Was a valid special category visa issued on 24 March 2020?
40 Ms Moorcroft submitted that, for the purposes of the granting of the SC Visa, the Minister's delegate had reached the state of satisfaction required under s 65(1) the Act that she met the criteria for its grant with the consequence that he was obliged to grant it. By s 67 of the Act, the Minister's decision to grant the visa is taken to have occurred when a record was made of the decision to grant it. Here, on 24 March 2020, the Minister issued a notice stating that the SC Visa had been granted that day and it appears not to be in doubt that an appropriate record was made of its granting. On this basis, so Ms Moorcroft submitted, the SC Visa was validly issued because it was issued in accordance with the conclusions of this Court in Moorcroft v Minister for Immigration which, as at that time, had not been overturned.
41 The difficulty with the above is that the 2019 Refusal Decision made on 29 January 2019 was, and always had been, valid. In particular, the delegate lawfully formed the state of non-satisfaction as to Ms Moorcroft's status as to her not being a behaviour concern non-citizen. That is undoubtedly so given the High Court's decision in Minister for Immigration v Moorcroft. Despite the order of this Court on 23 March 2020 quashing the delegate's decision, by reason of the High Court's orders setting this Court's order aside, that decision was valid from inception including during the interregnum between those two decisions. It was not at the time of making nor at any other relevant time, affected by jurisdictional error. It is an agreed fact that in making the 2019 Refusal Decision the delegate was lawfully not satisfied that the criterion in s 32(2) had been met for the purposes of s 65(1)(a)(ii) of the Act. That being so the delegate was compelled to refuse the visa.
42 The Minister submitted that the continued validity of the 2019 Refusal Decision had the necessary consequence that he was unable to make a contrary decision on Ms Moorcroft's visa application on 24 March 2020, following the Federal Court decision. That submission should be accepted. In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 (Plaintiff S297/2013), the majority in that case observed (at 188 [32]) that the Minister's obligation under s 47 of the Act to consider a valid visa application "continues, subject to exceptions, until the Minister grants or refuses to grant the visa … in the performance of a complementary duty imposed by s 65". Later, the majority held (at 188 - 189 [34]):
The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or "jurisdictional facts") - the Minister's satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister's non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67).
(Citation omitted).
43 Additionally, by operation of s 67(4) of the Act the Minister is unable to revoke or vary the 2019 Refusal Decision after it has been recorded. However, the operation of that provision must be read subject to the proviso that an invalid granting of a visa, even if recorded, is of no effect. If it is invalid by reason of jurisdictional error, it is invalid ab initio and any recording of it would also be ineffective.
44 Although on 23 March 2020 an order was made by this Court quashing the 2019 Refusal Decision: Moorcroft v Minister for Immigration; if the refusal to grant the visa was, in fact, valid there was no power for the Minister to make any subsequent decision to grant it. As indicated in Plaintiff S297/2013, the power can only be validly exercised one way or the other.
45 Mr McComber, for Ms Moorcroft, submitted that the effect of the Federal Court decision was that, despite it being incorrect, it accorded validity to acts done in accordance with it prior to its being set aside. In this respect, he relied on the High Court's decision in State of New South Wales v Kable (2013) 252 CLR 118 (Kable No 2). There it was observed (at 133 [32]) that decisions of superior courts of record are valid until set aside, even if the orders in question were made in excess of jurisdiction (whether on constitutional grounds or for reason of some statutory limitation on jurisdiction). That consequence arises by reason of the nature of judicial power exercised by a court of superior jurisdiction. However, whilst the effect given to an order is only for as long as it remains in force, once set aside on appeal its force is spent: at 134 [36]. As the Court explained (at 135 [39]), there are very good pragmatic reasons as to why this must necessarily be the case:
Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.
46 From this it was submitted that, as at 23 March 2020 and following its quashing, the 2019 Refusal Decision no longer existed. For the purposes of the Minister carrying out his functions under the Act, it was as if that decision had not been made, Ms Moorcroft's application remained on foot, and he was obliged to perform the functions required by s 65 and seek to ascertain whether he was satisfied that she met the criteria for the grant of a SC Visa as provided for in s 32 of the Act. It was further submitted that as the granting of the SC Visa was in accordance with the reasons in the Federal Court decision, it was a valid exercise of power.
