2215968 (Migration)

Case [2022] AATA 4687

2215968 (Migration) [2022] AATA 4687 (16 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Luke Tran

CASE NUMBER:  2215968

MEMBER:Simone Burford

DATE:16 December 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 050 (Bridging (General)) visa, granted on 20 October 2016, is not cancelled.

Statement made on 16 December 2022 at 4:01pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Federal Circuit and Family Court remittal – applicant convicted of serious offences – Unauthorised Maritime Arrival – power to cancel a visa invalidly granted – no visa to cancel – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 5, 5AA, 36, 46, 68, 82, 91, 116, 128, 134, 137, 140, 164, 178, 338, 349, 500A, 501; Ministerial Direction 63
Migration Regulations 1994, Schedule 2, cl 050.511

CASES

DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
EUF20 v MICMSMA [2021] FCCA 436
Kim v MIAC (2008) 167 FCR 578
Meng v MIAC [2007] FMCA 173
MHA v CSH18 [2019] FCAFC 80
MIMIA v Schwart [2003] FCAFC 229
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] HCATrans 217
Zubair v MIMIA (2004) 134 FCR 344

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

application for review

  1. This is an application for review of a decision dated 29 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa (the applicant’s Bridging visa) under s 116 of the Migration Act 1958 (Cth) (the Act).

    THE ISSUE

  2. The issue raised by the remittal is whether the power to cancel a visa arises in circumstances where the visa has already ceased by the time of the delegate’s decision. If that question were answered in the affirmative, these issues which arise for determination are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

  3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    BACKGROUND

  4. The applicant is [an age]-year-old Vietnamese citizen who first arrived in Australia [in] April 2013.

  5. He is currently in detention in [a named] Detention Centre.

    Background to the applicant’s Bridging visa

  6. The Tribunal has drawn the following background from the decision of the Federal Circuit Court of Australia (as it then was) in relation to the application and written submissions from the applicant’s representative which included the decision of the Federal Circuit and Family Court on the applicant’s most recent visa application.[1]  That procedural background was not in dispute and is consistent with…

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2215968 (Migration) [2022] AATA 4687
Case
[2022] AATA 4687
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking to set aside the cancellation of his Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant had arrived in Australia by boat and was initially considered an unauthorised maritime arrival. He had previously been granted a Humanitarian Stay (Temporary) (Subclass 449) visa and later a Bridging visa in association with a Safe Haven Enterprise visa (SHEV) application lodged by a relative. It was the cancellation of this first bridging visa, granted on 20 October 2016, that was the subject of the review.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Bridging E visa was valid. This involved determining whether the visa had already ceased to be in effect at the time of the cancellation decision, and consequently, whether there was a valid visa in existence to be cancelled. The Tribunal was also required to consider the scope of its review powers, particularly in circumstances where the primary decision-maker may have erred.

The Tribunal reasoned that, in a remitted matter, the Minister had conceded that the applicant's visa had ceased on 8 September 2017, which was prior to the delegate's purported decision to cancel the visa on 11 August 2017. The Tribunal noted that it had fallen into jurisdictional error by relying on the incorrect premise that the visa had not ceased, which was a critical factor in the exercise of its discretion to cancel the visa. The Tribunal applied the principle that cancellation decisions under section 116 of the Migration Act 1958 (Cth) are reviewable even if the primary decision was invalid or based on an incorrect premise, and that the Tribunal's powers on review are informed by the powers available to the primary decision-maker.

Consequently, the Tribunal set aside the decision under review and substituted a decision that the applicant's Subclass 050 (Bridging (General)) visa, issued on 20 October 2016, was not cancelled.

