Federal Court: In a landmark decision which we recently summarised, the Federal Court held that s 501 of the Migration Act 1958 (Cth) did not apply to the refusal of protection visas. But can protection visas be cancelled under s 501? Is a subclass 851 (resolution of status - RoS) visa a protection visa?
The relevant sequences of events is summarised as follows:
- The Applicant's RoS visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth)
- A delegate of the Minister decided under s 501CA(4) not to revoke that cancellation
- The Tribunal (AAT) affirmed that non-revocation decision
- The Applicant applied to the Federal Court (FCA) for judicial review of the Tribunal's decision
- On 5 August 2019, the FCA dismissed that judicial review application
- On 14 November 2019, the Applicant filed an application for an extension of time to appeal from the FCA's decision
- On about 16 January 2020, the Applicant "received a letter from the Department ... informing him that arrangements had been made for his removal from Australia on 25 January 2020"
- On 22 January 2020, the Applicant filed an application for an injunction to restrain his removal from Australia.
Another judge of the FCA, BANKS-SMITH J, heard the injunction application and described the proceedings as follows:
25. Having regard to the fact that the applicant is self-represented and the importance to him of this application, I will treat the application as an application for interlocutory relief preventing the Minister or his officers from removing the applicant from Australia pending the determination of the application for an extension of time to challenge the decision of the primary judge, being a challenge which would require a grant of leave to rely upon a matter not raised before the primary judge. Accordingly, I assume for the purpose of this application that the extension application remains on foot. The Minister accepted at the hearing before me that it was appropriate to proceed in this manner.
26. Therefore it is important to note that this is not the hearing of the extension of time application itself but rather the hearing of an application for an injunction pending the hearing (or other determination) of the extension of time application. That observation is relevant to the issue of delay.
The questions to the FCA were as follows:
Question 1: Although the landmark decision recently delivered by the FCA ruled that a visa could not be refused based on s 501, can it be said that protection visas cannot be cancelled under s 501 either?
Question 2: Is an RoS visa a protection visa?
The FCA answered those questions as follows:
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