Sales v Minister for Immigration and Citizenship [2008] FCAFC 132

FEDERAL COURT OF AUSTRALIA

Sales v Minister for Immigration and Citizenship [2008] FCAFC 132

MIGRATION LAW – appeal from decision of single judge of the Court – amendment to raise issues not before trial judge – applicant British subject migrated to Australia as child with family in 1954 prior to commencement of the Migration Act 1958 (Cth) – applicant remained in Australia at all times after entry but is not an Australian citizen – respondent Minister purported to cancel on character grounds a transitional (permanent) visa said to be held by applicant – whether applicant was the "holder" of a transitional (permanent) visa as sought to be cancelled – whether a transitional (permanent) visa is "granted" for purposes of s 501(2) Migration Act so as to be susceptible of cancellation – whether Minister purported to cancel absorbed person visa directly – appeal allowed though without identification of error on the part of the trial judge

WORDS AND PHRASES – "granted", "the holder of"

Migration Act 1958 (Cth) ss 5, 501, 501F

Sales v Minister for Immigration & Citizenship [2007] FCA 2094reversed Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 related Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 cited Andary v Minister for Immigration and Multicultural Affairs [2002] FCA 1380distinguished Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 cited Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387distinguished Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308 cited Kelly v R (2004) 218 CLR 216 cited Kostopoulos v Minister for Immigration and Citizenship [2008] FCA 855disapproved Manatiy v Minister for Immigration and Multicultural Affairs [2007] FCA 28 cited Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566referred to Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 cited Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 discussed Potter v Minahan (1908) 7 CLR 277 cited Re Bolton; Ex parte Beane (1987) 162 CLR 514 applied Secretary, Department of Family and Community Services v Laurent (2003) 132 FCR 211 cited Timperio v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 182 FLR 23discussed Wong Man On v The Commonwealth (1952) 86 CLR 125 cited