Federal Court of Australia

Moorcroft v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1348

ORDERS

THE COURT ORDERS THAT:

1.    In action QUD 345 of 2021:

(a)    The Originating Application filed 27 October 2021 is dismissed.

(b)    The applicant pay the respondent’s costs of the application to be taxed.

2.    In action QUD 350 of 2021:

(a)    The Application filed 29 October 2021 is dismissed.

(b)    The applicant pay the respondent’s costs of the application to be taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an Originating Application filed on 27 October 2021, the applicant, Ms Deanna Lynley Moorcroft, sought declarations pursuant to s 22 of the Federal Court of Australia Act 1976 (Cth) to the effect that she is an “eligible non-citizen” for the purposes of s 72(1) of the Migration Act 1958 (Cth) (the Act) and that she holds a Bridging E (Class WE) (Subclass 050) Visa (Bridging E Visa) that will cease on 4 November 2021. Directions were made the following day for the expedited hearing of the matter as the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), had indicated his intention to remove Ms Moorcroft from Australia to New Zealand on 3 November 2021, and declined to give an undertaking not to remove her pending the determination of the application in an orderly manner.

2    The matter involves an element of complexity consequent upon the parties’ prior dealings, including litigation in the Federal Circuit Court, this Court and the High Court. In summary however, Ms Moorcroft seeks a declaration as to her status as an eligible non-citizen within s 72 of the Act. Her having that status would have the consequence that she was entitled to the grant of a Bridging E Visa which would permit her to remain in Australia for a relatively short period of time. An essential element underpinning her claim to have that status is that she meets the definition of a person who has been “immigration cleared” in s 172(1)(c) of the Act. She will satisfy that criteria if, relevant to the present case, she is a person who has been refused immigration clearance but has subsequently been granted a substantive visa. In that regard, Ms Moorcroft claims that she was granted a substantive visa on 24 March 2020, being a “special category visa” under s 32(2) of the Act. Whilst there is no doubt that on that day a delegate of the Minister purported to grant her such a visa, there is also no doubt that in the circumstances there was no power under the Act to do so, and that is so regardless of the then existence of a decision of this Court (in Moorcroft v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 276 (Moorcroft v Minister for Immigration)) which held, albeit erroneously, that the power existed. That decision was subsequently overturned by the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 557 (Minister for Immigration v Moorcroft).

3    The essential issue before this Court concerns the efficacy, if any, of the decision of 24 March 2020 purporting to grant Ms Moorcroft a substantive visa and whether that decision had been accorded any additional validity by the decision of this Court which preceded its making.

Jurisdiction

4    An initial question arose as to whether this Court had jurisdiction to grant the relief sought solely by reason of s 39B of the Judiciary Act 1903 (Cth). This Court’s jurisdiction to deal with matters under the Act is circumscribed by s 476A(1) although the applicant submitted that it does not limit the Court’s powers in relation to the present application on the basis that the relief sought is not a public law remedy involving direct judicial review of a “migration decision”. There was ultimately no need to reach any final conclusion on that difficult issue. On 29 October 2021, Ms Moorcroft filed an application in the Federal Circuit and Family Court of Australia seeking relief in identical terms to that sought from this Court. That day, Judge Manousaridis made orders by consent transferring those proceedings to this Court under r 8.02(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Minister very properly accepted that it followed from that transfer that this Court has jurisdiction to determine the matter, whether under s 476A(1)(a) of the Act or s 39B of the Judiciary Act.

agreed facts

5    For the purposes of s 191 of the Evidence Act 1995 (Cth), the parties agreed upon the following facts (set out in paragraphs [6] to [28]), although they did not reach agreement that they were all relevant to the determination to be made.

6    Ms Moorcroft is a citizen of New Zealand.

7    Ms Moorcroft resided in Australia as the holder of a special category visa from 17 November 2013 to 24 December 2017, when she returned to New Zealand.

8    On 2 January 2018, Ms Moorcroft returned to Australia via commercial air flight to the Brisbane International Airport, and was granted another special category visa (the 2018 Visa) by a delegate of the Minister under s 65(1)(a) of the Act.

9    On 3 January 2018, a delegate of the Minister purported to cancel the 2018 Visa under s 116(1)(e) of the Act (Purported Cancellation Decision).

10    Subsequently, on 3 January 2018, Ms Moorcroft was detained under s 189 of the Act.

11    On 4 January 2018, Ms Moorcroft was removed from Australia to New Zealand. She remained in New Zealand until 29 January 2019.

12    In the meantime, on 7 February 2018, Ms Moorcroft applied to the Federal Circuit Court for judicial review of the Purported Cancellation Decision.

13    On 28 June 2018, the Federal Circuit Court, by consent of the parties, made an order quashing the Purported Cancellation Decision.

14    On 29 January 2019 at about 8:45am, Ms Moorcroft:

(a)    arrived at the Gold Coast International Airport; and

(b)    applied for a special category visa under s 46 of the Act (2019 Visa Application).

15    On 29 January 2019 at about 11:44am, a delegate of the Minister, after considering the 2019 Visa Application under s 47 of the Act, refused to grant Ms Moorcroft a special category visa under s 65(1)(b) of the Act (2019 Refusal Decision). As the High Court subsequently determined in Minister for Immigration v Moorcroft, the delegate was lawfully not satisfied that the respondent satisfied the criterion in s 32(2) of the Act.

16    Ms Moorcroft was detained under s 189(1) of the Act.

17    On 29 January 2019, Ms Moorcroft applied to the Federal Circuit Court for judicial review of the 2019 Refusal Decision.

18    On 8 March 2019, the Federal Circuit Court made an order dismissing Ms Moorcroft’s application.

19    On 14 March 2019, Ms Moorcroft appealed to this Court from that order of the Federal Circuit Court.

20    On 19 September 2019:

(a)    the Minister granted Ms Moorcroft a Bridging E Visa under the power conferred by s 195A of the Act; and

(b)    Ms Moorcroft was released from immigration detention.

21    On 23 March 2020, this Court made orders allowing the appeal, setting aside the orders of the Federal Circuit Court, quashing the 2019 Refusal Decision, and requiring the Minister to determine the 2019 Visa Application according to law: Moorcroft v Minister for Immigration.

22    On 24 March 2020, a delegate of the Minister purported to consider the 2019 Visa Application under s 47 of the Act and then purported to grant Ms Moorcroft a special category visa under s 65(1)(a) of the Act.

23    On 30 October 2020, the Minister appealed to the High Court, in accordance with special leave granted on 16 October 2020, from the orders of this Court referred to in paragraph 21 above.

24    On 16 June 2021, the High Court made orders allowing the Minister’s appeal, setting aside the orders of this Court referred to in paragraph 21 above and, in their place, save as to Ms Moorcroft’s appeal from the costs order made by the Federal Circuit Court, ordering that her appeal to the Federal Court be dismissed: Minister for Immigration v Moorcroft.

25    On 11 October 2021, Ms Moorcroft was detained under s 189 of the Act.

26    On 21 October 2021, Ms Moorcroft purported to apply for a Bridging E Visa.

27    A detention review officer appointed under r 2.10A(2) of the Migration Regulations 1994 (Cth) for the State of Queensland was informed of Ms Moorcroft’s purported application for a Bridging E Visa on 22 October 2021.

28    By letter dated 25 October 2021, the Department notified Ms Moorcroft that it considered her purported application for a Bridging E Visa to be invalid on the basis that she was not an “eligible non-citizen” within the meaning of s 72(1) of the Act.

relevant legislation

29    By s 32 of the Act, provision is made for the granting of a special category visa. Relevantly, that section provides:

32     Special category visas

(1)     There is a class of temporary visas to be known as special category visas.

(2)     A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a)     a non-citizen:

(i)     who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

(ii)     is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b)     a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c)     a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

30    For the purposes of s 32, the expression “behaviour concern non-citizen” is defined in s 5(1) of the Act. In general terms, it related to persons who had been charged or convicted of criminal offences and extended to, inter alia:

behaviour concern non-citizen means a non-citizen who:

…

(d)     has been removed or deported from Australia or removed or deported from another country; or

31    It was not in dispute that one of the criteria for the grant of a Bridging E Visa was that the applicant is an “eligible non-citizen”. The definition of that expression is found in s 72 of the Act which provides:

72     Interpretation

(1)     In this Subdivision:

eligible non-citizen means a non-citizen who:

(a)     has been immigration cleared; or

(b)     is in a prescribed class of persons; or

(c)    the Minister has determined to be an eligible non-citizen.

32    Section 172 of the Act identifies the circumstances in which a person is taken to be “immigration cleared”:

172     Immigration clearance

When a person is immigration cleared

(1)    A person is immigration cleared if, and only if:

…

(c)    the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa;

33    Section 67 of the Act is also relevant to Ms Moorcroft’s submissions. That section makes the following provision for the coming into effect of decisions made by the Minister under the Act:

67     Grant and refusal of visa—how and when

(1)     The following decisions are taken to be made by the Minister causing a record to be made of the decision:

(a)     a decision to grant a visa;

(b)     a decision to refuse to grant a visa.

  (2)     The record must state the day and time of its making.

(3)     The decision is taken to have been made on the day and at the time the record is made.

(4)     The Minister has no power to vary or revoke the decision after the day and time the record is made.

(5)     Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

The issue for determination

34    Ms Moorcroft claimed that she presently holds a special category (subclass 444) visa under s 46 of the Act which was granted on 24 March 2020. She submitted that, being the holder of such a visa, she meets the criteria of a person who is “immigration cleared” and, therefore, is an “eligible non-citizen” within the meaning of s 72(1) of the Act. On that basis she claimed that, by the operation of the Act, she has been issued a Bridging E Visa, albeit one that it will expire on 4 November 2021. As mentioned, she seeks declarations as to her status as “an eligible non-citizen” and as the holder of a Bridging E Visa.

35    The Minister submitted that the grant of the special category visa to Ms Moorcroft on 24 March 2020 was invalid on the basis that, at the relevant time, she did not meet the relevant criteria and, in particular, that she fell within the definition of a “behaviour concern non-citizen”. The foundation for that latter submission was that she had previously been removed from Australia. For the purposes of this hearing, it is not in doubt that the Minister’s submissions that she did not meet the criteria for the grant of a special category visa are correct. Indeed, that was the conclusion of the High Court in Minister for Immigration v Moorcroft.

36    However, by the earlier decision of this Court in Moorcroft v Minister for Immigration on 23 March 2020, it was determined that Ms Moorcroft was not a “behaviour concern non-citizen” as she had not been lawfully removed from Australia and the 2019 Refusal Decision was quashed. It was the following day on which the Minister purported to grant Ms Moorcroft a special category visa (the SC Visa). In these reasons, the purported decision to grant that visa will be referred to as the “SC Visa decision”.

37    The central issue is whether the purported granting of the SC Visa during the interregnum between the Federal Court decision and the High Court decision had any operative effect on which Ms Moorcroft might presently rely to assist her to satisfy the requirements for a Bridging E Visa.

Ms Moorcroft’s claims

38    In general terms, Ms Moorcroft made two main submissions. Firstly, that as at 24 March 2020, as a result of the Federal Court decision, there was no valid refusal of her application for the SC Visa such that the Minister had the power to grant one to her as he did. In that respect, it was submitted that he was not functus officio when the power was exercised on 24 March 2020 and the visa was validly issued. This was a submission that she met the requirements of an “eligible non-citizen” for the purposes of the above definition as a person who was “immigration cleared” because she presently held a SC Visa. In the alternative, she claimed that, although she had been refused immigration clearance on 29 January 2019, she was subsequently granted a substantive visa on 24 March 2020, being the SC Visa, and that, for the purposes of the definition of “immigration cleared” in s 172(1)(c), it was irrelevant that its granting was subsequently found to be beyond power.

The Minister’s response

39    The Minister submitted that the delegate did not have power to grant the SC Visa because Ms Moorcroft did not meet the relevant criteria. It followed that the decision to grant it was beyond his authority and that was so despite the decision of this Court in Moorcroft v Minister for Immigration, which at that point had not been overturned, holding to the contrary. As the High Court subsequently held, Ms Moorcroft was not entitled to an SC Visa as she had been removed from Australia with the consequence that she was a “behaviour concern non-citizen” and that disqualified her. For this reason, the Minister submitted that, in dealing with her application for a Bridging E Visa, he was entitled to ignore the erroneous grant of the SC Visa on 24 March 2020.

Was a valid special category visa issued on 24 March 2020?

40    Ms Moorcroft submitted that, for the purposes of the granting of the SC Visa, the Minister’s delegate had reached the state of satisfaction required under s 65(1) the Act that she met the criteria for its grant with the consequence that he was obliged to grant it. By s 67 of the Act, the Minister’s decision to grant the visa is taken to have occurred when a record was made of the decision to grant it. Here, on 24 March 2020, the Minister issued a notice stating that the SC Visa had been granted that day and it appears not to be in doubt that an appropriate record was made of its granting. On this basis, so Ms Moorcroft submitted, the SC Visa was validly issued because it was issued in accordance with the conclusions of this Court in Moorcroft v Minister for Immigration which, as at that time, had not been overturned.

