BLF20 v Minister for Immigration
[2020] FCCA 878
•23 April 2020
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 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 |
| Cases cited: Calvin v Carr (1979) 22 ALR 417 Goldie v Commonwealth of Australia (2002) 117 FCR 566 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Yilmaz v Minister for Immigration (2000) 100 FCR 495 Texts: Pearce & Geddes, Statutory Interpretation in Australia, 8th Ed (2014). |
| Applicant: | BLF20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 123 of 2019 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 March 2020 |
| Date of Last Submission: | 30 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Aleksov |
| Solicitors for the Applicant: | Luat Lawyers |
| Counsel for the Respondents: | Mr G. Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
THE COURT ORDERS THAT:
By consent, pursuant to ss.67-68 of the Federal Circuit Court of Australia Act1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The time within which the applicant may file a further amended application be extended, now for then, to 17 February 2020.
The further amended application filed on 17 February 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 123 of 2019
| BLF20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By further amended application filed on 17 February 2020 the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 7 December 2018 affirming a decision of a delegate of the first respondent (Minister) cancelling his Subclass 050, Bridging (General) visa (visa) pursuant to s.116 of the Migration Act 1958 (Act).
By his application, the applicant sought an extension of time pursuant to s 477 of the Act within which to seek judicial review of that decision. Ultimately, counsel for the Minister consented to the extension.
The applicant who is a Vietnamese citizen aged 29 years first arrived in Australia in 2013 and has resided here, on bridging visas, since that date. His own application for a substantive visa, lodged in June 2017, remains undecided. As the applicant’s counsel submitted, even by migration standards, the visa application history in this matter is unusually complicated. Nonetheless, only one ground of review is now raised.
Within Sub-div D of Div 3, Pt 2 of the Act – Visas may be cancelled on certain grounds – s.116 confers power to cancel a visa where the Minister is satisfied, relevantly, that a prescribed ground for cancelling a visa applies to the holder. Within Pt 2 of the Migration Regulations 1994 (Cth) (regulations), Div 2.9 addresses the cancellation and refusal to grant visas. In the case of the holder of a Subclass 050 (Bridging (General)) visa, by pars 2.43(1)(p)(i)-(ii), prescribed grounds for the purposes of s.116(1)(g) are that the Minister is satisfied the holder has been charged or convicted of, relevantly, an offence against a state law.
By way of overview, a delegate cancelled the visa under s.116(1)(g) of the Act by reason of the applicant’s conviction for a number of serious domestic violence and drug offences. The Tribunal, being satisfied that the ground for cancellation of the visa was made out, examined both the primary and secondary considerations addressed by Direction No.63, Bridging E visas – cancellation under section 116(1)(g) and affirmed the delegate’s decision.
A complication in the present case arises from the fact, as is accepted, that the decision to grant the bridging visa was affected by jurisdictional error. That was because an associated Safe Haven Enterprise visa application was invalidly made and, for that reason, a time of application criterion applying to the grant of the bridging visa was not met.
The sole ground of review raised by the further amended application is that the Tribunal did not have jurisdiction to ‘affirm’ the decision of the delegate, and had jurisdiction or power only to ‘set-aside’ the decision of the delegate and, as was submitted, ‘nothing else’. In failing to set-aside, but instead affirming, the delegate’s decision to cancel the visa, it is said the Tribunal’s decision was affected by jurisdictional error.
In substance, the applicant contends that the only power open to the Tribunal was to make a decision to set aside the delegate’s decision to grant the visa. By contrast, the Minister contends that the decision to grant the visa was given sufficient effect by the Act for there to be an extant decision that the Tribunal had jurisdiction to affirm on review.
In summary, I have concluded that the Tribunal had jurisdiction and power to affirm the delegate’s decision to cancel the visa. For the reasons which follow, the application should be dismissed.
Background
The background to the application was common ground.
On 14 April 2013, the applicant arrived in Australia without a valid visa. He was taken aboard a vessel, which traversed Ashmore Reef and disembarked its passengers, including the applicant, in Darwin. At that time, the applicant was presumed to be an “offshore entry person”. Further, with effect from 1 June 2013, he was erroneously presumed to be an “unauthorised maritime arrival”,[1] by reason that he had entered Australia by sea at an “excised offshore place”.[2]
[1] Act, s.5AA(1).
[2] Act, s.5(1); vis, the Territory of Ashmore Islands.
The applicant was in immigration detention from around 14 April 2013 until 18 September 2014. On 17 September 2014, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa. Nothing more was said in relation to the status of this temporary visa.[3]
[3]This may be explained by the operation of s.82(2), which provides that a substantive visa generally ceases to have effect if another substantive visa comes into effect.
By operation of s.46A(1) of the Act, certain visa applications by an unauthorised maritime arrival 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.[4] While the subject determination was not in evidence, it is agreed that on 11 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).
[4] Act, s.46A(2).
On 5 October 2016, the applicant was included as a dependent applicant on his younger brother’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. The 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 brother purported to withdraw the first SHEV application and the Department in turn purported to accept that withdrawal. The evidence contains some indication that the first SHEV application had been withdrawn at the Department’s request, coupled with a suggestion that he lodge a further SHEV application.
Although it is accepted that the purported withdrawal of the first SHEV application would have had the effect that the first bridging visa ceased 28 days thereafter,[5] the present application proceeded on the basis that it remained operative and was the subject of the events described below. Why this was so remains unexplained.
[5]Regulations, Sch 2, cl 050.511(b)(iv). Amendments to the Regulations which extended that period from 28 to 35 days apply only to bridging visas granted on or after 19 November 2016 (the first bridging visa had been granted on 20 October 2016); see also Act, s 82(3).
On 6 August 2018, the Full Court of the Federal Court of Australia delivered judgment in DBB16 v Minister for Immigration and Border Protection,[6] holding that the Minister had no power to appoint the Western Lagoon at Ashmore Reef to be a proclaimed port. Although this conclusion carried the consequence that the appellant was not a fast track applicant[7] within the meaning of Pt 7AA of the Act, the critical issue[8] before the Full Court was whether the appellant was an “unauthorised maritime arrival”. The decision in DBB16 turned upon a finding that the Western Lagoon of Ashmore Reef was not a port and thus not a part of the “migration zone” for the purposes of the Act.[9] In turn, as the applicant had not stepped foot on Ashmore Reef, but on land in Darwin, he was not a fast track applicant and so entitled to the more detailed merits review afforded by Pt 7 of the Act than that provided by Pt 7AA.
[6] (2018) 260 FCR 447.
[7]One element of the definition of fast track applicant provided by s 5(1) of the Act is that the applicant is an “unauthorised maritime arrival.”
[8] (2018) 260 FCR 447, [14].
[9] (2018) 260 FCR 447, [20]-[23], [89]-[90].
Cancellation of visas
On 27 November 2018, the applicant was convicted and sentenced for various domestic violence and drug offences. The offences were committed over the period August to November 2018 and involved: contravention of a police protection notice and possessing dangerous drugs; contravention of domestic violence order (x2); contravention of domestic violence order (aggravated offence); possess utensils or pipes for drug use; common assault, domestic violence offences (x3). Convictions for each offence were recorded.
On the same date, a delegate issued a notice to the applicant entitled Notice of intention to consider cancellation under section 116 of the Migration Act 1958. The notice stated that it had come to the attention of the delegate that, under s.116 of the Act, there appeared to be a ground for cancellation of the second bridging visa relying upon par 116(1)(g) because a ground appeared to exist under reg.2.43(1)(p)(ii) for doing so. Attached to the notice was a copy of s.116 and reg.2.43. The notice provided the applicant an opportunity to comment upon the proposed intention to cancel the visa and advised him of the consequences of cancellation including that if a decision was made to do so, he would become an unlawful non-citizen unless granted a further visa.
Regulation 2.43(1)(p)(ii) provides that for the purposes of s.116(1)(g) of the Act, a prescribed ground includes, in the case of certain bridging visas, that the Minister is satisfied the visa holder had been charged with an offence against a law of, relevantly, a state.
The delegate’s decisional record contained details of the several offences with which the applicant had been charged and convicted and that the subject offences arose from contraventions of the Domestic and Family Violence Protection Act2012 (Qld), the Drugs Misuse Act 1996 (Qld) and the Criminal Code Act1899 (Qld).
At an interview conducted with the applicant on 27 November 2018, the applicant agreed that he had been charged with the subject offences, entered a plea of guilty and had been sentenced to 12 months’ probation.
Following this interview, a delegate made a decision purporting to cancel the second bridging visa. The decision record indicates that the delegate was satisfied grounds existed for cancelling the second bridging visa under s.116(1)(g) of the Act by reason that a ground under reg 2.43(p)(ii) existed for doing so. The decisional record identified the evidence and findings made, reasons given by the applicant as to why the visa ought not be cancelled, the delegate’s assessment of the reasons why the visa should not be cancelled and the decision to cancel the visa. The delegate considered, and was satisfied, having addressed the primary and secondary considerations contained in Direction No.63, that the grounds for cancelling the visa outweighed the reasons for not doing so. On that basis, the delegate made a decision to cancel the visa. In his consideration of the matter, the delegate recognised that cancellation of the visa under par 116(1)(g) and reg 2.43(p)(ii) would cause any future subclass WE 050 applications to be invalid pursuant to Item 1305(3)(g) of Sch 1, Pt 3 of the regulations. No application for review was made in respect of the decision to cancel the second bridging visa.
Thereupon, the applicant was taken into detention.
On 29 November 2018, a delegate issued to the applicant a notice of intention to cancel the first bridging visa (again under par 116(1)(g) of the Act), because a ground appeared to exist under reg 2.43(1)(p)(i) for doing so. Regulation 2.43(1)(p)(i) provides that for the purposes of par 116(1)(g) of the Act, a prescribed ground includes, in the case of certain bridging visas, that the Minister is satisfied the visa holder had been convicted of certain offences under a law of the Commonwealth, a state or territory. Following an interview of the applicant, on that date a delegate made a decision purporting to cancel the first bridging visa.
Application for merits review
On 2 December 2018, the applicant made application to the Tribunal for a review of the delegate’s decision to cancel the first bridging visa. The application, which was lodged on-line, identified that the decision for review was the decision to cancel a Subclass WE 050 visa made on 29 November 2018. In turn, the delegate’s decisional record confirms that the cancellation decision was made in respect of a Subclass WE 050 visa that had been granted on 20 October 2016. The Reasons below make clear that the Tribunal was concerned to review the decision made on 29 November 2018 to cancel the first bridging visa.
On 3 December 2018, the applicant was invited to attend a hearing before the Tribunal scheduled for 7 December 2018. For the purpose of that hearing the Tribunal issued a summons upon the Commissioner of the Queensland Police Service seeking production of documents relating to the applicant’s criminal history. The summons was answered by the provision of various documents. Upon receipt of documents from the Queensland Police Service, the Tribunal provided those documents to the applicant inviting him to comment or respond. The Tribunal advised him that the information so provided was considered relevant to the review as indicating he might not abide by the undertaking not to engage in criminal conduct during the operation of his visa and that that information may be the reason or part of the reason for a decision to affirm the decision under review.
On 7 December 2018, the applicant attended before the Tribunal, doing so with the assistance of an interpreter. It appears the applicant gave evidence to the Tribunal that he had made “three or four visa applications and he didn’t know what was happening.”
On 7 December 2018, the Tribunal purported to affirm the decision to cancel the first bridging visa. In particular, the Tribunal, did not purport to set aside the delegate’s decision to cancel that visa. Like the delegate, the Tribunal was satisfied that the ground for cancellation of the visa under s.116(1)(g) was made out and that, by reference to Direction No.63, the primary and secondary considerations in favour of cancellation outweighed those which might otherwise favour a decision not to do so.
The Tribunal provided a statement of the decision and the reasons for that decision (Reasons). The decision is recorded as follows:[10]
[10] See also Reasons, [40].
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
The Tribunal identified that the application for review was an application for review of the delegate’s decision to cancel the visa under par 116(1)(g) of the Act: [1]-[2]. The Tribunal identified the issue arising in the application as being whether the ground for cancellation was made out and, if so, whether it should be cancelled. Having referred to the delegate’s decision and s.116 of the Act, the Tribunal was satisfied that the ground for cancellation existed under par 116(1)(g):[9], [15]. Having identified and considered the primary and secondary considerations that were relevant for the purposes of exercising discretion whether or not to cancel the visa, the Tribunal affirmed the decision to cancel it: [40].
The Reasons were not the subject of particular examination before me. That was because of the threshold nature of the jurisdictional error that grounded the challenge on judicial review. In substance, it was said that the only power conferred on the Tribunal in the circumstances was a power to set aside the delegate’s decision. In particular, attention was drawn to s.69 of the Act (which concerns the effect of compliance or non-compliance with, relevantly, Sub-div AA of Div 3, Pt 2 of the Act), and provides that non-compliance does not mean that the decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside.
The significance of the present application lies in the consequences of cancellation of the visa, as opposed to setting aside the delegate’s decision. In particular, by reason of cancellation of a bridging visa, an applicant is barred from making a valid application for any further bridging visa E. Item 1305(g) of Sch 1, Pt 3 of the regulations provides criteria for a valid bridging visa E application including that the “The applicant has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q).” Such a visa would lead to the applicant’s release from immigration detention. While the cancellation stands, the applicant cannot satisfy that criterion.
On 11 December 2018, the applicant was notified of the decision.
Judicial review
On 14 January 2019, the applicant filed an application for judicial review of the Tribunal’s decision affirming the decision to cancel the visa.
Although the application had been prepared on the applicant’s behalf by his lawyer, both the original grounds of the application for an extension of time and the grounds of review were devoid of particulars.
When lodging his application for judicial review, the applicant’s lawyer affirmed an affidavit to which he exhibited a copy of the Tribunal’s Reasons together with the notification of that decision and a statement which provided information in relation to it (including how the applicant might seek a review). The affidavit contained no further information illuminating either the ground of review or the basis on which an extension of time ought to be allowed or upheld.
By a Response filed on 8 February 2019, the Minister opposed the application for an extension of time on the basis that the applicant had not adequately explained the delay in seeking review.
On 6 March 2019, orders were made by consent setting the application down for final hearing on 7 June 2019. However, on 5 June 2019, the hearing was adjourned by another judge, by consent. The parties’ email communications do not reveal why that hearing was vacated. At all events, on both 6 March and 5 June 2019, orders were made affording the applicant opportunities to file any amended application, affidavits and submissions. Neither of those opportunities were taken.
The application was re-fixed for hearing on 3 February 2020. Before that date enquiries were made of the applicant’s lawyer as to when his client’s submissions could be expected. None were forthcoming.
In those circumstances, the Minister’s original submissions, which were responsive to the grounds appearing in the application, identified why it was said the application for an extension of time should be refused.
On Monday, 3 February 2020, counsel who then appeared for the applicant obtained leave to rely upon a further affidavit made by his instructor in support of an application for an adjournment. Exhibited to that affidavit was a draft amended application which articulated a substantive basis for the relief sought.
The solicitor-advocate for the Minister properly conceded that the draft amended application identified an arguable basis for review but submitted that there was no utility in allowing an adjournment. It was submitted that if the extension was granted and the application upheld, the grant of relief would at most result in a declaration that the decision to cancel the visa had been invalid. In reply, counsel for the applicant submitted that there would be utility in the making of a declaration of this kind. It was emphasised that if the decision cancelling the visa was left undisturbed this would present an insuperable barrier to prevent the grant of a further bridging visa.
In light of the foregoing, a brief adjournment was granted with directions to afford the applicant a final opportunity to present evidence and submissions on the application for review. In granting that application it was made clear that if an extension of time was allowed, the application for substantive relief would be heard instanter.
On 10 February 2020, the applicant, represented by new counsel, submitted a proposed further amended application, affidavit and outline. In short, the earlier amended ground of review was abandoned as were the particulars and in their place a sole ground of review was put forward:
The Tribunal did not have jurisdiction to “affirm” the decision of the delegate, and had jurisdiction or power only to “set aside” the decision of the delegate and nothing else. In failing to do so, the decision of the Tribunal is affected by jurisdictional error.
Leave was granted to file the further amended application.
The matter was further adjourned. Attempts were made in March 2020 to secure an administrative amendment to the title of the proceeding so as to allocate a pseudonym to the applicant’s name, however, it became necessary for an order to be made to secure that result.[11]
[11] Act, s.91X(2).
Extension of time
On 11 December 2018, the applicant was notified of the Tribunal’s decision and on 14 January 2019 – 34 days after he was notified – the applicant applied for judicial review of the Tribunal’s decision.
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).
The power to extend time is made subject to two conditions: (1) an application has been made in writing for such an extension; and (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.[12] Although the Minister consented to the extension of time, the grant of that extension turns on the exercise of discretion. I am satisfied that it was appropriate to grant that extension.
[12]For the avoidance of doubt, the 35 day time limit commences from the date of the migration decision, irrespective of the validity of the decision: see s.477(3)-(5).
The first of the applicable conditions was met by the written request for an extension as made in the application for judicial review. The amended application stated that a reasonable explanation for the delay arose from the fact that the applicant was in immigration detention at the time the Tribunal gave its decision and had difficulty in obtaining legal representation within the 35 day time limit. Further, it was said that the application was 3 days out of time. It will be recalled that although the decision was made on 7 December 2018, the Tribunal did not notify the applicant of the decision until 11 December 2018. When regard is had to the fact that the application was lodged on 14 January 2019, it is apparent that it had been made within 34 days of such notification.
The time limit fixed by s.377(1) requires the application to be made “within 35 days of the date of the migration decision.” For the purposes of s.477, the expression “date of the migration decision” means, relevantly, the day the decision is taken to have been made under s.368 (2).[13] In general, where the Tribunal makes its decision on a review, it must make a written statement which, amongst other things, records the day and time that the statement was made.[14] A decision on a review is generally taken to have been made by the making of the written statement and on the day, and time, it was made. For the purposes of determining whether an application was made to the court within the 35 day time limit fixed by s.477(1), it is not to the point that the making of that decision was not notified to the applicant until some later time.
[13] Act, s.477(3)(b).
[14] Act, s.368(1)(f).
However, in the absence of any prejudice and having regard to the consequences which flow from a decision to cancel the visa, I considered that it was in the interests of the administration of justice that the applicant be afforded an opportunity to argue the sole ground of review.
