Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom

The Minister for Immigration and Multicultural and Indigenous Affairs appealed to the High Court of Australia against a decision of the Full Court of the Federal Court, which had found that the Minister had committed jurisdictional error in cancelling Mr Nystrom's transitional (permanent) visa. Mr Nystrom, who had lived in Australia since he was 27 days old and held an "absorbed person visa", argued that the Minister's cancellation of his transitional visa was invalid. The core of the dispute concerned whether the Minister's power to cancel a visa under s 501 of the *Migration Act 1958* (Cth) was limited by provisions relating to deportation under ss 200 and 201 of the Act.

The legal issues before the High Court included whether Mr Nystrom held both an absorbed person visa and a transitional (permanent) visa, and if so, whether the Act permitted him to hold both. Crucially, the Court had to determine whether the Minister's failure to consider Mr Nystrom's absorbed person visa when cancelling his transitional visa constituted a jurisdictional error, and whether the power to cancel a visa under s 501 was restricted by the provisions of ss 200 and 201, which dealt with deportation. This involved considering whether the subject matter of deportation and visa cancellation were the same, and if the specific provisions regarding deportation implicitly limited the general power of visa cancellation.

The High Court reasoned that Mr Nystrom did indeed hold both an absorbed person visa and a transitional (permanent) visa, and that these conferred no substantive difference in rights. The Court held that the Minister's cancellation of the transitional visa did not constitute a jurisdictional error, as the absorbed person visa was automatically cancelled by operation of s 501F(3) upon the cancellation of the transitional visa. Furthermore, the Court found that the power to cancel a visa under s 501 was not limited by the provisions of ss 200 and 201. It concluded that deportation and visa cancellation, despite potentially leading to the same practical outcome of removal, were distinct powers with different origins and subject matters, meaning the principle of *expressum facit cessare tacitum* did not apply to restrict the s 501 power.

Consequently, the High Court allowed the Minister's appeal, setting aside the orders of the Full Court and dismissing Mr Nystrom's appeal to that court. The appellant was ordered to pay Mr Nystrom's costs of the appeal to the High Court.