Is a sentence greater than the sum of its parts? — Pearson v Minister for Home Affairs [2022] FCAFC 203

Report by our Corporate Partners LexisNexis Date: 6 January 2022

Court: Federal Court of Australia — New South Wales District Registry

Judge(s): Allsop CJ, Rangiah and Sarah C Derrington JJ

Judgment date: 22 December 2022

Catchwords:

Migration — Mandatory cancellation — Time period to make representations — Anshun estoppel

Abstract:

On 17 July 2019, the applicant was notified that their application for a class TY subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (Act) had been cancelled. The application was cancelled as the applicant had been sentenced to a term of imprisonment of 12 months or more, although this was an aggregate sentence. The applicant was invited by letter to make representations by 23 August 2019 to have this decision reviewed; representations were provided on 22 August 2019 with additional representations sent later in 2019. The Department of Home Affairs did not receive these representations until 23 August 2019. On 24 June 2020, the applicant was notified that the cancellation decision would not be revoked.

The applicant has sought to have this non-revocation decision reviewed on the following main grounds:

  • •that the invitation to provide submissions was invalid as the period for representations was “improperly crystallised”; and
  • •the applicant has not engaged the “substantial criminal record” component of s 501(7)(c) as the term of imprisonment was an aggregate sentence.

In response, the relevant Minister argued that the principles of Anshun estoppel should prevent the above grounds being raised as the Aapplicant had already unsuccessfully sought judicial review on the decision.

Grounds 1 and 2: Period for representations:

For the purposes of these grounds, there was held to be no dispute as to whether the invitation to make representations complied with s 501CA of the Act.

The period for representations within the letter provided was within 28 days. In this case, it was to be 28 days from the time the letter was received; as such, a concrete date was not provided. Despite the lack of clarity as to whether the 28th day was on 22 or 23 August 2019, the applicant’s representations were received within this limit. These initial representations were considered alongside those received later in 2019 “there is no suggestion in the delegate’s reasons that the timing of the receipt of the more detailed representations impacted in any way on the weight accorded to those representations”.

While the invitation was found to be invalid for the manner in which it specified the time period for representations, it was nonetheless found to be valid in that it did invite such representations.

The representations were invited and considered, and the invitation was valid to this extent, so these grounds must fail.

Ground 3: Aggregate sentences and a “substantial criminal record”:

The applicant’s sentence, which led to the initial rejection under s 501(3A) of the Act, was an aggregate sentence of 4 years and 3 months of imprisonment in respect to 10 offences. One of the indicative sentences provided was for a term of 18 months, which was over the 12 months stated in the definition of “substantial criminal record” in s 501(7)(c).

It was held in JM v R [2014] NSWCCA 297; BC201419340 at [40] that an aggregate sentence is “the only operative sentence imposed by the court” and that “the periods indicated by the court have no practical operation at all”. The aggregate sentence therefore should not lead to any conclusions regarding the seriousness of offences despite the fact that indicative sentences were provided.

There was therefore “no objective means by which the Minister could reach any reasonable suspicion” that the applicant held a “substantial criminal record” as they had not received a sentence of more than 12 months.

The applicant’s visa was not eligible for mandatory cancellation. This ground was upheld and leave to rely upon it was granted.

Anshun estoppel:

The Minister argued in response that the new ground regarding the aggregate sentence as discussed above should have been raised in the Applicant’s previous application, relying upon the principles of Anshun estoppel.

There was ultimately no discussion brought before the court of the circumstances surrounding why this ground was not previously raised.

The onus to demonstrate a factual basis for the operation of these principles laid with the Minister, who did not sufficiently discharge it.

The court noted that, if the applicant were not facing deportation, the conclusion that they “should” have raised this ground in the previous application were more likely to be drawn. As-is, this conclusion “is not one that should be lightly drawn”.

Orders:

The parties were to provide the Full Court with short minutes of order within 7 days of the judgment date.

The full judgment of the court can be found at Pearson v Minister for Home Affairs [2022] FCAFC 203; BC202219854.

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