Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v CMK22 [2025] FCA 664

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit and Family Court of Australia (Division 2) on 20 July 2022 and 16 August 2022 are set aside, and in their place it is ordered that:

(a)    the amended application filed on 20 July 2022 be dismissed; and

(b)    there be no order as to costs.

3.    The appellant pay the costs of the respondent and the amicus curiae on the appeal, to be agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

1    This appeal raises a narrow issue that turns on the proper construction of ss 131 and 133 of the Migration Act 1958 (Cth). Briefly stated, the issue is whether the power to revoke the cancellation of a visa of a person who is outside Australia under Subdiv F of Div 3 of Pt 2 of the Migration Act is capable of being exercised after that visa has expired and would no longer be in effect.

2    The primary judge, in granting a writ of mandamus, requiring the then Minister for Immigration, Citizenship and Multicultural Affairs to make a decision about revocation of cancellation by no later than 3.00 pm on 21 July 2022, prior to the expiry date of the respondent’s visa, accepted submissions made by the respondent to the effect that a failure to make a decision before the expiry of the visa would have rendered nugatory the respondent’s request for revocation of the cancellation: see CMK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 601; 371 FLR 59 (J). Accordingly, the primary judge held that the Minister was required to make a decision whether to revoke the cancellation under s 131(1) of the Migration Act before the date on which the cancelled visa would have ceased to be in effect.

3    The Minister contends that the primary judge was wrong to conclude that a revocation decision was required to be made before the expiry of the relevant visa. The Minister submits that, contrary to the primary judge’s reasoning, the power conferred by s 133(2) of the Migration Act is available to vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia. Accordingly, if the cancellation of a visa is revoked after the visa has expired, the Minister can extend the period for which the visa is to be in effect so as to give utility to the revocation decision.

4    On this appeal, the respondent no longer seeks to support the primary judge’s reasoning or conclusion on the construction of ss 131 and 133 of the Migration Act. That is chiefly because, after the delegate made a decision under s 131 not to revoke the cancellation of his visa, that decision was then quashed by the Federal Circuit and Family Court of Australia (FCFCoA), which ordered the issue of a writ of mandamus requiring the Minister to determine the request for revocation according to law. The matter is therefore once again before a delegate of the Minister, who must decide whether to revoke the cancellation of the respondent’s visa under s 131 of the Migration Act. However, as that visa would now have expired, the primary judge’s reasoning would either preclude the exercise of the power to revoke the cancellation, or would prevent the visa from being extended by varying the time that it is to be in effect or the period in which, or the date until which, it permits the respondent to travel to, enter and remain in Australia. Unsurprisingly in such circumstances, the respondent now supports the construction of ss 131 and 133 of the Migration Act for which the Minister contends.

5    In order to ensure that there is a proper contradictor on the construction issues, Mr Mark Hosking of counsel was appointed as an amicus curiae to support the reasoning and conclusions of the primary judge.

6    For the reasons set out below, I consider that s 131(1) confers power to revoke the cancellation of a visa notwithstanding that the visa would have since ceased to be in effect. If the cancellation is revoked, the visa has effect as if it were granted on the revocation and the Minister has power under s 133(2) to vary the time the visa is to be in effect by extending the period in which or the date until which the visa permits its holder to travel to, enter and remain in Australia. Accordingly, the primary judge erred by proceeding on the basis that it would not have been open to the delegate to revoke the cancellation or to vary the visa period after the expiry date of the respondent’s visa. The Minister’s appeal is therefore allowed.

Background

7    The respondent is a citizen of Sri Lanka. On 8 March 2015, he arrived in Australia as the holder of a Visitor visa (subclass 600), intending to visit relatives and attend the ICC Cricket World Cup.

8    On 3 June 2015, the respondent applied for a protection visa. The application was refused by a delegate of the Minister on 28 March 2018, following which the respondent applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

9    On 15 June 2022, while the review proceeding was still pending before the Tribunal, the respondent was granted a Bridging Visa B (BVB) which authorised him to leave and re-enter Australia until 22 July 2022. The respondent left Australia on or about 16 June 2022, travelling to the United Arab Emirates (UAE) to visit his wife and daughter.

10    On 2 July 2022, while the respondent was outside Australia, a delegate of the Minister cancelled the respondent’s BVB without notice to him under s 128 of the Migration Act (the cancellation decision), on the ground that he had provided incorrect information in his application for the Visitor visa by failing to disclose that he had been known by another name in connection with a previous application to enter the United States of America: see Migration Act, ss 101, 107A, 116(1)(d), 128.

11    As required by s 129 of the Migration Act, the respondent was given written notice of the cancellation decision, inviting him to show within 28 days that the ground for cancellation did not exist or that there was a reason why the visa should not have been cancelled. In the meantime, the respondent was not entitled to travel to and enter Australia, as he was not the holder of a visa that was in effect.

12    On 15 July 2022, the respondent’s solicitors requested that the cancellation decision be revoked, providing written submissions and supporting documents. In a covering email, the respondent’s solicitor submitted that, because the respondent’s BVB was due to cease on 22 July 2022, there was “no utility in the revocation process if it [was] not exercised with sufficient time for him to re-enter Australia by that date”. The solicitor therefore requested that a decision be made by close of business on 18 July 2022, and foreshadowed an application for mandamus to require a decision to be made within that timeframe.

13    In the written submissions in support of the revocation request, it was submitted that the respondent had been “deprived of his statutory entitlement of 28 days in which to seek revocation of the cancellation decision”. The submissions relevantly stated:

Accordingly, [CMK22] has been offered a time period which is not meaningful, as if he responds after 22 July – indeed if he does not respond prior to 22 July, receive a positive outcome, and return to Australia by that date – the revocation process is utterly futile. The Department has deprived him of his statutory entitlement and the entitlement that Parliament clearly intended for offshore visa holders affected by a s 128 cancellation decision to enjoy.

[CMK22] now seeks revocation of the cancellation decision dated 2 July 2022 and requests an urgent decision to be made by 18 July 2022, to afford him enough time to make arrangements for, and undertake travel to, Australia before the end of the travel facility on his bridging B visa.

14    In relation to the substantive grounds of the cancellation decision, the respondent denied that he had ever been known by another name or identity, and denied having provided incorrect information in his previous visa application. Accordingly, the respondent submitted that the Minister could not properly be satisfied for the purposes of s 128(a)(i) that there was a ground for cancelling his BVB under s 116 of the Migration Act. The respondent also made submissions in relation to whether it was appropriate to cancel the BVB without notice under Subdiv F of Div 3 of Pt 2 (see s 128(a)(ii)), and in relation to discretionary factors bearing on the exercise of the power to cancel the visa under s 128 of the Migration Act.

15    On 16 July 2022, the respondent’s solicitor sent a further email to the Department, advising that the respondent would have no entitlement to remain in the UAE after 9 August 2022, and that he would be “forced to consider returning to his place of claimed persecution and home country, Sri Lanka”. It will be recalled that the respondent had a review application pending before the Tribunal in which he claimed that he was owed protection obligations in relation to Sri Lanka.

16    On 18 July 2022, an officer of the Department acknowledged the emails from the respondent’s solicitor in relation to the revocation request and confirmed that the request had been “escalated to a manager for consideration”. However, the Departmental officer noted that he or she was “unable to provide a timeframe of when a decision will be made”.

The proceedings below

17    On 19 July 2022, the respondent commenced urgent proceedings in the FCFCoA in which he sought an order quashing the cancellation decision. The respondent requested an expedited hearing on the basis that the BVB would expire on 22 July 2022 and “[i]f final relief is not granted by Thursday 21 July, he will not be able to return to Australia irrespective of the result”.

18    At a hearing before the primary judge on 20 July 2022, the respondent was granted leave to rely on an amended application, in which he no longer sought to challenge the cancellation decision but instead sought a writ of mandamus requiring the Minister to make a decision in relation to his revocation request before 12.00 pm on 21 July 2022. The respondent alleged that the Minister, having elected to use the power conferred by s 128 of the Migration Act, had an implied statutory obligation to decide the revocation request before the expiry of the cancelled visa. The respondent contended that, if the Minster made a decision after the expiry of the visa, the revocation process would be futile and contrary to the intention of s 129 of the Migration Act.

19    Following the hearing on 20 July 2022, the primary judge pronounced orders requiring a decision to be made in respect of the respondent’s revocation request by no later than 3.00 pm on 21 July 2022. His Honour subsequently published his written reasons on 3 August 2022.

20    There was evidence before the primary judge that the respondent had booked a ticket on a flight departing from Dubai at 11.30 pm on 21 July 2022, and arriving in Adelaide at 8.35 pm on 22 July 2022.

21    The primary judge identified the question for determination as “whether on a proper construction of s 131 [of the Migration Act] the Court should imply a requirement that the Minister make a decision within a reasonable time and, if so, whether that requires a decision to be made before the notional expiry of the [respondent’s] cancelled visa”: J [67].

22    The respondent submitted below that it could not have been Parliament’s intention that a revocation decision could be left to be made at a time which was practically futile to the former holder of the cancelled visa: J [81]. The respondent contended that a right to seek revocation would “prove meaningless if a decision in relation to revocation could be left until after the substantive rights attached to the cancelled visa (including the right to re-enter Australia) had been extinguished by effluxion of time”: J [82].