Legislative scheme – visas
Having regard to the nature of the ground of review it is necessary to examine the scheme of the Act in a little detail beginning with the object and purpose of particular provisions. In Pt 1 of the Act, Preliminary, s 4(1) provides that the object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. In the advance of that object, the Act provides for visas permitting non-citizens to enter or remain in Australia, the Parliament intending that the Act be the only source of rights of non-citizens to do so.[15]
[15] Act, s.4(2)
Part 2 of the Act, which concerns Arrival, presence and departure of persons, is arranged in twenty-four divisions comprising ss.13 – 274. Division 1 of Pt 2 addresses Immigration Status and provides for a distinction to be drawn between persons who are lawful non-citizens and those who are not. Broadly, a lawful non-citizen is one who is in the migration zone and who holds a visa.[16] An unlawful non-citizen is one who is not a lawful non-citizen.[17] Subject to an exception that is not material, if a visa is cancelled, its former holder, if in the migration zone, becomes an unlawful non-citizen unless, immediately after cancellation, that person held another visa.[18]
[16] Act, s.13(1).
[17] Act, s.14(1).
[18] Act, s.15.
Division.3 of Pt.2 concerns Visas for non-citizens. It is arranged in twenty-two sub-divisions and comprises ss.28 – 140. Subject to the Act, the Minister is authorised to grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia for a specified period or indefinitely.[19] The Act provides for two kinds of visas (temporary and permanent visas) and visas of prescribed and other classes, including Protection visas.[20] A SHEV is a form of Temporary Protection visa.[21] The criteria for Protection visas are those set out in s.36 of the Act and any other criteria that are prescribed by the regulations.[22] A temporary visa will be operative for a defined term known as a visa period.
[19] Act, ss.28-29.
[20] Act, ss.30-31.
[21] Act, s.35A(3), (3A).
[22] Act, s.35A(6).
The regulations may prescribe criteria for visas of a specified class including bridging visas and temporary safe haven visas.[23] One of the classes of bridging visa prescribed by Item 9 of reg 2.01(2) is a Bridging E (Class WE), Subclass 050 (Bridging (General)) visa.
[23] Act, s.31(3).
Amongst the classes of temporary visas are bridging visas granted under Sub-div AF of Div 3 and temporary safe haven visas.[24] Sub-division AF of Div 3, Pt 2, Bridging visas, comprises ss 72-76. Section 73 provides that if the Minister is satisfied an eligible non-citizen satisfies the criteria for a bridging visa under s.31(3), the Minister may grant a bridging visa. For the purposes of s.31(3), the prescribed criteria are the primary and secondary criteria (if any), set out in a relevant Part of Sch 2 of the regulations.[25] The fact that a non-citizen holds a bridging visa does not affect the grant of another visa application.[26]
[24] Act ss.37-37A.
[25] Reg.2.03(1).
[26] Act, 76(1)(b).
Sub-division AA of Div 3, Pt 2 of the Act, Application for visas, is comprised of ss.44-51, some of which provisions are considered to be critical to the scheme of the Act. A visa applicant must apply for a particular type of visa.[27] Specifically, s 46 addresses the subject, Valid visa application, regulates the requirements for making the only types of visa applications that are valid applications and contains provisions which address: Validity – general; Personal identifiers and Prescribed criteria for validity. A visa application is only valid if, amongst other things, it is not invalid under s.91K (temporary safe haven visas).
[27] Act, s.45(1).
Concerning the prescribed criteria for validity, par 46(3)-46(4)(a) provide that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class. In amplification of those provisions, s 46AA, which covers certain visas, including bridging visas, provides that where regulations are in effect, a visa application is invalid unless it satisfies criteria under the Act and regulations.[28] Further, par 46AA(4)(b) of the Act provides that a visa to which the section applies (and which includes a bridging visa) must not be granted unless any applicable criteria under the Act and regulations are satisfied.
[28] Act, s.46AA(2), (4)(a).
While s.46A(1) provides that an application by an unauthorised maritime arrival is not valid in certain prescribed circumstances, sub-s 46A(2) confers power on the Minister to lift the bar presented by that section. The power to do so is not available for exercise respecting a person who is not an unauthorised maritime arrival.
The Minister is obliged to consider a valid visa application, an obligation which continues until, relevantly, the application is withdrawn, granted or refused; however, by s.47(3) of the Act, the Minister is proscribed from considering an application which is not a valid visa application.[29]
[29] See also Act, s 49(1).
Sub-division AB of Div 3, Pt 2, which regulates procedures for dealing fairly, efficiently and quickly with visa applications, includes an exhaustive statement of a natural justice hearing rule for Sub-div AB.[30]
[30] Act, ss 51A, 63(1).
Sub-division AC of Div 3, Pt 2, Grant of visas, comprises ss.65-69. Section 65 provides, in substance, that the Minister, after considering a valid visa application, if satisfied that the criteria are met, must grant the visa application, and if not so satisfied, must refuse it. Thereupon, the Minister is required to notify the applicant of the outcome; however, failure to do so does not affect the validity of the decision.[31] A record of the decision is to be made whether the application was granted or refused. Once that record is taken to have been made, by sub-s 67(4), the Minister has no power to vary or revoke the decision so recorded. Again, failure to make a record of that kind does not affect the validity of the decision or the constraint upon the Minister’s power to vary or revoke it.[32]
[31] Act, 66(1), (4).
[32] Act, 67(1), (4).
By s.68(1) of the Act, a visa generally has effect as soon as it is granted.
Section 69, which is of relevance to the present application reads:
Effect of compliance or non-compliance
(1)Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2)If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.
Sub-division AF of Div 3, Pt 2, Bridging visas, is considered at [59].
Sub-division AG of Div 3, Pt 2, Other provisions about visas, comprises ss.77-84. By s 81(3) of the Act, a visa to remain in Australia during a period is not a permission to so remain outside of that period. By s.82(1) of the Act, a visa that is cancelled ceases to be in effect on cancellation.
Sub-division AJ of Div 3, Pt 2, Temporary safe haven visas, comprises ss.91H-91L. Sub-division AJ was enacted because the Parliament considered that a non-citizen (other than an unauthorised maritime arrival or transitory person) who held a temporary safe haven visa, or who had not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than a temporary safe haven visa.[33] The sub-division applies to certain non-citizens, including those who, at the time of making an application, hold a temporary safe haven visa. It does not apply to an unauthorised maritime arrival or transitory person.[34] Where Sub-div AJ applies, s.91K provides:
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
[33] Act, s 91H.
[34] Act, s 91J.
Broadly, s.91L provides that where it is considered to be in the public interest to do so, the Minister may, by written notice determine that s.91K does not apply to a visa application by a non-citizen. The power conferred on the Minister by s.91L is non-delegable.
The cancellation of visas is addressed in a myriad of ways in Div 3 of Pt 2 of the Act by Sub-divs C (ss.97-115), D (ss.116-118), E (ss.118A-127), F (ss.127A-133), FA (ss.133A-133F), FB (ss.134A-134F), G (ss.134-137), GB (ss.137J-137P), GC (ss.137Q-37T) and H (ss.138-140). It is immediately apparent that the Act makes specific and comprehensive provision in relation to the cancellation of visas.
In Sub-div D of Div 3, Pt 2, Visas to be cancelled on certain grounds, s.116 provides that, subject to sub-ss.116(2) and (3) the Minister may cancel a visa if he or she is satisfied that:
(a). .. ; or
(aa)the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b)-(e). . . ; or
(f)the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(g) a prescribed ground for cancelling a visa applies to the holder.
As concerns temporary visas, par 117(1)(d) provides that such visas may be cancelled pursuant to s.116(1) and otherwise while a non-citizen is in the migration zone.
By s.118, the powers to cancel a visa under an array of provisions, including s.116, are not limited, or otherwise affected, by each other.
Sub-division F, Procedure for cancelling visas under Sub-div D in or outside Australia, comprises ss.118A-127, and contains an exhaustive statement of the natural justice hearing rule of the matters that the sub-division deals with. In general: a person is entitled to notice where the Minister is considering the cancellation of a visa under s.116; certain information must be provided to the person, including that they must be: (i) given an invitation to comment; (ii) afforded an opportunity to comment; and, (iii) notified of a decision to cancel their visa.
Division 7 of Pt 2, concerns Detention of unlawful non-citizens. Section 189 confers power to detain unlawful non-citizens while s.196 regulates the duration of such detention.
Legislative scheme – review of decisions
Part 5 of the Act, Review of Part 5-reviewable decisions, is arranged in nine Divisions comprising ss.336M-379G. Notably, while the Tribunal is not conferred jurisdiction or power to review a decision to grant a bridging visa,[35] upon review, it may make certain decisions to vary, affirm or set-aside decisions to refuse or to cancel a visa.[36]
[35] Sevim v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 126, [47].
[36]Somewhat curiously, the simplified outline of Pt 5 provided by s 336M states that Part 5 reviewable decisions relate to the grant or cancellation of visas in some circumstances but does not speak of the refusal of visas.
Part 5 of the Act applies to Part 5-reviewable decisions.[37] Section 337 of the Act provides an interpretation provision for Pt 5 and relevantly defines a decision on a review as meaning, amongst others, a decision by the Tribunal to affirm, vary or set-aside a Part 5-reviewable decision. Section 338 of the Act defines the term Part 5-reviewable decision in a manner which identifies those decisions which do not, and those which do, fall within the definition. Included within the definition are those decisions relating to: the refusal to grant certain visas; the cancellation of certain visas; and, decisions which are prescribed to be a Part 5-reviewable decision. In particular, by s 338(4) of the Act, a decision of a delegate to cancel a bridging visa held by a non-citizen who is in detention because of such cancellation is a Part 5-reviewable decision.
[37] Act, s 336N(1).
