Oraha v Minister for Immigration, Citizenship and Multicultural Affairs

BACKGROUND 6 On 15 December 2014, the appellant, who is a German citizen, was granted, and entered Australia on an Electronic Travel Authority (ETA). The ETA permitted him to enter Australia on multiple occasions within a 12 month period and to remain in Australia, after each entry, for three months. 7 On 18 December 2014, the appellant entered Australia on the ETA, and accordingly was required to leave again by no later than 18 March 2015, with a right of re-entry if he did so, until the ETA expired on 15 December 2015. 8 Before the three-month period for departure under the ETA expired, on 24 February 2015 the appellant applied for a Class FA, subclass 600 Visitor (Tourist Stream) visa (visitor visa). This is a different class of visa from an ETA, but each is a substantive visa (as defined in s 5 of the Act). The visitor visa was granted on 26 February 2015 and ceased on 19 June 2015. 9 It is common ground that the effect of granting the visitor visa was that the ETA granted to the appellant on 15 December 2014 ceased on 26 February 2015: s 82(2) of the Act. The live question for determination on this appeal is whether that cessation was permanent as the Minister contends, or whether the ETA could revive, as the appellant contends. 10 On 18 June 2015, the appellant departed Australia as the holder of the visitor visa. This was the day before the visitor visa ceased. However, he re-entered Australia the following morning, 19 June 2015, as the holder of that visa. 11 As we have noted, on 26 August 2015, the appellant applied for the student visa. The appellant was granted a bridging visa on 27 August 2015 to enable his application for the student visa to be processed. On his application, he said that he held a visitor visa (we observe, not an ETA). However, that visa had ceased at midnight on 19 June 2015. 12 At the time of the appellant's application for the student visa, cl 572.211 of Sch 2 to the Regulations relevantly provided: (1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6). (2) An applicant meets the requirements of this subclause if the applicant is: (a) the holder of a visa of one of the following classes or subclasses: … (v) Electronic Travel Authority (Class UD); … (xxi) Subclass 600 (Visitor); ... (3) An applicant meets the requirements of this subclause if: (a) the applicant is not the holder of a substantive visa; and (b) the last substantive visa held by the applicant was: (i) a student visa; or (ii) a special purpose visa; or (iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or (iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or (v) a Subclass 497 (Graduate - Skilled) visa; and (c) the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after: (i) the day when that last substantive visa ceased to be in effect; or (ii) if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of: (A) the day when that last substantive visa ceased to be in effect; and (B) the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal's decision; and (d) the applicant satisfies Schedule 3 criterion 3005. ... 13 The delegate refused the appellant's application for the student visa on the basis that he did not satisfy cl 572.211(2) or the alternative criterion of cl 572.211(3), because the appellant's visitor visa had ceased on 19 June 2015. He was also considered against other subclasses within the Class TU temporary student visas, but did not meet the criteria for any of them. 14 On review, the Tribunal reached the same conclusion: 13. There are a number of somewhat puzzling aspects to the evidence before the Tribunal in this case, among which there is no explanation for the Department's actions in allowing the Applicant to re-enter the country on 19 June 2015 on a visa which was to cease in a matter of hours, a decision which would almost inevitably lead to him being unlawfully in Australia from the next day. Put alternatively, there is no explanation as to why his visa was ceased on 19 June 2015 and not extended for a further three months, as it had been extended before and as was provided for in his Electronic Travel Authority. It is possible to speculate that this situation may have been brought about by simple error but, in the absence of further information, the Tribunal accepts that, for reasons which have not been explained, the Department took a deliberate decision not to extend the applicant's visa when he returned to Australia on19 June 2015. 14. The Tribunal has some sympathy for the applicant in these circumstances and accepts that he may have been unaware of the situation when he applied for his student visa some two months after his return to Australia. The Tribunal nevertheless finds, having considered his responses and the other information before it, that his student visa application was made in Australia and that he did not hold a visa of any kind at that time. On this basis the Tribunal finds that the applicant does not satisfy the requirements of cl.572.211(2). Further, having reviewed subparagraph (b) of cl.572.211(3) the Tribunal is satisfied that the last substantive visa held by the applicant - a Tourist Subclass 600 visa - is not one of the visa subclasses listed there. The Tribunal finds on this basis that the applicant does satisfy the requirements of cl.572.211(3). Accordingly, the Tribunal finds that the applicant does not meet cl.572.211 as a whole and cannot be granted a subclass 572 visa. 15 In the Federal Circuit Court the appellant contended that the Tribunal made a jurisdictional error "by purporting to apply" cl 572.211. The submissions advanced in support of this ground were not accepted by the primary judge, who dismissed the application. We will not summarise those submissions, or the primary judge's analysis and findings, because none of these matters are relevant to the present appeal. We note, however, the primary judge's observation, at J[40], that the appellant had accepted that, as a matter of law, his ETA ceased to be in effect upon the grant of the visitor visa, and that his status after midnight on 19 June 2015 was that of an unlawful non-citizen. 16 On this appeal, the appellant raises two grounds of appeal which are, in substance, new grounds of judicial review that were not raised in the Federal Circuit Court. As we have noted, when the appeal came before Yates J for hearing, the Minister consented to the appellant filing an amended notice of appeal containing these new grounds and relying upon them.

The grounds of appeal 17 The grounds of appeal are: 1. The Federal Circuit Court erred in finding no error by the Tribunal in its conclusion that the appellant did not meet time of application criteria cl.572.211(1). 2. The Federal Circuit Court should have found that the appellant met criteria cl.572.211(1) as he was the holder of a valid Electronic Travel Authority within the meaning of criteria cl.572.211(2).

The appellant's submissions 18 The appellant accepts, as he did below, that his ETA, which was granted on 15 December 2014, ceased to be in effect on 26 February 2015 when he was granted the tourist visa. He contends, however, that when his tourist visa ceased to be in effect at midnight on 19 June 2015, his ETA was "reactivated", as he had been in Australia for less than three months since his last arrival on 18 June 2015 and he was no longer the holder of any other substantive visa. 19 The appellant submits that this outcome is consistent with Lesi v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 285; 134 FCR 27 (Lesi), which considered the operation of s 82(4) of the Act. 20 Section 82 of the Act provides: (1) A visa that is cancelled ceases to be in effect on cancellation. (2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect. (2AA) Despite subsection (2): (a) a maritime crew visa held by a non-citizen does not cease to be in effect if a substantive visa for the non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and (b) a substantive visa held by a non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non-citizen comes into effect. (2A) A temporary visa held by a non-citizen ceases to be in effect if an enforcement visa for the non-citizen comes into effect. (3) A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect. (4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200. (5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa: (a) has entered Australia in that period or on or before that date; and (b) is in Australia at the end of that period or on that date. (6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date. (7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date. (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. (8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. (9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174). (10) For the purposes of subsections (5), (6) and (7), particular date includes: (a) the date an event, specified in the visa, happens; or (b) the date the holder ceases to have a status specified in the visa or the regulations. 21 In Lesi, Mr Lesi was granted permanent residence in Australia. He was subsequently deported under s 200 of the Act. Following the Full Court decision in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426; 105 FCR 453, Mr Lesi applied to the Tribunal to review the deportation decision. The Tribunal set aside the deportation decision and substituted a new decision that the appellant not be deported from Australia. Mr Lesi then sought permission to return to Australia under his permanent residence visa. However, the responsible Minister declined that request on the basis that the deportation order was in force at the time of Mr Lesi's deportation and not set aside until a later date. The responsible Minister took the view that, by operation of s 82(4) of the Act, Mr Lesi's permanent residence visa ceased to have effect when he was deported and that he was not eligible to have his permanent residence visa "reinstated". 22 Mr Lesi commenced proceedings in this Court for a declaration that the original grant of his permanent residence visa remained in force. He contended that the term "deportation order" in s 82(4) of the Act meant a valid deportation order which had not been set aside or was otherwise invalid. A Judge of the Court declined to grant the declarations sought. He considered that s 82(4) unambiguously operated adversely to Mr Lesi because there was a deportation order in force when Mr Lesi left Australia. When the Tribunal set aside the deportation order, it did not do so because of jurisdictional error but on the basis of a merits review taking into account material that was not available when the deportation decision was made. Thus there was no finding made that could have impugned the validity of the deportation order, nor the deportation that took place based upon that order. 23 On appeal, the Full Court reasoned that the effect of the Tribunal's decision setting aside the deportation order did not have the effect of rendering Mr Lesi's deportation invalid or unlawful: at [48] - [50]. However, in considering s 82(4) of the Act, their Honours noted at [52] that the expression "ceases to be in effect" has significance, and, in their Honours' view, had been "used in contrast to the concept of the cancellation of visas under the Act". 24 After referring to a number of provisions of the Act dealing with the power of cancellation, the Full Court then said: 53 It is apparent that the Act has carefully addressed when and how a visa may be cancelled, and the consequences of its cancellation. The fact of a visa ceasing to be in effect in certain circumstances is something which the Act has dealt with differently. The expressions 'cease to be in effect' or 'be in effect' are not defined in the Act. They should be taken to have their ordinary English meaning. There is no indication in the Act that they have some different or more refined meaning. Consequently, we consider the expression 'cease to be in effect' simply means cease to be operative to provide the entitlements which the visa would otherwise provide. The visa itself is not to be taken to have been cancelled under s 82(4) simply because the provision does not say so. 54 The present position may therefore, at first sight, appear a little curious. There was on 8 February 2000 a valid deportation order made. The appellant accepts that. He was validly deported on 19 October 2000 under that order. The validity of his deportation stands unchallenged, notwithstanding that the deportation order has been set aside by the Tribunal on 3 April 2002. The validity of the deportation effected under the deportation order stands, notwithstanding that s 43(6) of the AAT Act provides that the Tribunal's order setting aside the decision to make the deportation order takes effect at the time of the original decision. 55 We do not think it does violence to the language of s 82(4) of the Act to conclude in the particular circumstances that the appellant's visa, which ceased to be in effect when he left Australia on 19 October 2000, resumed its effectiveness once the deportation order was set aside. Section 82(4) can operate in its terms to have caused the appellant's permanent residence visa to have ceased to have been in effect upon his deportation but, because the deportation order has been set aside and upon it being set aside, its operation is spent and the permanent residence visa reserves its effectiveness. The entitlements of the appellant under the permanent residence visa revived upon the making of the Tribunal's decision. 25 In this appeal, the appellant submits that there is no reason why the phrase "ceases to be in effect" used in s 82(2) of the Act would have a different meaning to that given to the same phrase in s 82(4) by Lesi. As will be seen, we do not disagree with this proposition so far as it goes. Nor does the Minister. 26 Adapting the Full Court's analysis in Lesi to the present case, the appellant submits: (a) the ETA ceased to be in effect upon the grant of the visitor visa on 26 February 2015; (b) the visitor visa itself was spent at midnight on 19 June 2015; (c) at midnight on 19 June 2019, the appellant no longer held any substantive visa, but s 82(2) no longer prevented the ETA being in effect (as it had authorised multiple entries up until 15 December 2015); (d) the ETA operated to give the appellant permission to stay in Australia for three months after his last entry; (e) as his last entry was on 19 June 2015, the appellant had permission to stay in Australia as the holder of an ETA when he applied for his student visa on 26 August 2015; (f) therefore, when he applied for the student visa, the appellant met cl 572.211(1) as he was the holder of a visa specified in cl 572.211(2).

The Minister's submissions 27 The Minister submits that the appellant's case on the meaning of "ceases to be in effect", as used in s 82(2) of the Act, is not supported by the text of the Act or by the decision in Lesi. The Minister agrees that the meaning should be the same wherever that phrase is used in s 82, but that Lesi, properly considered, does not support the conclusion of any revival of the appellant's ETA being possible; or if it does, Lesi is plainly wrong. The Minister's case is that s 82(2) operates according to its express terms, in the context of other key provisions in the Act, and that a visa that has ceased to have effect by reason of a subsequently granted visa cannot be revived. 28 As to the text of the Act and the context in which s 82 appears, the Minister specifically refers to: (a) s 5, which includes the concept of a visa period and a corresponding definition: "visa period", in relation to a visa, means the period: (a) beginning when the visa is granted; and (b) ending: (i) in the case of a visa other than a bridging visa - when the visa ceases to be in effect; or (ii) in the case of a bridging visa - when the visa ceases to be in effect otherwise than under subsection 82(3). (b) ss 13 and 14, which relevantly provide for the dichotomy between lawful non-citizens and unlawful non-citizens, with the distinction being the holding of a visa that is in effect; (c) s 29, which provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of travel to and enter Australia, and remain in Australia; (d) s 42(1), which provides, subject to certain exceptions, that a non-citizen must not travel to Australia without a visa that is in effect; (e) s 68, which provides for reactivation of bridging visas, interacting with s 82(3), with no corresponding provision interacting with s 82(2), indicating an absence of legislative intent that there is to be any reactivation of a visa that ceases to be in effect under the latter provision; (f) s 77 of the Act, which provides that a non-citizen holds a visa at all times during the visa period for the visa; (g) s 79 of the Act, which provides that if the holder of a visa leaves Australia, they may only re-enter because of the visa if it is permission for the re-entry and is in effect on re-entry. 29 The Minister submits that the concept of "being in effect", in relation to a visa, signifies that the visa has an operation which, during the visa period, means that the non-citizen has certain rights. It is apparent that, when the visa period ends, the visa is no longer operative to confer those rights. 30 Thus, in the case of s 82(2), when another substantive visa comes into effect, the former substantive visa is brought to an end - the visa ceases to have effect. 31 The Minister submits a similar analysis applies with respect to s 82(1). A visa that is cancelled ceases to be in effect on cancellation. In other words, the visa period is brought to an end. It would be incongruous to consider that a visa that has been cancelled can, somehow, be reactivated. 32 The effect of the Minister's submission is that the appellant's construction does not recognise these realities. The appellant's construction does not recognise that the visa period has an ending, and can be brought to an end. Rather, the appellant's construction interposes a different concept - mere abeyance - so that, in effect, s 82(2), for example, does nothing more than prevent a non-citizen from holding two visas at the same time, at least when they are issued consecutively: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystom [2006] HCA 50; 228 CLR 566 per Heydon and Crennan JJ at [118]; see also Gummow and Hayne JJ (Gleeson CJ agreeing) at [31]. Moreover, on the appellant's construction, rather than the visa period for a particular visa being brought to an end, the visa exists in stasis. 33 There is a further complication with the appellant's construction. If a visa can be "reactivated", then that could only be the case where there remained some period which would have applied but for s 82(2). In other words, on the appellant's construction, s 82(2) would have a differential operation between visas that are no longer operative and visas that are potentially operative by reason of time said to remain on the visa. However, these notions are inconsistent with the clear meaning of a visa having a "visa period" with an end at a fixed point in time. 34 The Minister submits that Lesi should not be read in the way advanced by the appellant. To start with, Lesi was concerned with a different event, namely a deportation order under s 200 of the Act. The Minister submits, further, that the facts in Lesi were "both complicated and somewhat convoluted". The Full Court stressed that its conclusion was based on the particular circumstances of that case. The Minister points to the fact that, but for Mr Lesi leaving Australia because of the deportation order, his permanent residence visa would have remained in operation. That is, it required two closely related events, being the making of the deportation order and leaving Australia because of that order. However, here, the appellant had one visa replaced by another. The present was not a case where the circumstances which had caused s 82(2) to apply had subsequently changed. Therefore, the plain terms of s 82(2) applied. 35 The Minister also submits that, although the Full Court in Lesi made much of the difference between cancellation and the cessation of a visa's effect, the Full Court's analysis was only by reference to the language of s 82(4), without regard to the language of s 82(1) which by its terms did not support a dichotomy between cancellation of a visa and "ceasing to have effect". Rather, s 82(1) provided for the latter to be a consequence of the former. It would be an odd result if a visa that had been cancelled could nevertheless be "reactivated". 36 The Minister submits that the decision in Lesi should not be given a broad application and should not be read as a statement about s 82 more generally. As the Minister puts it, to do so would be to go against the text of the statute, and the relevant context and purpose of the Act, which is not to provide for visas to be held in abeyance. 37 The Minister submits that the appellant's reading of Lesi is in tension with the approach of the Full Court in Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 at [37] - [39] which, the Minister submits, clearly suggests that cessation of a visa's effect has the consequence that a non-citizen no longer holds that visa (and, by extension, that the holding of that visa cannot be reactivated at a later point in time). 38 The Minister also submits that his construction is consistent with the approach taken by the Full Court in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 84; 146 FCR 427, where the Full Court at [39] rejected the idea that s 82(8) could be read in such a way that it had the consequence that the visa "sprang into existence again" at a later point in time. The Minister points to the fact that the High Court noted this, without disapproval, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21 at [4] - [5]. 39 The Minister submits that Lesi is distinguishable from the present case and that if the Full Court in the present appeal accepts the appellant's broader reading, then Lesi is plainly wrong and should not be followed.

