Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 10

Applying Pearson and XJLR, Mr Tapiki's aggregate sentence of 12 months' imprisonment under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not amount to being sentenced to a term of imprisonment of 12 months or more for the purposes of s 501 of the Migration Act 1958 (Cth). The delegate therefore had no power to cancel his visa under s 501(3A), the purported cancellation was invalid, the revocation power under s 501CA(4) was never enlivened, and the Tribunal's decision affirming non-revocation had to be quashed.

Jurisdiction
Australia
Judgment Date
14 February 2023
Procedural Posture
Migration Judicial Review and Appeal / Full Court Appeal From Dismissal of Judicial Review and Application for Judicial Review Heard Together
Outcome
Appeal allowed and application for judicial review allowed; visa cancellation declared invalid; Mr Tapiki declared to continue to hold a Class TY Subclass 444 Special Category (Temporary) visa; Tribunal decision quashed; costs awarded to Mr Tapiki for the appeal and judicial review application, with no order as to...
Legal Topics
['mandatory Visa Cancellation on Character Grounds' 'aggregate Sentence of Imprisonment' 'judicial Review' 'certiorari' 'revocation of Visa Cancellation']
['migration Law' 'administrative Law' 'statutory Construction'] ['mandatory Visa Cancellation on Character Grounds' 'aggregate Sentence of Imprisonment' 'judicial Review' 'certiorari' 'revocation of Visa Cancellation']

Case Brief

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Procedural Posture

Migration Judicial Review and Appeal / Full Court Appeal From Dismissal of Judicial Review and Application for Judicial Review Heard Together

Legal Issues

  1. 1 ['Whether an aggregate sentence of imprisonment of 12 months imposed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is capable of triggering the mandatory visa cancellation requirement in s 501(3A) of the Migration Act 1958 (Cth).' 'Whether a person who received such an aggregate sentence has been sentenced to a term of imprisonment of 12 months or more for the purpose of s 501(7)(c) of the Migration Act 1958 (Cth), and therefore does not pass the character test on the basis of s 501(6)(a).' "Whether the Court should follow Pearson v Minister for Home Affairs [2022] FCAFC 203 or accept the Minister's formal submission that Pearson is plainly wrong." 'Whether the delegate, or the Administrative Appeals Tribunal, had power to decide whether the cancellation should be revoked if the original cancellation under s 501(3A) was invalid.']

Ratio Decidendi

Applying Pearson and XJLR, Mr Tapiki's aggregate sentence of 12 months' imprisonment under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not amount to being sentenced to a term of imprisonment of 12 months or more for the purposes of s 501 of the Migration Act 1958 (Cth). The delegate therefore had no power to cancel his visa under s 501(3A), the purported cancellation was invalid, the revocation power under s 501CA(4) was never enlivened, and the Tribunal's decision affirming non-revocation had to be quashed.

Court Disposition

Appeal allowed and application for judicial review allowed; visa cancellation declared invalid; Mr Tapiki declared to continue to hold a Class TY Subclass 444 Special Category (Temporary) visa; Tribunal decision quashed; costs awarded to Mr Tapiki for the appeal and judicial review application, with no order as to...

Orders

  • ['The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.' 'In NSD 296 of 2022, the appeal is allowed.' 'The orders of the Federal Court made on 14 April 2022 in Tapiki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs...