Federal Court (Full Court). Where the Tribunal affirms a decision or remits it to the original repository of the power, is it exercising a power under the Migration Act 1958 (Cth), with the result that its decision is exempt from the validation provisions of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act)? If so, is that decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act?
The Applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). One of the basis for the cancellation was that the Applicant was serving an aggregate sentence of 12 months’ imprisonment and thus was found to fail the character test by reason of s 501(7)(c). A delegate subsequently decided under s 501CA(4) to refuse to revoke the cancellation. The Tribunal then affirmed the non-revocation decision.
The Full Court of the Federal Court (FCAFC) then held in Pearson that an aggregate sentence does not involve being “sentenced to a term of imprisonment of 12 months or more” within the meaning of s 501(7)(c). As a result, the Applicant was released from immigration detention.
Shortly after, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Amending Act) was legislated with the intention to reverse the effect of Pearson, upon which the Applicant was taken back into immigration detention. The Applicant eventually commenced judicial review proceedings in the Federal Court, with the FCAFC being (differently) constituted to hear the judicial review application. In that application, he argued, among other things, that:
(1) the Amending Act does not validate the Tribunal’s decision to affirm the original decision because that decision was made under the AAT Act, which is not one of the laws or provisions covered by item 4 subitem (2) and so “cannot be taken to be valid”; and
(2) properly construed, the Amending Act does not apply to a decision which, at the time the Amending Act commenced, was subject to judicial review proceedings in a Ch III court.
Item 2 to the Amending Act provided (original emphasis, underlining added):
2 Definitions
In this Part:
...
do a thing includes:
(a) make a decision (however described); and
(b) exercise a power, perform a function, comply with an obligation or discharge a duty; and
(c) do anything else;
Item 4 to the Amending Act provided (original emphasis, underlining added):
4 Validation of things done before commencement
(1) This item applies if a thing done, or purportedly done, before commencement under a law, or provision of a law, covered by subitem (2) would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.
(2) The laws and provisions are as follows:
(a) the Migration Act 1958;
(b) any legislative instrument made under that Act;
...
Some of the questions to the FCAFC were as follows:
Question 1: Can it be said that directions issued under s 499(1) of the Migration Act 1958 (Cth) provide no more than guidance on the exercise of discretionary powers, as directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors, doing so as guidance only?
Question 2: Is it "permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction"?
Question 3: Might a matter within Direction 90 be taken into account for two or more mandatory considerations?
Question 4: Was Tribunal required to “repetitiously” "deal with the same matter over again under different headings where it is clear that the requisite matter has been properly taken to account"?
Question 5: Can it be said that "Direction 90 did not permit the giving of weight to family violence for reasons unconnected to the protection of expectations of the Australian community unless there is some independent relevance identified", with the result that the application of the direction here was impermissibly punitive?
Question 6: Can it be said that, "where the Tribunal affirms a decision or remits it to the original repository of the power, it is not exercising a power under the [Migration Act 1958 (Cth)] either to grant or refuse a visa", with the result that the Tribunal's decision is exempt from the validation provisions of the Amending Act?
Question 7: If the answer to Question 6 is 'yes', is the Tribunal's decision nevertheless exempt from the validation provisions of the Amending Act, as the Tribunal “did something else” within the meaning of item 2 of Sch 1 of the Amending Act in undertaking a review of a decision of a delegate of the Minister under s 501CA(4)?
The FCAFC answered those questions as follows: