Federal Court (Full Court). After the Full Court's decision in Pearson was handed down, s 5AB was inserted into the Migration Act. Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does the reference in s 5AB of the Migration Act to a “single sentence imposed by a court in respect of 2 or more offences” capture aggregate sentences within the meaning of s 53A(1) of the Crimes (Sentencing Procedure) Act (NSW)?
Question 2: If the answer to Question 1 is 'yes', does it necessarily follows that "an aggregate sentence of 12 months or more is a “term of imprisonment for 12 months or more” within the meaning of s 501(7)(c) of the Migration Act and overcomes the consequences of Pearson for decisions made on or after commencement" of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth)?
Question 3: Does s 4 of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) have the consequence that, "notwithstanding that the delegate made the decision to cancel the applicant’s visa before the commencement of the new legislation by reference to the aggregate sentence, the delegate’s decision is taken for all purposes to be valid and to have always been valid"?
The FCAFC answered those questions as follows: