Landmark Court Case Resulting In The Release Of Around 100 People Held In Detention Centres

Around 100 people in detention centres have been suddenly released, as a result of the landmark case of Pearson v Minister for Home Affairs [2022] FCAFC 203. The case found that some combined sentences of 12 months or more should not have resulted in automatic visa cancellations, leaving many wrongly detained for years.

Background – Mandatory Detention & Detention Centres

Mandatory detention and detention centres has been the topic of vigorous debate since it was introduced in 1992, igniting immense passion in both its disparagers and supporters. It has characteristically been viewed by some as an essential part of maintaining the veracity of Australia’s immigration system and protecting our borders. However, others argue it is contrary to the essence of international refugee law, inhumane and extreme response to certain level of criminal offenders.

Cancellation Powers

Under Section 501 of the Migration act 1958 (Cth), a Visa Holder is subject to a mandatory visa cancellation if they fail the character test, which includes having a substantial criminal record. A substantial criminal record is defined as having ‘been sentenced to a term of imprisonment of 12 months or more’.

Until recently, all sentences handed down had been grouped together, resulting in Visa Holders easily triggering the 12-month aggregate threshold for an automatic cancellation of their visa with a mixture of shorter sentences.

Landmark Case

The Pearson v Minister for Home Affairs [2022] FCAFC 203 case challenged the application of Section 501 by establishing that the 12-month aggregate sentencing should only be factoring in the most serious of offences, i.e. sentences attracting life imprisonment.

The Pearson case raised the following:

“Had the Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.”

Impact Moving Forward 

The impact of the case has already been felt, with the release of around 100 detainees from detention centres around Australia who have now been able to resume their daily lives and reunite with their families. Estimates have quoted roughly 40 to 45 people have been released from Sydney’s Villawood Immigration Detention Centre days after the judgment. Other detainees have also been released from the Christmas Island Detention Centre, Yongah Hill Detention Centre, Melbourne Immigration Transit Accommodation and Brisbane Immigration Transit Accommodation.

This case has set a new precedent moving forward and will likely result in far fewer Visa Holders being subject to mandatory cancellation, even if they have had an aggregate of 12-month sentences.

With all this said and done, there is always a chance that the Minister could apply for special leave to revoke the effect of the Pearson case, and as such, we will wait to see and provide updates when they become available.

Presently, there is no further comment from the Department of Home Affairs regarding the unjust detainment of Visa Holders who have had their visas wrongly cancelled due to a misinterpretation of the law. As of 31 October 2022, there are approximately 1,315 people still in detention facilities across Australia, with 480 in Villawood alone, according to figures released by the Refugee Council of Australia.

UPDATE – 17.02.2023

On February 17, 2023, the Australian government enacted the Migration Amendment (Aggregate Sentences) Act 2023, which amends the Migration Act 1958. The amendment was introduced in response to a Full Federal Court judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson). The judgment established that a single aggregate sentence, which refers to a sentence imposed for multiple offences, cannot be used to assess whether a person has a substantial criminal record under s 501(7)(c) of the Migration Act. The Amendment clarifies that an aggregate sentence can be relied upon when considering whether a person has a substantial criminal record, which is a relevant factor in the character test.

The Aggregate Sentences Act also retroactively validates past decisions that would otherwise have been invalid because of the Pearson decision. As a result, the original decision to refuse or cancel a visa under section 501 of the Migration Act that relied wholly or in part on an aggregate sentence remains valid, and the non-citizen in question does not hold or no longer holds, a valid visa to remain in Australia.

In cases where a visa has been cancelled or refused based on an aggregate sentence, the non-citizen may be considered an unlawful non-citizen and could face detention and removal from Australia. The Department of Home Affairs has encouraged those affected to contact the Australian Border Force by emailing [email protected].

The Aggregate Sentences Act also contains provisions to restore a person’s right to seek a review or revocation of a visa cancellation or refusal decision if they had not done so before the Pearson decision and were still within the relevant timeframes to do so.

Suppose you are a non-citizen who may be affected by this legislation. In that case, it is best for you to seek assistance from a registered migration agent or independent legal advice to figure out how the amendment may impact your circumstances.

The provisions of the Migration Amendment (Aggregate Sentences) Act 2023 also retroactively validates past decisions that relied on an aggregate sentence to refuse or cancel a visa. Non-citizens affected by the legislation are encouraged to seek legal advice and report their situation to the Australian Border Force.

For further information on the Aggregate Senten​ces​ Act, please re​​f​​er to the Migration Amendment (Aggregate Sentences) Act 2023 Factsheet​ (1.09MB PDF)​.​​​

 

 

All Access Migration – How we can help with visa applications

Please contact the team at All Access Migration (AAM) if you require assistance with a visa cancellation and need legal advice. We are a migration legal advisory firm that may arrange an initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances.

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The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.