Upon the review of a Part 5-reviewable decision, powers conferred on the Tribunal by s 349 of the Act include that the decision may be affirmed, varied or set aside. As concerns the setting aside of a decision, par 349(2)(d) provides that the Tribunal may “set aside and substitute a new decision.” A decision to vary or set-aside a decision is taken (except for the purposes of appeals) to be a decision of the Minister. Further, for the avoidance of doubt, the Tribunal must not, by varying or setting aside a decision, purport to make a decision that is not authorised.[38]
[38] Act, s 349(3)-(4).
Submissions
The applicant submitted that the first bridging visa did not, in law, exist so that the purported cancellation on 29 November 2018 was erroneous. The Minister challenged the generality of that proposition.
It was common ground that the first SHEV application was invalid and that this was because the applicant had at all times been subject to s 91K and could not make a valid visa application (save for a safe haven visa) without an exercise of the power under s 91L (which was not suggested).
In turn, it was also accepted that the bridging visas purportedly granted to the applicant depended upon the Minister being satisfied of the matters set out in Item 050 of Sch 2 to the regulations. As applied here:
a)cl 050.212(3)(a) required that the applicant had made, in Australia, a valid application for a substantive visa of a kind that could be granted if the applicant was in Australia and that application had not been finally determined. It was accepted that the applicant did not have any valid visa application on foot in connection with the grant of the first bridging visa that was at issue before the Tribunal;
b)cl 050.212(3)(b) contained an alternative criterion that the Minister was satisfied the applicant would apply, in Australia (within a period allowed by the Minister for that purpose), for a substantive visa of a kind that could be granted if the applicant was in Australia. Again, it was accepted the Minister could not lawfully have been satisfied that the applicant was going to make a valid application for a substantive visa within a time allowed by the Minister in the circumstance that the Minister had not personally exercised power under s 91L permitting him to do so.
It was accepted that the first bridging visa had been granted in exercise of the power conferred by s 65 and not otherwise. It was further accepted that the relevant satisfaction required to grant the first bridging visa was absent and the purported grant of the visa was not ‘valid’. For that reason, as the argument ran, when the delegate purported to cancel the visa, the delegate did not have jurisdiction to do so because there was, in law, no visa. Further, it was said that the only thing that the Tribunal could have done in the review was to ‘set-aside’ the purported grant of the visa, and ‘nothing else’. For those reasons, it was submitted that, in purporting to ‘affirm’ the delegate’s decision to cancel the visa, the Tribunal acted without jurisdiction.
Responding to those submissions, the Minister identified three matters which, it was agreed, were common ground:
First, despite the erroneous assumptions made as to the applicant’s status for the purposes of the Act, he was not an unauthorised maritime arrival. This was accepted as being conclusively established by DBB16.
Secondly, and as a consequence of the applicant not having the status of an unauthorised maritime arrival, by force of s 91K of the Act, the SHEV applications were not valid applications.
Thirdly, if the first SHEV application was not valid, it followed that the applicant could not meet one of the criteria for a bridging visa E to be satisfied at the time of application. As noted, cl 050.212(3) of Sch 2 of the regulations provides the following alternative criteria:
An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia. (emphasis added)
Each of those matters were agreed.
It was also agreed that since the first SHEV application was invalidly made, the applicant did not meet a time of application criterion for the first bridging visa. Thus, the Minister accepted that the purported grant of the first bridging visa was affected by jurisdictional error.
Next it was said that the first bridging visa remained capable of being cancelled, notwithstanding the jurisdictional error that affected the grant.
As the Minister submitted and the applicant accepted, the issue in dispute was whether the Tribunal could affirm a decision that purported to cancel a visa that was invalidly granted, or whether the Tribunal was confined to setting aside the delegate’s decision (as the applicant contended).
It was also accepted that the invalidity of the delegate’s decision to grant the first bridging visa did not deprive the Tribunal of jurisdiction to determine the application for review.[39]
[39]Yilmaz v Minister for Immigration (2000) 100 FCR 495, [25] (Spender J), [94] (Gyles J); Zubair v Minister for Immigration (2004) 139 FCR 344, [28], [32] (Finn, Mansfield and Gyles JJ).
It was further submitted that the first bridging visa had effect until cancelled. Reliance was placed upon the scheme of the Act, it being said that a delegate must grant a visa if satisfied that the criteria for the grant of the visa are met[40] and that the visa so granted remained effective unless and until it ceased to be in effect in accordance with s 82, which expressly addressed the circumstance that a visa had been cancelled.[41] It was further submitted that such an interpretation was supported by s 69 of the Act which tended against any absolute view of invalidity.
[40] See s.65, read with s.73 in the case of a bridging visa.
[41] See ss.68(1), 77 and 82(1).
Attention was also drawn to par 116(1)(aa) and (f) of the Act, being two of the grounds upon which a visa may be cancelled: (1) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist (s.116(1)(aa)); and, (2) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth (s.116(1)(f)). Both of those situations were said to be apt to include cases involving jurisdictional error by a delegate and in turn, to tend against a view that jurisdictional error must always result in automatic invalidity: Minister for Immigration v A.[42]
[42] (1999) 91 FCR 435 at [53] (Merkel J).
Further, as the first bridging visa had not otherwise ceased in accordance with s.82 of the Act, it was submitted that the Tribunal was not limited to merely setting aside the delegate’s decision. For all of those reasons, the Minister submitted that the Tribunal had power on review to affirm the delegate’s decision to cancel the visa. It was submitted that the first bridging visa decision (being the decision of the delegate to grant the visa made on 20 October 2016), although legally infirm, was given sufficient legal effect by the Act such that the delegate could cancel and, in turn, the Tribunal could affirm such a cancellation decision on review.
Invalidity
The Minister accepted that, generally, an administrative decision that contained jurisdictional error was to be regarded, in law, as being no decision at all.[43] But it was submitted this was not a universal proposition such that the legal and factual consequences of an administrative decision would ultimately depend upon the particular statutory provisions pursuant to which the decision has been made.
[43]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [76].
The question posed in the present application is whether the invalidity of the delegate’s decision to grant the first bridging visa on 20 October 2016 was an act which deprived the delegate, and in turn the Tribunal, of authority to cancel (and affirm the decision to cancel) that visa.
The question of invalidity does not arise in a vacuum. It is settled that the issue of 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.[44] In Project Blue Sky Inc v Australian Broadcasting Authority,[45]the plurality held:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, . . . In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute.” (footnotes omitted)
This statement of principle may be understood as recognising that the traditional distinction between mandatory and directory provisions is now in disfavour: Plaintiff S157/2002 v The Commonwealth.[46]
[44]Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, [46] (Merkel J) citing Hunter Resources Ltd v Melville (1988) 164 CLR 234.
[45] (1998) 194 CLR 355, [93].
[46](2003) 211 CLR 476, [20] (Gleeson CJ).
In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd,[47] the Full Court, by majority, determined that a decision made in fact, regardless of whether it was a legally effective decision, was to be regarded as a decision made under an enactment for the purposes of engaging jurisdiction to seek review under the Administrative Appeals Tribunal Act 1975 (Cth). Although dissenting on the issue, Deane J recognised a distinction between the colourable exercise of a power that was actually conferred and a complete usurpation of power, stating:
In considering whether the application satisfied these requirements, it is necessary to distinguish between a colourable exercise of actual power conferred by an enactment and the usurpation of power. The exercise of a power conferred by an enactment will ordinarily involve, at least implicitly, assessment of the content of the power and determination of whether any conditions precedent to its existence or valid exercise have been fulfilled. Such assessment and determination, even if wrong or mistaken, are incidents of the power conferred. A decision as to the exercise of the power which is based upon and is the result of a wrong assessment of content or a mistaken determination that conditions precedent have or have not been fulfilled will, in terms of legal effect, be void or voidable. It is none the less proper, in the context of a legislative scheme for review of decisions made under the enactment, to regard the decision as a ‘decision under’ the enactment: cf Meyers v Casey;[48]Calvin v Carr.[49] Where, on the other hand, an enactment confers no relevant power or function at all, the usurpation of power or function cannot properly be regarded as a "decision under" the enactment merely because the usurper points to the enactment as a source or possible source of any decision-making power or function.
(Emphasis added)
The principles stated in Brian Lawlor have been consistently applied to prevent an impermissible constraint upon the exercise of rights of review under the Act: see, eg, Plaintiff M174/2016 v Minister for Immigration and Border Protection.[50]Essentially, this has been achieved by treating an invalid decision as being nonetheless a decision made in fact and so sufficiently answering the description of a decision made under the Act, thereby meeting an essential requirement for a right of judicial review.
[47] (1979) 24 ALR 307, [4] (Bowen CJ), [24]-[25] (Smithers J), [30] (Deane J).
[48] (1913) 17 CLR 90, 114-6 (Isaacs J).
[49] (1979) 22 ALR 417, 425-7 (PC) (Lord Wilberforce).
[50](2018) 353 ALR 602, [40]-[41], [52] (Gageler, Keane and Nettle JJ), [82] (Gordon J), [96] (Edelman J).
The circumstances giving rise to invalidity may inform the status of the decision given. A series of migration cases[51] hold that a failure to lodge a visa application in an approved form or to properly complete that form, perhaps at least in relation to substantive matters,[52] results in there being no valid application such that the Minister is enjoined, by operation of s 47 from considering it. A theme in these decisions was that the use of an approved form was a condition upon which the power to consider the grant or refusal of the visa depended.
[51]Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, 261, 278-9; Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254, 261; Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120, [21]-[22]; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, [52], [120].
[52] Acts Interpretation Act 1901 (Cth), s.25C.
Upon those principles, absent compliance with that condition, the power to consider the application was not engaged and there could be no valid refusal or grant of the application at all. Further, the relevant Tribunals were only conferred with power to exercise all of the powers of the original decision maker, but proscribed from substituting a decision purporting to make a decision not authorised by the Act or regulations: “if the Minister is only able to consider a valid application, so too is the Tribunal.”[53] Those principles may need to be applied with some caution in circumstances where certain administrative decision makers are now denied some of the powers conferred on the original decision-maker.[54]
[53] Hayman (1999) 90 FCR 120, [22] (Finkelstein J).
[54]See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 602, [42] as to the absence of such powers under Pt 7AA of the Act.
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].
Although reliance was placed upon this decision, my attention was not drawn to the statements in Yilmaz v Minister for Immigration,[61] by Gyles J (Spender J agreeing) that, while Minister for Immigration and Multicultural Affairs v A held that s 69 had no application where an invalid application had been refused, the decision had a notable procedural appellate history, no clear ratio decidendi, was wrong in law and ought not be followed.[62]
[61] (2000) 100 FCR 495, [76]-[78], [84].
[62]It would appear that this concern was shared by Emmett J in Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, [109]-[112].
In Yilmaz,[63] the Full Court examined the position of an application, the invalidity of which was held to be cured by the later supply of the claims upon which a Protection visa was sought. The majority held that, despite a delegate’s error in refusing a visa rather than declining to consider it, the Tribunal retained jurisdiction to undertake a merits review. Gyles J made clear[64] that his observations did not address the position where the invalidity of an application was not cured. Insofar as the decision considers the operation of ss 47 and 69, his Honour’s reasoning should be seen as obiter dictum on the issue raised in this application.
[63] (2000) 100 FCR 495.
[64] (2000) 100 FCR 495, [95].
Nonetheless, the following matters in Yilmaz are instructive. First, s 47 enjoined the Minister from considering an invalid application.[65] Secondly, Spender and Gyles JJ each noted that within Sub-div AA, s 47 was the only provision directed to the Minister that was cast in mandatory terms, with all other provisions being framed in permissive terms.[66] It is clear that this consideration was important in the evaluation of invalidity and its consequences. Thirdly, the issue before the Tribunal had been a merits review of a decision to refuse a visa – had the distinct question been raised whether the delegate lacked power to refuse the application, the Tribunal would have had jurisdiction and power to make a decision on that issue.[67] Fourthly, as the application was invalid, by force of s 47, the Minister was bound not to consider it.[68] Fifthly, the question then arose whether an invalid decision was nonetheless a decision for the purposes of affording an applicant a right to apply for merits review by the Tribunal – the answer to which depended upon whether a purported decision was a decision under an enactment.[69] Sixthly, as concerned the scope or operation of s 69, the plurality reiterated that s 47 was the only provision in Sub-div AA which imposed a mandatory obligation on the Minister and considered that non-compliance with s 47 was plainly covered by s 69.[70] Seventhly, although bound not to consider an invalid application, if such application had been granted or refused, it would have been unreasonable to have declared it invalid, and neither party ought to be permitted to approbate or reprobate on the issue.[71] Eighthly, s 65 did not lie with sub-div AA and remained the immediate source of power to grant or refuse an application. Contrary to earlier authority,[72] Spender and Gyles JJ considered the phrase in s 65 “after considering a valid application for a visa” did not form part of the conditions for the exercise of power but provided an assumption upon which the section proceeded.[73] Ninthly, the principles in Brian Lawlor[74] and later authority supported a conclusion that a decision in fact made, regardless of whether or not it was legally effective, was a decision under an enactment, so providing the basis for a merits review of the decision.[75] Tenthly, the Tribunal had jurisdiction and power to undertake a merits review of the decision to refuse the protection visa application.[76]
[65] (2000) 100 FCR 495, [10], [81], [84].
[66] (2000) 100 FCR 495, [10], [81], [84].
[67] (2000) 100 FCR 495, [23]-[24], [89]-[90].
[68] (2000) 100 FCR 495, [51]-[53], [70]-[71], [81].
[69] (2000) 100 FCR 495, [79]-[80].
[70] (2000) 100 FCR 495, [3], [10], [81], [83]-[84].
[71] (2000) 100 FCR 495, [3], [81; see also [97].
[72] I.e. Minister for Immigration and Multicultural Affairs v A.
[73] (2000) 100 FCR 495, [83].
[74] (1979) 24 ALR 307.
[75] (2000) 100 FCR 495, [85]-[89].
[76] (2000) 100 FCR 495, [25], [94].
The plurality held that a decision made refusing to grant a protection visa, even if invalid, was one in respect of which the Tribunal had jurisdiction. Gyles J observed as to the effect of ss 65 and 69:
It was submitted that this conclusion could not stand with the requirements of, for example, s 65, and the legislative insistence on complete and valid applications. This mistakes the point. There are no degrees of invalidity. The RRT did have jurisdiction to entertain the review regardless of s 69. This analysis does, however, elucidate s 69. In my opinion, it is intended to have the same effect as does the application of the Lawlor principle.
His Honour expressed concern as to potentially absurd and anomalous results presented by the ground of review and its implications.[77]
[77](2000) 100 FCR 495, [68], [95]; see also Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486, [58] (Ryan, Sackville and Emmett JJ).
In Sevim v Minister for Immigration and Multicultural Affairs,[78] Gray J preferred the reasoning in Yilmaz to that of Minister for Immigration and Multicultural Affairs v A. However, his Honour also referred without disapproval to the observation by Merkel J that a visa which had been granted pursuant to an invalid decision was intended to have effect until cancelled in accordance with the Act.
[78] (2001) 114 FCR 126, [56], and see [49].
In Minister for Immigration and Multicultural Affairs v Bhardwaj,[79] the Court held, by majority, that a Tribunal had power to conduct a second hearing where, in conducting the first hearing, it had failed to conduct a review as required by the Act. The conclusion that a decision made in jurisdictional error should be regarded as being of no legal effect was expressed as being the position under the general law.
[79] (2002) 209 CLR 597, [51] (Gaudron and Gummow JJ), [63] (McHugh J), [152] (Hayne J).
Relevantly to the present application, the reasoning of both Gleeson CJ[80] and Hayne J[81] indicate that questions of invalidity do not arise in a vacuum and that the answer to such questions may depend upon the purpose for which the question is asked and “the kind of legal effect under consideration.” In stating those principles, the Chief Justice endorsed the proposition there was no doubt that an invalid administrative decision could have operative effect, including because no person had sought to have it set-aside or because the court had refused to do so. Gleeson CJ cited Leung v Minister for Immigration and Multicultural Affairs[82] where Finkelstein J had held “In some circumstances, the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.” To similar effect, Hayne J observed that to attribute legal consequences to an impugned decision begged the question, twice describing the impugned decision as having no relevant legal consequences.[83]
[80] (2002) 209 CLR 597, [9]-[13].
[81] (2002) 209 CLR 597, [142]-[147].
[82] (1997) 79 FCR 400, 413.
[83] (2002) 209 CLR 597, [150]-[153].
Gummow and Gaudron JJ reasoned that the question of invalidity required attention be given to the particular statute under consideration and recognised that the legislature may indicate a contrary result:[84]
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.
[84] (2002) 209 CLR 597, [51]-[54], (citations omitted), [63] (McHugh J agreeing generally).
Their Honours then considered whether the Act required that effect be given to a Tribunal’s decision that was affected by jurisdictional error. Gummow and Gaudron JJ, with whom McHugh J agreed generally, held that the Act neither expressly nor impliedly required a contrary conclusion. However, in doing so their Honours accepted that:
. . . , if the provisions referred to above require the Federal Court to treat a decision involving jurisdictional error as having legal effect until set aside, they require the Tribunal to do the same.
As the reasoning in Bhardwaj suggests, had the Act indicated a contrary conclusion, the general law position may well not have applied. The appeal did not concern the determination of the effect of a visa invalidly granted or whether it was open to cancel it while it remained in effect and before any application had been made to set it aside.
In Plaintiff S157/2002 v The Commonwealth,[85] the Court was concerned to address the validity of s 474 of the Act. In part, the validity of s 474 turned upon whether a decision made, proposed to be made or required to be made, but affected by jurisdictional error, could be regarded as a decision made under the Act. That was because, subject to certain exceptions, s 474 ousted jurisdiction only in respect of a decision made, proposed to be made, or required to be made under the Act. Gleeson CJ, who approached the issue as one involving a question of statutory construction and reconciliation, endorsed the description of the Act as being “replete with official powers and discretions, tightly controlled under the Act itself and under the Regulations by conditions and criteria to be satisfied before those powers and discretions can be exercised.”[86]
[85](2003) 211 CLR 476.
[86] (2003) 211 CLR 476, [20]-[24], [36].
Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated: “This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all.” [87] Their Honours cited Bhardwaj as supporting this conclusion. However, the plurality also accepted that it remained open in undertaking the reconciliation process of analysing the legislation to determine whether or not the decision was affected by jurisdictional error.[88]
[87](2003) 211 CLR 476, [76].
[88] (2003) 211 CLR 476, [77]-[78]; see also Callinan J at [161]-[163].
In Plaintiff S157/2002, the Court did not address the distinct question whether a decision made outside of jurisdiction may otherwise have a legal status for particular purposes. Rather it was concerned to examine the scope and operation of a privative clause upon its jurisdiction.
In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care,[89] Gray and Downes JJ observed of Bhardwaj and Plaintiff S157/2002 that neither case dealt with:
. . . the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.
In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 – 389:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
Kenny J, who agreed generally in the reasoning of the plurality stated:[90]
For the reasons stated by Gray and Downes JJ, the decision in [Bhardwaj] is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision.
[89] (2003) 145 FCR 1 [41]-[42].
[90] (2003) 145 FCR 1 [64]
In Ma v Minister for Immigration,[91] Lander J (with whom Mansfield and Siopsis JJ agreed), stated:
Bhardwaj, however, cannot be understood to stand for the proposition that jurisdictional error on the part of an administrative decision maker always means that the decision is no decision or a decision without legal consequences. The consequences of a decision infected by jurisdictional error will be determined by the Act which empowers the decision.
[91][2007] FCAFC 69, [27], [1], [41]; citing Project Blue Sky Inc (1998) 194 CLR 355, 388-389; Jadwan (2003) 204 ALR 55, [42], [64].
In Minister for Immigration v CLV16,[92] the Full Court confirmed that Bhardwaj did “not stand for the universal proposition that jurisdictional error on the part of a decision-maker will inevitably lead to the decision having no consequences at all. The legal and factual consequences of such a decision will ultimately depend upon the particular statutory provisions pursuant to which the decision has been made.”
[92](2018) 260 FCR 482, [64] (The Court), citing Jadwan (2003) 145 FCR 1, [42], [64]; Ma [2007] FCAFC 69, [27].
In Hossain v Minister for Immigration and Border Protection,[93] Kiefel CJ, Gageler and Keane JJ stated: [94]
. . . To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a ‘nullity’, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all” . . . (Emphasis added)
Bhardwaj and Jadwan were cited as supporting those propositions.
[93] (2018) 264 CLR 123.
[94] (2018) 264 CLR 123, [24].
Resolution
The applicant submitted that the case was unusually complicated, but that if successful, he would be without a bridging visa, two invalid SHEV applications and without a right to apply for any further SHEV. Further, it was submitted that the applicant would also be left in a situation where he held a right to apply for a bridging visa. It was submitted that overall, that reflected the correct legal position, and although counterintuitive, it was the applicant’s preferred migration position.
The present case hinges primarily upon the grant of the visa. The attack upon the later decision to cancel it depended upon the legal status of the visa and whether the only available power was to set it aside.
Stripped of its complexity, the following matters are common ground:
a)on 20 October 2016, the applicant was granted the first bridging visa in association with the first SHEV application (which has now been withdrawn). The visa was a Subclass 050 Bridging (General)) visa,[95] granted under Sub-div AF of Div 3 of the Act;
b)as DBB16 applied, the parties were agreed the applicant was not an “unauthorised maritime arrival.” For that reason, s 46A did not apply to his application and, because the applicant was not an unauthorised maritime arrival, the power conferred on the Minister by s 46A(2) was not engaged such that it was not open to treat as valid, a visa application rendered invalid by s 46A(1);
c)a time of application criterion applicable to the first bridging visa was that the applicant had made a valid application for a substantive visa.[96] The applicant had not made a valid application for a substantive visa and the Minister had not exercised power under s 91L of the Act. For those reasons, a time of application criterion applying to the grant of the bridging visa could not be met;
d)the first bridging visa was barred by s 91K by reason of it being non-compliant with Sub-div AA of the Act, specifically the imperative requirement of s 47(3) not to consider an invalid application. The decision to grant the first bridging visa was accordingly affected by jurisdictional error;
e)on 20 June 2017, the applicant lodged the second SHEV application. It remains undecided. The second bridging visa has been cancelled and is not the subject of any application for review;
f)on 29 November 2018, a delegate made a decision to cancel the first bridging visa. It was the decision to cancel the visa which was: the subject of the application for merits review; affirmed by the Tribunal and, the subject of judicial review by this court.
[95] Regulations, Sch 1, Pt 3, Item 1305(4).
[96] Regulations, Sch 2, cl. 050.212(3)(a).
The decisions taken on 29 November 2018 to issue a notice and cancel the first bridging visa are somewhat anomalous in the circumstance that the purported withdrawal of the first SHEV application had the effect that the first bridging visa had ceased. This was apparently agreed[97] and despite this, the present application proceeded on the basis that the visa remained operative and was the subject of the events described above. While the foundation for the application was not explained, I am not inclined to adopt the course taken by the majority in Minister for Immigration and Multicultural Affairs v A. I have accepted that this was part of the applicant’s strategy to achieve a result reflecting what was perceived to be the correct, preferred and counterintuitive legal position. Given the procedural history of the matter, it is best to provide a decision.
[97]Minister’s written submission, [10]; Applicant’s Reply, [1]; see also Act, s 82(3); Regulations, Sch 2, cl 050.511(b)(iv).
There is no issue that the Tribunal had jurisdiction to conduct a review of the delegate’s decision. In a reply submission, counsel for the applicant accepted that was so; however, what was submitted was that the Tribunal had no jurisdiction to affirm cancellation of the visa. To have framed the challenge in this way invited attention to the effect of the delegate’s decision to grant the visa, the scheme of the Act and the effect of invalidity in the circumstances of this case.
While the parties were agreed that the delegate’s decision to grant the visa had been invalid, their agreement on this issue tended to condense the events which culminated in that grant and its relevant legal effect.
As noted, while the Minister accepted that, generally, an administrative decision that contained jurisdictional error was, in law, no decision at all, it was submitted this was not a universal proposition such that the legal and factual consequences of an administrative decision would ultimately depend upon the particular statutory provisions pursuant to which the decision has been made.[98]
[98]Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, [64].
Having regard to the sole ground of review, I have examined the scheme of the Act above, including that its essential object is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens and to that end, it is the only source of rights to do so.
The grant of a visa represents a permission to travel to, enter or remain in Australia. Unlawful entry into, or presence in, Australia, will expose a person to loss of liberty and compulsory removal. The Act and regulations provide for multiple classes, and sub-classes, of visa. For each class of visa detailed criteria are provided. The criteria that are applicable to a visa must be satisfied by an applicant and must be applied by a decision-maker. A visa applicant must apply for a particular type of visa and the application is only valid if, relevantly, it is not invalid under s 91K and if it satisfies criteria under the Act and regulations. A bridging visa is a class of temporary visa for which the regulations prescribe certain criteria. Visa applications are to be dealt with fairly, efficiently and quickly. However, an application for, relevantly, a bridging visa must not be considered and must not be granted unless it is valid and the applicable criteria are satisfied: ss 46AA(4)(b), 47(3). Each of those provisions lie within Pt 2, Div 3, Sub-div AA of the Act.
After considering a valid visa application, the Minister must grant or refuse a visa application if satisfied (or not so satisfied), that the criteria for doing so are ‘satisfied’. A distinction exists between Ministerial satisfaction and a requirement that a particular fact or facts be shown to exist.[99] A Minister or delegate may erroneously be satisfied that the criteria for a visa have been satisfied notwithstanding that the criteria had not or could not have been met. Where, mistakenly, a decision is made to grant a visa, once granted, it still takes effect: Act s 68(1).
[99]Cf DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, [17]-[20] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-6; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, [52], [54]-[56].
By s 67(1), the Minister is taken to have made a decision to cause a record of the decision to grant or refuse a visa and upon that record being made, the Minister has no power to vary or revoke the visa. Section 67 does not provide that the Minister has no power to set aside or to cancel a visa. As stated, once granted, a visa has effect: s 68(1).[100]
[100]The operative effect of sub-s 68(4) upon the first bridging visa, if any, was not the subject of any submissions.
It follows that once a visa has effect, it retains that status until set aside. In my view, once a visa is operative, and where it has not been set aside, it is open to exercise the power to consider cancellation.
Non-compliance with, relevantly, the respective obligations imposed by ss 46AA(4)(b) or 47(3) to not properly consider whether the applicable criteria are satisfied, or to decline to consider an invalid visa application, will mean that the consideration of whether the criteria are satisfied and whether the application should be granted will be affected by jurisdictional error. The question thus arises as to the status of a visa that has been so granted. Accepting that as a general principle, an administrative decision affected by jurisdictional error is no decision at all, an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. And it is too broad a proposition to assert that jurisdictional error on the part of an administrative decision maker must always mean that the decision is no decision at all or is a decision which attracts no legal consequences for all purposes. The legal and factual consequences will depend upon the provisions under consideration and their context in the Act. As counsel for the Minister submitted, there will be rare cases where the precise legal status of a decision affected by jurisdictional error will arise.
Upon the principles considered above, the validity of the act constituted by the grant of a visa affected by jurisdictional error should be determined by whether it was a legislative purpose that such an act in breach of ss 46AA(4)(b), 47(3) or 65 should be considered to be invalid. The answer to that question is to be determined primarily upon the Act and the provisions pursuant to which the visa was granted. The existence of legislative purposes is to be discerned from the subject matter of the Act, its objects, the provisions under consideration and the consequences for the parties of holding that every act done in breach of the requirements of those provisions should be void. I have considered the subject matter of the Act and its objects above. The purposes of particular provisions should also be recognised.
