CTHFCAFC
Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCAFC 10
Federal Court of Australia (Full Court)|2023-02-14|Before: Mr P, Mr J, Thawley JJ
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Source factsCourt
Federal Court of Australia (Full Court)
Decision date
2023-02-14
Before
Mr P, Mr J, Thawley JJ
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
[1]
- 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]).