Paul Cutler's Migration Case Law Blog
Superseded Visa
Earlier visas will be superseded by the grant of subsequent visas under s82 Migration Act. Consider the following chronology (no, not my client):
| Date | Event |
| 15/12/2014 | ETA granted – which would expire on 15/12/2015 |
| 18/12/2014 | Applicant enters Australia on ETA |
| 24/2/2015 | Applies onshore for 600 visitor visa in tourist stream – this is within the 3 months stay permitted by the ETA |
| 26/2/2015 | Visitor visa granted (and would cease on 19 June 2015) |
| 18/6/2015 | Applicant leaves Australia |
| 19/6/2015 | (yes the next day – with only hours left on his visa) Applicant re-enters Australia |
| 26/8/2015 | Applicant applies for student visa onshore |
The 2015 student visa application was refused because the applicant didn’t hold any of the relevant visas listed in 572.211(2) (or any visa at all).
The argument that made it all the way to a Full Court was about when his visa “ceased to be in effect” (s82(2)). The Applicant drew an analogy with Lesi v Minister for Immigration [2003] FCAFC 285 and argued that his ETA was somehow “reactivated” on the lapsing of his visitor visa.
Mr Lesi was a permanent resident until his deportation (so, under 82(4) his visa ceased to be in effect). However, when the deportation order was set aside its operation was spent (i.e. it had no effect on the visa held by the person at the time). In those circumstances Mr Lesi’s permanent residence was revived.
Unfortunately for the Applicant in Oraha v Minister for Immigration [2023] FCAFC 21, Lesi had no applicationto the facts of his case and his: “construction of s82(2) of the Act cannot be accepted. Section 77 of the Act, read with the definition of “visa period” in s5, makes plain that, firstly, there is a visa period and, secondly, the visa period has a beginning and an end. This does not envisage that there are, or can be, multiple “beginnings” and multiple “endings”, or that, once the visa period ends, the visa can, somehow, be revived. Section 77 also makes plain that, once the visa period ends, the non-citizen is no longer the holder of that visa. In our respectful view, nothing could be clearer.”
How many times over the years have I advised clients to withdraw redundant applications? It can be very important.
Creative commons acknowledgement for the photograph.
Serve or give?
Many of the court decisions about visa cancellation on character grounds are focussed on the reasons for the cancellation. However, once a cancellation decision is made, section 501CA(3) Migration Act requires the Minister to, as soon as practicable after making the decision to “give the person, in the way that the Minister considers appropriate in the circumstances….” notice (and particulars)...
Aliens
Both the Migration Act and the Australian Citizenship Act rely on power to make laws with respect to “naturalisation and aliens” (section 51(xix) of the Constitution). The High Court today (11 February 2020) has handed down a very interesting decision in relation to the question of who is an alien. Both of the Plaintiffs (who were not related to each other) were: born outside of Australia, one...
Not finally determined
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Calculating time
Determining when time limits expire can be more complicated than you might first think. Recently in Wang [2019] AATA 4163 the AAT had to grapple with the meaning of clause 187.232(1)(bb) (in schedule 2 of the Migration Regulations) which set a time limit for english tests and required that: “the test was conducted in the 3 years immediately before the day on which the application was made”. Mr...