In particular, ss 46AA(4)(b) and 47(3), being provisions of central relevance, proscribe the consideration of an application that is not valid and, in the case of a Bridging visa (amongst others) the grant of a visa which does not satisfy the criteria under the Act and as prescribed by the regulations. Those provisions support a conclusion that a decision by the Minister (or a delegate) in erroneously concluding that an application is valid or that it satisfies the applicable criteria and then granting the visa will be affected by jurisdictional error. In such circumstances, the question of Ministerial satisfaction under s 65 need not and should not have been addressed (either because the criteria for the particular visa were not met or that visa application was invalid). To that extent, the proscription in s 46AA(4)(b) overlaps with s 65(1)(b). However, the requirement in s 65 that the Minister only consider a valid visa application was characterised in Yilmaz as being an assumption upon which the section operated. Having regard to the partial savings effect which s 69 can have upon a visa granted in breach of s 46AA(4)(b), it may be that, although s 65 does not lie with Sub-div AA of Div 3, Pt 2 of the Act, s 69 can operate upon par 46AA(4)(b) to provide a visa with some legal status until, at the least, it had been set aside.
Importantly, ss 67(3) and 68(1) make clear that, relevantly, a visa takes effect when a record of the decision to grant it has been ‘made’. A purpose of s 67(4) is to confirm that once a record of the decision has been made the Minister has no power to vary or revoke that decision. Implicitly, in my view, it also has the purpose of confirming that other powers, including powers of cancellation, are unaffected.
As was essentially common ground, the fundamental purpose of s 69 was to confirm the manner in which Brian Lawlor principles were to be applied to a visa that had been granted erroneously. The central issue in this application is whether such a visa is only capable of being set aside, or where that has not occurred, it might also be cancelled.
It was not submitted that the express reference in s 69(1) to the effect of non-compliance with Sub-div AA that a decision which may have been made wrongly meant it was liable to be set aside, should be construed upon the presumption expressio unius est alterius so that such decisions were not subject to the exercise of the powers of cancellation conferred by the Act and in particular s.116.[101] Indeed, s 69 does not confer a power to set aside but merely speaks to the possibility that this might occur. I do not accept s.69 should be construed as dictating that a power of cancellation is to be excluded from application to a visa affected by non-compliance of the kind with which s.69 is concerned. This would involve reading words into the provision that do not appear there. It would be a strong thing to read words into the provision so as to exclude a power of cancellation.
[101] See Pearce & Geddes, Statutory Interpretation in Australia, 8th Ed (2014) at [4.33]ff.
The purposes of the many provisions addressing cancellation, including s.116, are to confer powers on the Minister to regulate in the public interest control over the permission granted to a visa-holder to travel to, enter or remain in Australia. An important purpose of those powers is to ensure that persons in respect of whom the exercise of a power of cancellation is under consideration are entitled to the observance of the processes for which the Act makes express provision. As counsel for the Minister submitted, were it otherwise, persons holding a visa which was in effect would be liable to immediate detention or deportation before those processes had been lawfully applied.
The purposes of ss.189 and 196 are to regulate the exercise of powers of detention and the duration of such detention. It is not a purpose of those provisions that persons, to whom a visa has been granted and which is in effect, should be liable to immediate detention because the executive was later to form a view that a visa application had been invalid or that the applicable criteria had not in fact been met. To the contrary, the extensive and prescriptive provisions of the Act relating to cancellation would suggest that those requirements are to be observed.
Further, it is not a purpose of Pt.5 of the Act to confer jurisdiction to review a decision to grant a visa.[102] Purposes of that Part include that a Tribunal should have jurisdiction and power to review a decision to set aside or to cancel a bridging visa on review. The Tribunal would then have the same powers as the original decision-maker.
[102] Sevim v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 126, [57].
The consequences for the parties of holding to be void every act done in breach of those provisions bears a number of aspects. From the Minister’s perspective, a person who, having made an invalid application, but erroneously granted a visa may have been present in Australia for some years. Contextually, it is the intention of the Act that it should be the only source of a non-citizens entitlement to travel to, enter and remain in Australia. Contrastingly, in the way in which the applicant’s submission was framed, the consequence of holding void the decision to cancel the visa is that he or she is not barred from making a further application. This submission elided the fact that the visa was otherwise liable to be set aside and assumed that the visa might not have been cancelled pursuant to par 116(1)(aa) or (f) of the Act. True it is that those provisions had not been relied upon by the delegate or Tribunal for the purposes of cancellation in this case. However, that submission distracted attention from the need to consider whether the Act, including provisions such as par 116(1)(aa) and (f), disclosed a purpose that a failure to observe the requirements of sub-s 46AA(4)(b), 47(3) or 65 would invalidate any act that flowed from the erroneous grant of a visa.
Although the distinction between mandatory and directory provisions is now in disfavour, for the purposes of the present application it is useful to recognise that within Sub-div AA, Div 3 of Pt 2, ss 46AA(4)(b) and 47(3) are now the only provisions which, as affect the Minister, are cast in imperative terms. They proscribe the Minister from considering or granting a bridging visa application unless the applicable criteria are satisfied and unless the visa application is valid. When Yilmaz was decided, 47(3) was the only provision in Sub-div AA which imposed a mandatory obligation, as distinct from conferring permissive powers, on the Minister. Since then some provisions in Sub-div AA have been amended. In particular, s 46AA(4), which is cast in imperative terms, proscribes the Minister from granting a bridging visa if the applicable criteria under the Act or regulations are not satisfied. Section 46AA was inserted in the Act in 2014.[103]
[103]Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (No 135, 2014), Sch 3, Pt 1, Div 1, Item 7.
On the reasoning adopted by Deane J in Brian Lawlor, it is also useful to mark out a distinction between a colourable exercise of power actually conferred by an enactment and a usurpation of power. As his Honour recognised, commonly, an exercise of power implicitly entails an assessment of the content of the power and determination whether any conditions precedent to its valid exercise have been fulfilled. For present purposes, it is necessary to recognise that the Act confers on the Minister the power and function of considering valid visa applications. In that context, to describe an erroneous decision to grant a visa as involving a usurpation of power seems inapt. The Act confers extensive powers, largely cast in terms of Ministerial satisfaction, to grant or refuse a visa application. A decision to grant a visa entails an assessment whether the application was valid, doing so with recognition that the powers to consider, grant or refuse it could not otherwise be exercised. Those matters are central to the scheme of the Act. When the grant of a visa was based upon decisions which are affected by jurisdictional error, this seems more akin to a colourable exercise of power. The scheme of the Act must then be considered so as to determine whether it was a purpose of the legislation that the acts of considering and granting an invalid application should be regarded as invalid for all purposes. Here, it is of critical importance to focus upon the purpose for which the question is posed and the kind of legal effect that is under consideration.
With those considerations in mind, the cases which are concerned with questions of invalidity by reason that an applicant, obliged to apply for a particular visa, made the wrong application, arise in a very different context. So too are those cases where the application was substantially non-compliant for want of information. Equally distinguishable are those cases where non-compliance was cured by the supply of adequate information in a timely way. And indeed, a distinction ought to be drawn in relation to those cases where the question involves whether the impugned decision was nonetheless capable of being regarded as a decision made in fact and thus supporting the conclusion that there had been a decision made under the Act so as to ground a right of review. There is no right of review in respect of a decision to grant a visa and the Tribunal has no jurisdiction to undertake a review of such a decision. Rather, the issue presented in this application involves whether the impugned decision to grant a visa should be regarded as a decision made in fact such that, once the visa took effect, it could attract the exercise of power of cancellation in addition to a power to set it aside.
There is no question that the application to seek a merits review from the Tribunal was not based upon a challenge to the decision to grant the visa. The issue before the Tribunal had been a merits review of the decision to cancel the visa. Had the distinct question been raised whether the delegate lacked power to cancel the application, the Tribunal might have had jurisdiction and power to make a decision on that issue. But it had no jurisdiction to review a decision to grant a visa and, until it had been set aside or cancelled, was bound by s 69 to treat it as valid.[104]
[104]Sevim v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 126, [57], [63] (Gray J); Goldie v Commonwealth of Australia (2002) 117 FCR 566, [22] (Gray and Lee JJ).
In my view, the scheme of the Act marks out important distinctions between: lawful and unlawful citizens; the obligation to apply for a particular kind of visa; the criteria for visas; circumstances for granting and conditions affecting visas; requirements for a valid visa application; the consideration of valid visa applications; a decision upon whether the criteria for a valid visa application has been satisfied; the grant or refusal of a visa; notification of the decision; when a visa takes effect; the operative period of a visa; the cancellation of visas and certain rights of review respecting some decisions made in the course of a visa application. Within that scheme, the Act proscribes the Minister from considering or granting a visa that was made upon an invalid application. It also denies power to the Minister to vary or revoke a visa once a record of the grant is made. The scheme of the Act does not deny power to the Minister to either set aside or cancel a visa, including one that should not have been granted. Further, it regulates in particular detail the rights and obligations attaching to a process of cancellation.
Having regard to that scheme, I do not discern that it was a purpose of the Act to regard as invalid for all purposes a visa, the grant of which was affected by jurisdictional error for failure to consider whether the application was valid or for failure to decline to consider the application on that basis (despite the proscriptions in ss.46AA(4)(b) and 47(3)). As concerns the step required under s 65 to decide whether a valid visa application satisfied the criteria for a visa, this decision lies within Sub-div AC, Div 3 of Pt 2 – Grant of visas – and was necessarily tainted by the anterior errors in considering, and failing to decline to consider (as the case requires) an invalid visa application in breach of ss.46AA(4)(b) or 47(3). Having regard to the insertion of s.46AA into Sub-div AA of Div 3, Pt 2 of the Act, it is open to see this as giving s.69 a somewhat expanded operation inasmuch that it would support the visa as having legal status after a record of its grant was deemed to have been made and preserving its effect until it has been set aside or cancelled. In part, that is because ss.46AA and 65 overlap markedly.
