ADH24 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The Respondent pay the Applicant's fees and expenses fixed in the amount of $5,459.55.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The Minister concedes that the grant of a visitor visa (the substantive visa) to the Applicant on 20 December 2023 involved jurisdictional error. As a result, it is common ground that I should make orders to issue a writ of certiorari quashing the decision to grant the visa and issue a writ of mandamus directed to the Minister requiring him to determine the Applicant's application for a visitor visa in accordance with law. I will make orders accordingly.

The remaining controversy: did the BVA cease to have effect even though the grant of the substantive visa involved jurisdictional error?

1. Pending the decision on the Applicant's application for the substantive visa, he was administratively granted a Bridging Visa A (BVA). Although it is common ground that I should quash the decision made on 20 December 2023, a residual controversy persists as to whether the invalid grant of the substantive visa on 20 December 2023 nonetheless had the limited effect that the Applicant ceased to hold the BVA. The issue which remains between the parties is whether I ought to make a declaration by way of ancillary relief that notwithstanding the decision made on 20 December 2023 (which involved jurisdictional error) that the Applicant continued to hold the BVA.
2. The Applicant submits that because the decision to grant him the substantive visa was legally invalid, I ought to make a declaration that he continued to hold the BVA. He submits that a decision which involved jurisdictional error was in law no decision at all (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597) and on the correct interpretation of the relevant statutory provisions he continued to hold the BVA. He submits that the utility of the declaration is that if, contrary to his argument, in fact he ceased to hold the BVA on 20 December 2023 he was for a period after 20 December 2023 unlawfully in Australia without a valid visa, which could conceivably affect any application for future visas the Applicant might make.
3. If the Applicant ceased to hold a BVA on 20 December 2023 the Minister does not actively dispute that the Applicant was then in Australia unlawfully without a visa as a consequence of a decision involving jurisdictional error. The Minister did not put any submissions as to whether that fact may affect any future visa applications.
4. The Minister nonetheless submits that on the correct interpretation of the combined operation of s. 82(7A) of the Migration Act 1958 (Cth) and cl. 010.511(1)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the relevant clause which sets out when a BVA will cease to have effect on the grant of a substantive visa) the Applicant ceased to hold the BVA on 20 December 2023 on the "in fact" grant of the substantive visa, even though the Minister now admits the grant decision involved jurisdictional error.
5. The Minister effectively conceded if the Applicant's interpretation of the Regulations is correct (and the Minister's interpretation incorrect) it was an appropriate exercise of my discretion to make the declaration the Applicant seeks by way of ancillary relief to the grant of the constitutional writs.
6. Because I prefer the Applicant's submissions as to the correct interpretation of the Act and the Regulations, I will make the declaration.
7. My reasons follow.

1. On or about 17 August 2018 the Applicant applied for the substantive visa.
2. On 31 August 2018 - while a decision as to the substantive visa was pending - the Minister administratively granted the Applicant the BVA: specifically, a "Bridging A visa while your Visitor (Tourist) (subclass 600) application is being processed" (CB 62). I say that the BVA was granted administratively because the grant of the BVA under reg 2.21B of the Regulations was made without the Applicant making (or needing to make) an application for the BVA.
3. As to when the BVA would cease, the Minister's notification to the Applicant as to the grant of the BVA included the following:

When does my Bridging visa end?

If your application is granted, your Bridging visa will end and your new visa will become active.

1. The long time span between the grant of the BVA on 17 August 2018 and the purported grant of the visitor visa on 20 December 2023 is explained by the fact that between those two dates the Applicant twice challenged decisions to refuse to grant him a visitor visa in the Tribunal and the Tribunal remitted the application for reconsideration by a delegate of the Minister. The second remittal occurred on 3 October 2023.
2. Suffice to say against the background of that chronology, as of 19 December 2023, the Applicant continued to hold the BVA he had been granted on 31 August 2018 pending a decision on his application for the substantive visa.
3. On 20 December 2023 the Minister's delegate purported to grant the Applicant a Visitor (subclass 600) visa (CB661). It is that decision the Minister concedes involved jurisdictional error.
4. The parties accepted that the Applicant could bring an application for judicial review of a decision to grant a visa. The Minister did not submit that the determination of the issues before me was moot or lacked utility (Cf. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87; (2020) 276 FCR 1 at [4], [18]-[28]). Further, there is no dispute that I have judicial review jurisdiction as to a primary decision of a delegate of the Minister because the delegate's decision to grant the substantive visa is not a "Part 5 reviewable decision" under s. 338(2) of the Act. The Applicant could not seek merits review in the Tribunal of the decision to grant him a visa.
5. As noted, the Minster now concedes that the grant of a visitor visa to the Applicant on 20 December 2023 involved jurisdictional error. I am satisfied that the Minister appropriately made that concession. On 15 December 2023, following the AAT's remittal of his application for a visitor visa on 3 October 2023 for reconsideration by the delegate, the Applicant had written to the department that: "I'm going to send you substantial material within 28 days regarding the grant of the visa". He inquired in writing as to the relevant time frame as to when the application would be considered (SCB, 6 of 26). Without further substantial recourse to the Applicant, the Minster's delegate made the decision on 20 December 2023 without awaiting the Applicant's foreshadowed "substantial material". In those circumstances, the Minister conceded the decision was unreasonable in legal sense (see e.g. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18).

1. As the case was argued before me, the issue as to whether I ought to make (or ought not to make) the declaration turned on the correct interpretation of s. 82(7A) of the Act and cl. 010.511(1)(b)(i) of Sch 2 to the Regulations.
2. The Applicant submitted that because the grant of the substantive visa was legally invalid, and on the correct interpretation of the relevant regulations, it necessarily followed that he continued to hold the BVA.
3. The Minister submitted that on the "in fact" grant of the substantive visitor visa, the BVA immediately ceased. The Minister expressed it as follows:

[T]he consequences of a finding of invalidity for the Visitor visa do not include disengaging the bridging visa end date triggered under cl. 010.511(1)(b)(i).

1. The Minister also submitted that - although the grant of the substantive visa was legally ineffective - the purported grant of the substantive visa was "nevertheless effective for the limited purpose specified in cl. 010.511(1)(b) - namely, providing a relevant end point for the applicant's BVA" (MS, [14]).

THE CONSEQUENCES OF AN ADMINISTRATIVE DECISION WHICH INVOLVES JURISDICTIONAL ERROR DEPENDS ON THE STATUTE

1. In Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76] the majority held that:

This court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all"

1. In Bhardwaj Gaudron and Gummow JJ had said at [51]:

A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

(Citations omitted.)

1. In Bhardwaj (at [152]) Hayne J did not adopt a "theory of absolute nullity" - that a decision affected by jurisdictional error can universally be regarded in law as no decision at all - but said:

This is not to adopt what has sometimes been called a "theory of absolute nullity" or to argue from an a priori classification of what has been done as being "void", "voidable" or a "nullity". It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.

(Bold and Underline added. Citations omitted.)

1. After Bhardwaj, a Federal Court Full Court majority in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 said at [42] that:

Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.

(Bold and Underline added.)

1. Further, the Jadwan majority quoted from Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389, at [42]:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

1. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 the plurality said [24]:

A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all" To that extent, in traditional parlance, the decision is "invalid" or "void".

(Citations omitted.)

1. More recently, in Tonakie v Director of Professional Services Review (2024) 302 FCR 335 the Full Court said at [48]:

It is well-recognised that:

• an administrative decision affected by jurisdictional error is still in fact a decision: New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [52]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [24]; and
• such a decision may still have some status in law, and give rise to legal consequences, even though it is "a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all': Hossain at [24].

1. With regard to those authorities, although it has been said that an administrative decision which involves jurisdictional error is no decision at all that proposition ought not to be overstated as universally applicable and the legal and factual consequences of a decision that involves jurisdictional error depends on the terms of the statute.

WHAT ARE THE RELEVANT PROVISIONS OF THE ACT AND THE REGULATIONS?

1. I turn then to the relevant provisions of the Act and the Regulations.

82 When visas cease to be in effect

...

(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.

