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Superseded Visa
Earlier visas will be superseded by the grant of subsequent visas under s82 Migration Act.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.
Inconsistency
It is impermissible in judicial review for courts to embark on an assessment of the merits of the decision under review. The focus is on the legality of the decision. A finding about credibility (or lack of it) is “the function of the primary decision-maker “par excellence”’ and is only judicially reviewable in very limited circumstances. In AVQ 15 v Minister for Immigration and Border...
Citizenship and character
Whether or not someone is of good character is an issue which can arise in migration law as the basis for refusing or cancelling a visa. Character is also an issue which has to be considered in the context of applications for citizenship. Unlike the Migration Act, the Australian Citizenship Act does not have a definition of what “good character” means. As a result the test from Irving v Minister...
Fairness and Capacity
Karan v Minister for Home Affairs [2019] FCAFC 139 is yet another recent Full Court character cancellation case. Mr Karan (a citizen of Fiji) had a history of alcohol and drug addiction and mental illness. He represented himself before the AAT. The jurisdictional error which was alleged in the courts at first instance and on appeal was that he had been denied procedural fairness because the...
Interpreted generously but…
Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was...