Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10

Federal Court of Australia

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10 File number(s): NSD 296 of 2022 WAD 111 of 2022

Judgment of: PERRY, DERRINGTON AND THAWLEY jJ

Date of judgment: 14 February 2023

Catchwords: MIGRATION – appeal from Federal Court of Australia dismissing application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to revoke cancellation decision – application for judicial review also before the Full Court of decision by Minister's delegate to cancel appellant's visa under s 501(3A) of the Migration Act 1958 (Cth) on character grounds where applicant was sentenced to aggregate sentence of 12 months' imprisonment for several offences –whether an "aggregate sentence of imprisonment" of 12 months imposed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is capable of triggering the mandatory visa cancellation requirement in s 501(3A) of the Migration Act – where Minister made formal submission only that decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 is plainly wrong – decision in Pearson followed – where Bill to validate with retrospective effect any decision made under s 501(3A) on the basis of an aggregate sentence passed both houses of Parliament but Royal Assent not yet given – appeal allowed and application for judicial review granted with declaratory relief

Legislation: Migration Act 1958 (Cth) ss 501, 501CA Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A Migration Amendment (Aggregate Sentences) Bill 2023