Paul Cutler's Migration Case Law Blog
Aggregate sentences
I have previously blogged about Ms Pearson’s first Full Court case. Her first attempt to have the decision to cancel her visa on character grounds revoked failed.
In a very unusual step, she filed a second application some 7 months later (in October 2022). One of her new arguments was that her visa shouldn’t have been cancelled because she hadn’t been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)). If that was correct she didn’t have a substantial criminal record.
Although it sounds pedantic, Ms Pearson had in fact been sentenced to an aggregate sentence of 4 years and 3 months for 10 offences. The effect of an aggregate sentence is that an offender is only given indicative sentences for the individual charges. Indicative sentences are not able to be appealed.
The Full Federal Court agreed with Ms Pearson and found that the proper construction of section 501(7) was that a term of imprisonment was not the same as an aggregate term of imprisonment. In fact (at [47]): “had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so.”
In an interesting postscript to this decision, parliament has now decided to “say so”. The Migration Amendment (Aggregate Sentences) Act 2023 (the Aggregate Sentences Act) came into effect on 17 February 2023.
The Aggregate Sentences Act retrospectively validates past decisions that would otherwise have been invalid because of the Pearson decision, but in some circumstances restores review rights in applicants are still within the relevant timeframes.
It is worth checking the details if your visa has been cancelled on the basis of an aggregate sentence.
Creative commons acknowledgment for the photograph.
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