Application of Pearson and XJLR
26 In Pearson, the Full Court held (at [47]) that an aggregate sentence of imprisonment of 12 months or more does not constitute a single "term of imprisonment of 12 months or more" within the meaning of s 501(7)(c) and therefore does not attract the operation of the mandatory visa cancellation power under s 501(3A) of the Migration Act.
27 In XJLR, Rares J held (at [39]) that the cancellation power in s 501(3A) cannot be exercised more than once in respect of the same failure to pass the character test in s 501(3A)(a). Justices Yates and Snaden, in separate judgments, relevantly agreed with Rares J's conclusion on that point (at [89] and [100] respectively), although Snaden J was in dissent as to the ultimate result.
28 I accept the parties' joint submission that the second cancellation decision is affected by the error identified in XJLR, as the delegate who made that decision relied on, for the purposes of s 501(3A)(a), the same sentence of imprisonment as had earlier been relied on for the first cancellation decision.
29 That conclusion, however, does not end the inquiry. That is because in cases where a separate conviction and sentence exists which on its face meets the threshold of the Minister being satisfied as to the applicant having "a substantial criminal record", a question of materiality may arise. Suppose a non-citizen was convicted and sentenced for additional offences after the first s 501(CA) cancellation decision was made and then revoked. Suppose the further sentence of imprisonment was itself of 12 months or more, and hence within ss 501(6)(a) and 501(7)(c). That would constitute a fresh basis for the Minister's satisfaction as to the failure to pass the character test not relied in the first s 501(3A) cancellation decision. In such circumstances, it may be argued that at the time of the second s 501(3A) cancellation decision, the only lawful decision open to the Minister would be to cancel the visa. On review, the contention would be that there is no realistic possibility of a different decision having been made. This is the case even if the Minister had erred in the manner identified in XJLR by relying, in a second s 501(3A) decision, on the same failure to pass the character test as relied on in the earlier decision.
30 However, the parties submit, and I accept, that no such materiality issue arises in the present case. Although the applicant received a further sentence after the first cancellation decision, being the 2020 16 months aggregate sentence, as an aggregate sentence it runs into the Pearson difficulty, ie, an aggregate sentence does not count for the purposes of s 501(7)(c).
31 Putting the Amending Act to one side for a moment, I am bound to follow the ratio of Pearson, regardless of the pending special leave application. Therefore, applying Pearson, the October 2020 16 months aggregate sentence cannot be relied on to satisfy s 501(6)(a), ie, that the applicant had a substantial criminal record, and consequently cannot be relied on to satisfy s 501(3A)(a), ie, that the visa be mandatorily cancelled. No other sentences were imposed on the applicant after 2016 which could themselves satisfy s 501(3A)(a). The error by the delegate in relying on the same basis for the failure of the character test on a second occasion is therefore material and the error is jurisdictional.
32 It might be thought that the Amending Act can simply be ignored in considering whether, even though the decision is affected by error, a different decision could have been made, simply on the basis that the Amending Act was not enacted at that time. However, whether or not a decision is affected by jurisdictional error and therefore to be declared invalid must be considered at the time that the declaration is to be made. That necessarily involves looking to the law as at that time, ie, now. Relevantly, the Amending Act is now part of the law. Whether or not it has anything to say about the validity of the hypothetical decision made before it was enacted will depend on its terms - whether or to what extent it validates things done in the past and/or applies retrospectively.
33 Turning now to the Amending Act, the parties agree that it does not make the ratio of Pearson inapplicable in this case. That it despite the apparent intention of the Act to validate decisions retrospectively. In that regard, items 4(1) and 4(3)-(4) in Pt 2 of Sch 1 to the Act retrospectively validate decisions that are invalid "only because a sentence, taken into account in [making the relevant decision] was imposed in respect of 2 or more offences" (emphasis added). The parties jointly submit, and I accept, that the Act does not validate the second cancellation decision as the underlying error stems from the fact that the delegate relied on the same sentence of imprisonment as had been relied upon for the first cancellation decision, being the error identified in XJLR. The delegate did not rely on any aggregate sentence to satisfy s 501(3A)(a), and reliance on an aggregate sentence was therefore not the only reason for the invalidity.
34 Further, the parties jointly submit, and I accept, that while the Amending Act inserted s 5AB into the Migration Act, which provides that the provisions of the Migration Act apply no differently for a single sentence imposed in respect of two or more offences to the way in which provisions apply in relation to a sentence imposed for a single offence, that amendment applies "in relation to the doing of a thing on or after commencement" of the Act (item 3 of Sch 1). That is to say, although the Act validates certain qualifying decisions retrospectively, the provision that reverses the ratio of Pearson does not itself apply retrospectively. Since the Act commenced on 17 February 2023 and the second cancellation decision was made in December 2020, s 5AB does not apply. When the second cancellation decision was made, the state of the law was as it was declared to be in Pearson with the result that the 2020 16 month aggregate sentence was not a basis for the character test to fail, so there is therefore no realistic possibility of a different decision having been made.