Analysis 40 The appellant's construction of s 82(2) of the Act cannot be accepted. Section 77 of the Act, read with the definition of "visa period" in s 5, makes plain that, firstly, there is a visa period and, secondly, the visa period has a beginning and an end. This does not envisage that there are, or can be, multiple "beginnings" and multiple "endings", or that, once the visa period ends, the visa can, somehow, be revived. Section 77 also makes plain that, once the visa period ends, the non-citizen is no longer the holder of that visa. In our respectful view, nothing could be clearer. 41 Section 82 of the Act deals with a variety of circumstances when a visa ceases to be in effect - denoting when a visa period ends. Section 82(2) does not concern acts that involve executive decision-making. It simply focuses on events and the consequences of those events: (a) a non-citizen, who is the holder of a substantive visa, is issued with another substantive visa (other than a special purpose visa); (b) the latter visa comes into effect and the former visa ceases to be in effect; (c) the non-citizen is no longer the holder of the former visa; (d) the non-citizen is the holder of only the new visa for the visa period of that visa. We are unable to see why s 82(2), which is the subject of this appeal, should not be given effect according to its terms, especially given the practical difficulties and uncertainty that would exist for the overall visa system as outlined by the provisions to which the Minister refers as set out above. 42 Here, the appellant was the holder of an ETA. However, he was then issued with a visitor visa. Once the visitor visa came into effect, the ETA ceased to be in effect and he was, accordingly, no longer the holder of an ETA. The visitor visa also ceased to be in effect at midnight on 19 June 2015. Therefore, from that time, the appellant was no longer the holder of that visa. 43 When the appellant applied for the student visa, he was not the holder of a substantive visa (as defined in s 5). He only held a bridging visa to enable his application for the student visa to be processed. At the time he applied for the student visa, he could not satisfy the requirements of cl 572.211 of Sch 2 to the Regulations. 44 The Full Court's decision in Lesi, does not compel a different conclusion. That case dealt with a different provision (s 82(4) of the Act) and, hence, a different event under s 82 which, in that case, involved unique facts and circumstances that have no role to play in the present case. The present appeal does not provide an appropriate vehicle to consider the correctness of Lesi. 45 The Full Court in Lesi did not refer to s 82(1) of the Act which provides that "[a] visa that is cancelled ceases to be in effect on cancellation". It is not altogether clear what the Full Court in Lesi meant at [52] when referring to "cease to be in effect" as being "used in contrast to the concept of the cancellation of visas under the Act" given the terms of s 82(1). Nor is it clear what their Honours meant at [53], when they stated that the fact of a visa ceasing to be in effect in certain circumstances is something which the Act has dealt with differently from visa cancellation, given that s 82(1) makes it clear that cancellation is one of many ways by which a visa can cease to be in effect. 46 On a careful reading of Lesi, the Full Court decided: (a) at [53] that the undefined expressions in s 82 of the Act of "cease to be in effect" and "ceases to be in effect" have their ordinary English meaning rather than some different or more refined meaning, and simply mean that a visa ceases to be operative to confer the permission which it otherwise bestowed, which does not itself amount to cancellation (noting that, conversely, visa cancellation leads to a visa ceasing to be operative per s 82(1)); and (b) at [55] (read with [14]) that a post-deportation decision by the Tribunal to set aside a deportation order and substitute it with an order that the person not be deported, while not leading to any invalidity of the deportation based on that order, had the effect that the deportation order was "spent" in relation to the operation of s 82(4), such that the effectiveness of the permanent residence visa revived upon the making of the Tribunal decision. 47 It is common ground, as we have in substance found above, that the first conclusion drawn from Lesi at [53] is undoubtedly correct and properly applies to the use of the expressions "cease to be in effect" and "ceases to be in effect" in s 82. Once a visa ceases to be in effect, it is no longer operative to bestow the permission it originally granted. 48 The second conclusion drawn from Lesi at [55], is reached overtly upon the particular circumstances in that case. It does not affect the first conclusion and therefore has no bearing on the meaning to be given to "cease to be in effect" and "ceases to be in effect" in s 82. It is not authority for any proposition beyond its strict ratio decidendi. That ratio is that, if a person is deported pursuant to a deportation order under s 200 of the Act that is subsequently set aside by the Tribunal on merits review, the deportation order is spent upon the making of that substituted decision, and therefore the deportation order did not have effect on the visa held by the person at the time of deportation provided for by s 82(4). That conclusion has no application to this appeal because the circumstances are not comparable. It follows that we do not need to express any view as to whether the second conclusion reached in Lesi is correct or not, let alone decide whether or not the high and exacting threshold can be met of concluding that this aspect of Lesi is plainly wrong: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK18 [2021] FCAFC 153; 287 FCR 181 at [18].

CONCLUSION AND DISPOSITION 49 The appeal should be dismissed. The appellant should pay the Minister's costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Yates, Bromwich and Hespe.