CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34

CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34

The Tribunal lacked jurisdiction because the Minister’s notification of the applicant’s visa cancellation and invitation to make representations under s 501CA(3)(b) was invalid, meaning the statutory duty was unperformed. Since a valid invitation was never given, there was no basis for the Tribunal to review a non-revocation decision, and thus no reviewable decision existed. Consequently, the application for extension of time to appeal had no prospects of success and was dismissed.

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Application for Extension of Time to Appeal Tribunal Decision / Final Judgment on Extension of Time Application
Outcome
Application for extension of time to appeal dismissed; declaration made regarding invalidity of prior notification; no order as to costs.
Legal Topics
['visa Cancellation' 'jurisdiction of Tribunal' 'judicial Review' 'declarations' 'time for Appeal' 'procedural Fairness']
['migration Law' 'administrative Law'] ['visa Cancellation' 'jurisdiction of Tribunal' 'judicial Review' 'declarations' 'time for Appeal' 'procedural Fairness']

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Procedural Posture

Application for Extension of Time to Appeal Tribunal Decision / Final Judgment on Extension of Time Application

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding it lacked jurisdiction to review the visa cancellation decision' 'Whether the Minister’s notification under s 501CA(3)(b) of the Migration Act was valid' 'Whether the applicant was afforded a valid opportunity to make representations to revoke visa cancellation' 'Whether a declaration should be made regarding the Minister’s performance of statutory duty']

Ratio Decidendi

The Tribunal lacked jurisdiction because the Minister’s notification of the applicant’s visa cancellation and invitation to make representations under s 501CA(3)(b) was invalid, meaning the statutory duty was unperformed. Since a valid invitation was never given, there was no basis for the Tribunal to review a non-revocation decision, and thus no reviewable decision existed. Consequently, the application for extension of time to appeal had no prospects of success and was dismissed.

Court Disposition

Application for extension of time to appeal dismissed; declaration made regarding invalidity of prior notification; no order as to costs.

Orders

  • ["Declaration: The First Respondent did not perform the duty required by s 501CA(3) of the Migration Act 1958 (Cth) by purportedly giving a notice on 23 May 2018 in relation to cancellation of applicant's visa which did not comply with reg 2.52(2)(b) of the Migration Regulations 1994 (Cth)." 'The application dated...