41    The difficulty with the above is that the 2019 Refusal Decision made on 29 January 2019 was, and always had been, valid. In particular, the delegate lawfully formed the state of non-satisfaction as to Ms Moorcroft’s status as to her not being a behaviour concern non-citizen. That is undoubtedly so given the High Court’s decision in Minister for Immigration v Moorcroft. Despite the order of this Court on 23 March 2020 quashing the delegate’s decision, by reason of the High Court’s orders setting this Court’s order aside, that decision was valid from inception including during the interregnum between those two decisions. It was not at the time of making nor at any other relevant time, affected by jurisdictional error. It is an agreed fact that in making the 2019 Refusal Decision the delegate was lawfully not satisfied that the criterion in s 32(2) had been met for the purposes of s 65(1)(a)(ii) of the Act. That being so the delegate was compelled to refuse the visa.

42    The Minister submitted that the continued validity of the 2019 Refusal Decision had the necessary consequence that he was unable to make a contrary decision on Ms Moorcroft’s visa application on 24 March 2020, following the Federal Court decision. That submission should be accepted. In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 (Plaintiff S297/2013), the majority in that case observed (at 188 [32]) that the Minister’s obligation under s 47 of the Act to consider a valid visa application “continues, subject to exceptions, until the Minister grants or refuses to grant the visa … in the performance of a complementary duty imposed by s 65”. Later, the majority held (at 188 – 189 [34]):

The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts – to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) – depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts”) – the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67).

(Citation omitted).

43    Additionally, by operation of s 67(4) of the Act the Minister is unable to revoke or vary the 2019 Refusal Decision after it has been recorded. However, the operation of that provision must be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect. If it is invalid by reason of jurisdictional error, it is invalid ab initio and any recording of it would also be ineffective.

44    Although on 23 March 2020 an order was made by this Court quashing the 2019 Refusal Decision: Moorcroft v Minister for Immigration; if the refusal to grant the visa was, in fact, valid there was no power for the Minister to make any subsequent decision to grant it. As indicated in Plaintiff S297/2013, the power can only be validly exercised one way or the other.

45    Mr McComber, for Ms Moorcroft, submitted that the effect of the Federal Court decision was that, despite it being incorrect, it accorded validity to acts done in accordance with it prior to its being set aside. In this respect, he relied on the High Court’s decision in State of New South Wales v Kable (2013) 252 CLR 118 (Kable No 2). There it was observed (at 133 [32]) that decisions of superior courts of record are valid until set aside, even if the orders in question were made in excess of jurisdiction (whether on constitutional grounds or for reason of some statutory limitation on jurisdiction). That consequence arises by reason of the nature of judicial power exercised by a court of superior jurisdiction. However, whilst the effect given to an order is only for as long as it remains in force, once set aside on appeal its force is spent: at 134 [36]. As the Court explained (at 135 [39]), there are very good pragmatic reasons as to why this must necessarily be the case:

Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.

46    From this it was submitted that, as at 23 March 2020 and following its quashing, the 2019 Refusal Decision no longer existed. For the purposes of the Minister carrying out his functions under the Act, it was as if that decision had not been made, Ms Moorcroft’s application remained on foot, and he was obliged to perform the functions required by s 65 and seek to ascertain whether he was satisfied that she met the criteria for the grant of a SC Visa as provided for in s 32 of the Act. It was further submitted that as the granting of the SC Visa was in accordance with the reasons in the Federal Court decision, it was a valid exercise of power.

