501(3A) Mandatory Cancellations: What’s the deal with aggregate sentences?

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 .

Attention PALM workers: what to do if you are having issues with your employer

Legal Action in Far North Queensland

Legal action has commenced against a labour-hire company that operated on farms in Far North Queensland, the Fair Work Ombudsman alleging the labour-hire company NQ Powertrain underpaid Pacific Labour Scheme and Seasonal Worker visa holders almost $50,000.

"It is alleged NQ Powertrain made deductions from each worker’s wages for accommodation at either a boarding house in Mareeba or a farmhouse in Tolga. The Fair Work Ombudsman alleges more than a dozen instances of NQ Powertrain deducting, in total, in excess of $1000 more from a worker’s wages than was required to cover their accommodation costs."

You can read more in the Migration Alliance article linked here.

The Fair Work Ombudsman (FWO) should be contacted if you have questions about employment conditions, pay rates or entitlements. The FWO can also be contacted if you have concerns about your pay or employment conditions in Australia. The FWO information line is (13 13 94), or call (13 14 50) if you need an interpreter.

But what about me?

Are you here under the PALM Scheme or Seasonal Workers Program and have issues with your pay or work conditions? Here is a three-step plan to help you approach the issue.

1. Start by discussing the issue with your employer. Internal discussions can be a good way to make try and solve things diplomatically and try to get everyone on the same page. Keep records of all your communications in case you need to escalate the issue.

2. If that doesn’t work, call the PALM support service line on (1800 51 51 31), or email support@pacificlabourfacility.com.au.

3. You can also contact your Country Liaison Officers (CLOs), provided your government has appointed one. Not all countries have CLOs, but you can find all current CLO contact details in the table below.

How can we help?

If you have tried steps 1-3 above, contact Kolinio Samuta at our office to discuss how we might be able to assist on (07) 3394 8489 or email kolinio@samutamccomber.com.au.

AAT win for client facing indefinite detention

Yet another family reunited. After three years in immigration detention and facing the prospect of indefinite detention, our client’s visa was reinstated after being cancelled under s501(3A) of the Migration Act and they are now back home in Melbourne with their family.

This case highlights the harsh reality of the cancellation powers that exists under the Migration Act. Our client was a refugee, which means the Australian Government recognised that if they were returned to their country of birth they would face significant harm, including torture or death. The Department of Home Affairs had full knowledge of his trauma background having fled a conflict zone, arriving in this country as a 10 year old, suffering a work place injury as a young apprentice, and subsequently spiralling in mental health, and into alcoholism and addiction.

Our Director & Principal Solicitor, Jennifer Samuta represented our client in these proceedings, including as their advocate at the final two day hearing at the Melbourne Registry (held by video link). She was particularly pleased our submissions on the graveness of indefinite detention for our client weighed as heavily on the decision-maker as it did for us in the office. In his reasons, Deputy President Britten-Jones concluded:

“The prospect of indefinite detention is a factor that weighs very heavily in favour of the applicant. Currently the applicant lives in hope of being released from detention, but I have grave fears for the applicant’s mental health if that hope is taken away and he remains in detention indefinitely.”

Did you know under Australian migration law indefinite detention is not unlawful? There are refugees facing a lifetime of immigration detention after the Australian Government made a decision to cancel their visas but cannot lawfully deport them to their country of origin (because they face persecution there). The necessary outcome is thus to have them remain in immigration detention, at a significant cost to Australian taxpayers. While this remains a pervasive issue for many refugees who have had their visa cancelled, we are thankful in this instance that the Member’s decision-making was guided by humanism and compassion.

Streamlined health requirement for temporary visa applicants

If you’ve applied for a visa, you’re probably already aware of the health requirement. However, did you know that the Australian government is temporarily loosening these rules? If you are currently here in Australia on any of the following visas, this will apply to you.

• 403 - Temporary Work International Relations

• 405 - Investor Retirement

• 407 - Training

• 408 - Temporary Activity

• 417 - Working Holiday

• 461 - New Zealand Citizen Family Relationship

• 476 - Skilled Recognised Graduate

• 482 - Temporary Skill Shortage

• 485 - Temporary Graduate

• 500 - Student

• 590 - Student Guardian

• 600 - Visitor

• 870 - Sponsored Parent (Temporary)

The Australian Government is streamlining requirements for temporary visa applicants in Australia. Temporary visa applicants in Australia will not be required to undertake medical examinations and chest x‐rays - based on their nationality, previous residence and proposed length of stay - in order to meet the health requirement.

There are, however, a few exceptions to this new rule. Temporary visa applicants in Australia will still be required to undertake relevant medical examinations and/or chest x-rays if they:

• have applied for a medical treatment, temporary protection or a provisional visa;

• expect to incur medical costs or require medical treatment;

• are intending to work as (or study to be) a doctor, dentist, nurse or paramedic;

• will enter a hospital, aged or disability care facility (if higher tuberculosis risk);

• are pregnant and intending to have the baby in Australia;

• will work or train at an Australian childcare centre;

• are aged over 75 years (if applying for a visitor visa);

• have had previous household contact with tuberculosis; or

• are requested to do so by the Department.

If you have already made a health examination appointment with Bupa Medical Visa Services and have not yet attended it, your appointment may be cancelled and refunded. Bupa will contact you via SMS to advise you of this. Do not contact Bupa to cancel your appointment yourself. If you are not advised that your appointment has been cancelled, you should attend if possible.

This arrangement is temporary, and will be reviewed by the government in early 2023. You can read more on the Government website here.

Introducing the new Pacific Engagement Visa

The new PACIFIC ENGAGEMENT VISA (PEV) is currently in the early stages of design and is expected to start in July 2023. The new PEV is separate from the PALM visa.

5 reasons we are excited about the PEV:

1. The new PEV will allow holders of the visa to come to Australia with their family.

2. It is intended to create permanent migration pathways.

3. You do not need to be a PALM worker to apply for the PEV.

4. Up to 3,000 visas will be allocated annually by a ballot process across Pacific countries and Timor- Leste. Those selected from the ballot will be invited to apply for permanent residency once they have secured a written employment agreement in Australia and meet other migration requirements.

5. Details on the process are still being finalised, but PALM scheme participants in Australia on valid temporary visas will also be eligible to apply for the PEV ballot when applications open.

If you are currently in Australia, be sure to comply with your visa as the PEV will take into consideration previous migration history which means that if you have breached Australian visa conditions in the past, your application may be rejected.

Further information will be provided in the coming months on the PALM scheme website.