1. Schedule 2 of the Regulations governs particular subclasses of visa. Clause 010.511(1)(b) as to "Subclass 010 - Bridging A" visas, and more particularly as to when a bridging visa A will cease to be in effect, is as follows:

010.5 - When visa is in effect

010.511

(1) In the case of a visa granted to a non‑citizen who has applied for a substantive visa - bridging visa:

(i) on grant; or

(ii) when the substantive visa (if any) held by the holder ceases; and

(b) permitting the holder to remain in Australia until:

(i) if the Minister's decision in respect of the substantive visa application is to grant a visa - the grant of the visa;

(ii) if the Minister's decision in respect of that application is to refuse to grant a visa and subclause (1A) does not apply in relation to the decision - 35 days after the Minister makes the decision; or

(iiaa) if the Minister's decision in respect of that application is to refuse to grant a visa and subclause (1A) applies in relation to the decision - the time the Minister makes the decision; or

(iia) if the substantive visa application is refused and the ART decides that the holder's application for merits review of that refusal was not made in accordance with the law governing the making of applications to the ART - 35 days after the ART makes the decision; or

(iii) if the substantive visa application is refused and the ART makes a decision on the holder's application for merits review of that refusal (other than a decision to remit the application to the Minister for reconsideration) - 35 days after the Tribunal makes the decision; or

(iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or

(v) if the holder withdraws his or her application for a substantive visa or an application to the ART - 35 days after that withdrawal; or

(vi) if the substantive visa (if any) held by the holder is cancelled - that cancellation; or

(vii) if the Minister decides that the substantive visa application is invalid - 35 days after the Minister makes the decision; or

(viii) if the ART remits the substantive visa application to the Minister for reconsideration - the day worked out in accordance with whichever subparagraph of this paragraph applies in relation to the reconsideration

(2) For the purposes of subparagraphs (1)(b)(ii), (iia), (iii) and (vii), the 35 day period begins to run:

(a) despite any failure to comply with the requirements of the Act or these Regulations in relation to the decision mentioned in the subparagraph; and

(b) irrespective of the validity of the decision.

The Explanatory Statement to the relevant Regulations

1. The Migration Legislation Amendment (2016 Measures No. 5) Regulation 2016 (Cth) inserted the relevant subclauses into the Regulations. As the Minister pointed out, previously, subparagraphs (ii), (iii) and (vii) of cl. 010.511(1)(b) calculated the end date of a bridging visa by reference to the notification of a decision to the visa applicant, not the decision date itself. Variables and uncertainties as to when notification occurred and proof of those facts worked against certainty as to ascertaining the end date of the bridging visa.
2. The Explanatory Statement which inserted cl. 010.511(2) into the Regulations included the following:

In particular, the Regulation amends the Migration Regulations to: ... change when certain Bridging visas cease (refer Subclass 010 (Bridging A) visas, Subclass 020 (Bridging B) visas, Subclass 030 (Bridging C) visas, Subclass 050 (Bridging (General)) visas and Subclass 051 (Bridging (Protection Visa Applicant)) visas. As a result of the amendments, where the cessation of one of these bridging visas was previously triggered by notification of a decision, it will instead be triggered by the decision itself. This removes uncertainty around whether a bridging visa has ceased where there is defective notification and therefore provide more certainty about a person's visa status.

....

As a result of these items, the bridging visas captured by the amendments will cease a certain number of days after the date of the decision, regardless of the validity of the decision and despite any failure to comply with the requirements of the Migration Act or the Regulations in relation to the decision. The purpose of these amendments is to ensure there is certainty about when a bridging visa ceases, which would not exist if a successful judicial challenge to the validity of the decision could mean that a bridging visa had never actually ceased. The scenario would cause uncertainty for both bridging visa holders and the Department.

The statutory interpretation maxim: "expressio unius"