47    However, the decision in Kable No 2 does not have the effect that an erroneous decision of a court can breathe validity into an act purportedly performed under an enactment which is contrary to the scope of the power conferred to do the act. In this latter, respect Mr Lenehan SC for the Minister referred to the High Court’s recent decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128. The facts of that case are peculiarly complex and there is no need to restate them in full. It suffices to observe the following. New Acland Coal had sought the granting of new mining tenements and its application for them was heard by the Land Court of Queensland. The Court recommended against their granting and New Acland Coal sought judicial review of that decision by the Supreme Court of Queensland, partly on the basis that the decision was affected by apprehended bias. The Supreme Court rejected the claim founded upon alleged bias but, nevertheless, concluded that some of the Land Court’s findings exceeded its jurisdiction. The matter was remitted to the Land Court on a limited basis with directions limiting the issues on which there was to be reconsideration. The remitted matter was reconsidered by a differently constituted Land Court which recommended the application be approved and the Chief Executive of the Department of the Environment accordingly granted the application. Meanwhile, the appellant, Oakey Coal Action Alliance Inc (OCAAI), an environmental organisation opposed to the granting of the new tenements, pursued an appeal in the Queensland Court of Appeal. That Court rejected the appeal but allowed a cross-appeal on the apprehended bias issue. However, in giving relief, it held that as the directions of the trial judge had been carried out by the Land Court and the approval granted, no orders save for a declaration ought to be made. OCAAI appealed to the High Court which allowed the appeal and held that, consequent upon the identification of apprehended bias, the whole and not merely part of the proceedings should have been remitted for reconsideration. In reliance upon Kable No 2, New Acland Coal submitted that, as the orders of the trial judge in the Supreme Court were valid unless and until set aside, the Land Court’s subsequent recommendations were also valid and binding by force of those orders. However, the plurality (Kiefel CJ, Bell, Gageler, and Keane JJ) held (at 136 [41]) that, although the powers of the Supreme Court under the Judicial Review Act 1991 (Qld) to remit the matter back to the Land Court with conditions were wide, they did not authorise the decision-maker on remittal to proceed in a manner which was inconsistent with the statute that governed the making of the decision. The Court could not authorise the decision-maker to engage in a process of further consideration which was in excess of the decision-maker’s statutory jurisdiction. It followed that the validity of the Land Court’s subsequent decision depended upon whether it had complied with the express and implied conditions for the exercise of power under the Act conferring authority on it, and the Land Court’s determination gained no additional force by reason of it having been made in consequence of the Supreme Court’s orders and directions: at 136 [44]. Edelman J’s conclusion was to like effect. His Honour held (at 145 [88]) that although the decision in Kable No2 has the consequence that “Acts done according to the exigency of a judicial order afterwards reversed are protected” because they are done in the execution of justice: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225, quoting Dr Drury’s Case (1610) 8 Co Rep 141b at 143a [77 ER 688 at 691]; the same does not apply once the judicial order is set aside. From the moment it is set aside, it provides no lawful justification for further action undertaken and will sometimes require conduct to be undone. Once the decision is set aside, the acts taken in reliance on the orders lack any legal force and acts for which the validity of the decision is a precondition must also be invalid, at least to their future effect.

48    The decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd is particularly apposite in the present case. Here, the SC Visa decision of 24 March 2020 relied upon the Federal Court decision as the source of its validity in the sense that, it must be assumed, the Minister reasoned or accepted that Ms Moorcroft was not a person who had been removed from Australia in the relevant sense, and was therefore not a “behaviour concern non-citizen”, with the consequence that she was entitled to the SC Visa. However, from the moment the Federal Court decision was set aside, it could no longer provide such support. At least from that point in time, the granting of the SC Visa was beyond the Minister’s power and any act which relied upon the validity of that grant also lacked legal force. In this case, it is not necessary to consider what the position may have been if there had been reliance on the validity of the grant in that period preceding the handing down of the High Court’s decision. Here, Ms Moorcroft made her application for a Bridging E Visa on 22 October 2021, being some four months after the High Court had overturned the Federal Court decision and it was no longer available as a source of validity for the SC Visa.

49    The necessary consequence is that Ms Moorcroft’s first ground fails. As at the date on which she applied for a Bridging E Visa, the decision of this Court in Moorcroft v Minister for Immigration did not afford validity to the SC Visa decision. She was therefore not a person who was “immigration cleared” within s 172(1)(c) of the Act and, therefore, was not an “eligible non-citizen” who was entitled to apply for a Bridging E Visa.

Did the decision of 24 March 2020 create a “thing in fact”?

50    The above conclusion also effectively disposes of the second ground on which the application was based. So the submission went, as a result of the SC Visa decision and of it being recorded as required by s 67 of the Act, the grant became a “thing in fact” giving rise to legal consequences including that Ms Moorcroft satisfied s 172(1)(c) because she had been granted a substantive visa. This, so it was submitted, created a state of affairs which supported her status as a person who was immigration cleared, even if it subsequently transpired that the granting of the visa was invalid. In this respect, reliance was placed on the observations of Gageler J in Kable No 2 where his Honour said (at 138 – 139 [52]):

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

(Footnotes omitted).

