Visa Cancellations Generally
It is opportune to point out what should always be the strategy in visa cancellation cases.
In Sukhera v MIMIA  FCA 1427 (8.11.04), the Federal Court determined that when the MRT overturns a visa cancellation, it is as if the visa was never cancelled and always existed. The court said:
Nevertheless, the ordinary consequence of setting aside a decision by a review tribunal is to void it ab initio: BHP v Trade Practices Tribunal (1980) 31 ALR 401, 410-11 per Bowen CJ.
Sukhera is an interesting case to look at in detail. Sukhera initially had a student visa valid until 30.7.2002. Wrongly in September 1999, DIMIA purportedly cancelled this visa. Subsequently the MRT overturned that cancellation but by that time his visa had expired. On 30.7.02 Sukherawent to DIMIA to lodge a further visa application but the officer refused to accept the application and handed it back to him. On 10.11.03 the MRT overturned the cancellation.
The Federal Court determined that the application lodged on 30.7.02 was a valid application and concluded:
If the Minister, through the Dept, has acted without statutory authority, and if a purported decision was ineffective to affect legal rights as at July 2002, that should be declared and the Minister should be ordered to deal with the applicant on the basis of the rights and obligations provided for by Parliament.
Although the visa application lodged on 30.7.02 had been lost, the Federal Court had no difficulty making appropriate orders:
After the applicant was told by the… officer on 30.7.02 that his visa had been cancelled and as a consequence the application that he was making was not valid under the Act, the document which the applicant was attempting to file was handed back to him. He took it away… it has been lost. Thus…, the application that was made needs to be reconstructed and there is no power in the Court to order another document to be considered. I reject these submissions. One needs to understand what has happened. On 30.7.02 an officer of the Cwth wrongly asserted to the applicant that his application was not otherwise valid for a reason which was incorrect. At that time (and now) the applicant was (and is) entitled to an order that the valid application he made be considered: see s 47 of the Act. The application was not voluntarily withdrawn. It was rejected at the counter. The application was manifested in a piece of paper. However, the application was the request being made at the time for the visa, manifested as it was in a piece of paper. The Minister had a statutory obligation at that time which was not complied with. There is still an application before the Dept. The wrongful rejection of it does not gainsay the proposition that the request was never withdrawn; it was wrongly rejected.
30 It would plainly be within the power of the executive deriving from s 61 of the Constitution to take steps to reconstruct, as best it could, the information within an application in circumstances where the document had been accidentally destroyed while in the Dept’s possession.
31.. it is not a question of an absence of power for an order such as order 5, but the proper framing of it. There could be little doubt that the Minister would be entitled to take all reasonably practicable steps to inform herself of the nature and content of the application made on 30.7.02 and to consider that application. That being within her power it is open to this Court to order that those steps be taken in order to give efficacy to the valid application otherwise made on 30.7.02.
It is interesting therefore to set out the Court’s orders:
1. Declares that the purported cancellation of the applicant’s visa on 15.9.99 was of no effect and had no effect in law on the then existing visa held by the applicant.
2. Declares that the respondent Minister was not in July 02 or thereafter precluded by s 47 of the Migration Act from considering and determining the student visa application lodged by the applicant on 30.7.02.
3. Orders that an order in the nature of mandamus issue requiring the Minister to consider and determine the student visa application made by the applicant on 30.7.02.
4. Orders that the Minister take such steps as are reasonably practicable to inform herself of the nature and content of the application made by the applicant on 30.7.02 in order to comply with order 3.
Thus the correct strategy in student visa cancellation cases is to identify the date when the student visa would have expired in any event and make sure before that some other visa application is lodged. It is best to do this by post or fax, always retaining a copy. DIAC will inevitably reject the application as invalid but the student will have protected his or her position consistent with the court decided in Sukhera.
There is, of course, some relief for student visa holders rescued by the MRT overturning a cancellation. Paragraph 573.211(3) gives a student 28 days from when the MRT made the decision to apply for another student visa. Para 573.211(3)(c) reads:
(c) the application is made within 28 days (or within such period specified by Gazette Notice) 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 Migration Review 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