23    The Minister submitted below that there is no implied obligation requiring a revocation decision to be made before the notional expiry date of the cancelled visa, and that there had been no unreasonable delay in dealing with the respondent’s revocation request: J [51], [88]. The Minister argued that s 133(2) of the Migration Act provided a “complete answer” to the respondent’s claims based on futility, by conferring a power to vary the expiry date of the visa or any period in which the respondent could enter Australia: J [69], [86]–[87].

24    In reply, the respondent argued that, as a visa ceased to have effect after its expiry date, s 133(1) could not “resurrect” or “breathe life into” an expired visa: J [94]. The respondent submitted that the power in s 133(2) is subject to s 133(1), and presumes the existence of an instrument which has not ceased to be in effect: J [95].

25    The primary judge considered that, where the Minister cancels a visa held by a non-citizen who is outside Australia in accordance with the procedure in Subdiv F, the requirement to give notice of cancellation under s 129 is “plainly a natural justice requirement forming the necessary foundation from which the aggrieved visa holder can respond in his or her request for revocation”, and the requirement that such a notice include an invitation to seek revocation within the prescribed time is “integral to the decision making process”: J [109]–[110]. This process affords natural justice to an offshore visa holder whose visa is cancelled without notice and with immediate effect, and is the only process “by which the visa holder can seek the restoration of the suite of rights which attach to the visa which has been cancelled”: J [113].

26    The primary judge ultimately agreed with the respondent’s submission that there should be implied into s 131 of the Migration Act an obligation to make a decision within a reasonable time “which, having regard to the circumstances of this particular case and the context of the decision-making framework established by the [Migration Act], requires that a decision be made by the Minister before the expiration date of cancelled visa”: J [98]–[99]. The primary judge relevantly held (at [136]):

Where, as here, the [respondent’s] visa has been cancelled, his right of re-entry and residence in Australia denied to him, and he has sought revocation of that decision in a timely manner, the statute by implication requires the revocation decision to be made before the date the original visa expires.

27    In reaching this conclusion, the primary judge stated (at [127]–[129]):

In my view the decision-making scheme of subdiv F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense. The natural justice objectives of the decision making scheme would in my opinion be defeated if the Minister were able to determine the revocation request after the utility of the visa had been lost forever. It strikes me as inimical to the legislative scheme in subdiv F that the reasonable time for the making of a revocation decision should be construed as being at large.

In circumstances where the original visa rights can only be restored by a decision which is made before they expire (which is the effect of s 133(1)) and where the scheme of applying for revocation is directed at correcting or reversing incorrect cancellations, there is a strong inference that Parliament intended revocation decisions to be made within the time within which it is capable to restore the cancelled visa and the rights which attached to it, including the right of re-entry to Australia.

A consideration which weighs in favour of this construction is that the Minister has chosen to adopt a process under subdiv F which involves immediate cancellation of a visa whilst its holder is offshore. That was not the only process available to the Minister, but in deciding to follow that path the expiry date of the cancelled visa necessarily looms as a critical date beyond which a revocation decision in favour of the [respondent] may be of no utility.

28    The primary judge did not accept that s 133(2) authorised the Minister to vary the expiry date of a cancelled visa after it had ceased to have effect, noting that s 133(1) only operated “to re-grant the visa in its original form” and would “only operate to restore the original dates if the revocation decision is made before the expiry of those dates”: J [115] (emphasis in original). The primary judge considered that, while s 133(2) conferred a power to vary a “re-granted” visa, that power was not enlivened unless the Minister made a revocation decision: J [116]. After referring to the extrinsic materials in relation to s 133, the primary judge stated (at [134]):

In my opinion the intended purpose of s 133(1) is to re-enliven the cancelled visa to enable the visa holder to return to Australia within the time permitted by that visa. The intended purpose of s 133(2), which operates subject to subs (1), is to allow the Minister to make additional changes to the visa “to ensure that the holder has adequate time to prepare for travel to Australia” – suggesting a minor tweaking to the visa to facilitate departure in what might be a very compressed timeframe. As [counsel] for the [respondent] submitted, s 133(2) assumes the existence of a visa which can be adjusted, not one which has passed its expiry date.

(Emphasis in original.)

Accordingly, the primary judge rejected the Minister’s submissions that the power conferred by s 133(2) provided an “answer” to the situation faced by the respondent: J [135].

29    On 16 August 2022, after having published reasons for judgment, the primary judge ordered the Minister to pay the respondent’s costs of the proceeding below in the fixed amount of $25,678.45.

Events following the judgment below

30    On 21 July 2022, a delegate of the Minister made a decision under s 131 of the Migration Act not to revoke the cancellation of the respondent’s BVB.

31    On 6 March 2023, the respondent filed an application in the FCFCoA seeking judicial review of the delegate’s non-revocation decision.

