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

INTRODUCTION 1 The appellant, Mr Kingston Tapiki, is a 29 year old citizen of New Zealand who arrived in Australia at the age of 18 months and has lived in Australia for almost all of his life. On 30 September 2020, Mr Tapiki was sentenced to an aggregate head sentence of 12 months' imprisonment for the offences of affray, assault occasioning actual bodily harm, and being armed with intent to commit an indictable offence, with a non-parole period of four months. As a result of his head sentence, Mr Tapiki was notified on 29 October 2020 by the Department of Home Affairs that his Class TY Subclass 444 Special Category (Temporary) visa had been automatically cancelled under s 501(3A) of the Migration Act 1958 (Cth). A request by Mr Tapiki for revocation under s 501CA(4) of the cancellation of his visa was refused by a delegate of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on 16 February 2021. That decision was affirmed by the second respondent, the Administrative Appeals Tribunal, on 11 May 2021. 2 Mr Tapiki appeals from a decision of a single judge of this Court dismissing his application for judicial review in NSD 520 of 2021 of the Tribunal's decision. Mr Tapiki was unrepresented at trial but had legal representation on appeal. 3 Mr Tapiki also instituted judicial review proceedings in the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA) (PEG 90 of 2022, subsequently transferred into the Federal Court as WAD 111 of 2022) in light of the decision in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; (2022) 289 FCR 256. On 3 June 2022, by consent, the FCFCOA granted the appellant an extension of time under s 477(2) of the Migration Act and transferred these proceedings to this Court. Orders were made on 2 August 2022 by Allsop CJ confirming the transfer of the matter to this Court and providing for the appeal and judicial review application in WAD 111 of 2022 to be heard and determined together by a Full Court of the Federal Court. 4 Both proceedings give rise to the same question of statutory construction, namely: Whether an "aggregate sentence of imprisonment" of 12 months imposed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is capable of triggering the mandatory visa cancellation requirement in s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act). (Respondent's Outline of Submission (RS) at [1].) 5 In other words, as the Minister submits, the question is whether a person who has 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, and therefore does not pass the character test on the basis of s 501(6)(a). 6 Although this issue had not been raised in the judicial review proceeding before the primary judge, leave to raise the new issue on appeal was granted by the Full Court at the hearing in circumstances where it was not opposed. Nor, given the novelty of the issue, did the Minister submit that the judicial review proceedings challenging the mandatory cancellation decision under s 501(3A) was an abuse of process despite the earlier merits review application and judicial review proceedings challenging the non-revocation decision (RS at [5]).

