Migration Amendment (Aggregate Sentences) ACT 2023 amends the Migration Act 1958 to establish a consistent approach across the provisions of the Migration Act, as well as the Migration Regulations 1994 (the Regulations), in relation to sentencing for offences and to clarify that a person who is sentenced to a term of imprisonment of 12 months or more does not pass the character test on the basis of having a substantial criminal record within the meaning given by subsection 501(7) of the Migration Act, whether in relation to a sentence imposed by a court in respect of a single offence or an aggregate sentence.
The amendment in the Act makes it clear that the provisions of the Migration Act and Regulations are not intended to differentiate between a criminal sentence imposed in respect of single offence, or a criminal sentence imposed in respect of two or more offences. The amendments respond to the decision of the Full Court of the Federal Court of Australia (the Federal Court) in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson). In Pearson, the Federal Court held that an aggregate sentence (a single sentence for more than one offence) imposing a term of imprisonment does not constitute a ‘substantial criminal record’ within the meaning given by subsection 501(7) of the Migration Act. The Court concluded that an aggregate sentence is not a sentence of imprisonment for the purposes of the definition of substantial criminal record in subsection 501(7) the Act, construing that definition as requiring the sentence to have been imposed in respect of a single offence.
The amendment in the Act clarifies that the provisions of the Migration Act and Regulations apply in relation to a single sentence imposed by a court in the same way, regardless of whether the sentence is in respect of a single offence or for two or more offences. It also ensures that a person does not pass the character test if they receive a sentence resulting in a term of imprisonment of 12 months or more for one or more offences (for example, supplying a prohibited drug, knowingly dealing with the proceeds of crime and knowingly participating in a criminal group) or one or more serious offences (for example, murder and causing grievous bodily harm). If the amendments were not made, and the reasoning in Pearson was followed, such offenders would not have a substantial criminal record as a consequence of an aggregate sentence for the purposes of the Migration Act.
The Act also includes provisions to validate past decisions and actions under the Migration Act and certain other specified law which would otherwise been deemed invalid as a consequence of the Federal Court’s decision in Pearson. Where this results in the person no longer holding a visa, and when the non-citizen has finished serving their criminal sentence, the Government will be able to return these non-citizens to immigration detention in order to progress their removal from the country and uphold community safety. The amendment also provides for opportunities for a person to appeal or seek review of a validated decision after commencement of the Act, in certain circumstances.
It is registered on the Federal Register of Legislation on 16 February 2023 and received Royal Assent on the same date. It commenced on 17 February 2023.
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