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

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

Because the appellant's 2019 visa cancellation relied on the same failure of the character test as a previous s 501(3A) cancellation that had been revoked under s 501CA(4), XJLR (Appeal) indicated that the 2019 cancellation was invalid and that no valid s 501CA process arose. That subsequent appellate authority showed arguable appellable error in the primary judge's dismissal of the judicial review proceeding, so it was appropriate to allow the appeal by consent, set aside the primary judge's order, dismiss the Minister's amended notice of contention, and make the declarations sought.

Jurisdiction
Australia
Judgment Date
04 February 2022
Procedural Posture
Migration Appeal From a Single Judge of the Federal Court on Judicial Review of an Administrative Appeals Tribunal Decision Under S 501 Ca(4) of the Migration Act 1958 (cth) Not to Revoke a Visa Cancellation Under S 501(3 A). / Appeal Determined on the Papers by Consent; Orders and Declarations Made After Publication of XJLR V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.
Outcome
Appeal allowed; amended notice of contention dismissed; primary judge's order set aside; declarations made that the delegate's 12 December 2019 cancellation decision was void and that the appellant continued to hold a Class BF Transitional (Permanent) visa.
Legal Topics
['visa Cancellation' 'character Test' 'revocation of Mandatory Cancellation' 'judicial Review' 'appeal by Consent' 'declaratory Relief']
['migration Law' 'administrative Law'] ['visa Cancellation' 'character Test' 'revocation of Mandatory Cancellation' 'judicial Review' 'appeal by Consent' 'declaratory Relief']

Case Brief

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Procedural Posture

Migration Appeal From a Single Judge of the Federal Court on Judicial Review of an Administrative Appeals Tribunal Decision Under S 501 Ca(4) of the Migration Act 1958 (cth) Not to Revoke a Visa Cancellation Under S 501(3 A). / Appeal Determined on the Papers by Consent; Orders and Declarations Made After Publication of XJLR V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6.

Legal Issues

  1. 1 ["Whether the delegate's 12 December 2019 decision under s 501(3A) was invalid because it relied on the same failure of the character test as a prior cancellation decision that had been revoked under s 501CA(4)." 'Whether a valid cancellation under s 501(3A) is a precondition to a valid non-revocation decision under s 501CA(4).' 'Whether the Court should allow the appeal and make declarations by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

Because the appellant's 2019 visa cancellation relied on the same failure of the character test as a previous s 501(3A) cancellation that had been revoked under s 501CA(4), XJLR (Appeal) indicated that the 2019 cancellation was invalid and that no valid s 501CA process arose. That subsequent appellate authority showed arguable appellable error in the primary judge's dismissal of the judicial review proceeding, so it was appropriate to allow the appeal by consent, set aside the primary judge's order, dismiss the Minister's amended notice of contention, and make the declarations sought.

Court Disposition

Appeal allowed; amended notice of contention dismissed; primary judge's order set aside; declarations made that the delegate's 12 December 2019 cancellation decision was void and that the appellant continued to hold a Class BF Transitional (Permanent) visa.

Orders

  • ['The appeal be allowed.' 'The first respondent be granted leave to file its amended notice of contention.' "The first respondent's amended notice of contention be dismissed." 'The order of the primary Judge dated 2 September 2021 be set aside.' 'There be liberty to apply with respect to costs.' "The decision made...