32    On 27 July 2023, consent orders were made by the FCFCoA to quash the non-revocation decision, based on the Minister’s concession that the delegate had fallen into error by impliedly finding that the respondent could be granted a protection visa while he was offshore, in circumstances where the criteria for the grant of a protection visa required the visa applicant to be in Australia at the time of grant.

33    The FCFCoA also made orders for the grant of a writ of mandamus directed to the Minister requiring the request for revocation of the cancellation of the respondent’s visa to be determined according to law. The Minister has since informed the respondent that he does not propose to make a decision on the revocation request until the present appeal has been determined.

Notice of appeal

34    The Minister appeals from the whole of the judgment below, including the order relating to costs, on the following ground of appeal:

The primary judge erred in concluding that it was appropriate to order mandamus to avoid the exercise of the Minister’s obligation under s 131 of the Migration Act 1958 (Cth) (the Act) to decide whether to revoke the cancellation of the respondent’s visa being occasioned by unreasonable delay.

Particulars

(a)     The primary judge erroneously held that a revocation decision had to be made before the expiry of the visa that had been cancelled.

(b)     That reasoning rested upon his Honour’s construction of s 133(2) of the Act, which was that it conferred no power upon revocation to vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia if the visa had expired by the time the cancellation was revoked.

35    As outlined above, the substantive order made by the primary judge on 20 July 2022 is now spent, in circumstances where a delegate of the Minister made a decision under s 131 of the Migration Act in respect of the respondent’s revocation request on 21 July 2022. Although that decision was affected by jurisdictional error and was subsequently quashed, the extant obligation on the Minister to determine the revocation request arises from the orders made by the FCFCoA on 27 July 2023, and not from the orders made by the primary judge on 20 July 2022 from which the present appeal is brought.

36    The respondent initially advanced a submission that there was no longer any “matter” that was capable of being determined on appeal, and that any questions about costs were not sufficient to support the appeal and did not provide a “collateral” means to agitate the substantive controversy that was quelled by the orders made below. In making those submissions, the respondent nevertheless conceded the correctness of the Minister’s preferred construction of s 133 of the Migration Act, contrary to the position that had been taken by the respondent before the primary judge. However, the respondent argued that the “construction point” was not decisive of the case below, which had rested on a finding about unreasonable delay.

37    On 27 March 2024, I ruled that this Court has jurisdiction in the appeal, principally by reason of the continued effect of the costs order made by the primary judge on the rights, duties and liabilities of the parties to the appeal: see e.g. Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573 at [13], [16] (Hill, Heerey and Hely JJ).

38    The High Court’s decision in AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512 does not detract from the established position that a controversy as to the costs that should have been awarded at first instance is sufficient to maintain jurisdiction on an appeal. The difficulty in AZC20 arose because, in the course of the appeal before the Full Court of this Court, the Minister had filed an amended notice of appeal that removed any live issue as to costs: AZC20 at [36], [47], [58] (Kiefel CJ, Gordon and Steward JJ), [150] (Gleeson J). However, it was not questioned in AZC20 that an ongoing dispute about costs orders is sufficient to found jurisdiction in a “matter” on appeal: AZC20 at [47] (Kiefel CJ, Gordon and Steward JJ), [67] (Edelman J), [149]–[151] (Gleeson J). Further, the scope of that “matter” will ordinarily encompass or extend to a consideration of the substantive issues by reference to which the costs orders were made below: AZC20 at [67] (Edelman J), [150] (Gleeson J); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [20]–[21] (Black CJ, Sundberg and Weinberg JJ); Industrial Equity at [13].

39    Nevertheless, in circumstances where there is no longer any substantive controversy between the parties and the only live issue relates to the costs orders made at first instance, the Court may still have a discretion to stay or dismiss the appeal: see e.g. Vanstone v Clark (2005) 147 FCR 299 at [7] (Black CJ); Bonan v Hadgkiss (2007) 160 FCR 29 at [8]–[10] (Tamberlin, Stone and Siopis JJ); Leibler v Air New Zealand Ltd [1998] 2 VR 525 at 532–533 (Phillips JA, with whom Winneke P and Kenny JA agreed); AZC20 at [101], [134] (Gleeson J). Any such discretion is premised on the existence of jurisdiction. As the majority of the High Court made clear in AZC20, the anterior question of jurisdiction is not itself a matter of discretion. However, this does not necessarily preclude the exercise of a discretion not to hear and determine an appeal on the grounds that the issues have become moot or their determination would lack any utility: see e.g. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 (2020) 276 FCR 1 at [4], [18]–[28] (Flick, Perry and Thawley JJ).

40    In the present case, neither party submitted that the Court should exercise any discretion not to hear and determine the appeal. In the circumstances, I consider that it appropriate to address the question of construction sought to be agitated by the Minister on the appeal. The position is comparable to that described by the Full Court in the following terms in Industrial Equity at [16]:

To the extent there is a discretion which the Court might exercise, factors weighing against its exercise are that the present appeal involves an issue of construction having a significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment, which can be disposed of quite shortly.

Consideration

The statutory scheme

41    Subdivision F of Div 3 of Pt 2 of the Migration Act sets out a procedure by which the Minister may cancel a visa held by a non-citizen who is outside Australia at the time of the decision, without prior notice to that person. Section 127A(1) provides that Subdiv F “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.

42    Section 128 provides:

128    Cancellation of visas of people outside Australia

If:

(a)    the Minister is satisfied that:

(i)     there is a ground for cancelling a visa under section 116; and

(ii)     it is appropriate to cancel in accordance with this Subdivision; and

(b)    the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

43    The procedure under Subdiv F may be contrasted with that in relation to the cancellation of a visa under Subdiv E, which provides that the non-citizen must be given notice of the proposed cancellation and invited to show within a specified time that the grounds for cancellation do not exist or that there is a reason why the visa should not be cancelled.

44    Before exercising the power to cancel a visa under s 128, the Minister must be satisfied that there is a ground for cancellation under s 116 and that it is appropriate to cancel in accordance with Subdiv F, that is, without notice to the non-citizen who is outside Australia. While no prior notice of the cancellation is given to the non-citizen, the Minister must notify him or her of the decision and invite him or her to show, within a specified time, either that the ground on which the visa was cancelled does not exist or that there is a reason why the visa should not have been cancelled: s 129. Where the non-citizen is outside Australia when given such a notice of cancellation, the prescribed time for any response is 28 days: Migration Regulations 1994 (Cth), reg 2.46(a).

45    Section 131 provides for decisions about revocation of cancellation:

131    Decision about revocation of cancellation

(1)    Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a)    if not satisfied that there was a ground for the cancellation; or

(b)    if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.

(2)    The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.

46    For such purposes, the prescribed circumstances in which the Minister must not revoke the cancellation of a visa are where there are mandatory grounds for cancellation under s 116(3): Migration Regulations, reg 2.48; see also reg 2.43(2).

47    Section 133 provides for the effect of revocation:

133    Effect of revocation of cancellation

(1)    If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.

(2)    Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.

48    Other relevant provisions of the Migration Act deal with the effect of visas. Section 68 provides for when a visa is in effect. Under s 68(1), a visa has effect “as soon as it is granted”, subject to s 68(2), under which a visa may provide that it comes into effect at the beginning of a day specified in the visa or when a specified event happens, being a day after the grant of the visa. Section 68(3) of the Migration Act provides that “[a] visa can only be in effect during the visa period for the visa”. The term “visa period” is defined as follows in s 5(1):

visa period, in relation to a visa, means the period:

(a)    beginning when the visa is granted; and

(b)    ending:

(i)    in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or

(ii)    in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).

Note:    See subsection 68(6) for when certain bridging visas are to be taken to have ceased to be in effect otherwise than under subsection 82(3)

49    It may be noted in passing that, while a visa can only be in effect during the visa period, it is possible for a visa to be granted (and the visa period to commence) in circumstances where the visa does not come into effect until a later date: s 68(2); see also the Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth), para 6.

50    Section 82 deals with when visas cease to be in effect, and relevantly provides:

82    When visas cease to be in effect

(1)    A visa that is cancelled ceases to be in effect on cancellation.

…

(5)    A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:

(a)    has entered Australia in that period or on or before that date; and

(b)    is in Australia at the end of that period or on that date.

(6)    A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.

(7)    A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

…

51    Section 79 of the Migration Act provides that, if the holder of a visa leaves Australia, he or she may only re-enter Australia because of the visa if the visa is permission for the re-entry and “the visa is in effect on re-entry”. Section 81 provides that a visa to travel to Australia during a period, or to enter Australia within a period, or to remain in Australia during a period, is not permission to do so outside that period.

52    More generally, a visa involves a grant of permission to travel to and enter Australia, or to remain in Australia, including during a prescribed or specified period: Migration Act, ss 28, 29(1)–(3); see also, in relation to bridging visas, ss 31(3), 37, 73. Subject to certain exceptions that are not presently relevant, a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).

The present case

53    The respondent’s BVB was a permission to travel to, enter and remain in Australia during the period until 22 July 2022. It is unnecessary to address what the respondent’s position would have been if he had re-entered Australia on or before 22 July 2022 — for example, he may have held or been granted another bridging visa that entitled him to remain in Australia for a specified period beyond that date.

