Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first respondent be granted leave to file its amended notice of contention.

3.    The first respondent's amended notice of contention be dismissed.

4.    The order of the primary Judge dated 2 September 2021 be set aside.

5.    There be liberty to apply with respect to costs.

THE COURT DECLARES THAT:

1.    The decision made by the first respondent's delegate on 12 December 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) was void and of no legal effect (501(3A) Decision).

2.    In consequence of the legally ineffective 501(3A) Decision, no decision within the meaning of s 501CA(1) of the Act caused s 501CA of the Act to apply to the appellant.

3.    The appellant has continued to hold a Class BF Transitional (Permanent) visa at all times on and after 12 December 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The hearing of an appeal in this matter was listed for 22 February 2022. On 4 February 2022 the parties approached the Court on an urgent basis, seeking (by consent) orders setting aside the orders of the primary judge and related declarations. The application followed publication on 3 February 2022 of the Full Court's reasons in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (XJLR (Appeal)).

2    After receiving short written joint submissions and considering the position, we made orders and declarations largely as sought, so facilitating the appellant's release from detention later that day.

3    These are our reasons for making the orders.

4    The appellant is a citizen of the Philippines who had arrived in Australia in 1991. He held a Class BF Transitional (Permanent) visa. The visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) on 12 December 2019. On 29 January 2021 a delegate of the Minister refused to revoke the cancellation pursuant to s 501CA(4) of the Migration Act.

5    The delegate's decision was affirmed by the Administrative Appeals Tribunal on 23 April 2021. The appellant sought review of that decision in this Court, and the application was dismissed: PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050.

6    Relevantly for the purpose of this appeal, when cancelling the appellant's visa in 2019 the delegate relied for the purposes of s 501(3A)(a) on the same failure of the character test as had been relied on in a previous cancellation decision under s 501(3A) made in 2015, referred to in the notice of appeal as the '2004 offending'. That earlier cancellation decision had been revoked pursuant to s 501CA(4) on 13 October 2016.

7    The Full Court in XJLR (Appeal) considered the circumstance where delegates purport to cancel a visa twice under s 501(3A)(a) and where on each occasion they are satisfied that the visa holder has failed the same specific form of the character test. In that matter the respective delegates had purported to cancel the appellant's visa twice under s 501(3A)(a) because he had failed to pass the character test in respect of the same term of 45 months imprisonment. The primary judge in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 had dismissed an application for judicial review of the decision of the Administrative Appeals Tribunal to not revoke the delegate's visa cancellation decision under s 501(3A).

8    The Full Court held that:

(a)    by analogy with the High Court's decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1, where a previous cancellation under s 501(3A) has been revoked under s 501CA(4) a subsequent cancellation under s 501(3A) cannot rely on the same failure of the character test for the purposes of s 501(3A)(a) as had been relied upon in the previous cancellation, and a cancellation that did so was invalid (Rares J at [67]-[78], Yates J agreeing at [89], Snaden J agreeing at [100]);

(b)    a valid cancellation under s 501(3A) is a precondition to a valid non-revocation under s 501CA(4) (Rares J at [51]-[63], Yates J at [94]-[95], Snaden J in dissent); and

(c)    it was within the jurisdiction of this Court, and appropriate in the circumstances, to declare that: first, the purported s 501(3A) decision of the delegate was of no legal effect; second, no decision within the meaning of s 501CA(1) caused s 501CA to apply in respect of the legally ineffective cancellation decision; and third, the appellant has continued to hold their visa at all times on and after the purported cancellation decision (Rares J at [80]-[87], Yates J agreeing at [97], Snaden J in dissent).

9    The decision of the primary judge in PYDZ was delivered after XJLR but before XJLR (Appeal). The primary judge in PYDZ agreed with and applied parts of the reasoning in XJLR. The Full Court in XJLR (Appeal) in turn referred to the decision in PYDZ. Rares J observed that the primary judge in PYDZ had applied the reasoning in XJLR and had found that 'the Tribunal can exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) notwithstanding any purported invalidity of that decision': XJLR (Appeal) at [50], adding the emphasis and citing PYDZ at [56]. His Honour concluded that the primary judge in XJLR and the primary judge in PYDZ erred in deciding that a legally ineffective decision to cancel a visa under s 501(3A) can be 'cured' by the Tribunal on a review of a delegate's s 501CA(4) decision.