1. Because cl. 010.511(2) includes a reference to some subparagraphs of cl. 010.511(1)(b) but not others - and expressly states that a 35 day period as to the end date of a bridging visa will commence to run irrespective of the legal invalidity of the decision to refuse a visa in subparagraph referred to - the Applicant relies upon the "expressio unius" maxim of statutory interpretation that "where a statute expressly includes one thing it can be assumed that it excludes other things of the same kind not mentioned" (P. Herzfeld, Interpretation, Third edition, [6.140]).
2. Specifically, the Applicant relies upon the fact that because cl. 010.511(2) mentioned that "for the purposes of subparagraphs (1)(b)(ii), (iia), (iii) and (vii), the 35 day period begins to run" regardless of the legal invalidity of the decision to refuse the visa and, in marked contrast, cl. 010.511(2) does not refer to the impact of a legally invalid decision on the existing BVA in circumstances of the grant of a substantive visa under cl. 010.511(1)(b)(i), it can be assumed that a legally invalid grant of a visa does not mean the BVA ceases to have effect because of the expressio unius maxim.
3. Herzfeld cautions that application of the expressio unius maxim to a "patchwork" statute is likely to be inappropriate, a point taken up by the Minister because "'[p]atchwork' statutes.... rarely contain the linguistic logic and consistency upon which the expressio unius maxim depends for it to operate as a useful construction tool" (Australian Rail Track Corp Ltd v Dollisson [2020] NSWCA 58, [47] (citations omitted.)). I accept that the Regulations meet the definition of a patchwork instrument and I ought to apply the expressio unius maxim in interpreting cl. 010.511 (1)(b)(i) with caution.

1. The High Court has stated that "[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose" (SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [2017] HCA 34, [14] (citation omitted.)).
2. On balance, I prefer the Applicant's position that the legal and factual consequences of the grant of the substantive visa in a decision that involved jurisdictional error was that the Applicant continued to hold the BVA. As Hayne J explained in Bhardwaj at [152] the circumstances before the invalid decision was made prevail because the principle that a decision involving jurisdictional error is no decision in law involves the recognition that "the statutory power given to the [Minister] [to make a decision as to the grant of the visa in accordance with the statute] has not been exercised".
3. In Hossain, the plurality explained that Bhardwaj is not authority for a universal proposition that a decision which involves jurisdictional error has "no consequences whatsoever" or is a "nullity." The legal and factual consequences "depend upon the particular statute" (Jadwan, [42]). Nonetheless, the foundational principle that an administrative decision which involves jurisdictional error is "properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all"'(Hossain, [24]) significantly favours the Applicant's contention as to whether he continued to hold the BVA after 20 December 2023. Because the grant to the Applicant of the substantive visa on 20 December 2023 involved jurisdictional error, for the purposes of the Act and the Regulations made under that Act the Minister has not yet exercised the power in the statute as to the grant of the substantive visa. Because the power as to the grant of the substantive visa has not been lawfully exercised, in consequence, the position before the decision was made - namely that the Applicant held a BVA - continued to prevail after 20 December 2023.
4. Having regard to how the meaning of a statutory provision is ascertained as explained in SZTAL, is there something about the text, context or purpose of the relevant provisions that mandates the opposite conclusion? I agree with the Minister that the Regulations are a patchwork instrument "which do not necessarily contain the linguistic logic and consistency upon which the expressio unius maxim depends" (Dollisson, [47]). There is, however, no support in the text of the Regulations that supports the conclusion for which the Minister contends, namely that the "in fact" grant of the substantive visa ceased the effect of the BVA even though the grant involved jurisdictional error. The drafting of cl. 010.511(2) and its express provision that the BVA will cease 35 days after refusal regardless of the legal invalidity of the decision to refuse the visa - contrasted with the fact cl. 010.511(1)(b)(i) read together with cl. 010.511(2) which do not say that the BVA will cease even if the decision to grant the visa involved jurisdictional error - supports the Applicant's position not the Minister's position.
5. As to purpose, the Minister submitted that there would be "anomalous results" if the interpretation the Applicant contended for is correct (MS, [18]). The example the Minister gave was that:

a bridging visa ceases 35 days after the making of an invalid decision to refuse the visa, but would continue for an indeterminate period of time if the invalid decision was to grant the visa. Put differently, there would be certainty with respect to the timing of an invalid refusal to grant a visa, but not an invalid grant of a visa.

