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[2003] FCA 209
respondent. Application dismissed with costs. The Court declined to declare that the subclass 831 visa remained in force.
The Court held that Lesi's visa stopped being in effect when he left Australia under a deportation order that was then in force. The AAT later changed the outcome after reconsidering the merits and taking account of later circumstances. That later decision did not mean that the original order had been legally invalid from the beginning. The Court also concluded that the defective s 502 certificate did not invalidate the separate deportation order under s 200.
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2,135 words · generated 01/10/2026
Bernard Lesi was an Albanian national who entered Australia on a prospective marriage visa in September 1996. On 24 October 1996 he was granted a subclass 831 visa, which permitted him to remain in Australia indefinitely and allowed multiple travel [1], [2]. His relationship with his sponsor later ended. In 1997 he formed a relationship with Aileen Cebreros, an Australian citizen, and they had two children in Australia [2].
4 cited instruments linked from this judgment.
In March 1998, Lesi was charged with heroin and unlawful-possession offences. He pleaded guilty to two counts of possessing heroin for sale and, on 19 October 1999, was sentenced to four years' imprisonment with a non-parole period of two years [2]. On 8 February 2000, the Minister made a deportation order under s 200 of the Migration Act 1958 (Cth), relying on the conviction and s 201. The Minister also signed a document purporting to be a certificate under s 502 declaring Lesi an “Excluded Person” [2], [3].
Lesi challenged the deportation decision. O'Loughlin J dismissed that proceeding in September 2000. Lesi was told on 18 October 2000 that he would be removed the next day, and he was removed from Australia on 19 October 2000 with his wife and children [2]. They went to Albania.
The later path to merits review depended on the Full Court decision in Singh. The Department wrote to Lesi in February 2001, explaining that Singh might make the deportation decision reviewable by the Administrative Appeals Tribunal (AAT). His wife returned to Australia and applied for review. On 3 April 2002, the AAT set aside the Minister's decision and substituted a decision that Lesi not be deported [2], [6]. The Minister did not appeal that AAT decision [2].
Lesi's solicitors then asked the Minister to reinstate his visa. The Department responded that Lesi had been validly deported. The original court application sought judicial review of that response, but the respondent challenged the Court's competence to review the letter. Lesi amended the case to seek a declaration that the visa granted on 24 October 1996 remained in force. The judicial-review claims were not pursued, leaving the Court to decide the effect of the AAT decision on the visa under s 82(4) [1], [14]-[18].
von Doussa J dismissed the application with costs. The issue was not whether the AAT had power to set aside the Minister's decision. It was whether that later merits decision meant that the deportation order had not been valid when Lesi left Australia, so that his visa had not ceased under s 82(4) [18]-[24].
The Court focused on the timing and statutory wording of s 82(4): “A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200” [18]. The parties agreed that the central question was the effect of the AAT decision in light of this subsection [18].
The Court accepted that the statutory reference was to a valid deportation order, but concluded that the order was valid and in force when Lesi left on 19 October 2000 [23], [34], [36]. The order had been made by the Minister under s 200. Section 206 provided that a person subject to such an order was to be deported unless the Minister revoked it [37]. Section 253 also addressed detention where a deportation order was in force [38]. The Court referred to these provisions as part of the statutory context for the order's legal consequences.
The later AAT decision did not establish that the order was invalid from the beginning. The Court characterised the AAT proceeding as merits review, not judicial review for legal error. The AAT had to form its own view on the material before it. That material included events and circumstances arising after the deportation order, such as difficulties faced by Lesi's wife and daughter in Albania. The AAT considered the family's circumstances and concluded that a different decision was preferable [30]-[31]. It did not find that the Minister had made a legally erroneous decision.
The Court distinguished Cavanough and Wattmaster, and treated Bhardwaj as inapplicable to this particular kind of later decision. In Cavanough, a court had set aside a conviction on appeal; in Wattmaster, an administrative decision was set aside because of a relevant irregularity. The principles discussed in those cases concerned decisions affected by legal error [25]-[29]. Bhardwaj addressed administrative decisions involving jurisdictional error. von Doussa J considered that these authorities did not answer the different question posed by an AAT merits decision substituting a preferable outcome [28]-[32].