DISPOSITION OF THE APPEAL AND JUDICIAL REVIEW PROCEEDINGS 7 Following the hearing of the appeal and judicial review application on 16 August 2022 in this matter, the Full Court (Allsop CJ, Rangiah and Sarah C Derrington JJ) delivered judgment on 22 December 2022 in Pearson v Minister for Home Affairs [2022] FCAFC 203. In that case, the Court unanimously held that an aggregate sentence of imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was neither a single sentence to a term of imprisonment nor a sentence to impose two or more terms of imprisonment for the purposes of s 501 of the Migration Act and, as a consequence, the appellant's visa was not amenable to mandatory cancellation under s 501(3A). 8 In light of that decision, on 23 December 2022 the solicitors for the Minister advised the Court that the appellant was in the process of being released from immigration detention. The Minister further requested that he be afforded until 3 February 2023 to indicate his position in the present appeal, in light of the decision in Pearson. Following confirmation on 6 January 2023 that the appellant had in fact been released from immigration detention, the Court advised on 20 January 2023 that it was content to grant the Minister's request. The Minister's solicitors wrote again on 3 February 2023, advising that the Minister was not yet in a position to notify the appellant and the Court of his position in light of Pearson, "noting that the time for filing an application for special leave does not expire until 21 February 2023 and the Minister for Home Affairs is still considering her position". On this basis, the Minister sought a further two weeks within which to advise of his position. That request was acceded to by the Court, notwithstanding the appellant's opposition. 9 On Friday 10 February 2023, Mr Tapiki's solicitors informed the Court that the Minister had introduced legislation into the Commonwealth Parliament, being the Migration Amendment (Aggregate Sentences) Bill 2023, which was said to validate with retrospective effect any decision made under s 501(3A) on the basis of an aggregate sentence. As a result, Mr Tapiki sought orders disposing of the appeal immediately. The matter was called on for case management before Justice Perry on Monday 13 February 2023. At that hearing, the Court was informed that the Bill had been read three times in the Senate. Further, during the course of the case management hearing, counsel for the Minister notified the Court that the Bill had been read for a third time in the House of Representatives. In those circumstances, the Minister submitted that the appropriate course was for the proceeding to be adjourned, given the passage of the Bill. Royal Assent to the Bill has not yet been given. However, while it is highly likely that Royal Assent will be given, the Minister did not take issue with the appellant's submission (supported by reference to an example) that it is not inevitable that the Bill will be presented for Royal Assent. 10 Importantly, the Minister correctly did not seek to distinguish the decision in Pearson from the present case. He also made a "protective formal submission" only that the decision in Pearson is plainly wrong and did not wish to make any substantive submissions in support of that proposition. 11 The proposition that a formal submission only can be made that a decision of another Full Court is plainly wrong and should not be followed does not, with respect, sit well with the recent exposition of the circumstances in which a Full Court will depart from an earlier Full Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181. In FAK19, while observing that it would be a mistake to accord some fixed content to the meaning of the words "plainly wrong" at [9], Allsop CJ (with whose reasons Kerr and Mortimer JJ agreed) observed at [18] that: The caution that the Court should exercise before departing from earlier Full Court authority should be reflected in how parties approach the task of appellate advocacy and in how Full Courts approach calls and attempts to re-agitate questions of law (especially statutory construction), decided by earlier Full Courts. This is so especially in the exercise of migration jurisdiction as replete with cases, replete with the same or similar provisions being applied in case after case, and with one litigant in one Ministerial form or another in every case. Parties should expect that a Full Court will demand submissions on matters such as why it should be convinced of error in the earlier decision, why it should exercise the power to depart when that power should be exercised cautiously, sparingly and with great care, why consistency and predictability of principle should give way, and why, if the matter is one of statutory construction, the error is clear or patent (Treloar 102 FCR 595 at [28]), not merely a difference of view as to meaning (Transurban 95 FCR 553 at [29]), or why it has produced unintended and perhaps irrational consequences (Treloar at [28]). (Emphasis in bold added.) 12 In any event, in the absence of any submissions on the issue by the Minister, we are not persuaded that the decision in Pearson is plainly wrong. 13 Applying the decisions in XJLR and Pearson, it follows from the fact that the delegate had no power to cancel Mr Tapiki's visa under s 501(3A) of the Migration Act that the discretion to revoke the original decision under s 501CA(4) was never enlivened. Accordingly, neither the delegate, nor the Tribunal, had any power to decide whether the (invalid) cancellation should be revoked. Mr Tapiki's visa has remained, and as at the time of this judgment remains, in full force and effect, whatever may be the effect of the Bill if ultimately enacted into law. In those circumstances, the application for judicial review should be granted, and the appeal allowed. Declarations should also be made in both proceedings that the decision to cancel Mr Tapiki's visa under s 501(3A) is invalid and that he continues to hold the visa. In addition, an order should be made in the nature of certiorari quashing the Tribunal's purported decision to affirm the delegate's decision not to revoke the cancellation decision. While an order in the nature of a writ of habeas corpus that he be released from immigration detention immediately was also originally sought, it is unnecessary to make that order because Mr Tapiki was released from immigration detention following the decision in Pearson, and is at liberty pursuant to the visa which remains in force. 14 Finally, an order should be made awarding Mr Tapiki his costs of the appeal in NSD 296 of 2022 and the application for judicial review in WAD 111 of 2022. However, we agree with the Minister that the appropriate order as to the costs of the trial before the primary judge in NSD 520 of 2021 is that there should be no order as the costs of the trial, given that the appellant has succeeded on the appeal on a ground which was not raised before the primary judge. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perry, Derrington and Thawley.

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs

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