Aggregate sentence of imprisonment not applicable to s 501(7)(c)?

Section 501(3A)(a)(i) of the Migration Act 1958 (Cth) obliged the First Respondent (Minister) to cancel a visa if “satisfied that the person does not pass the character test because of the operation of … paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)”.

Section 501(6) of the Act read: “For the purposes of this section, a person does not pass the character test if … the person has a substantial criminal record (as defined by subsection (7)”.

Section 501(7) of the Act provided (emphasis added): “For the purposes of the character test, a person has a substantial criminal record … if the person has been sentenced to a term of imprisonment of 12 months or more”.

On 17 July 2019: the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act; the Minister informed the Applicant of that decision; the Minister invited the Applicant, as required by s 501CA(3)(b) of the Act, to make representations seeking revocation of the cancellation.

Reg 2.52(2) of the Migration Regulations 1994 (Cth) provided that such representations “must be made… within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.

The invitation stated that: the representations “MUST be received by the Department within 28 days after you are taken to have received this notice”; “As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice” (presumably due to s 494C(4)(a) of the Act).

The Applicant was also informed that once the representations had been received by the Department within the 28-day period, she could provide any additional information, which would be considered if received before the decision on whether to revoke was made.

The Applicant was deemed to have received the invitation to make representations on 26 July 2019. On 22 August 2019, the Applicant made representations seeking revocation of the cancellation. Such representations were sent by her and received by the Department within 28 days of the deemed receipt of the representations.

The Department received further information from the Applicant on 15 October 2019, 20 November 2019, 22 November 2019, and 25 November 2019.

On 30 March 2020, the Department invited the Applicant to comment on adverse information.

On 24 June 2020, the Minister notified the Applicant of the decision not to revoke the visa cancellation. On 15 September 2020, the Tribunal affirmed the non-revocation decision.

On 22 July 2021, a single judge of the Federal Court (FCA) dismissed an application for judicial review of the Tribunal’s decision. On 1 March 2022, the Full Court of the FCA (FCAFC) upheld that dismissal.

On 10 October 2022, the Applicant commenced fresh proceedings with the FCA (which was heard by the FCAFC), arguing that the cancellation of the Applicant’s visa was invalid, on two grounds:  

• The failure of the invitation to crystallise the period in which representations must be made rendered the invitation ineffectual;
• The Applicant’s aggregate sentence of imprisonment was not a single sentence to a term of imprisonment for the purpose of s 501(7)(c) of the Act, with the result that the Minister had no power to cancel the Applicant’s visa under s 501(3A) of the Act.

The Minister argued that the Applicant was estopped from bringing new proceedings.

Some of the questions to the FCAFC were as follows:

Question 1: Was the “procedural fairness” letter from the Department of 30 March 2020 "a representation under paragraph 501CA(3)(b)", with the result that the time period prescribed by reg 2.52(2)(b) also applied to that request?

Question 2: Does the failure of an invitation to crystallise the period in which representations must be made make the invitation ineffectual?

Question 3: If the answer to Question 2 is 'yes', was the error in the form of the ineffectual invitation immaterial to the outcome and thus not jurisdictional, as the Minister in any event considered those representations?

Question 4: Is an aggregate sentence of imprisonment, under a provision such as s 53A of the Crimes (Sentencing Procedure) Act 1999(NSW), a single sentence to a term of imprisonment for the purpose of s 501(7)(c) of the Migration Act or a sentence to “2 or more” terms of imprisonment for the purpose of s 501(7)(d)?

Question 5: If the answer to Question 4 is 'no', does it necessarily follow that the delegate did not have the power to cancel the Applicant's visa under s 501(3A)?

Question 6: Insofar as a “claim estoppel” is concerned, is the question in judicial review proceedings whether different grounds of jurisdictional error can be seen as separate causes of action?

Question 7: If the answer to Question 6 is 'yes', does the question then become whether the Applicant's "grounds for judicial review of the decision which have already been the subject of judicial review could and should have been raised in the first proceeding such that Anshun principles apply"?

Question 8: Can it be said that, where a person "is facing deportation and the possibility of being prevented from ever returning to Australia in the future, a conclusion that she should have raised the new grounds of judicial review in her previous application is not one that should be lightly drawn"?

Question 9: Can it be said that the Minister bore the onus of establishing Anshun estoppel and that, as there has been no scrupulous examination of all the circumstances, the Minister has not discharged his onus?

The FCAFC answered those questions as follows: