Federal Court of Australia

BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 67

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Orders of the Federal Circuit and Family Court of Australia (Division 2) dated 22 September 2021 be set aside and in lieu thereof it be ordered that:

(a)    The Court declares that the notice of visa cancellation issued by the respondent’s department on 4 April 2017, and given to the appellant by hand on 5 April 2017, did not comply with the statutory requirements of s 501CA(3)(b) of the Migration Act 1958 (Cth) and was therefore invalid.

(b)    Each party bear their own costs.

3.    The first respondent pay the appellant’s costs of the appeal, fixed in the sum of $4,691.49.

4.    The listing of the appeal for hearing in Sydney on 25 May 2022 be vacated accordingly.

THE COURT NOTES:

The first respondent accepts that the notice of visa cancellation issued by the first respondent’s department on 4 April 2017, and given to the appellant by hand on 5 April 2017, was not an invitation under s 501CA(3)(b) of the Migration Act 1958 (Cth) to make representations within the period ascertained in accordance with the Migration Regulations 1994 (Cth) and was therefore invalid for the reasons given by the Full Court of the Federal Court in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 395 ALR 36 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 394 ALR 347.

On 16 December 2021, the appellant was issued an invitation under s 501CA(3)(b) of the Migration Act 1958 (Cth) and, on 21 December 2021, made representations in accordance with that invitation.

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

REASONS FOR JUDGMENT

THE COURT

1    The parties to this appeal have promoted, by consent, orders pursuant to which the appeal be allowed and Orders 2 and 3 of the orders of the primary judge made on 22 September 2021 be set aside. Involving, as it does, an exercise of Commonwealth judicial power in appellate jurisdiction, it is for the Court to be satisfied that the requisite jurisdiction exists and that there is a basis for a conclusion that the order was made in error.

2    There is no doubt that a right of appeal to this Court against the orders concerned exists: s 24(1)(d), Federal Court of Australia Act 1976 (Cth).

3    The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs has quite properly accepted that, for the reasons given by the Full Court of the Federal Court in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 395 ALR 36 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 94 ALR 347, the notice of visa cancellation issued by the Minister’s department on 4 April 2017, and given to the appellant by hand on 5 April 2017, was not an invitation under s 501CA(3)(b) of the Migration Act 1958 (Cth). The Court notes that concession. It forms a sufficient basis for a conclusion of error in the making of the orders concerned and thus for the allowance of the appeal.

4    It is unnecessary for the disposition of this appeal for the Court to make any findings as to the validity or otherwise of the subsequent invitation, issued to the appellant on 21 December 2021, which the Court was also asked to note.

5    For these reasons, the appeal must be allowed.

Associate:

Dated:    29 April 2022