KVT24 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 288

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

KVT24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 288

File number: MLG 4238 of 2024
Judgment of: JUDGE CHAMPION
Date of judgment: 28 February 2025
Catchwords: MIGRATION – Cancellation of visitor (tourist) visa – Where visa holder on arrival in Australia stated an intention to seek political asylum – Where visitor visa was cancelled before visa holder cleared immigration – Whether the delegate misunderstood the legal consequences of the cancellation decision in the statutory framework – Where there was a departmental policy as to visa cancellation powers – Whether the delegate failed to assess the visa holder’s compelling need to travel to Australia or the delegate’s application of the policy was legally unreasonable – Whether the delegate notified the visa holder in writing of the grounds for cancelling the visa under s. 119 – Whether a decision was made to cancel the visa in contravention of s. 124 because the visa holder did not have an opportunity to respond to the notice of an intention to cancel the visa – Held that the delegate did not assess whether the visa holder had a compelling need to travel to Australia or the delegate’s reasons as to whether the visa holder had a compelling need to travel to Australia were unreasonable in the legal sense – Error material – Cancellation decision quashed
Legislation:

Migration Act 1958 (Cth) ss. 48, 116, 119, 124, 198, 501CA

Migration Regulations 1994 (Cth) reg. 2.12, 2.43, 2.55, 1301, 1401, 1402, 1403, 1404; cl. 600.211
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038

Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044

Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 45

Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112; [2021] HCA 9

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 285; [2020] FCAFC 215

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

Taulahi v Minister for Immigration and Border Protection (2016) 344 ALR 1; [2016] FCAFC 177
Division: Division 2 General Federal Law
Number of paragraphs: 103
Date of last submission/s: 27 February 2025
Date of hearing: 19 February 2025
Place: Melbourne
Counsel for the Applicant: Ms K Bones
Solicitor for the Applicant: Asylum Seeker Resource Centre
Counsel for the Respondent: Mr J Barrington
Solicitor for the Respondent:

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KVT24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 288
Case
[2025] FedCFamC2G 288
Decision Date

CaseChat Overview and Summary

The case of KVT24 v Minister for Immigration and Multicultural Affairs involved an individual whose visitor visa was cancelled by a delegate before they had cleared immigration, thereby precluding them from applying for a permanent protection visa. The individual sought judicial review of the delegate's decision, raising several grounds including whether the delegate misunderstood the legal consequences of cancelling the visa, failed to consider the individual's compelling need to travel to Australia, and did not properly apply the relevant departmental policy. The court had to determine whether the delegate's decision was legally sound and in accordance with the statutory framework.

The central legal issue was whether the delegate had erred in understanding or applying the statutory consequences of cancelling the visa before the individual had cleared immigration. Specifically, the court examined whether the delegate failed to consider the additional statutory consequence that the individual could not apply for a permanent protection visa due to not being immigration cleared. The court also considered whether the delegate failed to assess the individual’s compelling need to travel to Australia or whether their application of the policy was legally unreasonable. Furthermore, the court scrutinized whether the delegate properly notified the individual in writing of the grounds for cancelling the visa and whether the decision to cancel was made in contravention of the statutory requirement to provide an opportunity to respond.

The court concluded that while the delegate had considered the general legal consequences of cancelling the visa, they did not adequately address the specific statutory consequence that the individual could not apply for a permanent protection visa due to not being immigration cleared. This oversight constituted an error of law as the delegate failed to consider a relevant factor that had significant legal implications. The court found that the delegate did not assess whether the individual had a compelling need to travel to Australia or if their reasons for not cancelling the visa were legally unreasonable. Consequently, the decision was quashed due to these errors.

