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Mandatory visa cancellation will apply to aggregate sentences

Mandatory Visa Cancellation: Following the decision of the Full Federal Court in Pearson which found that if a person receives an aggregate sentence of 12 months or more, they should not be subject to mandatory cancellation of their visa, the government is in the process of introducing a new law, the Migration Amendment (Aggregate Sentence) Bill 2023 which allow sentences imposed by a court in relation to a single offence or two or more offences to be taken into account in calculating whether a person has been sentenced to imprisonment for a period of 12 months or more.

This will ultimately mean that these individuals would fail the character test on the basis of having a substantial criminal record.

The more concerning aspect of the new law is that people who were very recently released from detention due to this Court case, can now be re-detained. This means the law will apply retrospectively. The explanatory memorandum of this new legislation states the following:

The Bill will also validate (make lawful) past decisions and actions where they may have been deemed invalid as a consequence of the Pearson decision. Where this results in the person no longer holding a visa, and where relevant, the non-citizen has finished serving their criminal sentence, this will allow the Government to return these non-citizens to immigration detention in order to progress their removal from the country.

If this applies to you or anyone that you know, please get in contact with us immediately to discuss your options.



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