10    The Minister accepted by joint written submissions that the circumstances in this case are equivalent. The parties therefore accepted that, applying the reasoning of the Full Court in XJLR (Appeal), declarations of that kind ought to be made in this case. The primary judge did not make such declarations. Instead, his Honour dismissed the appellant's proceeding. It follows that the Minister accepts that, applying the reasoning in XJLR to this case, the orders of the primary judge should be set aside.

11    The parties jointly proposed declarations that reflect those that were said to be appropriate in XJLR.

12    We add that the Minister explained the reason the orders were sought jointly in this matter and prior to the hearing of the appeal is that the Minister accepted that such orders are required by the outcome of XJLR (Appeal). It was disclosed, however, that the Minister may seek special leave to appeal from XJLR (Appeal) and consequentially the orders made in this case: accordingly, the Minister's conduct was not to be understood as constituting a waiver of any right to have the orders made in this matter subsequently set aside by the High Court. We formally record the Minister's position.

13    Against that backdrop and noting the consent of the parties to the proposed orders and declarations, it was necessary for us to consider whether we should exercise the power to dispose of the appeal by consent under s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth).

14    The authorities as to the preconditions to the exercise of that power were usefully collected by McKerracher J in Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2021] FCA 1467 at [7]-[12]. We respectfully endorse his Honour's summary without extracting it in these reasons. It suffices to say that there are a number of Full Court authorities to the effect that the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below: Citigroup Pty Ltd v Mason [2008] FCAFC 151; (2008) 171 FCR 96 at [7], [16] (Moore, Finn and Dowsett JJ); Commonwealth Bank of Australia v Walker as liquidator of A.B.C. Learning Centres Limited (in liq) (Receivers and Managers appointed) (now known as ZYX Learning Centres Limited) [2012] FCAFC 68 at [3]-[6] (Perram J, Rares and Flick JJ agreeing); Bradken Limited v Norcast S.ár.L [2013] FCAFC 123; (2013) 219 FCR 101 at [2] (Allsop CJ, Mansfield and Jacobson JJ); and CQX18 v Minister for Home Affairs [2019] FCAFC 142 at [9] (Allsop CJ, Perry and Gleeson JJ).

15    There were no submissions before us as to the preconditions to the power to dismiss the appeal by consent. However, having regard to those authorities, we consider it is open to us to proceed on the basis that the power does not require, as a precondition to its exercise, a finding of anything more than arguable appellable error in the judgment appealed from.

16    We have taken into account that in circumstances that are generally equivalent, there is now by way of XJLR (Appeal) a decision that addresses in detail, amongst other things, the proper construction of s 501(3A) of the Migration Act in the particular context of reliance by a delegate on the same set of circumstances. There is therefore a subsequent appellate decision that is inconsistent with the primary single judge reasons in PYDZ. Furthermore, as we have noted above, in XJLR (Appeal) the Full Court referred to PYDZ and the majority considered that the primary judge in PYDZ had relevantly erred. Acknowledging the Minister's reference to the potential for a special leave application, XJLR (Appeal) remains authority of a court of appeal. Another court of appeal would only depart from it cautiously and if there were a strong conviction that it was wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]-[13]; and Pitman v Commissioner of Taxation [2021] FCAFC 230 at [10].

17    On our review of XJLR (Appeal), and noting that we have heard no submissions as to the substance of the reasons or delved into its merits as would be undertaken on the hearing of an appeal, there is nothing on the face of those reasons that would justify us concluding that the decision is plainly wrong or holding any strong conviction that is wrong. There is no obvious plain error. In those circumstances, we were of the view that in the present case arguable appellable error is demonstrated, and that having regard to the nature of the orders and declarations sought (including the form of the declarations made in XJLR (Appeal)), it was appropriate to make the orders and declarations as sought jointly by the parties.

18    The parties indicated they were conferring as to costs. Accordingly, we ordered that there be liberty to apply with respect to costs.

Associate:

Dated:    15 February 2022