Case: Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236
Outcome: cited
Support for the applicant's contention can be found in the decision in Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 246, where a Full Court observed that the power conferred on the Minister to cancel a visa under s 501 only applies to visas that have been granted to a person. Where a visa has been granted to a person, s 501F(3) operates so that any other visa held by that person is cancelled. On this basis, where an absorbed person visa is cancelled, a transitional (permanent) visa held by that person is also cancelled. However, the Full Court indicated that this process could not operate in reverse. It will be necessary to say something more about this judgment later in these reasons. 13 The applicant also submitted that he had not "ceased to be an immigrant" prior to 2 April 1984, and hence has never held an absorbed person visa as contemplated by s 34 of the Principal Act. If so, it was submitted, the applicant is not the holder of an absorbed person visa and is the holder of only one visa, a transitional (permanent) visa, which cannot be cancelled. 14 The Minister submitted that there is no basis for treating the word "granted" in s 501(2) as limiting the cancellation power in the way submitted by the applicant. "Granted", in the context of s 501(2), encompasses any means by which a person is given or acquires a visa. The word "granted", as it appears in s 501(2), should be read as encompassing any means of giving under the law, including giving by statute as well as giving by administrative decision. Indeed, the purpose of the language in question ("granted to a person"), it was submitted, is to distinguish s 501(2), which concerns the cancellation of visas that are already in effect, from s 501(1), which concerns a refusal to grant visas on character grounds. For the purposes of s 501(2), what is significant is that the person has a visa and not the means by which that visa was acquired. 34 It is necessary to say something more about the Full Court judgment in Moore v Minister for Immigration and Citizenship. The observations of the Full Court in [42]-[45] of their reasons entail a fairly unequivocal statement that a power to cancel a visa "that has been granted" would not be exercisable in relation to a transitional (permanent) visa because that type of visa had not been "granted" or could not be taken to have been granted. However these observations do not, in my opinion, form part of the ratio of the decision. The observations were made in a passage in which the Full Court was discussing ground one in the appeal. At [39], the Full Court indicated that two questions arose in the consideration of ground one. The first was whether the appellant could be taken to have been granted an absorbed person visa (which depended on whether he had been absorbed into the Australian community). The second was if he had not obtained an absorbed person visa, had the Minister effectively cancelled his transitional (permanent) visa. At [60] the Full Court concluded that the appellant had been absorbed into the Australian community well before to April 1984. The Full Court then concluded that the appellant held an absorbed person visa which was taken to have been granted to him. In the result, it was a visa which had been "granted" and one the Minister was empowered to cancel. It does not appear to me that this chain of reasoning necessarily depended on a conclusion that the Minister had no power to cancel a visa which had not been granted. 35 Nonetheless, even though these observations do not form part of the ratio of the decision in Moore , it is necessary for me, as a single judge, to give them significant weight. However, I am firmly convinced that the power to cancel conferred by s 501 was intended to be exercisable in relation to a transitional (permanent) visa. In this case, the applicant held such a visa because he had been originally granted an entry permit. When s 180A was enacted in 1992, the applicant held an entry permit that had been granted. That permit could have been cancelled by exercise of the power conferred by s 180A. The removal of the reference to a power to cancel "a valid entry permit that had been granted" occurred at a time when, by the combined effect of legislative amendments and the promulgation of regulations, visas became the sole means of conferring a right to remain lawfully in Australia. 36 It is inconceivable, in my view, that the amendments made in 1994 to s 180A were intended to render immune from the power to cancel, an entry permit which had been transmogrified into a transitional (permanent) visa. The power conferred by what was then the renumbered s 501 was plainly intended to authorise the Minister to cancel whatever visa was held by a person who the Minister thought ought no longer be able to remain in Australia having regard to that person's character. Obviously I am not concerned here with the appropriateness of the underlying policy or the way in which the power has been exercised in this or any other case. However, I have no doubt the power is intended to be exercisable in relation to any visa and the words "that has been granted" were not intended to condition or limit the power. These words remained as the truncated residue of the formulation first appearing in s 180A, namely "a valid visa or a valid entry permit that has been granted". 37 In my opinion, the Minister had power to cancel the applicant's transitional (permanent) visa. I order that the period within which the applicant is to file his application be extended, and the application be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 6 June 2008 Counsel for the Applicant: L Karp Solicitor for the Applicant: Kah Lawyers Counsel for the Respondents: G Johnson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 29 February 2008 Date of Final Submissions: 14 April 2008 Date of Judgment: 6 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/855.html