On 22 December last year, the Federal Court of Australia handed down a new decision which had a big impact on visa cancellation law in Australia. That decision, Pearson v Minister for Home Affairs [2022] FCAFC 203 (“Pearson”), led to some people being released from Immigration Detention immediately.

So what happened? Why are people getting released?

If you are not a citizen of Australia, your visa will be subject to mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) if you satisfy the following criteria:

1.    You are currently serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against an Australian law; and

2.    You fail the character test (under section 501(6) of the Migration Act) by reason of you having a “substantial criminal record”, on the basis that you have been sentenced to a “term of imprisonment of 12 months or more” (under section 501(7) of the Migration Act).

Ms Pearson, the applicant in the recent Federal Court case, had been sentenced in New South Wales (NSW) to an aggregate term of imprisonment (under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)) for 4 years and 3 months, in respect of 10 offences.

In the Pearson decision, the Federal Court had to decide whether an aggregate sentence of imprisonment is a single sentence to a term of imprisonment or a sentence to “2 or more” terms of imprisonment, or neither, for the purposes of cancellations under s 501 of the Migration Act.

“Aggregate” sentences of imprisonment are a special form of sentence that are often used in NSW. These types of sentences are designed to impose a sentence for multiple offences where it is important to take into account the totality of all the offending, but not give you separate sentences for each offence. It’s structured to be one big sentence for everything, rather than separate sentences for each that add together. Aggregate sentences are different from “cumulative” or “concurrent” sentences, which are used separately for each offence.

The Federal Court in Pearson decided that, for the purposes of section 501 of the Migration Act, an aggregate sentence structured this way would not count as either a sentence to a term of imprisonment or multiple sentences to terms of imprisonment.

This means that if someone’s visa was cancelled using the mandatory cancellation power under section 501(3A), on the basis of an aggregate sentence of 12 months or more, that mandatory cancellation may no longer be valid.

Sentencing laws in each jurisdiction can be different, and not all States in Australia have this form of sentencing. For example, jurisdictions such as Queensland do not allow for aggregate sentencing. As a result, this case has only a very limited application to people affected by visa cancellation in Queensland.

If you are unsure about whether Pearson might apply to you, or concerned about a possible visa cancellation, we recommend that you seek legal advice from an experienced immigration law solicitor. This blog post does not constitute legal advice.

Want legal advice? Get in touch with Samuta McComber Lawyers today on 07 3394 8489 or by email at contact@samutamccomber.com.au .