Aggregate sentences for mandatory visa cancellation

The case of Pearson v Minister for Home Affairs [2022] FCAFC 203 dealt with the mandatory visa cancellation provision of the Migration Act.

The non-citizen had her class TY subclass 444 Special Category (Temporary) visa cancelled in July 2019, after being sentenced to a term of imprisonment of 4 years and 3 months in respect of 10 offences. The cancellation was made under s 501(3A) of the Migration Act, which requires visa cancellation if the non-citizen has a ‘substantial criminal record’. A substantial criminal record (amongst others) is defined as a sentence to death, life imprisonment, or a term of imprisonment of 12 months or more.

Ms Pearson raised three grounds in her application for judicial review, one of which was accepted by the court. The accepted ground explored whether Ms Pearson’s sentence to an aggregate maximum term of imprisonment of 4 years and 3 months invokes the mandatory visa cancellation provision. The court interpreted the legislation and determined that mandatory cancellation of a person’s visa on character grounds is reserved for the most serious offences and there was no intention to include ‘aggregate terms’. 

It was found that the apparent purpose of s 501(3A) is to only subject the most serious offenders to mandatory cancellation of a visa. The fact that Parliament did not specify an aggregate sentence of 12 months or more to be subject to mandatory cancellation is consistent with this purpose. It is possible for an aggregate sentence to be arrived at after convictions of lesser offences, none of which would individually render a person liable to have their visa mandatorily cancelled.

This judgement clarifies the interpretation of the mandatory visa cancellation provision in the Migration Act and serves as a reminder that such provisions are reserved for the most serious offences. The case also highlights the importance of proper interpretation of legislation and the role of the courts in ensuring that the purpose and intent of the legislation is upheld.

The decision in Pearson v Minister for Home Affairs also has significant implications for non-citizens facing visa cancellations on character grounds. The case emphasizes that mandatory visa cancellations should only be imposed in the most serious of cases, and serves as a reminder that the provisions of the Migration Act must be properly interpreted and applied. The judgement also underscores the importance of seeking legal assistance for non-citizens facing visa cancellations, as proper interpretation and representation can have a significant impact on the outcome of the case.

In conclusion, Pearson v Minister for Home Affairs is a landmark case in the area of visa cancellations and has clarified the interpretation of the mandatory visa cancellation provision in the Migration Act. The decision has important implications for non-citizens facing visa cancellations on character grounds and highlights the importance of proper interpretation and representation in such cases.

In response to this decision, the Australian government introduced The Migration Amendment (Aggregate Sentences) Bill 2023, aimed at combatting the Court’s decision. The purpose of the bill is to amend the Migration Act to clarify the circumstances under which the mandatory cancellation of a visa can occur on character grounds. The bill seeks to ensure that the provisions of the Act are consistent with the intent of the legislation, and that the mandatory cancellation of a person’s visa is reserved only for the most serious offenses. The bill, if passed, would have far-reaching consequences for non-citizens sentenced to an aggregate term of imprisonment, and would be a significant development in the application of the Migration Act.

For applicants who are concerned about their chances of passing the character test, it is advisable to book a consultation with a lawyer who specializes in immigration law. These lawyers can provide guidance and help individuals understand the latest changes in immigration law and how it may affect their application.