Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285

Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285

Where a permanent resident has been deported on the basis of a deportation order under s 200 of the Migration Act 1958 (Cth), and that deportation order is subsequently set aside on merits review by the Administrative Appeals Tribunal, the permanent residence visa—which ceased to be in effect upon deportation pursuant to s 82(4)—revives once the order is set aside. The applicant's rights under the permanent residence visa are restored from the date of the Tribunal's decision setting aside the deportation order.

Jurisdiction
Australia
Judgment Date
11 December 2003
Procedural Posture
Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal allowed; declaratory relief granted
Legal Topics
['deportation Orders' 'visa Cessation and Revival' 'merits Review' 'procedural Fairness' 'interpretation of Deeming Provisions' 'effect of Tribunal Decisions']
['migration Law' 'administrative Law'] ['deportation Orders' 'visa Cessation and Revival' 'merits Review' 'procedural Fairness' 'interpretation of Deeming Provisions' 'effect of Tribunal Decisions']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether a permanent residence visa that ceased upon deportation is revived when the deportation order is later set aside by the Administrative Appeals Tribunal' 'Whether s 82(4) of the Migration Act 1958 (Cth) prevents the rights under the visa from reviving' 'Effect of s 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) deeming provisions' 'Validity of certificate purportedly issued under s 502 Migration Act 1958 (Cth)']

Ratio Decidendi

Where a permanent resident has been deported on the basis of a deportation order under s 200 of the Migration Act 1958 (Cth), and that deportation order is subsequently set aside on merits review by the Administrative Appeals Tribunal, the permanent residence visa—which ceased to be in effect upon deportation pursuant to s 82(4)—revives once the order is set aside. The applicant's rights under the permanent residence visa are restored from the date of the Tribunal's decision setting aside the deportation order.

Court Disposition

Appeal allowed; declaratory relief granted

Orders

  • ['In S 672 of 2003: Application for extension of time to file and serve notice of appeal is granted.' 'Annexed Notice of Appeal stands as Notice of Appeal.' "Appeal allowed to the extent that the 'Certificate' signed by the respondent on 8 February 2000 is not a certificate to which s 502 of the Migration Act 1958...