Once granted, the visa took effect and once the record of that grant was deemed to have been made, the Minister was denied power to vary or revoke the decision to grant the visa. The visa was, however, subject to the scheme of the Act as a whole, including that it might be cancelled or set aside. I cannot accept, for the purposes of validity, that the legislative scheme discloses an intention that if it had not earlier been set aside, a visa affected by errors of the kind under consideration was not open to cancellation at any time during the visa period. To constrain the powers of cancellation in that way would be quite inconsistent with the extensive powers of cancellation provided for by, and with the objects of, the Act.
On the approach taken in Minister for Immigration and Multicultural Affairs v A, Merkel J qualified his conclusion that it was a purpose of the legislature that a decision to grant a visa upon an invalid application was a decision made without power. Although it dealt with the refusal of a visa, by parity of reasoning, his Honour’s analysis would hold the grant to be invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. This in turn requires consideration of whether other provisions of the Act expressly or impliedly support validity despite the jurisdictional errors that affected the consideration and grant of an invalid application. Merkel J accepted that whether an act arising from a decision was invalid would depend upon consideration of the particular provision concerned, including that a visa might have operative effect for the purposes of cancellation.
On the approach taken in Yilmaz by Gyles J (Spender J agreeing), a decision refusing to grant a visa tainted by jurisdictional error for want of a valid application remained a decision made in fact and had the status of a decision made under an enactment sufficient to ground an application for review. However, as applied to the present case, the delegate’s decisions to consider, and grant, the first bridging visa application did not ground the application for judicial review. To the contrary, the only decision which was the subject of review was the decision to cancel the visa.
Having regard to the reasoning of Gleeson CJ and Hayne J in Bhardwaj, the answer to a question respecting invalidity may depend upon the purpose for which the question is being asked and the kind of legal effect under consideration. Applied here, if the question is posed through the prism of ss 66-68, it should be concluded that until set aside or cancelled, a visa retains its operative effect for the whole of the visa period. The operative effect of a visa does not depend upon notification and instead flows from the entry of a record of the day and time at which the decision to grant it was made. Once granted, a visa has effect for the visa period. Considered from those perspectives, I do not accept that the Act discloses a purpose to invalidate the decisions made (or implicitly made) arising from a failure to consider whether the criteria under the Act or regulations were satisfied or whether the visa application was valid.
Those conclusions are also consistent with the reasoning of Gleeson CJ in Bhardwaj, who endorsed the views of Finkelstein J in Leung, that an invalid administrative decision could have operative effect, including because no person had sought to have it set-aside or because the court had refused to do so. Having regard to s 68(1), which gives a visa operative effect, the Act clearly indicates that such visa was intended to have effect even though the decision to grant it was tainted by invalidity and that it should retain such effect until cancelled or set aside. Further, in my view, s 68(1) also requires the court to treat a decision to grant a visa affected by jurisdictional error as having legal effect until it is cancelled or set aside. By extension, when the application for a merits review was made, the Tribunal was require to do the same.
In my view, non-compliance with, relevantly, obligations imposed by Sub-div AA, Div 3, of Pt 2 of the Act does not mean that a decision to grant a visa application is not a valid decision. It only means that the decision to do so might have been wrong and that it might be set aside: s 69(1). Yilmaz supports a conclusion that the phrase in s.65 “after considering a valid application for a visa” should be construed as an assumption upon which the power conferred by that section to grant a visa application proceeded. Section 65, being the source of the substantive power to grant or refuse a visa, does not lie within Sub-divs AA or AB of Div 3 of Pt 2. Before the insertion of s 46AA in Sub-div AA of Div 3, Pt 2 of the Act, it may not have been open to rely upon s 69, respecting a decision made in the exercise of power under s.65 to grant or refuse a visa. Since the insertion of that provision, it would seem that s.69 can also have a savings effect upon a decision to grant a visa where the proscription in s.46AA(4)(b) has not been observed.
To say as much may distract attention from how s.69 can operate. Where, contrary to the proscriptions in ss.46AA(4)(b) or 47(3), there has been a failure to consider if the criteria for a visa are satisfied, or a decision is made to consider an invalid application, s.69 may operate to confirm that although a resultant decision to grant or refuse a visa may have been wrong, it may be set aside. Section 69 says nothing as to whether a visa, once having effect, may or may not be cancelled.
In my view, having regard to the scheme of the Act and the provisions under consideration, the preferable conclusion is that the Act does not disclose an intention to characterise an erroneous decision to grant a bridging visa as invalidating that visa for all purposes. Instead, the Act discloses an intention that where a decision is made to grant a visa in such circumstances, the decision is one made in fact. Such a visa attracts the status in law that once a record of it has been made, the visa so granted obtains immediate effect until set aside, cancelled or the visa period has expired. Once recorded, the decision so made is immediately both irrevocable and cannot be varied.
I do not accept the only power available to the Minister respecting an operative visa granted in such circumstances was to set it aside. There are sound reasons why the Minister may wish to consider the exercise of a power to cancel a visa. A bridging visa is not a substantive visa but is a temporary visa that is only operative for a visa period. Upon the cancellation of his or her visa, a lawful non-citizen acquires the status of an unlawful non-citizen unless another visa is granted. A visa that is cancelled ceases to be in effect on cancellation.
In respect of an operative visa, I also consider that the Act does not disclose an intention to invalidate a decision made to cancel a visa, the grant of which arose from a failure to consider whether, when the visa application was made, the criteria under the Act or regulations had been satisfied, whether the application was valid, or whether the Minister was otherwise satisfied that the visa should be granted.
For the reasons above, I do not accept that the Act discloses a purpose that powers of cancellation should be invalidated on the basis that the visa might earlier have been, but has not been, set aside. If a visa holder engages in conduct which attracts the operation of s.116 it would seem inimical to the objects of the Act and the purposes for which the powers of cancellation were conferred to discern a legislative purpose that an act taken in the exercise of those powers should be regarded as invalid. Nor do I accept that the Act discloses a purpose that powers of cancellation as conferred by pars 116(1)(aa) or (f) should be read down as not open to be exercised and that in these circumstances the only power available was to set aside the grant. There is no reason I can discern why those powers ought not operate in tandem. It would be a separate question whether the exercise of one power rather than another was more appropriate in the circumstances of any particular case. The circumstance that the power might be exercised differently in one case from another does not undermine a conclusion that powers of cancellation can co-exist with a power to set aside a visa. Fundamental to the operation of the Act is that an administrative decision-maker should reach the correct or preferable decision. Whether to cancel or set aside a visa in any given case may raise quite distinct considerations.
Having regard to the object, purposes and scheme of the Act and the particular provisions under consideration, I conclude that a decision to grant a visa affected by jurisdictional error of the kind described had effect by force of s 68(1) and that it was not the legislative intention, either that the only available Ministerial power was that it should set it aside or that the Minister should be denied power to cancel it at any time before it had been set aside. It follows I do not accept that the delegate’s decision to cancel the visa was tainted by jurisdictional error in the absolute manner as suggested by the further amended application.
As noted, the Tribunal was not asked to review any decision to grant the visa. It was no part of the application before the Tribunal that the grant of the visa was itself affected by jurisdictional error. The only review sought from the Tribunal was upon the merits of the decision to cancel the visa. Contextually, the Tribunal was exercising jurisdiction under Pt 5 of the Act which concerns Part 5-reviewable decisions. Under Pt 5 of the Act, the Tribunal did not have jurisdiction to review a decision to grant a visa. It did, however, have jurisdiction to review a decision to cancel a bridging visa. This is of importance as bringing into focus the nature of the decision that was before it on review and the jurisdiction and powers conferred on the Tribunal by Pt V of the Act. The only decision made by a delegate which was the subject of an application for review was the decision to cancel the first bridging visa. The decision made on 20 October 2016 to grant the visa was not a decision that had been the subject of any application for review and was not, in any event, a Part 5-reviewable decision.
Accepting that the Tribunal was only conferred with power to exercise all of the powers of the original decision-maker, and proscribed from substituting a decision from purporting to make a decision not authorised by the Act or regulations,[105] for the reasons I have given the delegate had power to cancel the visa. To frame the contest in terms that the delegate who made the decision to grant the visa was proscribed from doing so, and that the Tribunal was likewise without such power, failed to engage with essential questions as to the nature of invalidity and the legal status of a visa, erroneously granted, for the purposes of deciding whether it was amenable to being cancelled if it had not already been set aside.
[105] Hayman, (1999) 90 FCR 120, [22] (Finkelstein J).
Conclusion
For the reasons above, I have concluded that although the decision to grant the bridging visa was affected by jurisdictional error, it was given sufficient effect by the Act for the visa to take effect such that the delegate could exercise the powers of cancellation conferred by the Act and which the Tribunal could affirm on review. The purposes of the Act do not indicate that the decision to grant the visa in breach of the proscription not to consider an invalid visa application should be regarded as invalidating the visa once a record of the grant was taken to have been made in a way that put it beyond the reach of the statutory powers of cancellation if the visa had not already been set aside.
The parties were agreed that the issue of costs would go in favour of the successful party. Having regard to the extended procedural history described above, those costs should be agreed or assessed.
The further amended application should be dismissed.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 23 April 2020
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