Pearson v Minister for Home Affairs (No 2) [2023] FCAFC 4

Pearson v Minister for Home Affairs (No 2) [2023] FCAFC 4

Although Ms Pearson failed on grounds one and two, her third ground succeeded and the proceeding was ultimately successful; in all the circumstances, including success on the event and the interests of justice, the First Respondent should pay Ms Pearson's costs.

Jurisdiction
Australia
Judgment Date
24 January 2023
Procedural Posture
Application for Judicial Review of Migration Visa Cancellation and Non Revocation Decisions / Costs and Final Orders After Substantive Reasons
Outcome
Application successful; time extended, leave granted, certiorari issued, declarations of jurisdictional error and invalidity made, and costs awarded to the Applicant against the First Respondent.
Legal Topics
['mandatory Visa Cancellation on Character Grounds' 'substantial Criminal Record' 'aggregate Sentence of Imprisonment' 'jurisdictional Error' 'extension of Time' 'certiorari' 'costs Discretion' 'pro Bono Costs']
['migration' 'administrative Law' 'costs'] ['mandatory Visa Cancellation on Character Grounds' 'substantial Criminal Record' 'aggregate Sentence of Imprisonment' 'jurisdictional Error' 'extension of Time' 'certiorari' 'costs Discretion' 'pro Bono Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Judicial Review of Migration Visa Cancellation and Non Revocation Decisions / Costs and Final Orders After Substantive Reasons

Legal Issues

  1. 1 ['Whether the notice given to Ms Pearson of the cancellation of her visa was invalid because it failed to comply with s 501CA(3)(b) of the Migration Act 1958 (Cth) and reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).' "Whether the visa cancellation was invalid because Ms Pearson's aggregate maximum term of imprisonment of 4 years and 3 months in respect of 10 offences was not a sentence to a term of imprisonment of 12 months or more within the meaning of s 501(7)(c) and hence did not engage s 501(3A) of the Migration Act 1958 (Cth)." "Whether the First Respondent should pay the Applicant's costs where the Applicant succeeded overall but had mixed success on grounds."]

Ratio Decidendi

Although Ms Pearson failed on grounds one and two, her third ground succeeded and the proceeding was ultimately successful; in all the circumstances, including success on the event and the interests of justice, the First Respondent should pay Ms Pearson's costs.

Court Disposition

Application successful; time extended, leave granted, certiorari issued, declarations of jurisdictional error and invalidity made, and costs awarded to the Applicant against the First Respondent.

Orders

  • ["Pursuant to s 477A of the Migration Act 1958 (Cth), the time for making an application for a remedy in relation to the decision of the Third Respondent dated 15 September 2020 affirming the decision of the delegate of the First Respondent made on 23 June 2020 under s 501CA(4) not to revoke the cancellation of the...