Federal Court of Australia SXNC v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 390 Review of: Application for an extension of time to apply for judicial review, and judicial review, of SXNC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4510 File number: NSD 29 of 2022 Judgment of: STEWART J Date of judgment: 28 April 2023 Catchwords: MIGRATION – validating effect of Migration Amendment (Aggregate Sentences) Act 2023 (the Amending Act) – whether a visa cancellation decision under s 501(3A) of the Migration Act 1958 that is invalid on account of relying on the same basis for the failure to pass the character test as relied on in a previous cancellation decision, but which could have relied on a different basis, being an aggregate sentence, and which would at that time have been invalid but which would subsequently have been validated by the Amending Act, is validated by the Amending Act – it is not Legislation: Migration Act 1958 (Cth) ss 5AB, 476A(1), 477A, 501(1), 501(3A), 501(6)(a), 501(7)(c), 501CA Migration Amendment (Aggregate Sentences) Act 2013 (Cth), Sch 1, items 3, 4 Cases cited: Pearson v Minister for Home Affairs [2022] FCAFC 203 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 36 Date of last submissions: 19 April 2023 (joint submissions) Date of hearing: Determined on the papers Counsel for the Applicant: D McDonald-Norman Counsel for the First Respondent: N Swan Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 29 of 2022 BETWEEN: SXNC Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: STEWART J DATE OF ORDER: 28 aPRIL 2023 THE COURT DECLARES THAT: 1. The decision of the delegate of the first respondent dated 10 December 2020 to cancel the applicant's Global Special Humanitarian visa (Class XB) (Subclass 202) is affected by jurisdictional error and invalid. THE COURT ORDERS THAT: 2. Pursuant to s 477A of the Migration Act 1958 (Cth), the time for the applicant to make an application for judicial review of the decision of the second respondent dated 25 November 2021 be extended to 7 January 2022. 3. The decision of the second respondent dated 25 November 2022 be quashed. 4. The first respondent pay the applicant's costs of the proceeding as agreed or assessed other than those costs dealt with in order 6 of the orders made on 1 September 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT STEWART J: Introduction 1 The applicant is a citizen of Iraq. In 2008, when he was 23 years of age, he moved to Australia with his immediate family. Most recently, he resided lawfully in Australia on a Class XB Subclass 202 Global Special Humanitarian visa. 2 On 7 August 2015, the applicant was convicted of a number of offences in the New South Wales District Court including for "possess unauthorised pistol – T2" for which he was sentenced to a term of imprisonment of 2 years, 5 months and 20 days. I will refer to this as the 2015 2+ years sentence. 3 On 29 September 2016, the applicant's visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth). The delegate was satisfied that s 501(3A)(a) was met on the basis of the 2015 2+ years sentence. I will refer to this cancellation decision as the first cancellation. 4 On 9 January 2017, the first cancellation was revoked pursuant to s 501CA of the Migration Act. 5 On 2 May 2018, the applicant was convicted of "assault occasioning actual bodily harm" and was sentenced in the New South Wales Local Court to a two year bond. The applicant subsequently breached the bond. 6 On 30 October 2020, the applicant was resentenced in the New South Wales Local Court to an aggregate sentence of 16 months imprisonment with a non-parole period of 12 months. The non-parole period was subsequently (ie, on 25 January 2021) reduced on appeal to 9 months but the head sentence was maintained. I will refer to this as the 2020 16 month aggregate sentence. 7 On 10 December 2020, a delegate of the Minister once again mandatorily cancelled the applicant's visa under s 501(3A) of the Migration Act – the second cancellation decision. The delegate was satisfied that s 501(3A)(a) was met on the basis of the 2015 2+ years sentence. That is, the delegate relied on the same conviction and sentence, for the purposes of s 501(3A)(a), as had been relied on in the first cancellation decision. That was presumably because of the then pending appeal against the 2020 16 month aggregate sentence. The latter sentence was relied on only in the sense that it was because of that sentence that at the time of the second cancellation decision the applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution, ie, it was relied on in satisfaction of s 501(3A)(b). 8 The applicant made written representations to the Minister requesting revocation of the second cancellation decision. On 2 September 2021, a delegate of the Minister decided not to revoke the second cancellation decision pursuant to s 501CA of the Migration Act. 9 The applicant then made an application to the Administrative Appeals Tribunal for review of the delegate's decision not to revoke the second cancellation decision. The Tribunal had jurisdiction to review the decision pursuant to s 500(1)(ba) of the Migration Act. 10 On 25 November 2021, followed by written reasons on 6 December 2021, the Tribunal affirmed the decision of the delegate not to revoke the second cancellation decision. 11 In this proceeding, the applicant applies for an extension of time to apply for judicial review of the decision of the Tribunal, and for that decision to be quashed. However, as will be seen, in the preparation and progress of the case the applicant's focus has turned to the second cancellation decision which is said to be invalid with the result that there was no power for the delegate or the Tribunal to exercise in relation to revocation of the second cancellation decision. Relevant provisions of the Migration Act 12 Pursuant to s 501(3A) of the Migration Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the "character test" (para (a)) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution (para (b)). 