47 However, the decision in Kable No 2 does not have the effect that an erroneous decision of a court can breathe validity into an act purportedly performed under an enactment which is contrary to the scope of the power conferred to do the act. In this latter, respect Mr Lenehan SC for the Minister referred to the High Court's recent decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128. The facts of that case are peculiarly complex and there is no need to restate them in full. It suffices to observe the following. New Acland Coal had sought the granting of new mining tenements and its application for them was heard by the Land Court of Queensland. The Court recommended against their granting and New Acland Coal sought judicial review of that decision by the Supreme Court of Queensland, partly on the basis that the decision was affected by apprehended bias. The Supreme Court rejected the claim founded upon alleged bias but, nevertheless, concluded that some of the Land Court's findings exceeded its jurisdiction. The matter was remitted to the Land Court on a limited basis with directions limiting the issues on which there was to be reconsideration. The remitted matter was reconsidered by a differently constituted Land Court which recommended the application be approved and the Chief Executive of the Department of the Environment accordingly granted the application. Meanwhile, the appellant, Oakey Coal Action Alliance Inc (OCAAI), an environmental organisation opposed to the granting of the new tenements, pursued an appeal in the Queensland Court of Appeal. That Court rejected the appeal but allowed a cross-appeal on the apprehended bias issue. However, in giving relief, it held that as the directions of the trial judge had been carried out by the Land Court and the approval granted, no orders save for a declaration ought to be made. OCAAI appealed to the High Court which allowed the appeal and held that, consequent upon the identification of apprehended bias, the whole and not merely part of the proceedings should have been remitted for reconsideration. In reliance upon Kable No 2, New Acland Coal submitted that, as the orders of the trial judge in the Supreme Court were valid unless and until set aside, the Land Court's subsequent recommendations were also valid and binding by force of those orders. However, the plurality (Kiefel CJ, Bell, Gageler, and Keane JJ) held (at 136 [41]) that, although the powers of the Supreme Court under the Judicial Review Act 1991 (Qld) to remit the matter back to the Land Court with conditions were wide, they did not authorise the decision-maker on remittal to proceed in a manner which was inconsistent with the statute that governed the making of the decision. The Court could not authorise the decision-maker to engage in a process of further consideration which was in excess of the decision-maker's statutory jurisdiction. It followed that the validity of the Land Court's subsequent decision depended upon whether it had complied with the express and implied conditions for the exercise of power under the Act conferring authority on it, and the Land Court's determination gained no additional force by reason of it having been made in consequence of the Supreme Court's orders and directions: at 136 [44]. Edelman J's conclusion was to like effect. His Honour held (at 145 [88]) that although the decision in Kable No2 has the consequence that "Acts done according to the exigency of a judicial order afterwards reversed are protected" because they are done in the execution of justice: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225, quoting Dr Drury's Case (1610) 8 Co Rep 141b at 143a [77 ER 688 at 691]; the same does not apply once the judicial order is set aside. From the moment it is set aside, it provides no lawful justification for further action undertaken and will sometimes require conduct to be undone. Once the decision is set aside, the acts taken in reliance on the orders lack any legal force and acts for which the validity of the decision is a precondition must also be invalid, at least to their future effect.
48 The decision in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd is particularly apposite in the present case. Here, the SC Visa decision of 24 March 2020 relied upon the Federal Court decision as the source of its validity in the sense that, it must be assumed, the Minister reasoned or accepted that Ms Moorcroft was not a person who had been removed from Australia in the relevant sense, and was therefore not a "behaviour concern non-citizen", with the consequence that she was entitled to the SC Visa. However, from the moment the Federal Court decision was set aside, it could no longer provide such support. At least from that point in time, the granting of the SC Visa was beyond the Minister's power and any act which relied upon the validity of that grant also lacked legal force. In this case, it is not necessary to consider what the position may have been if there had been reliance on the validity of the grant in that period preceding the handing down of the High Court's decision. Here, Ms Moorcroft made her application for a Bridging E Visa on 22 October 2021, being some four months after the High Court had overturned the Federal Court decision and it was no longer available as a source of validity for the SC Visa.
49 The necessary consequence is that Ms Moorcroft's first ground fails. As at the date on which she applied for a Bridging E Visa, the decision of this Court in Moorcroft v Minister for Immigration did not afford validity to the SC Visa decision. She was therefore not a person who was "immigration cleared" within s 172(1)(c) of the Act and, therefore, was not an "eligible non-citizen" who was entitled to apply for a Bridging E Visa.