51    The difficulty here is that the Federal Court decision supporting the purportedly granted visa was set aside by the High Court prior to the present application for a Bridging E Visa. Whatever force it might have had in sustaining the purportedly granted visa, once set aside it could not lend legality to that decision. It follows that when considering Ms Moorcroft’s application for a Bridging E Visa the Minister was entitled to recognise the invalidity of the purported visa and disregard it. It was not necessary for there to be an application to set it aside. This was made clear by the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 where their Honours said (at 452 [29]):

The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.

(Footnotes omitted).

52    It follows that the extant state of affairs when the Minister was required to consider Ms Moorcroft’s application for a Bridging E Visa was that the SC Visa was invalid when made and the Minister’s delegate was entitled and, indeed, compelled to treat it as such. The fact of it having been made was irrelevant to that decisional process.

53    Mr McComber submitted that as the SC Visa decision was valid when made by reason of the Federal Court decision, the existence of the visa was a “thing in fact”, being all that was needed to satisfy s 172. In support of this, he relied on the High Court’s decision in Minister for Immigration v Moorcroft where it was held that a citizen had been removed from Australia for the purposes of the Act even though the removal was in excess of the Executive’s powers. For the purposes of the issues before the Court, it was the fact of removal rather than its validity which attracted the relevant legal consequence. Similarly, so it was submitted, “an invalid grant of a substantive visa to the Applicant is nevertheless a thing which has occurred in fact which attracts the operation of s 172(1)(c)”. In this way it was not necessary to read into that section the requirement that the granting of a substantive visa be a valid exercise of power.

54    However, the concepts of a person who has been removed from Australia on the one hand and, on the other, a person who had been granted a substantive visa, are quite different. The removal from Australia is a physical act which may be done with authority or without it. The granting of a visa is, however, only a legal act which can occur only if the requirements of the Act are satisfied. It cannot be achieved without supporting legal authority. Whilst s 172 could have provided as a requirement that the person in question “is subsequently granted a substantive visa or purportedly granted a substantive visa”, that is not what has been provided. This point of distinction is important for the purposes of the present matter.

55    Further, the requirement in s 172(1)(c) that the person be “granted a substantive visa” should reflect the requirements of ss 65 and 67 of the Act and mean a validly granted substantive visa. It is a coherent reading of the Act to regard the requirement in s 172 as meaning a substantive visa validly issued in accordance with the requirements of the Act. Nothing was identified in the purpose, context or structure of the Act which might suggest to the contrary.

56    Unlike in Minister for Immigration v Moorcroft, s 172(1)(c) is not directed to any decision-making task that delegates at immigration clearance need to perform quickly. As the Minister submitted, its “purpose is simply to regularise the immigration clearance status of a person who has subsequently been granted a (valid) visa”. This was supported by reference to the relevant Explanatory Memorandum which described the insertion of the predecessor to s 172(1)(c) as a “technical amendment” to ensure that all non-citizens have the correct status in relation to immigration clearance. In this respect, the Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 provided at paragraph [114]:

The paragraph provides that a person, who was refused immigration clearance or bypassed immigration clearance, is taken to be immigration cleared if the person is later granted a substantive visa. This reflects the fact that, for example, a non-citizen who had been refused immigration clearance, or who bypasses immigration clearance, is not disqualified from eligibility to apply for or be granted certain visas, eg protection visas in the case of refugees. When the visa is granted, the non-citizen is taken to be immigration cleared;

57    The present context is far removed from that considered by the High Court in Minister for Immigration v Moorcroft which was concerned with the construction of a different statutory expression, “removed or deported from Australia or removed or deported from another country” within para (d) of the definition of “behaviour concern non-citizen”. The literal construction was given to that expression as a result of a consideration of the surrounding parts of the definition, its role in the statutory purpose of fast and simple decision making processes during immigration clearance, and the avoidance of delegates being required to assess claims as to the legality of actions of foreign governments. No such considerations apply to the operation of the requirement of the phrase “subsequently granted a substantive visa” in s 172(1)(c).

58     It follows that the requirement in s 172(1)(c) is that the person has been validly granted a substantive visa. Ms Moorcroft had not been issued any such visa and she was not a person who has been immigration cleared with the consequence that she is not an eligible non-citizen for the purposes of applying for a Bridging E Visa.

Conclusion

59    For the foregoing reasons, the application to this Court in QUD 345 of 2021 must be dismissed. There is no reason why costs should not follow the event and the applicant should pay the Ministers’ costs of the application.

60    The same orders should also be made in QUD 350 of 2021, being the action which was transferred from the Federal Circuit and Family Court.

Associate:

Dated:    2 November 2021