The Court also addressed the s 502 certificate. In Singh, the Full Court had held that a document in the same form as Lesi's was not a valid certificate declaring a person to be an excluded person. But Singh also held that the defect did not invalidate the s 200 deportation order [7]-[9]. The Court therefore rejected any implication that the missing valid certificate meant there was no valid deportation order for s 82(4).
The conclusion followed from the sequence of events: the order was in force; Lesi left Australia because of it; s 82(4) then operated by force of the statute. No further administrative formality was needed to bring about the visa's cessation [36], [40].
The judgment's account of the relevant law begins with the statutory framework in force in the case. Section 82(4) set out the consequence for a visa when its holder left Australia because of a s 200 deportation order [18]. Sections 200 and 201 addressed deportation orders and the circumstances in which a non-citizen convicted of an offence could be subject to deportation. Section 500 ordinarily provided for AAT review, while excluding decisions to which a s 502 certificate applied [3]-[4].
Singh had clarified that the form used for Lesi's purported s 502 certificate did not satisfy s 502(1), because it recited the Minister's decision to make a certificate but did not itself declare the person to be an excluded person. The Full Court nevertheless held that the failure to issue a valid certificate did not invalidate the s 200 deportation order [8]-[9]. Thus, as the judgment applied Singh, the absence of a valid certificate affected reviewability, not the validity of the deportation order itself.
The judgment also sets out two strands of authority about decisions later set aside. Cavanough concerned a judicial conviction quashed on appeal and the consequences of that reversal for the person's employment and salary [25]-[26]. Wattmaster concerned an administrative decision affected by a relevant irregularity, and stated that such a decision would generally be treated as invalid, at least for substantive rights, from the date it was made once successfully impugned [27]. Bhardwaj discussed the legal effect of administrative decisions involving jurisdictional error [28], [33].
von Doussa J confined those principles to their context. They did not establish that a decision reached through merits review, and set aside because a different decision was preferable on a broader record, had never been valid [29]-[34]. The judgment therefore draws a distinction between setting aside a decision because it was legally defective and replacing it after merits review.
As to the legal position after the judgment, the Court's holding was limited to the facts and statutory provisions before it: Lesi's visa ceased when he left because of the order then in force. The decision did not determine a pending application for a new visa or decide the meaning and application of special return criterion 5001. The Court said that issue did not arise because no visa application was pending [41]. This judgment alone does not establish how later legislation or later decisions may have affected the law.
At [18], the Court identified the operative statutory language: “A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.” In plain English, the question was whether the circumstances at the time of departure met that statutory description.
At [31], the Court explained why the AAT's decision was different from a finding of legal invalidity: “The decision of the Minister was set aside not because of any jurisdictional or other error of law, but because on the material before the AAT, the AAT concluded that a different decision was the preferable one.” In plain English, the Tribunal reconsidered what outcome should be reached; it did not decide that the original decision had been unlawful when made.
At [34], the Court said the AAT decision “does not establish that the deportation order when made was not then validly made.” It also noted that the earlier Federal Court proceeding had not found legal error, and that Singh had confirmed the missing valid certificate did not invalidate the order. In plain English, a later change in the merits outcome did not erase the legal status the deportation order had when made.
At [36], the Court found that Lesi left Australia while the deportation order was in force and because of it. It concluded that “the subclass 831 visa endorsed in the applicant's passport ceased, by force of s 82(4), to be in effect.” In plain English, the statute itself ended the visa's effect when the relevant departure occurred.
At [40], the Court stated its ultimate conclusion: the visa ceased to have effect under s 82(4) when Lesi left Australia on 19 October 2000. The declaration he sought could therefore not be made.
The reasoning is most directly relevant to a fact pattern in which a person holds a visa, leaves Australia because of a deportation order made under s 200, and later obtains a favourable AAT merits-review decision setting aside that order. The critical factual questions identified by the judgment are whether the order was in force at the time of departure and whether the person left because of that order [18], [23], [36].
It is also relevant where the original deportation decision is later reconsidered on the merits using material that was not before the original decision-maker, including events occurring after the original decision. The judgment treats that type of reconsideration as distinct from a judicial or administrative finding that the original decision was affected by legal error [29]-[32].
