Book Now
Book Now

Landmark Court Case Resulting In The Release Of Around 100 People Held In Detention Centres

Around 100 people in detention centres have been suddenly released, as a result of the landmark case of Pearson v Minister for Home Affairs [2022] FCAFC 203. The case found that some combined sentences of 12 months or more should not have resulted in automatic visa cancellations, leaving many wrongly detained for years.

Background – Mandatory Detention & Detention Centres

Mandatory detention and detention centres has been the topic of vigorous debate since it was introduced in 1992, igniting immense passion in both its disparagers and supporters. It has characteristically been viewed by some as an essential part of maintaining the veracity of Australia’s immigration system and protecting our borders. However, others argue it is contrary to the essence of international refugee law, inhumane and extreme response to certain level of criminal offenders.

Cancellation Powers

Under Section 501 of the Migration act 1958 (Cth), a Visa Holder is subject to a mandatory visa cancellation if they fail the character test, which includes having a substantial criminal record. A substantial criminal record is defined as having ‘been sentenced to a term of imprisonment of 12 months or more’.

Until recently, all sentences handed down had been grouped together, resulting in Visa Holders easily triggering the 12-month aggregate threshold for an automatic cancellation of their visa with a mixture of shorter sentences.

Landmark Case

The Pearson v Minister for Home Affairs [2022] FCAFC 203 case challenged the application of Section 501 by establishing that the 12-month aggregate sentencing should only be factoring in the most serious of offences, i.e. sentences attracting life imprisonment.

The Pearson case raised the following:

“Had the Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.”

Impact Moving Forward 

The impact of the case has already been felt, with the release of around 100 detainees from detention centres around Australia who have now been able to resume their daily lives and reunite with their families. Estimates have quoted roughly 40 to 45 people have been released from Sydney’s Villawood Immigration Detention Centre days after the judgment. Other detainees have also been released from the Christmas Island Detention Centre, Yongah Hill Detention Centre, Melbourne Immigration Transit Accommodation and Brisbane Immigration Transit Accommodation.

This case has set a new precedent moving forward and will likely result in far fewer Visa Holders being subject to mandatory cancellation, even if they have had an aggregate of 12-month sentences.

With all this said and done, there is always a chance that the Minister could apply for special leave to revoke the effect of the Pearson case, and as such, we will wait to see and provide updates when they become available.

Presently, there is no further comment from the Department of Home Affairs regarding the unjust detainment of Visa Holders who have had their visas wrongly cancelled due to a misinterpretation of the law. As of 31 October 2022, there are approximately 1,315 people still in detention facilities across Australia, with 480 in Villawood alone, according to figures released by the Refugee Council of Australia.

UPDATE – 17.02.2023

On February 17, 2023, the Australian government enacted the Migration Amendment (Aggregate Sentences) Act 2023, which amends the Migration Act 1958. The amendment was introduced in response to a Full Federal Court judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson). The judgment established that a single aggregate sentence, which refers to a sentence imposed for multiple offences, cannot be used to assess whether a person has a substantial criminal record under s 501(7)(c) of the Migration Act. The Amendment clarifies that an aggregate sentence can be relied upon when considering whether a person has a substantial criminal record, which is a relevant factor in the character test.

The Aggregate Sentences Act also retroactively validates past decisions that would otherwise have been invalid because of the Pearson decision. As a result, the original decision to refuse or cancel a visa under section 501 of the Migration Act that relied wholly or in part on an aggregate sentence remains valid, and the non-citizen in question does not hold or no longer holds, a valid visa to remain in Australia.

In cases where a visa has been cancelled or refused based on an aggregate sentence, the non-citizen may be considered an unlawful non-citizen and could face detention and removal from Australia. The Department of Home Affairs has encouraged those affected to contact the Australian Border Force by emailing [email protected].

The Aggregate Sentences Act also contains provisions to restore a person’s right to seek a review or revocation of a visa cancellation or refusal decision if they had not done so before the Pearson decision and were still within the relevant timeframes to do so.

Suppose you are a non-citizen who may be affected by this legislation. In that case, it is best for you to seek assistance from a registered migration agent or independent legal advice to figure out how the amendment may impact your circumstances.

The provisions of the Migration Amendment (Aggregate Sentences) Act 2023 also retroactively validates past decisions that relied on an aggregate sentence to refuse or cancel a visa. Non-citizens affected by the legislation are encouraged to seek legal advice and report their situation to the Australian Border Force.

For further information on the Aggregate Senten​ces​ Act, please re​​f​​er to the Migration Amendment (Aggregate Sentences) Act 2023 Factsheet​ (1.09MB PDF)​.​​​



detention centres

All Access Migration – How we can help with visa applications

Please contact the team at All Access Migration (AAM) if you require assistance with a visa cancellation and need legal advice. We are a migration legal advisory firm that may arrange an initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances.