Orders

Orders of the court

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Background

Background to the litigation

He is currently in detention in [a named] Detention Centre.Background to the applicant’s Bridging visa The Tribunal has drawn the following background from the decision of the Federal Circuit Court of Australia (as it then was) in relation to the application and written submissions from the applicant’s representative which included the decision of the Federal Circuit and Family Court on the applicant’s most recent visa application.[1] That procedural background was not in dispute and is consistent with Departmental records.[1] [Deleted.] The applicant arrived by boat into the Ashmore Reef area. He was transferred from that boat and taken aboard a vessel, disembarking in Darwin. At that time, the applicant was considered to be an ‘offshore entry person’. From 1 June 2013, he was considered to be an ‘unauthorised maritime arrival’ (UMA),[2] by reason that he had entered Australia by sea at an ‘excised offshore place’.[3] Those designations were later considered by the Federal Court of Australia not to apply in circumstances such as the applicants.[4][2] section 5AA(1).[3] section 5(1); the Territory of Ashmore Islands.[4] DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447 The applicant was in immigration detention from around [April] 2013 until [September] 2014. On 17 September 2014, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa. No details with respect to that visa were before the Tribunal. By operation of s 46A(1) of the Act, certain visa applications by an UMA’s are invalid. However, where it is considered to be in the public interest to do so, the Minister may, by written notice, determine that s 46A(1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in that determination.[5] [In] February 2016, the Minister, presuming the applicant to be an unauthorised maritime arrival, purported to exercise the power conferred by s 46A(2) of the Act so as to allow him to apply for either a Temporary Protection (Subclass 785) visa or Safe Haven Enterprise (Subclass 790) visa (SHEV).[5] section 46A(2). On 5 October 2016, the applicant was included as a dependent applicant on his [Relative A’s] SHEV application (first SHEV application). On 20 October 2016, the applicant was granted a Bridging visa E (first bridging visa) in association with the first SHEV application. It is the cancellation of the first bridging visa which is the subject of the present application for judicial review. On 20 June 2017, the applicant lodged his own SHEV application (second SHEV application), doing so as primary applicant, and on 29 June 2017, he was granted a Bridging visa (second bridging visa) in association with the second SHEV application. second SHEV visa application is yet to be determined. However, the second bridging visa – and its cancellation – is not the subject of any application. On 11 August 2017, the applicant’s [Relative A] purported to withdraw the first SHEV application and the Department in turn purported to accept that withdrawal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In such circumstances the appropriate decision would be to set the cancellation decision aside and substitute a decision that the applicant’s Subclass 050 (Bridging (General)) visa, issued on 20 October 2016, is not cancelled.decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 050 (Bridging (General)) visa issued on 20 October 2016 is not cancelled.Simone BurfordSenior Member

Ratio Decidendi

Legal Principle Established

The Applicant seeks a direction that: "The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa". The Applicant submitted that the Tribunal has the authority to make the direction sought by the Applicant.consideration Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. In remitted matter 1835389, the Minister conceded that the applicant’s visa had ceased on 8 September 2017, which was before the delegate purported to cancel the visa. The notes in the consent order record the Tribunal fell into jurisdictional error by relying on an incorrect premise that the visa had not ceased, which was critical to the exercise of the Tribunal’s discretion to cancel the visa. Cancellation decisions under s 116 are reviewable by the Tribunal if the visa holder was in Australia both at the time of the decision and at the time of the review application. [18] Such decisions will be reviewable even where the primary decision is invalid, for example, because the delegate failed to comply with the mandatory procedural requirements set out in the Act;[19] where the visa should not have been granted[20] or where the person who made the purported decision lacked the requisite delegation.[21] Decisions are reviewable where the visa would have already expired at the time of the Tribunal’s decision.[22][18] Section 338(4) provides that decisions to cancel bridging visas held by a person who is in immigration detention because of that cancellation are reviewable. Non-citizens with cancellation decisions reviewable under this sub-section would be in Australia when their visas are cancelled, as a visa is generally essential for non-citizens to travel to Australia (s 42) and immigration detention applies to and is authorised for unlawful non-citizens in Australia: see ss 178, 189.[19] Zubair v MIMIA (2004) 134 FCR 344 at [28]–[32], applying Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary DSS v Alvaro (1994) 50 FCR 213, Yilmaz v MIMA (2000) 100 FCR 495 and Thayananthan v MIMA (2001) 113 FCR 297. Note, however, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1).[20] Meng v MIAC [2007] FMCA 173[21] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made. It also held that the words ‘powers and discretions that are conferred by this Act on the person who made the decision’ in s 415(1) ([pt 7]; s 349(1) [pt 5]) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective (at [65]).[22] Kim v MIAC (2008) 167 FCR 578 at [32]–[34].