The judgment separately addresses a purported s 502 certificate in the same form as the one considered in Singh. It says that the defect in that certificate did not invalidate the s 200 order [7]-[9], [34]. That aspect may be relevant when the question is whether the lack of a valid certificate itself means that no deportation order existed.
The precedent does not, on its own, answer every question about a later visa application, the operation of special return criterion 5001, or the effect of later legislative amendments or subsequent cases. In this proceeding, the Court expressly left the criterion 5001 question undecided because there was no pending visa application [41].
The supplied judgment gives no account of decisions after 19 March 2003 that applied, followed, distinguished or otherwise treated Lesi. Its discussion of other authorities concerns cases decided before or by the time of this judgment. A source-grounded account therefore cannot state how later courts have treated Lesi.
Within Lesi itself, the Court discussed Singh and adopted its conclusion that the defective purported s 502 certificate did not invalidate the s 200 deportation order [6]-[9], [34]. It distinguished Cavanough, Wattmaster and Bhardwaj because those authorities concerned legal error or jurisdictional error, whereas the AAT in Lesi reconsidered the merits [25]-[34]. Drake was cited for the proposition that the AAT on review forms its own view on the material before it [30]. These are the relationships established by the judgment, rather than evidence of later treatment.
The judgment expressly left open the meaning and application of special return criterion 5001, which concerned an applicant who left Australia while subject to a s 200 deportation order. The Court noted that no visa application was pending, so the issue did not arise for decision [12]-[13], [41].
The decision also does not determine how its reasoning would apply if a deportation order were later set aside because of legal error, rather than on merits review. The Court relied on the distinction between those situations but decided only the merits-review scenario before it [29]-[34].
Nor does the judgment decide how the statutory scheme should be interpreted if the relevant provisions differ from those considered in 2003, or how later authority may have developed the distinction between legal invalidity and merits substitution. Those matters are outside the supplied text.
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REASONS FOR JUDGMENT 1 These proceedings were commenced by application seeking judicial review of a decision made by the Honourable Gary Hardgrave MP as a delegate of the respondent on 8 October 2002 to refuse to reinstate or re-issue the applicant's residence visa. The application was made under s 39B of the Judiciary Act 1903 (Cth) and also under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, in the circumstances described below at [14] - [17], the application was amended at the hearing to seek only a declaration "that the grant by the respondent to the applicant of permission to remain indefinitely in Australia made 24 October 1996 remains in force". On 24 October 1996 the applicant had been granted a prospective marriage spouse visa, subclass 831, which permitted him to remain in Australia indefinitely, and permitted multiple travel. 2 The parties tendered a statement of agreed facts as follows: "1. Mr Lesi is an Albanian national born in Velipoj, Albania on the 2nd September 1968. 2. In 1994 Mr Lesi formed a relationship with a Ms Mema who is an Australian resident. Ms Mema sponsored Mr Lesi in an application to migrate to Australia and he entered Australia on a Prospective Marriage Visa on the 4th September 1996. 3. On the 24th October 1996 Mr Lesi's application for a residence visa was approved and he was granted a visa subclass 831. 4. In February 1997 Mr Lesi's relationship with Ms Mema broke down and in 1997 he met his current partner, Aileen Cebreros. 5. In March 1998 Mr Lesi was apprehended by police whilst driving along South Road in Adelaide. He was found to be in possession of heroin and was charged with two counts of possessing heroin for sale. He was also charged with unlawful possession offences in relation to monies seized by the police. 6. On May 1998 Mr Lesi and Ms Cebreros' first child, Belinda, was born in Adelaide. 7. On the 19th October 1998 Mr Lesi pleaded guilty to two counts of possessing heroin for sale. He was sentenced to four years imprisonment commencing on the 19th October 1999 with a non-parole period of two years. 8. In January 2000 the Manager of the Compliance Section of Department of Immigration, Multicultural and Indigenous Affairs (the Department) prepared a Memorandum for the consideration of the Minister for Immigration Multicultural and Indigenous Affairs (the Minister) regarding proposed deportation of Mr Lesi under s 200 of the Migration Act. 9. On the 8th February 2000 the Minister made a decision that Mr Lesi was liable for deportation under s.201 of the Migration Act 1958, and that he should be deported under s.200 of the Migration Act. The Minister signed a Deportation Order and indicated that a s.502 Certificate should be issued. 