) in circumstances where a person’s visa has been mandatorily cancelled under s 501(3A) of the Migration Act because the person has been sentenced to a term of imprisonment of 12 months or more. The first is whether the notice given to Ms Pearson of the cancellation of her visa was invalid because it failed to comply with the requirements of s 501CA(3)(b) of the Migration Act and reg 2.52(2)(b) of the Migration Regulations 1994 (Cth). The second is whether, for the purposes of s 501 of the Migration 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.
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Ms Pearson sought leave to raise the second question as a new ground in her Second Further Amended Originating Application for review of a migration decision (SFAOA) annexed to her outline of submissions filed on 15 November 2022. The Minister opposed the grant of leave relying, ultimately rather weakly, on the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun estoppel). As is discussed below, the principle was not engaged in the present case and leave should be granted to Ms Pearson to rely on the SFAOA.
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For the reasons that follow, the first question raised in the SFAOA should be answered “No”, and the second that it is neither a single sentence to a term of imprisonment nor a sentence to two or more terms of imprisonment. Consequently, Ms Pearson’s first and second grounds of appeal (which reflect the first question) must be dismissed. Ground three (which reflects the second question) must be upheld.
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On 17 July 2019, Ms Pearson was notified that a delegate of the Minister for the Department of Home Affairs had cancelled her class TY subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act because she had been sentenced to a term of imprisonment of 12 months or more (Cancellation decision). Ms Pearson was informed of that decision by letter dated 17 July 2019 and was invited to make representations to the Minister about revoking the decision to cancel her visa. The letter informed Ms Pearson that the representations:
must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original...