Please follow this link for further information concerning immigration and migration and how AAM can help.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.


Brisbane Office

1300 245 756

50 McDougall Street,
Milton, Brisbane, QLD, 4064

Gold Coast Office

1300 245 756

Levels 5 & 9, Corporate Centre One,
2 Corporate Court,
Bundall, QLD, 4217

Sydney Office

1300 245 756

Level 6,
15 Castlereagh Street,
Sydney, NSW, 2000


Latest Articles and Updates

Student Visa

Changes Outlined in New Migration Strategy Target Australia's Student and Graduate Visa Program

In December 2023, the Australian Government released their Migration Strategy. In particular, the Government has outlined their intention to make significant changes to the Student and Graduate Visa programs, focusing on “strengthening the integrity and quality of international education”. To ensure you protect your migration position, contact our experienced team to guide you through these changes.

Temporary Skill Shortage Visas

Navigating The Australian Work Landscape: Temporary Skill Shortage Visas Explained

Unlock the potential of Australia's job market with the Temporary Skill Shortage Visa - Subclass 482. Introduced in 2018, the TSS visa bridges Australia's skill gap, providing a pathway for skilled professionals to realise their career aspirations. It addresses short- and medium-term needs with three distinct streams catering to varying employment durations. However, the journey requires navigating specific requirements, from employer sponsorships to applicant criteria. Fortunately, All Access Migration team offers expert guidance. Whether you're an employer or a potential employee, delve into the intricacies of this visa with us and turn your Australian work dreams into reality.

Regional Visa

Navigating The Path To Regional Visas: Your Gateway To A Life In Regional Australia

Explore the world of regional visas, including the Skilled Work Regional (Provisional) Visa (Subclass 491) and Skilled Employer Sponsored Regional (Provisional) Visa (Subclass 494). Discover a life rich with opportunities in the heart of regional Australia! Whether you're drawn to its serene landscapes or thriving communities, there's a path tailored for you. With distinct visa options offering a chance to live, work, and study amidst Australia's hidden gems, with an employer, or state to sponsor you, the dream is closer than you think. Under the expert guidance of All Access Migration, the visa options become clear and achievable.


Designated Area Migration Agreement (DAMA): Paving The Way For Skilled Workers And Australian Businesses

Designated Area Migration Agreements (DAMAs) significantly evolved Australia's skilled migration framework, offering a dynamic two-tiered system tailored to regional needs. Diverging from traditional migration pathways, DAMAs permit regions to source a broader range of overseas talent. A foundational five-year "head agreement" with regional representatives is at the helm. This paves the way for tier two: individual labour agreements with employers, aligning with the head agreement's stipulations. While 12 DAMAs currently operate, each mirrors its region's unique necessities. While the process might seem intricate, advisors like All Access Migration ensure a streamlined experience for businesses eager to tap into this option.

Healthcare Worker

Queensland Government's Workforce Attraction Scheme Recognises Interstate and International Healthcare Heroes

Discover Queensland Government's groundbreaking initiative revolutionising healthcare by attracting skilled workforce. Addressing critical shortages, the government offers appealing incentives to healthcare workers across Australia and abroad. Count on All Access Migration for seamless support during relocation and immigration process. Enjoy benefits of up to $20,000 for joining Queensland Health and up to $70,000 for rural doctors. These incentives transform healthcare, ensuring top-notch services for all Queensland residents.


Update: The Australian Government Announces Temporary Skilled Migration Income Threshold Increase

As a result of an independent review, the Australian government has decided to raise the Temporary Skilled Migration Income Threshold (TSMIT) from $53,900 to $70,000 effective from 1 July 2023. This alteration will impact companies that sponsor foreign workers under skilled migration programs, as they must comply with the minimum salary requirement to guarantee that migrant workers receive equitable pay. The government's choice reflects their dedication to fairness within the skilled migration system.

New Zealanders

Direct Pathway to Australian Citizenship for New Zealanders

The Australian Government has introduced a direct pathway to Australian citizenship for eligible New Zealand citizens living in Australia, which marks a significant change in the migration policy between the two nations. This move is expected to make access to Australian citizenship much more manageable for New Zealanders living in Australia, and it is set to take effect from 1 July 2023. The article emphasises the significance of this policy shift and its impact on the lives of New Zealanders living in Australia.

TPD Claim

Overhaul Needed For Skilled Migration System To Address Labour Shortages

Australia’s skilled migration system is facing a significant challenge for addressing the country's skill shortage and labour crisis. However, the mandatory job advertisement requirement for employers recruiting skilled migrants has hindered the system's success, as recently pointed out by a review conducted by Martin Parkinson, Joanna Howe, and John Azarias. Removing this requirement could significantly improve the system's efficiency and effectiveness. Furthermore, the visa system's outdated policies have led to the exploitation of temporary migrants by unscrupulous employers, creating a vulnerable group that needs protection.