10. On the 8th February 2000 the Minister signed a Deportation Order under s 200 of the Migration Act 1958. 11. On the 8th February 2000 the Minister signed a document which purported to be a Certificate under subsection 502(1) of the Migration Act declaring Mr Lesi to be an "Excluded Person". 12. On the 12th April 2000 the Department delivered to Mr Lesi the Notification of Deportation. He sought review of the decision to depart [sic] by the Federal Court. 13. On the 6th May 2000 Mr Lesi and Ms Cebreros' second child, Edmario, was born. 14. On the 4th September 2000 the Federal Court decided that there were no grounds upon which the decision to deport Mr Lesi could be set aside or remitted. 15. On 18th October 2000, the applicant was informed by an officer of the Department that he would be removed from Australia on 19 October 2000. 16. On the 19th October 2000 the applicant was removed from Australia. He was accompanied by his wife and two children. 17. In Albania, Mr Lesi and Ms Cebreros and the children took up residence in Mr Lesi's parents home in Velipoj, Shkoder, Albania. 18. On the 20th February 2001, the Department forwarded a letter to the applicant in Velipoj Shkoder, Albania. The letter referred to the decision of the Full Federal Court in the matter of Karm Singh and advised the applicant that as a result of the Full Federal Court decision in Singh, the decision to deport him may now be reviewable in the AAT. The applicant was advised that the person who makes the application must be an Australian citizen or lawful non-citizen and must also be someone whose interests are affected by the decision. 19. Ms Cebreros is an Australian citizen. She returned to Australia with the children for the purpose of pursuing an appeal in the AAT. 20. Ms Cebreros lodged an appeal in the AAT on 5 July 2001. 21. On the 10th July 2001, senior member J A Kiosoglous MBE made a direction that the time for the making of an application for a review of the decision of the respondent be extended to 29 June 2001. 22. On the 3rd April 2002 Tribunal Member Ms S A Forgie made a decision to: (1) set aside the decision of the respondent dated 8th February 2000; and (2) substitute a decision that the applicant not be deported from Australia. 23. The Minister was represented at the Administrative Appeals Tribunal hearing. No appeal was made by the Minister against the Orders of the Tribunal. 24. On the 13th May 2002, the solicitors for Ms Cebreros and Mr Lesi wrote to the Minister requesting that he reinstate Mr Lesi's visa. 25. On the 3rd October 2002 [sic - 8 October 2002] the Honourable Gary Hardgrave MP forwarded a letter to the solicitors for Ms Cebreros and Mr Lesi indicating that it is the Department's view that Mr Lesi was validly deported." 3 The legislative provisions of the Migration Act 1958 (Cth) (the Act) referred to in par 9 of the agreed facts provide as follows: "200 Deportation of certain non-citizens The Minister may order the deportation of a non-citizen to whom this Division applies. 201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder: (A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or (B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person." 4 Ordinarily, by virtue of s 500(1) of the Act, a deportation decision made under s 200 is reviewable by the Administrative Appeals Tribunal (AAT). However, that sub-section excludes from review "decisions to which a certificate under section 502 applies". Section 502 reads: "502 Minister may decide in the national interest that certain persons are to be excluded persons (1) If: (a) the Minister, acting personally, intends to make a decision: (i) under section 200 because of circumstances specified in section 201; or (iii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); in relation to a person; and (b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person; the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person. (2) A decision under subsection (1) must be taken by the Minister personally. (3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made." 5 It is implicit from the statement of agreed facts, and from the decision of the Federal Court referred to in par 14 (Lesi v Minister for Immigration & Multicultural Affairs [2000] FCA 1882, O'Loughlin J), that the applicant in 2000 believed that the Minister had included a certificate under s 502 as part of the deportation decision, and accordingly that he could not seek review of the deportation decision by the AAT. 6 The reference to the decision of the Full Court of the Federal Court referred to in par 18 of the agreed facts is a reference to Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1426; (2000) 105 FCR 453 (Singh). That decision was handed down on 13 October 2000. 