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 |
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- Case
- [2020] FCCA 878
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the delegate and the Tribunal had the power to cancel the bridging visas, or if their power was limited to setting aside the erroneous decision to grant the visas. This question required the court to consider the applicable principles of invalidity and the legislative purpose of the relevant provisions of the *Migration Act 1958* (Cth). Specifically, the court had to determine whether a breach of a provision was intended by the legislature to render an act invalid, and the scope and objects of the Act in relation to such powers.
The court reasoned that while a decision to grant a visa based on an invalid application might be considered invalid, such a visa is intended to have operative effect until it is cancelled in accordance with the Act. Drawing on principles from *Minister for Immigration and Multicultural Affairs v A*, the court held that the validity of a decision depends on the specific section of the Act in question and whether the legislature intended a breach to result in invalidity. The court found that the powers of the delegate and the Tribunal were not limited to merely setting aside an erroneous grant of a visa. Instead, the Tribunal was seized of the power to affirm the delegate's decision to cancel the visa, even if the initial grant was affected by jurisdictional error.
The court dismissed the applicant's further amended application.
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