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BLF20 v Minister for Immigration

BLF20 v Minister for Immigration

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Case Copied 23 April 2020 75 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BLF20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 878

Catchwords:

MIGRATION – Invalidity – Bridging visa – where Humanitarian Stay visa granted – where Safe Haven Enterprise visas and associated Bridging visas then granted – where applicant erroneously considered to be unauthorised maritime arrival – where decision in DBB16 v Minister for Immigration and Border Protection carries consequence that applicant is not unauthorised maritime arrival – where applicant not eligible to apply for SHEV visa – where purported grant of SHEV visa thereby affected by jurisdictional error – where such visa granted and takes effect – where applicant convicted of several state criminal offences – where delegate gives notice to cancel and cancels Bridging visas – where applicant seeks review of decision to cancel first Bridging visa – where Tribunal affirms delegate’s decision – whether delegate and Tribunal had no power to cancel visa, but only had power to set aside erroneous decision to grant visa – invalidity – applicable principles – validity should be determined by whether it was a purpose of the legislation that an act in breach of a provision should be considered to be invalid – consideration of legislative purpose of applicable provisions – scope and objects of Migration Act 1958 – powers not limited to only setting aside visa – Tribunal seized of power to affirm delegate’s decision to cancel visa – further amended application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25C
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act1899 (Qld)
Domestic and Family Violence Protection Act2012 (Qld)
Drugs Misuse Act 1996 (Qld)

Federal Circuit Court of Australia Act 1999 (Cth), ss.67-68

Migration Act 1958 (Cth), ss.3A, 4, 5, 5AA, 13, 14, 15, 28, 29, 30, 31, 35A, 45, 46, 46AA, 46A, 47, 49, 51A, 63, 65, 67, 68, 69, 73, 77, 81, 82, 91K, 91L, 91X, 116, 117, 118. 189, 196, 337, 338, 349, 368, 477
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth), reg.2.03, reg.2.43, Schedule.1, Pt.3, Item.1305, Schedule.2, cl.050.212

Cases cited:

Calvin v Carr (1979) 22 ALR 417
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260

Goldie v Commonwealth of Australia (2002) 117 FCR 566

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Jadwan Pty Ltd v Secretary Department of Health & Aged Care (2003) 145 FCR 1
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400
Ma v Minister for Immigration [2007] FCAFC 69
Meyers v Casey (1913) 17 CLR 90
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v A

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 878
Decision Date: 23 April 2020

CaseChat Overview and Summary

This matter concerned an applicant, BLF20, who sought review of a decision by the Administrative Appeals Tribunal affirming a delegate's decision to cancel their bridging visa. The applicant had previously been granted a Humanitarian Stay visa, followed by Safe Haven Enterprise visas and associated bridging visas. However, the applicant was erroneously considered an unauthorised maritime arrival, a status that, following the decision in *DBB16 v Minister for Immigration and Border Protection*, meant they were not eligible to apply for a Safe Haven Enterprise visa. Consequently, the purported grant of the Safe Haven Enterprise visas was affected by jurisdictional error. The applicant was subsequently convicted of state criminal offences, leading to the delegate's notice to cancel and subsequent cancellation of the bridging visas.

The central legal issue before the court was whether the delegate and the Tribunal had the power to cancel the bridging visas, or if their power was limited to setting aside the erroneous decision to grant the visas. This question required the court to consider the applicable principles of invalidity and the legislative purpose of the relevant provisions of the *Migration Act 1958* (Cth). Specifically, the court had to determine whether a breach of a provision was intended by the legislature to render an act invalid, and the scope and objects of the Act in relation to such powers.

The court reasoned that while a decision to grant a visa based on an invalid application might be considered invalid, such a visa is intended to have operative effect until it is cancelled in accordance with the Act. Drawing on principles from *Minister for Immigration and Multicultural Affairs v A*, the court held that the validity of a decision depends on the specific section of the Act in question and whether the legislature intended a breach to result in invalidity. The court found that the powers of the delegate and the Tribunal were not limited to merely setting aside an erroneous grant of a visa. Instead, the Tribunal was seized of the power to affirm the delegate's decision to cancel the visa, even if the initial grant was affected by jurisdictional error.

The court dismissed the applicant's further amended application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Some support for a conclusion that the present decision did not preclude the decision to affirm cancellation of the visa was sought to be drawn from Minister for Immigration and Multicultural Affairs v A.[55] There Merkel J, who characterised the requirements of ss 45, 46 and 47 of the Act as critical aspects of the statutory scheme, nonetheless could see no reason for discerning a legislative intent that a failure to complete an approved form in accordance with any or every direction should necessarily result in invalidity.[56] However, his Honour held that, as there had been substantial non-compliance, there was no valid application, and that ss 47 and 65 combined to provide strong support for a conclusion that the legislature did not intend that a decision to refuse a visa upon an invalid application was authorised. Merkel J recognised s 65 was located in Sub-div AC (not AA or AB), with the result that whatever else may be said, s 69 could not validate a decision that was made in breach of the condition upon which s 65 operated (namely, the consideration of a valid application). Merkel J held, having regard to the scope and object of the Act and the text of the applicable provisions, it was a purpose of the legislature that a decision to grant or refuse a visa applied for on an invalid application was a decision made without power and was invalid, save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise.[57] His Honour accepted that such decisions, including those to which s 69 applied, might have operative effect pending a review of the decision under the Act,[58] stating:Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act.A further example relates to the grant of a visa which occurs when a record of it is made: see s 67. The visa “has effect” after it is granted (s 68) but can be cancelled in the circumstances provided for, inter alia, in Subdivision C of Division 3 Pt 2 of the Act. One such circumstance is that the visa should not have been granted because the grant was in contravention of the Act (s.116(1)(f)). Thus, a visa granted pursuant to an invalid decision is intended to have effect as a visa until cancelled in accordance with the Act. Accordingly, whether a decision is invalid and is to have no operative effect whatsoever depends on a consideration of the particular section with which a case is concerned. . . (Emphasis added)Finkelstein J entertained no doubt the application was invalid and held that the Minister could not consider it. His Honour regarded s.69 as not affecting those conclusions by reason that he considered the savings provision applied only to a valid visa application.[59] Emmett J considered that the proceeding as constituted was incompetent and that the validity of the application did not arise for determination.[60] [55] (1999) 91 FCR 435.[56] (1999) 91 FCR 435, [27], [43].[57] (1999) 91 FCR 435, [52].[58] (1999) 91 FCR 435, [44]-[54].[59] (1999) 91 FCR 435, [118]-[122].[60] (1999) 91 FCR 435, [108]-[112].

Ratio Decidendi

Legal Principle Established

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