54    As discussed above, the primary judge concluded that the power conferred by s 131 of the Migration Act was subject to an implied obligation that a revocation decision must be made within a reasonable time, and held that this required a decision to be made by the Minister before the expiration date of the respondent’s visa “having regard to the circumstances of this particular case and the context of the decision-making framework established by the Act”: J [98]. The primary judge did not articulate any universal proposition that s 131 always requires a decision on revocation to be made before the expiry of the cancelled visa. Rather, the implication drawn by the primary judge was that “the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense”: J [127].

55    It was in the particular circumstances that arose below, which the primary judge described as “unique to this applicant” (J 125]), that the Minister was under a duty to make a decision under s 131 before the expiry date of the respondent’s BVB: J [136]. The grant of mandamus was based on the primary judge’s finding as to what was a reasonable time for making a decision on the respondent’s revocation request, and so as to prevent what would otherwise amount to unreasonable delay: J [75], [99], [140]–[141]. This was in a context in which the respondent had been in Australia lawfully for some years, had a review proceeding pending before the Tribunal, had been granted a bridging visa with a right of re-entry specifically for the purposes of travelling outside Australia for a brief period, only to have that visa cancelled without prior notice while he was overseas so as to prevent him from returning to Australia.

56    However, the primary judge’s findings as to the reasonable time within which a decision under s 131 was required to be made rested on underlying conclusions as to the construction and application of ss 131 and 133 of the Migration Act, particularly in relation to the utility of any decision to revoke the cancellation of a visa held by a non-citizen who is outside Australia. In particular, the primary judge relevantly concluded that:

(a)    s 133(1) operates to re-grant the visa in its original form, and will only operate to restore the original expiry date or the date by which return travel is required if the revocation decision is made before the expiry of those dates: J [115], [128];

(b)    in deciding to proceed by way of cancellation under Subdiv F, “the expiry date of the cancelled visa necessarily looms as a critical date beyond which a revocation decision in favour of the applicant may be of no utility”: J [129]; see also J [132];

(c)    the purpose of s 133(1) is “to re-enliven the cancelled visa to enable the visa holder to return to Australia within the time permitted by that visa”: J [134] (emphasis in original); and

(d)    the power conferred by s 133(2) to vary the visa period following a revocation decision “assumes the existence of a visa which can be adjusted, not one which has passed its expiry date”: J [134].

57    These conclusions are properly regarded as having been essential to the primary judge’s reasoning, albeit that it does not necessarily follow that the respondent would have been unsuccessful if the primary judge had not adopted this construction of the “decision-making framework” under Subdiv F.

58    The Minister submitted that there is nothing in the statutory text to suggest that a revocation decision under s 131 cannot be made after the cancelled visa would have expired or ceased to be in effect. Rather, the express power to vary times and periods under s 133(2) supports a construction that cancellation decisions made under s 128 can be revoked even after the original visa has expired. The Minister relies on the beneficial purpose of both the power to revoke the cancellation under s 131 and the variation power under s 133(2), and contends that those provisions together operate to protect the interests of former visa holders by ensuring that a revocation decision can be made that has utility for the holder of the visa.

59    In supporting the construction adopted by the primary judge, the amicus curiae submitted that s 133(1) causes the visa to have effect “as if it were granted on the revocation”, and in so doing does not alter any part of the permissions conferred by that visa, including any specified period during which the visa permits its holder to travel to and enter Australia. Accordingly, if the cancellation is revoked after the date on which the visa would have ceased to be in effect, it was submitted that no part of the permission originally granted to the visa holder is restored. In other words, the visa period would have ended and the visa would simply cease to exist.

60    The amicus curiae submitted that, in such circumstances, the power conferred by s 133(2) was not available, for the following reasons.

(a)    The power conferred by s 133(2) is exercisable in relation to “the visa” which, as the primary judge concluded, “assumes the existence of a visa which can be adjusted” (J [134]). However, the revocation does not restore the existence of a visa that has ceased to be in effect, so that there is no visa in existence in respect of which the power in s 133(2) can be exercised.

(b)    The power in s 133(2) is expressly made subject to s 133(1), so that the power can only be exercised if s 133(1) operates to restore something in respect of which the power in s 133(2) can be exercised. In this regard, the language of s 133(2) stands in contrast to s 134D(2), which instead commences with the word “[h]owever”.

(c)    Such a construction is consistent with the purpose identified at paragraphs 156–157 of the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), namely, to allow the Minister to make changes to ensure that the visa holder has adequate time to prepare for travel to Australia.

61    Further, even apart from the primary judge’s construction of s 133, the amicus curiae submitted that s 131(1) should be construed as impliedly requiring the Minister to make a decision whether to revoke the cancellation before the date on which the cancelled visa would have ceased to have effect. It was submitted that, without such expedition in making a decision under s 131(1), a decision to cancel a visa under s 128 could leave a person “stranded” in a country in which they have only a temporary right to remain. Even if s 133(2) were construed as conferring power to vary the period for which an expired visa has effect, there would be no obligation on the Minister to exercise that power in a way that ensured that any revocation decision had utility for the non-citizen.

