Case: Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 ; (2008) 171 FCR 56 
Outcome: referred to
the decision of a Full Court of this Court in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 ; (2008) 171 FCR 56 , the decision to cancel the applicant's TP visa was ineffective for reason that at the time of cancellation it was not authorised by s 501(2) of the Act. As a result, the applicant was released from detention on, or shortly after, 21 July 2008. Schedule 4 of the Migration Legislation Amendment Act (No. 1) 2008 (Cth), which took effect on 19 September 2008, amended the Act to authorise a cancellation of a TP visa under s 501 of the Act and to validate previous decisions to cancel TP visas that were held to be unauthorised in the Full Court's decision in Sales. By letter dated 29 October 2008, the applicant was informed that as a consequence of the legislative amendments made under the Migration Legislation Amendment Act (No. 1), the decision to cancel his TP visa was validated, and he was liable to be detained under s 189 of the Act and removed from Australia. The applicant was arrested on or around 18 November 2008 and taken into detention. On 8 January 2009, the applicant commenced a proceeding under s 39B of the Judiciary Act (NSD 17/2009) seeking relief in the nature of habeas corpus ordering his release from detention and various other orders, including a declaration that he is a lawful non-citizen, and injunctions, including an injunction preventing the respondent from giving effect to the purported cancellation of his visa and removing him from Australia. The other significant component of the overall relief sought by the applicant in proceeding NSD 17/2009 was the declaratory relief that the applicant was a 'lawful non-citizen' by reason that he was the holder of a TP visa which had not been cancelled ( Sales ), even with the aid of amending legislation purporting to retrospectively validate the cancellation, because that legislation was invalid. The Minster's submission that the declaratory relief sought by the applicant was not rendered 'moot' by the grant of the s 195A visa is, in a juridical sense, correct; but as a practical matter, the grant of that visa rendered the declaratory relief sought futile. Why would the applicant, with little or no financial resources and dependent, for the able prosecution of his case, on the O 80 relief I determined on 4 February 2009, want to continue to press for that declaratory relief when his status as a 'lawful non-citizen' was no longer in issue, at least until the s 195A visa expired in 12 months time when, he had been informed, the Minister would review his case? The Minister did not contend, nor could he, that the applicant acted unreasonably in taking the action he did in either proceeding; and the applicant did not contend that the Minister acted unreasonably in opposing those proceedings; at least in express terms. On the other hand, I do find the Minister's action in granting the s 195A visa to be totally inconsistent with his position up to that point in time, having regard to the following: (1) The initial cancellation of the applicant's TP visa and his arrest and detention for over three years; (2) the Minister's sponsorship of retrospective legislation designed to validate his cancellation decision in the face of Sales ; (3) the subsequent arrest and detention of the applicant for a period of six months; and (4) the absence of any explanation for the Minister's grant of the s 195A visa. The Minister's change of position, unmoved by any external event and otherwise unexplained, leads me to the view that the applicant should have his costs in NSD 17/2009 but not in SAD 52/2009. The latter proceeding was unnecessary and each party should pay its own costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 15 July 2009 Counsel for the Applicant: Mr C Mantziarais Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr A Markus Solicitor for the Respondents: Australian Government Solicitor Date of Submissions: 12, 19 and 26 June 2009 Date of Judgment: 15 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/747.html