PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 04 February 2022
• Neutral Citation: [2022] FCAFC 14
• Court: Full Federal Court (Australia)
• Date: 04 February 2022

Federal Court of Australia

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14

Appeal from:	PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
File number:	QUD 314 of 2021
Judgment of:	RANGIAH, SC DERRINGTON AND BANKS-SMITH JJ
Date of judgment:	4 February 2022
Date of publication of reasons:	15 February 2022
Catchwords:	MIGRATION - appeal from single judge of Federal Court on judicial review of decision of Administrative Appeals Tribunal under s 501CA(4) of the Migration Act 1958 (Cth) to not revoke delegate's decision under s 501(3A) to cancel visa - where parties sought orders allowing appeal and declarations by consent following publication of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 - orders and declarations made
Legislation:	Federal Court of Australia Act 1976 (Cth) s 25 Migration Act 1958 (Cth) ss 501, 501CA
Cases cited:	Bradken Limited v Norcast S.ár.L [2013] FCAFC 123; (2013) 219 FCR 101 Citigroup Pty Ltd v Mason [2008] FCAFC 151; (2008) 171 FCR 96 Commonwealth Bank of Australia v Walker as liquidator of A.B.C. Learning Centres Limited (in liq) (Receivers and Managers appointed) (now known as ZYX Learning Centres Limited) [2012] FCAFC 68 CQX18 v Minister for Home Affairs [2019] FCAFC 142 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Minister for Immigration and Border Protection v Makasa [2021] HCA 1 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Pitman v Commissioner of Taxation [2021] FCAFC 230 Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2021] FCA 1467 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	18
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Ms L De Ferrari SC with Dr J Donnelly
Solicitor for the Appellant:	Zarifi Lawyers
Counsel for the First Respondent:	Mr P Herzfeld SC with Ms R Francois
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		QUD 314 of 2021
BETWEEN:	PYDZ Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	RANGIAH, SC DERRINGTON AND BANKS-SMITH JJ
DATE OF ORDER:	4 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The first respondent be granted leave to file its amended notice of contention.

3. The first respondent's amended notice of contention be dismissed.

4. The order of the primary Judge dated 2 September 2021 be set aside.

5. There be liberty to apply with respect to costs.

THE COURT DECLARES THAT:

1. The decision made by the first respondent's delegate on 12 December 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) was void and of no legal effect (501(3A) Decision).

2. In consequence of the legally ineffective 501(3A) Decision, no decision within the meaning of s 501CA(1) of the Act caused s 501CA of the Act to apply to the appellant.

3. The appellant has continued to hold a Class BF Transitional (Permanent) visa at all times on and after 12 December 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. The hearing of an appeal in this matter was listed for 22 February 2022. On 4 February 2022 the parties approached the Court on an urgent basis, seeking (by consent) orders setting aside the orders of the primary judge and related declarations. The application followed publication on 3 February 2022 of the Full Court's reasons in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (XJLR (Appeal)).

2. After receiving short written joint submissions and considering the position, we made orders and declarations largely as sought, so facilitating the appellant's release from detention later that day.

3. These are our reasons for making the orders.

4. The appellant is a citizen of the Philippines who had arrived in Australia in 1991. He held a Class BF Transitional (Permanent) visa. The visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) on 12 December 2019. On 29 January 2021 a delegate of the Minister refused to revoke the cancellation pursuant to s 501CA(4) of the Migration Act.

5. The delegate's decision was affirmed by the Administrative Appeals Tribunal on 23 April 2021. The appellant sought review of that decision in this Court, and the application was dismissed: PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050.

6. Relevantly for the purpose of this appeal, when cancelling the appellant's visa in 2019 the delegate relied for the purposes of s 501(3A)(a) on the same failure of the character test as had been relied on in a previous cancellation decision under s 501(3A) made in 2015, referred to in the notice of appeal as the '2004 offending'. That earlier cancellation decision had been revoked pursuant to s 501CA(4) on 13 October 2016.

7. The Full Court in XJLR (Appeal) considered the circumstance where delegates purport to cancel a visa twice under s 501(3A)(a) and where on each occasion they are satisfied that the visa holder has failed the same specific form of the character test. In that matter the respective delegates had purported to cancel the appellant's visa twice under s 501(3A)(a) because he had failed to pass the character test in respect of the same term of 45 months imprisonment. The primary judge in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 had dismissed an application for judicial review of the decision of the Administrative Appeals Tribunal to not revoke the delegate's visa cancellation decision under s 501(3A).

8. The Full Court held that:

1. by analogy with the High Court's decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1, where a previous cancellation under s 501(3A) has been revoked under s 501CA(4) a subsequent cancellation under s 501(3A) cannot rely on the same failure of the character test for the purposes of s 501(3A)(a) as had been relied upon in the previous cancellation, and a cancellation that did so was invalid (Rares J at [67]‑[78], Yates J agreeing at [89], Snaden J agreeing at [100]);

2. a valid cancellation under s 501(3A) is a precondition to a valid non-revocation under s 501CA(4) (Rares J at [51]‑[63], Yates J at [94]‑[95], Snaden J in dissent); and

3. it was within the jurisdiction of this Court, and appropriate in the circumstances, to declare that: first, the purported s 501(3A) decision of the delegate was of no legal effect; second, no decision within the meaning of s 501CA(1) caused s 501CA to apply in respect of the legally ineffective cancellation decision; and third, the appellant has continued to hold their visa at all times on and after the purported cancellation decision (Rares J at...