Construction of ss 131 and 133

62    Before turning to consider the proper construction of ss 131 and 133, it is convenient to note two matters that were not in dispute.

63    First, it is common ground that the Minister is required to make a decision under s 131 whether to revoke the cancellation of a visa within a reasonable time. Ordinarily, that would be a reasonable time after the former holder of the visa has provided his or her response to the notice of cancellation under s 129, having regard to the particular facts and circumstances and the subject matter and purpose of the power. The remedy for any failure to make a decision within a reasonable time would be mandamus to enforce the performance of the statutory duty.

64    Second, the Minister accepted that the power to cancel a visa under s 128, including the formation of the state of satisfaction that it is appropriate to cancel in accordance with Subdiv F (that is, without notice to the holder of the visa while he or she is outside Australia), is subject to an implied condition requiring the power to be exercised in accordance with the principles of legal reasonableness. Similarly, in so far as the Minister has power under s 133(2) to vary the time that a reinstated visa is to be in effect or any period in which the visa permits its holder to travel to, enter and remain in Australia, such a power must be exercised reasonably. While the point does not arise in the present case, counsel for the Minister accepted in oral submissions that, if the Minister were to revoke the cancellation of an expired visa under s 131, there would be force in an argument that it would be legally unreasonable for the Minister not to exercise the power to vary the visa period under s 133(2) so as to give some utility to the revocation.

65    For the following reasons, I consider that s 131 confers power to revoke the cancellation of a visa even where the visa would have ceased to be in effect because the specified period during which the visa permitted its holder to travel to, enter and remain in Australia has ended. Further, upon any such revocation, I consider that s 133(2) confers power to extend the time that the visa is to be in effect, or the period in which or date until which the visa permits its holder to travel to, enter and remain in Australia.

66    This construction is supported by the text and context of ss 131 and 133. Section 131 does not contain any express words of limitation which prevent the power to revoke the cancellation from being exercised by the Minister after the cancelled visa has expired. Rather, s 133(1) contains a deeming provision which treats the visa as having effect “as if” it were granted on the revocation. This creates a statutory fiction by which, as and from the date of revocation, the visa is treated as having been in effect for the period or until the date specified therein. Although a visa generally cannot come into effect on a day before the visa is granted (see s 68(1), (2)), s 133(1) preserves the operation and effect of the visa before it was cancelled. As the visa is deemed by s 133(1) to have been granted on the revocation, it has a sufficient existence to form the subject of an exercise of the power conferred by s 133(2) so as to vary “the time that the visa is to be in effect” or the period in which, or date until which, it permits its holder to travel to, enter and remain in Australia.

67    The words “[s]ubject to subsection (1)” at the beginning of s 133(2) do not relevantly qualify the scope of the power to extend the visa period of the relevant visa. Properly construed, s 133(1) does not contain any limitation that would prevent the variation of an expired visa. In providing that the visa has effect as if it were granted on the revocation, s 131(1) says nothing about the ongoing effect of that visa by reason of a variation under s 133(2). Rather, the inclusion of the introductory words in s 133(2) preserves either or both the operation of the visa before its cancellation, and its lack of effect in the period between the cancellation and the revocation (as to the latter, see s 82(1)). When it was first enacted as s 50AS of the Migration Act, the predecessor provision to s 133(2) did not contain the introductory words subjecting it to subs (1), which were later inserted in the context of “technical corrections” made to the provision: see the Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth), para 101. The stated purpose of the amendment was to ensure that a visa that is taken to have effect as if it were granted on the revocation pursuant to subs (1) “cannot be determined to operate from a date prior to revocation pursuant to” subs (2). However, there is nothing in the text of s 133, nor in the extrinsic materials, that supports a construction of the words “subject to subsection (1)” as preventing an exercise of power under s 133(2) prospectively to extend the time that a visa which would otherwise have expired is to be in effect.

68    The mischief addressed by Subdiv F is to facilitate the cancellation of a visa without notice and with immediate effect in circumstances where the visa holder might otherwise use the visa to travel to and enter Australia: see the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), para 149. However, while not being entitled to procedural fairness before the cancellation decision, the former visa holder is given an opportunity after that decision to satisfy the Minister that the ground on which the visa was cancelled does not exist, or that there is a reason why the visa should not have been cancelled. There is nothing to suggest that such an opportunity should be effectively denied to the former holder of the visa simply because the visa would since have expired.

