FEDERAL COURT OF AUSTRALIA Minister for Immigration and Border Protection v EAB16 [2017] FCA 380 Appeal from: Application for Leave to Appeal: EAB16 v Minister for Immigration and Border Protection (Federal Circuit Court, No. ADG 125/2017, Orders dated 6 April 2017) File number: SAD 87 of 2017 Judge: BESANKO J Date of judgment: 6 April 2017 Date of publication of reasons: 12 April 2017 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal an interlocutory order made by the Federal Circuit Court of Australia – where applicants' argument raises a point of principle – where applicants claim interlocutory order beyond power because it requires them to treat cancellation decision as of no effect in absence of declaration of excess or want of jurisdiction – whether appeal should be heard immediately – where complex issues of law – where delay in hearing the appeal would not render the appeal moot. PRACTICE AND PROCEDURE – alternative application for interim relief – where balance of convenience favours the respondent – where risk of removal and persecution. Legislation: Migration Act 1958 (Cth) ss 42, 82, 128, 474 Cases cited: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14 Date of hearing: 6 April 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicants: Mr D O'Leary Solicitor for the Applicants: Australian Government Solicitor Counsel for the Respondent: Mr S McDonald Solicitor for the Respondent: Camatta Lempens Pty Ltd ORDERS SAD 87 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Applicant COMMONWEALTH OF AUSTRALIA Second Applicant AND: EAB16 Respondent JUDGE: BESANKO J DATE OF ORDER: 6 APRIL 2017 THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The applicants' application for interim relief from the order made by the Federal Circuit Court this day be refused. 3. The matter be adjourned to a directions hearing on Tuesday, 11 April 2017 at 9.00 am (Adelaide time). 4. The question of costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 At approximately 10 pm on Thursday, 6 April 2017, an application for leave to appeal from an interlocutory order made by the Federal Circuit Court of Australia came before me. The Minister for Immigration and Border Protection and the Commonwealth of Australia sought leave to appeal from an interlocutory order made by a judge of the Federal Circuit Court earlier that evening. I was told that the respondent was in the international airport at Dubai waiting to board a flight back to Australia. It seems that the respondent had been in the airport since 3 April 2017. The interlocutory order from which leave to appeal was sought was in the following terms: 1. An interlocutory injunction is granted until the final determination of this action, restraining the Minister, the Commonwealth and each of them, including whether by their officers, servants or agents or howsoever otherwise, from acting on the basis that the applicant's class BB subclass 155 Resident Return visa was validly cancelled by the decision made on 15 March 2017, including in particular, but not limited to, representing via the electronic visa record system of the Department of Immigration and Border Protection that the applicant does not have a class BB subclass 155 Resident Return visa that is in effect. 2 The applicants' application for leave to appeal was based on the contention that the interlocutory order is contrary to ss 42, 82(1) and 474(3)(b) of the Migration Act 1958 (Cth). 3 The order made by the Federal Circuit Court was made in proceedings brought by the respondent seeking constitutional writs in relation to a decision made by the delegate of the Minister under s 128 of the Migration Act to cancel the respondent's subclass 155 Resident Return visa. That section is in the following terms: 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. 4 On the respondent's case, he first received notice of the cancellation of his visa on or about 4 April 2017. 5 After hearing submissions, I made the following orders: 1. Leave to appeal be granted. 2. The applicants' application for interim relief from the order made by the Federal Circuit Court this day be refused. 3. The matter be adjourned to a directions hearing on Tuesday, 11 April 2017 at 9.00 am (Adelaide time). 4. The question of costs be reserved. These are my reasons for making those orders. 6 The applicants' contention was that the cancellation decision made by the delegate of the Minister is a privative clause decision within s 474(3)(b) of the Migration Act. The applicants pointed to ss 42(1) and 82(1) of the Migration Act which, relevantly, are in the following terms: 42(1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. 82(1) A visa that is cancelled ceases to be in effect on cancellation. 7 The applicants referred me to the decision of the Full Court of this Court in Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14 and, in particular, the following passage in the joint reasons of Moore and Lander JJ at [164]: It would seem that the Full Court was referring to that dicta in Jadwan 145 FCR 1. The courts have always recognised that a decision made by an administrative decision-maker which is ultra vires the power reposing in the decision-maker lacks any legal effectiveness. It was often said that the decision was a nullity or void, although these descriptions are neither necessary nor helpful: Bhardwaj 209 CLR 597 at 613. If the Court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will in conformity with the rule of law treat the decision as having no legal force or effect. Although the decision always lacked any legal effect, the decision-maker was not required to treat it so until the Court so declared. There was no legal obligation on the decision-maker to treat an ultra vires decision as legally ineffective and of no consequence. 8 The applicants submitted that the cancellation decision was a privative clause decision which to this point had not been declared to have been made in excess or want of jurisdiction. The applicants were not required to treat the cancellation decision as made in excess or want of jurisdiction until the Court so declared. The applicants submitted that, in those circumstances, the Federal Circuit Court judge did not have jurisdiction to make the interlocutory order. They submitted that the effect of the interlocutory order is to require the applicants to treat the cancellation decision as if it was of no effect. 9 I did not understand the respondent to argue that the applicants' argument did not raise a point of principle. In any event, I am of the opinion that it does raise a point of principle and that the well-known test in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 is satisfied. For those reasons, I granted leave to appeal. 10 The respondent submitted the appeal should not be heard immediately because it raised complex issues and he had not had a proper opportunity to prepare his submissions. I agreed with that argument. It seemed to me, at least at first blush, that the point was of some complexity and that I should not attempt to decide it in the absence of full submissions from the parties. In those circumstances, I decided that it was not appropriate that I should hear the appeal immediately. There was also an issue as to whether it should be heard by a single judge or by a Full Court. In response to a specific question from me, neither party suggested that the appeal would be moot if it was not heard immediately. 11 Counsel for the applicants made an alternative application and that was for interim relief. I refused that application having regard to the balance of convenience which favoured the respondent. At the time of the hearing, the respondent had been in the airport at Dubai where he had been "living" for the previous three days. On the evidence filed to this point, he had no realistic chance of obtaining a visa to permit him to enter the United Arab Emirates and it appeared that he had no right to return to Pakistan. There was a real chance that if he came to the attention of the authorities in the United Arab Emirates, he would be detained indefinitely or he would be removed to Afghanistan. Australia has previously recognised the respondent's claim to fear persecution in Afghanistan. 12 The history of the dealings between the respondent and the applicants, including a previous cancellation of his subclass 155 Resident Return visa and proceedings in the Federal Circuit Court, is set out in the affidavit of Emily Grace Rutherford sworn on 5 April 2017. Counsel for the respondent outlined that history during his submissions. I do not propose to repeat it. It is sufficient to say that there is an arguable case that the respondent found his way to the international airport at Dubai in the belief that the first decision to cancel his visa had been quashed and in ignorance of the second decision to cancel his visa. 13 It was for these reasons that I made the orders I did on 6 April 2017. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 12 April 2017