7 The form of the deportation decision and order made under s 200 of the Act, and the purported certificate under s 502 considered by the Full Court in Singh, were in precisely the same form as the decision, order and certificate made in respect of the applicant in the present case. Relevantly, the certificate in respect of the applicant read: "CERTIFICATE I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport BERNARD LESI under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that BERNARD LESI be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958. Dated this 8th day of February 2000. [signed] Philip Ruddock Minister for Immigration and Multicultural Affairs" 8 In Singh, the Full Court held that a document in those terms did not constitute "a certificate declaring the person to be an excluded person" within the meaning of s 502(1) of the Act. Wilcox J (with whom Spender J agreed) said at [28]: "Upon close scrutiny, it will be observed it (the purported certificate) consists only of a recital of the decision of the Minister to make the certificate. But there is no certificate; the document is incomplete. It fails to contain 'a certificate declaring the person to be an excluded person; as required by s 502(1)(b) of the Act." Emmett J was of the same opinion at [64]. 9 The Full Court recognised that as there was no certificate under s 502, it was open to Mr Singh to apply to the AAT for review of the deportation decision: [37] and [75]. Although it was held that there was no s 502 certificate, the Full Court held that the deportation order under s 200 was not thereby invalidated: see the express finding to this effect by Wilcox J at [33] - [34]; and a like finding by Emmett J is implicit at [75]. 10 As the agreed facts recite, an application for review of the deportation order was made to the AAT by the applicant's wife, an Australian citizen. The application was successful, and on 3 April 2002 the AAT set aside the deportation order and substituted a decision that the applicant not be deported from Australia. In the letter dated 13 May 2002 referred to in par 24 of the agreed facts, solicitors for the applicant and his wife put forward detailed arguments in support of the proposition that the deportation order was invalid, and that the applicant should not have been deported. 11 The response by the Honourable Gary Hardgrave MP in his letter of 8 October 2002, on behalf of the respondent, said that the view of the Minister's department was that the applicant had been validly deported, and that the Full Court decision in Singh was clear in its finding that the failure to issue a valid certificate under s 502 had no effect on the validity of the deportation order. The letter concluded by saying: "Mr Lesi is clearly a person who was validly deported in accordance with s200 of the Migration Act 1958 and therefore he cannot meet special return criterion 5001." 12 Special return criterion 5001 appears in Schedule 5 to the Migration Regulations 1994, and provides: "5001 The applicant is not: (a) a person who left Australia while the subject of a deportation order under: (i) section 200 of the Act …" 13 The special return criterion is one that must be fulfilled to empower the grant of a visa of any of the kinds for which the applicant might otherwise have been eligible to apply, were he to apply afresh for a visa to enter Australia.
Objection to Competency 14 Upon being served with the application, the respondent filed a Notice of Objection to Competency on the ground that the Court lacked jurisdiction because the letter of 8 October 2002 did not constitute a "privative clause decision" under the Act, or a "decision under an enactment" within the meaning of s 5 of the Administrative Decisions (Judicial Review) Act. (It was contended that the letter was not a response to any application pursuant to the Act for a visa, the Minister had no power to reinstate the residence visa as requested, and the letter of 8 October 2002 did no more than express an opinion about the operation of the Act.) 15 The filing of this Notice of Objection led to the applicant seeking to amend the application in the manner earlier indicated at [1] to claim a declaration. 16 The respondent formally opposed the application to amend. However, I granted leave for the applicant to do so. No ground of prejudice was advanced on the respondent's behalf, nor could such a ground be established as it would be open to the applicant, if leave to amend were refused, to immediately commence fresh proceedings seeking a declaration in the terms of the amendment. Further, the claim for a declaration squarely raised the issue which written submissions filed by the applicant in advance of the hearing sought to agitate. 17 Upon the Court indicating that leave to amend would be granted, counsel for the applicant did not pursue the claims for judicial review made in the application, and confined his argument to the claim for declaratory relief. In these circumstances there is no need to consider the objection to competency.
Grounds of Review 18 As the argument of the parties unfolded, it became apparent that they were in agreement that the issue raised in the proceedings was a narrow one, namely as to the effect of the decision of the AAT made on 3 April 2002 in light of s 82(4) of the Act which provides that: "A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200." 19 Counsel for the applicant contended that s 82(4) should be construed to mean that a visa ceases to have effect when the holder leaves Australia because of a valid deportation order made under s 200, and that the decision of the AAT has the effect that there never was a valid deportation order; hence s 82(4) did not operate to cancel the subclass 831 visa held by the applicant. 20 To illustrate the applicant's contention, the following notional situation was posed in argument. The applicant's passport is still endorsed with the subclass 831 visa (this is a fact established by evidence before the Court). If the applicant were to return to the Australian migration zone, he would, at the barrier, present to a migration officer his passport containing the visa. The officer and the Minister, it was contended, would be required by law to treat the visa as continuing in effect as, since the decision of the AAT, there is no valid deportation order which would enliven s 82(4). 21 Counsel for the applicant, relying on dictionary definitions of the expression "set aside" argued that the effect of the decision of the AAT was "to put to one side; discard from use; annul or quash" the deportation order. However, attention to the meaning of the expression "set aside" does not assist in determining whether the deportation order is now to be treated as being of no effect before and until it was set aside. 22 Counsel for the applicant also argued that the grant of a permanent residence visa carries with it valuable rights and benefits such as entitlements to Centrelink payments (subject to a qualifying period that can be waived), the right to work, and the right to Medicare benefits and education entitlements; the removal of rights such as these would require a clear, unambiguous, legislative expression of intent to deprive a visa holder; s 82(4) does not evidence such an intention as it does not address what is to happen if and when a deportation order is set aside after the holder leaves Australia; the Act should be construed on the footing that Parliament intended that curial and administrative decisions made by Courts and the AAT will be complied with; on that assumption the failure of s 82(4) to deal with the consequence of a deportation order being set aside means that the subsection is unclear and ambiguous. Accordingly, counsel submitted, the meaning and effect for which the applicant contended should be given to s 82(4). 23 Counsel for the respondent contended to the contrary, submitting that the deportation order was valid until set aside with the consequence that, within the meaning of s 82(4) "when the holder [left] Australia [he did so] because of a deportation order made under section 200". Counsel did not dispute the applicant's assertion that a reference to a deportation order in s 82(4) means reference to a valid deportation order. However, he submitted, when the applicant left Australia there was a valid deportation order in force.
Consideration 24 In my opinion the submissions of counsel for the respondent should be accepted. 25 At first sight there is some similarity between the situation of the applicant and that of the respondent in Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 (Cavanough). That case concerned a claim for salary by an officer of the Commissioner for Railways who had been summarily convicted of larceny. From the conviction he appealed to a Court of Quarter Sessions which upheld his appeal and set aside the conviction. During the period which elapsed from his conviction until its reversal he received no salary. The Commissioner relied on s 80 of the Government Railways Act 1912 (NSW) which provided that an officer convicted of felony shall be deemed to have vacated his office. The High Court upheld a judgment in favour of the respondent for his unpaid salary. 26 Rich, Dixon, Evatt and McTiernan JJ at 224-225 said: "In our opinion he [the respondent] is so entitled because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office. An appeal is not a common law proceeding. It is a remedy given by statute (Attorney-General v. Sillem; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan). The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. 'The judgment reversed is the same as no judgment' (per Coleridge J., R. v. Drury). If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr Drury's Case). It is 'utterly defeated and annulled' (Lord Sanchar's Case). Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive' (Dr Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For 'collateral acts executory are barred, but not collateral acts executed' (Dr Drury's Case). But 'upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him' (Archbold's Criminal Pleading, Evidence and Practice, 21st ed. (1893), pp. 226, 227). As the respondent in contemplation of law was never out of office, he is entitled to the salary attached to it." [Case citations omitted.] 