Andary v Minister for Immigration & Multicultural Affairs [2002] FCA 1380

Andary v Minister for Immigration & Multicultural Affairs [2002] FCA 1380

The applicant remained the holder of a permanent entry permit because s 9(1) affected only the holder who left Australia, and he had not left; by operation of s 40(5) of the Migration Reform Act 1992 (Cth) and reg 4 of the Migration Reform (Transitional Provisions) Regulations, that permit continued as a transitional (permanent) visa capable of cancellation. Regulation 4 was not retrospective. The proposed alienage ground had no merit because the applicant did not derive British subject or citizenship status from his father's grant of citizenship, and absorption into the Australian community was not a basis for citizenship. The alleged bias was unsupported by evidence connecting the...

Jurisdiction
Australia
Judgment Date
06 November 2002
Procedural Posture
Application for Order of Review of Migration Visa Cancellation Decision / Federal Court Reasons and Orders on Application for Review and Application for Leave to Amend
Outcome
Leave to amend the application refused; application dismissed with costs.
Legal Topics
['cancellation of Transitional (permanent) Visa Under S 501(2) of the Migration Act 1958 (cth)' 'jurisdiction to Cancel Visa' 'migration Reform Transitional Provisions' 'alienage and Citizenship' 'actual Bias or Prejudgment' 'wednesbury Unreasonableness' 'privative Clause Decision' 'leave to Amend Application']
['migration Law' 'administrative Law' 'constitutional Law' 'citizenship Law'] ['cancellation of Transitional (permanent) Visa Under S 501(2) of the Migration Act 1958 (cth)' 'jurisdiction to Cancel Visa' 'migration Reform Transitional Provisions' 'alienage and Citizenship' 'actual Bias or Prejudgment' 'wednesbury Unreasonableness' 'privative Clause Decision' 'leave to Amend Application']

Case Brief

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Procedural Posture

Application for Order of Review of Migration Visa Cancellation Decision / Federal Court Reasons and Orders on Application for Review and Application for Leave to Amend

Legal Issues

  1. 1 ["Whether the Minister had jurisdiction to cancel the applicant's transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth)." "Whether the applicant had a visa capable of cancellation, given that he entered Australia as a child included in his mother's entry permit and his mother later left and re-entered Australia." 'Whether reg 4 of the Migration Reform (Transitional Provisions) Regulations operated retrospectively or only applied to persons arriving after 1 September 1994.' 'Whether leave should be granted to amend the application to add a constitutional ground concerning whether the applicant was an alien, including whether he derived British subject status from his father or was absorbed into the Australian community.' "Whether the Minister's decision was induced or affected by actual bias or absence of good faith." 'Whether the decision was legally unreasonable.']

Ratio Decidendi

The applicant remained the holder of a permanent entry permit because s 9(1) affected only the holder who left Australia, and he had not left; by operation of s 40(5) of the Migration Reform Act 1992 (Cth) and reg 4 of the Migration Reform (Transitional Provisions) Regulations, that permit continued as a transitional (permanent) visa capable of cancellation. Regulation 4 was not retrospective. The proposed alienage ground had no merit because the applicant did not derive British subject or citizenship status from his father's grant of citizenship, and absorption into the Australian community was not a basis for citizenship. The alleged bias was unsupported by evidence connecting the...

Court Disposition

Leave to amend the application refused; application dismissed with costs.

Orders

  • ['Leave to amend the application is refused.' 'The application is dismissed.' "The applicant is to pay the respondent's costs of the proceedings."]