1611905 (Migration)

[2016] AATA 4671

1611905 (Migration) [2016] AATA 4671 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Reynaldo Del Socorro

CASE NUMBER:  1611905

DIBP REFERENCE(S):  BCC2015/2687970

MEMBER:Marten Kennedy

DATE:23 November 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 23 November 2016 at 1:08pm

STATEMENT OF DECISION AND REASONS

1. An application was made to the Tribunal on 2 August 2016 for review of a decision to cancel Mr Del Socorro’s Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.

2. A delegate of the Department purported to cancel the visa on 26 July 2016.

3. On 2 August 2016, the applicant purported to apply for review of that decision in the Tribunal.

4. On 3 August 2016, the Department purported to make a decision ‘not to cancel’ the visa; citing the identification of jurisdictional error through overlooking information provided by Mr Del Socorro in response to the notice of intention to consider cancelling the visa.

5. Mr del Socorro subsequently has provided the Tribunal with a copy of a notice from the Department dated 9 August 2016.  That decision appears to take into account the Department’s approval of a subsequent nomination application on 8 August 2016 as a basis for concluding that ‘there was no ground for cancelling the visa at this time’.

6. The applicant contacted the Tribunal to advise of this development, and requested a refund of the application fee.  The Regulations (at r.4.14(2)) would not permit a refund of the application fee if the applicant were to withdraw the application for review.  The Registry suggested that the matter be referred to the Tribunal to determine if there was a reviewable decision before the Tribunal in light of the Department’s subsequent decision.

7. The Minister and Department have no express statutory power to revisit decisions that are before the Tribunal.  The fact that the Department has purported to do so in this situation is undesirable, and has placed the status of the subsequent purported decision not to cancel the visa and the jurisdiction of the Tribunal into uncertainty.

8. On the one hand, the jurisdiction of the Tribunal may be seen to have vested when the applicant made a valid application for review of a Part 5 reviewable decision falling within s.338(3) of the Act, and I have difficulty with the notion that the tribunal can retrospectively be deprived of its jurisdiction by the later purported identification of jurisdictional error by the Department.

9. On the other hand, the Department, it must be assumed, relies on the principle in Minister for Immigration and Multicultural Affairs v Bhardwaj² to the effect that nothing in the Act or the principles of administrative law require a purported decision involving a jurisdictional error to be treated as valid unless and until set aside by a court, and therefore it is open to the Department to reconsider the matter and effectively reverse its earlier decision.  Presumably the Department was either unaware the Tribunal was potentially seized of the matter, or considered the principle in Bhardwaj permitted it to take that step regardless.

10. Notwithstanding the uncertainty as to the Tribunal’s jurisdiction in these circumstances, I consider that the reasoning in Bhardwaj may permit the Department to treat the decision of 26 July 2016 as no decision at all, and may as a consequence also permit me to treat that decision as no decision at all.  This will afford the applicant with the outcome he seeks in very unusual circumstances, and is a practical outcome in circumstances where the alternative would not be a practicable outcome. 

11. As a consequence of the Department’s purported decision not to cancel the visa it had earlier purported to cancel, I find (albeit with some concern) that there was no Part-5 reviewable decision the subject of the application for review.

12. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

    The Tribunal does not have jurisdiction in this matter.

    Marten Kennedy
    Member