27 In Cavanough, the summary conviction that was set aside on appeal was a decision of a Court of law, not an administrative decision. In Wattmaster Alco Pty Ltd v Button (1986) 70 ALR 330 (Wattmaster), a Full Court of the Federal Court considered the consequence of an order which set aside an administrative decision on the ground that the decision maker had failed to take into account a relevant consideration. Sheppard and Wilcox JJ at 335 (with whom Fox J agreed on this aspect of the judgment) said: "A decision made and purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid - at least in so far as substantive rights are concerned - as from the date upon which it was made." 28 That statement of principle by the Full Court must now be read subject to the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117 (Bhardwaj), and in particular the observations of Gaudron and Gummow JJ (with whom McHugh J agreed) at [51]: "There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all." 29 The statements of principle in each of these decisions are premised on there being an error of law, jurisdictional or otherwise, that infected the original decision, thus rendering it bad in law. That fact, in my opinion, distinguishes those decisions from the present case. 30 In the present case the deportation order made by the Minister was set aside not because of error of law, but following a merits review by the AAT. On that merits review the AAT was required to make its own decision on the material that was placed before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. The AAT had a duty to form its own view on that material. The question was not whether the original decision should be set aside because it reflected error of law. 31 The material placed before the AAT on the review included material that was not before the Minister, and indeed evidence about events and circumstances that had arisen after the deportation order was made. In particular, evidence was led about the difficulties which the applicant's wife and daughter had encountered in Albania following the deportation which included racial and sexual discrimination and limited medical and schooling facilities. Based on the evidence of a psychologist who had examined the applicant's wife on her return to Australia, the AAT found that the wife found her situation in Albania to be intolerable. The AAT concluded that the best interests of the applicant's infant daughter would be clearly served by her remaining in Australia, and further served if the applicant were permitted to live with his wife and children in Australia. The decision of the Minister was set aside not because of any jurisdictional or other error of law, but because on the material before the AAT, the AAT concluded that a different decision was the preferable one. 32 In these circumstances I do not think that the principles referred to in the above cases can be invoked to support the applicant's argument that the decision of the AAT must be understood as having the effect that there never was a deportation order. 33 In Bhardwaj Gaudron and Gummow JJ said at [46]: "In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made." 34 The decision of the AAT, unlike the judicial decisions that set aside the relevant orders in Cavanough and Wattmaster, does not establish that the deportation order when made was not then validly made. On the contrary, the deportation order was validly made by the Minister. That the Minister committed no error of law in making the deportation order was a matter determined by the decision of O'Loughlin J referred to at par 14 of the agreed facts. Whilst it was not argued before O'Loughlin J that no certificate had been given under s 502, as already observed, the Full Court in Singh determined that even though no certificate had been given, the deportation order under s 200 was nonetheless valid. 35 I return to the wording of s 82(4): "A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200." 36 When the applicant left Australia on 19 October 2000 there was in force a deportation order, and he left because of it. In my opinion the situation falls squarely within s 82(4). As the order was in force when the applicant left Australia, the subclass 831 visa endorsed in the applicant's passport ceased, by force of s 82(4), to be in effect. The Act did not require any further formality to bring about the cancellation of the visa. I do not think there is ambiguity in the language of s 82(4) such as the applicant's counsel contends. 37 The making of the deportation order by the Minister had immediate legal consequences. Section 206 provides that: "(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly." 38 Section 253 provides that: "(1) Where an order for deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person. (2) A person detained under subsection (1) … may, subject to this section, be kept in immigration detention or in detention as a deportee …" 39 Moreover, whilst s 500 provides for review of a deportation order by the AAT in a case where the decision is not one to which a certificate under s 502 applies, the Act specifically provides that where such an application for review is made, the order for deportation of the person shall not, for the purposes of s 253, be taken to have ceased or to cease to be in force by reason only that an order in the nature of a stay has been made by the AAT, or, on appeal, by a Judge of the Federal Court, or by a Federal Magistrate: see s 500(6). 40 In my opinion it is clear that the subclass 831 visa previously held by the applicant ceased to have effect pursuant to s 82(4) when he left Australia on 19 October 2000. It follows from that conclusion that the application for a declaration must be dismissed. 41 As there is no pending application by the applicant for a visa of some kind that would permit his return to Australia, no question arises in these proceedings as to the meaning and application of special return criterion 5001, but it would seem to follow from the conclusions expressed above that the applicant is a person who left Australia while the subject of a deportation order under s 200 of the Act. 42 For these reasons the application will be dismissed with 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 von Doussa.
Associate: Dated: 19 March 2003 Counsel for the Applicant: Mr A C Collett
Solicitor for the Applicant: McDonald Steed Lawyers
Lesi
Minister for Immigration & Multicultural and Indigenous Affairs
(2000) 105 FCR 453
(1935) 53 CLR 220
(1986) 70 ALR 330
(1979) 24 ALR 577
[2002] HCA 11
Application dismissed with costs. The Court declined to declare that the subclass 831 visa remained in force.