13 Pursuant to s 501(6)(a), a person does not pass the character test if the person has a substantial criminal record, which under s 501(7)(c), includes if the person has been sentenced to "a term of imprisonment of 12 months or more". 14 Pursuant to s 501CA(4), if the Minister makes a decision under s 501(3A) to cancel a person's visa, the Minister may revoke the original mandatory cancellation if the person makes representations in accordance with an invitation from the Minister and the Minister is satisfied that either the person passes the character test or there is another reason why the original decision should be revoked. Procedural history 15 This Court has jurisdiction in the prospective review in terms of s 476A(1)(b) of the Migration Act. Pursuant to s 477A of the Migration Act, any application by the applicant for judicial review of the Tribunal's decision had to be filed by 31 December 2021. It was filed seven days late because the applicant, by his solicitor, initially erroneously tried to file the application in Division 2 of the Federal Circuit and Family Court of Australia. 16 Only a short extension is required, and the reason for it is explained. The Minister does not oppose the extension, and there is no prejudice. I will therefore grant the extension of time. 17 On 11 January 2023, the applicant was released from immigration detention as a result of the Full Court's decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 which was handed down on 22 December 2022. As will be seen, that was because by the ratio of that decision the applicant's 2020 16 months aggregate sentence did not qualify as a sentence of 12 or more months imprisonment for the purpose of s 501(7)(c). 18 After the commencement of the Migration Amendment (Aggregate Sentences) Act 2013 (Amending Act) on 17 February 2023 which sought to reverse the decision in Pearson, the applicant voluntarily returned to detention on 20 February 2023. 19 On 17 February 2023, the Court was advised by email that the parties were in agreement that the effect of the amendments made to the Migration Act by the Amending Act is that the cancellation of the applicant's visa under s 501(3A) is taken to always have been valid. The parties also indicated their agreement that the subsequent decisions of the delegate and the Tribunal not to revoke that mandatory cancellation were therefore not affected by jurisdictional error for any reason set out in the judgment in Pearson. On this basis the parties requested that the matter proceed to hearing as soon as possible. The hearing of the application was then listed for 26 April 2023. 20 On 12 April 2023, the Minister's legal representative emailed the Court indicating that the parties were in agreement that the combined effect of the Full Court's decisions in Pearson and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256 mean that the second cancellation decision is invalid, with the further effect that the Tribunal's decision is also affected by jurisdictional error. The parties indicated their agreement that the Amending Act does not overcome this particular issue. 21 The parties confirmed that the applicant had been released from detention on 11 April 2023. 22 The Minister's legal representative requested that the matter be held in abeyance pending the finalisation of the Minister's application for special leave to appeal to the High Court (and, if granted, the appeal) in Pearson. This was on the basis that if the High Court were to overturn Pearson, the error identified by the parties would, in the Minister's view, not arise. However, if the High Court did not overturn Pearson, then the Minister would accept that the decisions underlying the application would be affected by jurisdictional error. 23 Conversely, the applicant sought that the matter be determined as soon as possible on the basis that pursuant to Pearson and XJLR the second cancellation decision is invalid and that the Tribunal's decision is in any event affected by jurisdictional error. 24 I considered the applicant's response to the Minister's request for an abeyance, which included that the applicant would suffer significant prejudice if the hearing was adjourned, and that the process of being released from detention, returned to detention, then being released again has been highly distressing for him and his family. There is also obvious uncertainty as to when the special leave application from Pearson will be determined, what its outcome will be and, if special leave is granted, what the outcome of the appeal will be. 25 I decided that, in the circumstances of the case, the Minister's request should be refused on humanitarian grounds and ordered that the Minister and the applicant file submissions on the application of Pearson and XJLR and that the application be determined on the papers thereafter. The parties filed a joint note on the application of XJLR and Pearson in which they agree on the orders that should be made. It is nevertheless necessary that the Court be satisfied as to the basis for making those orders. Application of Pearson and XJLR 26 In Pearson, the Full Court held (at [47]) that an aggregate sentence of imprisonment of 12 months or more does not constitute a single "term of imprisonment of 12 months or more" within the meaning of s 501(7)(c) and therefore does not attract the operation of the mandatory visa cancellation power under s 501(3A) of the Migration Act. 27 In XJLR, Rares J held (at [39]) that the cancellation power in s 501(3A) cannot be exercised more than once in respect of the same failure to pass the character test in s 501(3A)(a). Justices Yates and Snaden, in separate judgments, relevantly agreed with Rares J's conclusion on that point (at [89] and [100] respectively), although Snaden J was in dissent as to the ultimate result. 28 I accept the parties' joint submission that the second cancellation decision is affected by the error identified in XJLR, as the delegate who made that decision relied on, for the purposes of s 501(3A)(a), the same sentence of imprisonment as had earlier been relied on for the first cancellation decision. 