Lesi v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 285

Full Court of the Federal Court

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Interrogate

Catchwords

1. Immigration
2. › Visas
3. › Permanent residence visa
4. › Cessation of visa
5. › Deportation of visa holder
6. › Whether visa 'ceases to be in effect' permanently or temporarily upon deportation
7. › Whether visa revives upon setting aside of deportation order
8. › Migration Act 1958 (Cth), s 82(4)
1. Administrative Law
2. › Administrative Appeals Tribunal
3. › Powers on review
4. › Effect of setting aside decision
5. › Retrospective operation of s 43(6) AAT Act
6. › Whether setting aside of decision on merits review renders original decision invalid
7. › Whether s 43(6) operates retrospectively where initial decision was valid when made
8. › Administrative Appeals Tribunal Act 1975 (Cth), ss 43(1), 43(6)
1. Immigration
2. › Deportation
3. › Deportation order under s 200
4. › Certificate under s 502 declaring person excluded
5. › Whether purported certificate complied with s 502(1)
6. › Whether invalidity of s 502 certificate affected validity of deportation order under s 200
7. › Migration Act 1958 (Cth), ss 200, 201, 502
1. Statutory Interpretation
2. › Deeming provisions
3. › Construction of 'ceases to be in effect'
4. › Distinction between cessation and cancellation
5. › Presumption against abrogation of fundamental rights
6. › Whether language admits of construction preserving rights

Quick Take

A permanent residence visa that 'ceases to be in effect' under s 82(4) of the Migration Act upon the holder's deportation is not cancelled; it resumes its effectiveness once the deportation order is set aside by the AAT. The deportation itself remains valid and lawful notwithstanding the setting aside of the deportation order on merits review. The question of the full scope of the retrospective operation of s 43(6) of the AAT Act was left open.