69    The powers conferred by ss 131 and 133(2) are each conferred for a beneficial purpose, so as to give the former holder of the visa an opportunity to seek revocation of the cancellation and to ensure that any revocation has utility for the holder of the visa. On the primary judge’s construction of those provisions, if a cancellation decision were made under s 128 shortly prior to the expiry of the relevant visa, the former holder of the visa could be denied any meaningful opportunity to revoke the cancellation before the expiry date. Further, even if the former holder were able to provide a response to the notice of the cancellation, there might be insufficient time for the Minister to consider that response and make a decision about revocation under s 131 before the date on which the visa would have expired. This might include iterative processes in which the Minister might request the former holder to provide additional information. Moreover, if the Minister were to make a decision under s 131 not to revoke the cancellation, that decision might be successfully challenged and set aside on judicial review after the visa has passed its expiry date. In effect, that is the situation that has ultimately arisen in the present case.

70    These practical difficulties and anomalies can be avoided by adopting a natural reading of ss 131 and 133, under which those powers remain available after the cancelled visa would (but for the cancellation) have expired or ceased to have effect. This promotes the beneficial purpose of the provisions and ensures that an effective remedy is available to a former visa holder who can satisfy the Minister that the ground on which the visa was cancelled does not exist or that there is a reason why the visa should not have been cancelled.

71    In adopting this construction, I have placed limited weight on the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), which stated (at para 156) that the predecessor provision to s 133, dealing with the effect of revocation of a cancellation under Subdiv F, would “allow additional time to the visa holder to make fresh preparations to travel to Australia”. Similarly, the Explanatory Memorandum contemplated (at para 156) that the power to make changes to the “validity period” of a visa following the revocation of a cancellation under Subdiv F would “ensure that the holder has adequate time to prepare for travel to Australia”. On one view, these statements appear to have been directed to situations in which the cancellation of a visa was revoked shortly before the expiry date, leaving the visa holder with inadequate time to prepare for travel before the visa expired. Ultimately, this extrinsic material is equivocal on the proper construction of s 133.

72    Similarly, I do not find any assistance in a comparison between ss 133 and 134D nor in the extrinsic material in relation to the latter provision, which was introduced by subsequent amendments and applies to a different cohort of former visa holders whose visas were cancelled on different grounds: cf. Revised Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), paras 1293–1294.

73    For these reasons, I consider that the primary judge’s reasoning, including the conclusion that the Minister was under an implied duty to make a decision under s 131 before the expiry date of the cancelled visa, was affected by an erroneous construction of ss 131 and 133 of the Migration Act. Accordingly, the appeal must be allowed.

Orders on the appeal

74    By his notice of appeal, the Minister seeks to set aside the orders made below, and in their place order that the amended application filed on 20 July 2022 be dismissed and that the respondent pay the Minister’s costs in the FCFCoA.

75    As mentioned above, it cannot necessarily be assumed that the respondent would have been entirely unsuccessful below if the primary judge had adopted a correct construction of ss 131 and 133. It might still have been open to find that there had been or would be unreasonable delay by the Minister in making a decision whether to revoke the cancellation of the respondent’s visa. Nevertheless, there is clearly no utility in remitting the matter for rehearing of that question, nor is it appropriate for that question now to be determined on the appeal. In the circumstances, if only to ensure that final orders are made in the proceeding, an order should be made dismissing the amended application.

76    Although the controversy between the parties in relation to costs is sufficient to found jurisdiction on the appeal, it does not necessarily follow that the award of costs below ought to follow the event on the appeal. The respondent contended that, if the appeal were allowed, the costs order in his favour in the FCFCoA should remain undisturbed. In circumstances where there has been no final determination of the issues raised at first instance, and the further prosecution of those matters has now become futile, the position as to costs is governed by the principles articulated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624–625. Accordingly, I consider that it is appropriate that no order should be made as to the costs below, and that each party should bear their own costs of the proceedings before the FCFCoA.

77    In relation to the costs of the appeal, orders have previously been made by consent that the Minister pay the reasonable costs of the amicus curiae in providing written submissions as a contradictor on the appeal. Counsel for the Minister agreed that this should extend to payment of the amicus’ costs in relation to the hearing of the appeal. In circumstances where the respondent ultimately supported the Minister’s submissions on the questions of statutory construction raised on the appeal, I do not consider that it is appropriate that the respondent should pay the Minister’s costs of the appeal. On the contrary, the respondent has been forced to come along on the appeal, having initially contested jurisdiction, and has not caused or contributed to any material increase in the costs of the appeal. Having regard to the Minister’s agreement to bear the costs of the amicus curiae, and the wider importance for the Minister of the issues of statutory construction raised by the appeal, it is appropriate that the Minister be ordered to pay the respondent’s costs of the appeal.

Conclusion

78    For the reasons set out above, the appeal is allowed, and the orders made by the primary judge on 20 July 2022 and 16 August 2022 are set aside. The Minister should pay the costs of the respondent and the amicus curiae on the appeal, in so far as he has not already been ordered to do so.

Associate:

Dated:    20 June 2025