29 That conclusion, however, does not end the inquiry. That is because in cases where a separate conviction and sentence exists which on its face meets the threshold of the Minister being satisfied as to the applicant having "a substantial criminal record", a question of materiality may arise. Suppose a non-citizen was convicted and sentenced for additional offences after the first s 501(CA) cancellation decision was made and then revoked. Suppose the further sentence of imprisonment was itself of 12 months or more, and hence within ss 501(6)(a) and 501(7)(c). That would constitute a fresh basis for the Minister's satisfaction as to the failure to pass the character test not relied in the first s 501(3A) cancellation decision. In such circumstances, it may be argued that at the time of the second s 501(3A) cancellation decision, the only lawful decision open to the Minister would be to cancel the visa. On review, the contention would be that there is no realistic possibility of a different decision having been made. This is the case even if the Minister had erred in the manner identified in XJLR by relying, in a second s 501(3A) decision, on the same failure to pass the character test as relied on in the earlier decision. 30 However, the parties submit, and I accept, that no such materiality issue arises in the present case. Although the applicant received a further sentence after the first cancellation decision, being the 2020 16 months aggregate sentence, as an aggregate sentence it runs into the Pearson difficulty, ie, an aggregate sentence does not count for the purposes of s 501(7)(c). 31 Putting the Amending Act to one side for a moment, I am bound to follow the ratio of Pearson, regardless of the pending special leave application. Therefore, applying Pearson, the October 2020 16 months aggregate sentence cannot be relied on to satisfy s 501(6)(a), ie, that the applicant had a substantial criminal record, and consequently cannot be relied on to satisfy s 501(3A)(a), ie, that the visa be mandatorily cancelled. No other sentences were imposed on the applicant after 2016 which could themselves satisfy s 501(3A)(a). The error by the delegate in relying on the same basis for the failure of the character test on a second occasion is therefore material and the error is jurisdictional. 32 It might be thought that the Amending Act can simply be ignored in considering whether, even though the decision is affected by error, a different decision could have been made, simply on the basis that the Amending Act was not enacted at that time. However, whether or not a decision is affected by jurisdictional error and therefore to be declared invalid must be considered at the time that the declaration is to be made. That necessarily involves looking to the law as at that time, ie, now. Relevantly, the Amending Act is now part of the law. Whether or not it has anything to say about the validity of the hypothetical decision made before it was enacted will depend on its terms – whether or to what extent it validates things done in the past and/or applies retrospectively. 33 Turning now to the Amending Act, the parties agree that it does not make the ratio of Pearson inapplicable in this case. That it despite the apparent intention of the Act to validate decisions retrospectively. In that regard, items 4(1) and 4(3)-(4) in Pt 2 of Sch 1 to the Act retrospectively validate decisions that are invalid "only because a sentence, taken into account in [making the relevant decision] was imposed in respect of 2 or more offences" (emphasis added). The parties jointly submit, and I accept, that the Act does not validate the second cancellation decision as the underlying error stems from the fact that the delegate relied on the same sentence of imprisonment as had been relied upon for the first cancellation decision, being the error identified in XJLR. The delegate did not rely on any aggregate sentence to satisfy s 501(3A)(a), and reliance on an aggregate sentence was therefore not the only reason for the invalidity. 34 Further, the parties jointly submit, and I accept, that while the Amending Act inserted s 5AB into the Migration Act, which provides that the provisions of the Migration Act apply no differently for a single sentence imposed in respect of two or more offences to the way in which provisions apply in relation to a sentence imposed for a single offence, that amendment applies "in relation to the doing of a thing on or after commencement" of the Act (item 3 of Sch 1). That is to say, although the Act validates certain qualifying decisions retrospectively, the provision that reverses the ratio of Pearson does not itself apply retrospectively. Since the Act commenced on 17 February 2023 and the second cancellation decision was made in December 2020, s 5AB does not apply. When the second cancellation decision was made, the state of the law was as it was declared to be in Pearson with the result that the 2020 16 month aggregate sentence was not a basis for the character test to fail, so there is therefore no realistic possibility of a different decision having been made. Disposition 35 The Minister accepts, as I do, that the Court is bound on the current state of the law to find that the second cancellation decision is affected by the XJLR error and is therefore invalid. As there was no legally valid s 501(3A) decision, the Minister's power in s 501CA never arose for exercise, either by the delegate or by the Tribunal. It is therefore appropriate for me to make an order that the delegate's decision dated 10 December 2020 to cancel the applicant's visa was affected by jurisdictional error and is invalid. 36 The parties submit that an appropriate order in relation to costs would be for the Minister to pay the applicant's costs of the proceeding as agreed or assessed, other than those costs dealt with in order 6 of the orders I made on 1 September 2022 which concerned the Minister's costs thrown away by reason of the applicant's application to adjourn the hearing on that occasion. I am satisfied that such an order is appropriate. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate: Dated: 28 April 2023