The court's final order was that the delegate’s decision to cancel the visitor visa was quashed on the grounds that it was legally flawed. The errors included not considering the specific statutory consequence regarding the ineligibility for a permanent protection visa and not properly applying the relevant policy. This decision highlights the importance of ensuring that visa cancellation decisions are made with full consideration of all relevant statutory consequences and policy directives.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept the Respondent’s submission that the delegate’s reasons expose that he considered (and understood) the fact that a cancellation decision would have statutory consequences for future visa applications and/or grants of visas. The reference to the Applicant being “subject to bars” was expressed at a sufficient level of generality that the specific legal consequence of an inability to apply for a permanent protection visa – because the Applicant had not cleared immigration - was within its general ambit.What is my conclusion as to Ground 1? Ground 1 has not been made out.GROUND 2: DID THE DELEGATE MAKE ERRORS IN CONSIDERING POLICY FACTORS?The Policy As noted, the Department maintains a policy “general visa cancellation powers (s 109, s 116, s 128, 134B and 140) (the Policy). Also, as I have noted, it is apparent that the Department’s pro forma Form 1111, which provides a template for a delegate making a cancellation decision is drafted with reference to the Policy. The pro forma is titled Notice of Intention to Consider Cancellation (NOICC) (CB72–89). Part A is to be completed so as to identify the ground for cancelling the visa. Part B provides for the delegate to consider reasons as to why the visa should not be cancelled even where a ground for cancellation exists (the discretion). Part C contains the notification of the decision to the visa holder. Following the pro forma, the delegate set out that he was satisfied that there were grounds for cancellation of the visa under s. 116(1)(g) because of reg. 2.43(j)(i). As I have noted, the Applicant does not challenge that there were grounds for the cancellation of his visa. Although I will need to return to the issue in greater detail in Ground 3, the Applicant signed an acknowledgement at the end of Part A of the NOICC that he had received the NOICC. Ground 2 is concerned with Part B that sets out the decision-maker’s reasons as to why even though a ground for cancellation exists, the visa should not be cancelled (the discretionary element of the decision). The delegate’s ultimate decision to cancel – having considered matters relevant to the discretion - is set out at item 11 of the standard form at the end of Part B where he “ticked a box” which recorded:DecisionAfter weighing up all of the information available to me, I am satisfied that the grounds for cancelling the visa outweigh the reasons for not cancelling. I have therefore decided to cancel the visa. ☑ In the pro forma, items 9–10 in Part B direct the delegate to consider matters as to why the visa should not be cancelled. The matters the delegate is directed to consider are drawn from the Policy. Ground 2 Ground 2 is that in the exercise of the discretion under s. 116(1) the delegate failed to consider relevant facts and materials, failed to respond to a substantial clearly articulated argument or exercised a discretion in a way which was unreasonable in the legal sense. Under Ground 2 the Applicant submits that the delegate seriously misapplied the Policy. Matters that should be considered under the Policy

Ratio Decidendi

Legal Principle Established

The delegate’s use of the word “may” should be read in its context. It appears under the heading “mandatory legal consequences.” As the template is structured, at this point the delegate was considering reasons why the visa should not be cancelled. Having identified the legal consequences, each of which was a detrimental consequence to the visa holder which would attach to a cancellation decision, the delegate reasonably gives these legal consequences “some weight against cancellation.” Read as a whole, my conclusion is that this part of the delegate’s reasons does not disclose that the delegate misunderstood the Act, its operation and the statutory context in which he made his decision.Was there a failure to consider a legal consequence that the Applicant was unable to apply for a permanent protection visa if this visa was cancelled before he cleared immigration? Under Ground 1, the Applicant said that the there was an additional specific statutory consequence — an inability to apply for a permanent protection visa and an ability only to meet the criteria for the application for a temporary protection visa — which was of sufficient significance that it required separate consideration. Because it was not expressly adverted to, the Applicant submitted I should infer that the delegate overlooked it or that the delegate misunderstood the relevant statutory framework. The delegate had expressly identified as a legal consequence which would attach to a cancellation decision that the Applicant may be “subject to bars which prevent the visa holder from applying for certain visas while in Australia.” The statutory framework operates in a particular way when a visa is cancelled in immigration clearance. Because the cancellation decision was made in immigration clearance the Applicant could not apply for a permanent protection visa because he could not meet the application criteria for a permanent protection visa under reg. 1403(3)(d). Under reg. 1401(3)(d)(vi) a criterion for application for a permanent protection visa is that the applicant was “immigration cleared on the person’s last entry into Australia”. Because an Applicant was not immigration cleared when his visa was cancelled, he could only apply for a temporary protection visa under the criterion set out in reg. 1404(3)(d). That is, the Applicant argued that cancellation of his visitor visa in immigration clearance carried an additional mandatory statutory consequence detrimental to him – not only he may be subject to bars which prevented him from applying for certain visas but also a cancellation decision in immigration detention carried a separate and distinct statutory consequence that he could not meet a prescribed criterion for the application for a permanent protection visa not having been immigration cleared on his last entry to Australia. The Applicant distinguished between the fact that there are provisions in the Act or the Regulations which constitute a “bar” to a visa application and provisions which set prescribed criteria for a visa application which an applicant may (or may not) satisfy (Interview page 44:L15–20). The Applicant noted that s. 48(1) — which provides that a non-citizen who is refused a visa or whose visa is cancelled may only thereafter apply for particular visas — operated as a “bar” on further visa applications. Section 48(1) does not impose a bar on a “protection visa” application [reg. 2.12(c)]. The issue as the Applicant framed it was not one of “bars” but there was a distinct issue that the Applicant could not meet the criteria of application for a permanent protection visa under reg. 1403(3)(d).