1. This case serves as an example of an equally anomalous result if the Minister's position is correct. If the Minister is right, the Applicant who held a lawful visa to be in Australia found himself in a position that he was in Australia without a valid visa because of a decision which involved jurisdictional error when, if the visa had been refused, he would not have been left in such a position.
2. Two competing evident purposes of the regulations - to promote certainty about the end date of bridging visas but also not to leave a person in the Applicant's position without a visa - have not assisted me to resolve the interpretational dispute by reference to any evident purpose of the Regulations.
3. Ultimately, I have preferred the Applicant's interpretation for the following two reasons.
4. First, a decision which involves jurisdictional error means the statutory power to make a decision has not been lawfully exercised (Bhardwaj, [152]). This means that because the power to make a decision has not been lawfully exercised the situation before the purported, but invalid, exercise of the power prevails, namely the Applicant continued to hold the BVA.
5. Second, the text and context of s. 82(7A) of the Act and cl. 010.511(1) and (2) point in the same direction. In particular, although the expressio unius maxim is weak, in circumstances in which cl. 010.511(2) mentions other subparagraphs of cl. 010.511(1)(b) and provides that the BVA will cease regardless of the fact that the decision involved jurisdictional error as to those subparagraphs but does not mention cl. 010.511(1)(b)(i) - that textual consideration supports the Applicant's contention that the BVA will not cease if the purported grant of the substantive visa involved jurisdictional error.
6. I will make the declaration that notwithstanding the purported grant of the visitor visa the Applicant continued to hold the BVA.

The Applicant continued to hold the Bridging Visa A he was granted on 18 August 2018 notwithstanding the Respondent's purported grant of the visitor (subclass 600) visa on 20 December 2023.

1. I note that it has not been necessary to determine the legal significance of subsequent events.
2. On 5 February 2024, following the Applicant's commencement of his judicial review application in this court on 17 January 2024, a delegate of the Minister granted the Applicant a Bridging Visa E (CB675), a bridging visa routinely granted to cover the period in which an Applicant is seeking judicial review of a refusal to grant a visa.
3. I do not express any concluded view about the interrelationship of the BVA which I will declare the Applicant continued to hold after 20 December 2023 with the subsequent grant of the Bridging Visa E on 5 February 2024. In passing, I note that cl. 010.511(1)(b)(iv) which concerns "the grant of another bridging visa to the holder in respect of the same substantive visa application" on its face appears to operate so that the Applicant's BVA ceased on the grant to him of a Bridging Visa E. If that analysis is correct, had the Minister's interpretation of s. 82(7A) of the Act and cl. 010.511 prevailed, the period in which the Applicant appeared to be unlawfully in Australia without a valid visa lasted only between 20 December 2023 (the date of the purported grant of the visitor visa) and 5 February 2024, the date of the grant of the Bridging Visa E. As I say, I express no concluded view.
4. I have not found it necessary to make any determination as to the legal significance of later events on 16 February 2024 (the Applicant's subsequent application for a visitor visa) or on 19 February 2024 (the Minister's decision that the 16 February 2024 application was invalid under s. 46(1A)).
5. In passing, I note, for reasons which are not apparent, the Applicant was allocated a pseudonym in the absence of this being a protection visa application. The Minister, however, took no issue about the allocation of a pseudonym. As a result, I have published my reasons using the Applicant's pseudonym.

1. Because the Minister's decision involved jurisdictional error, the Minister agreed that he ought to pay the Applicant's out-of-pocket fees and expenses as to his judicial review application. That is appropriate. As at the date of the hearing, the amount of those fees and expenses had not been agreed.
2. Because the Applicant was self-represented in the hearing before me, the Applicant is only able to recover his fees and expenses, as distinct from legal costs, which are not available to a self-represented litigant. I also note that in Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 at 410 - 411 the High Court held that costs are not available to a self-represented litigant to compensate that litigant in person for time lost.
3. I direct the parties to confer as to the amount of the Applicant's fees and expenses. If that amount is agreed, I would request the parties to provide a consent order and I will make an order that the Minister pay the agreed amount without the need for further attendance. If the amount cannot be agreed, I will order that within 14 days of this decision the Applicant file and serve a document not exceeding 3 pages explaining his claimed fees and expenses. I will order that 14 days later the Minister respond also in a document not exceeding 3 pages. I will deal with any dispute on the papers.

1. Further to my judgment this afternoon the parties indicated that they had agreed that the Respondent should pay the Applicant's fees and expenses fixed in amount $5,459.55 and I will make an order accordingly. On being informed that the parties had agreed that amount, the process set out in [56] and order 4 is otiose.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.