2215968 (Migration) - [2022] AATA 4687

2215968 (Migration) [2022] AATA 4687 (16 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Luke Tran
CASE NUMBER: 2215968

MEMBER:Simone Burford
DATE:16 December 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 050 (Bridging (General)) visa, granted on 20 October 2016, is not cancelled.

Statement made on 16 December 2022 at 4:01pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Federal Circuit and Family Court remittal – applicant convicted of serious offences – Unauthorised Maritime Arrival – power to cancel a visa invalidly granted – no visa to cancel – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 5AA, 36, 46, 68, 82, 91, 116, 128, 134, 137, 140, 164, 178, 338, 349, 500A, 501; Ministerial Direction 63
Migration Regulations 1994, Schedule 2, cl 050.511
CASES
DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
EUF20 v MICMSMA [2021] FCCA 436
Kim v MIAC (2008) 167 FCR 578
Meng v MIAC [2007] FMCA 173
MHA v CSH18 [2019] FCAFC 80
MIMIA v Schwart [2003] FCAFC 229
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] HCATrans 217
Zubair v MIMIA (2004) 134 FCR 344
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 378 and 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 29 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa (the applicant’s Bridging visa) under s 116 of the Migration Act 1958 (Cth) (the Act).
THE ISSUE
The issue raised by the remittal is whether the power to cancel a visa arises in circumstances where the visa has already ceased by the time of the delegate’s decision. If that question were answered in the affirmative, these issues which arise for determination are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is [an age]-year-old Vietnamese citizen who first arrived in Australia [in] April 2013.
He is currently in detention in [a named] Detention Centre.
Background to the applicant’s Bridging visa
The Tribunal has drawn the following background from the decision of the Federal Circuit Court of Australia (as it then was) in relation to the application and written submissions from the applicant’s representative which included the decision of the Federal Circuit and Family Court on the applicant’s most recent visa application.[1] That procedural background was not in dispute and is consistent with Departmental records.
[1] [Deleted.]
The applicant arrived by boat into the Ashmore Reef area. He was transferred from that boat and taken aboard a vessel, disembarking in Darwin.
At that time, the applicant was considered to be an ‘offshore entry person’. From 1 June 2013, he was considered to be an ‘unauthorised maritime arrival’ (UMA),[2] by reason that he had entered Australia by sea at an ‘excised offshore place’.[3] Those designations were later considered by the Federal Court of Australia not to apply in circumstances such as the applicants.[4]
[2] section 5AA(1).
[3] section 5(1); the Territory of Ashmore Islands.
[4] DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447
The applicant was in immigration detention from around [April] 2013 until [September] 2014. On 17 September 2014, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa. No details with respect to that visa were before the Tribunal.
By operation of s 46A(1) of the Act, certain visa applications by an UMA’s are invalid. However, where it is considered to be in the public interest to do so, the Minister may, by written notice, determine that s 46A(1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in that determination.[5] [In] February 2016, the Minister, presuming the applicant to be an unauthorised maritime arrival, purported to exercise the power conferred by s 46A(2) of the Act so as to allow him to apply for either a Temporary Protection (Subclass 785) visa or Safe Haven Enterprise (Subclass 790) visa (SHEV).
[5] section 46A(2).
On 5 October 2016, the applicant was included as a dependent applicant on his [Relative A’s] SHEV application (first SHEV application).
On 20 October 2016, the applicant was granted a Bridging visa E (first bridging visa) in association with the first SHEV application. It is the cancellation of the first bridging visa which is the subject of the present application for judicial review.
On 20 June 2017, the applicant lodged his own SHEV application (second SHEV application), doing so as primary applicant, and on 29 June 2017, he was granted a Bridging visa (second bridging visa) in association with the second SHEV application. second SHEV visa application is yet to be determined. However, the second bridging visa – and its cancellation – is not the subject of any application.
On 11 August 2017, the applicant’s [Relative A] purported to withdraw the first SHEV application and the Department in turn purported to accept that withdrawal.
On 6 August 2018, the Full Court of the Federal Court of Australia delivered judgment in DBB16 v Minister for Immigration and Border Protection,[6] holding that the Minister had no power to appoint the Western Lagoon at Ashmore Reef to be a proclaimed port. The decision in DBB16 turned upon a finding that the Western Lagoon of Ashmore Reef was not a port and thus not a part of the ‘migration zone’ for the purposes of the Act.[7] As the applicant had not stepped foot on Ashmore Reef, but on land in Darwin, he was entitled to the more detailed merits review afforded by Pt 7 of the Act and not those provided by Pt 7AA.
[6] (2018) 260 FCR 447.
[7] (2018) 260 FCR 447, [20]-[23], [89]-[90].
On 30 March 2020, the Department notified the applicant that he was affected by the decision in DBB16 such that his second SHEV application was rendered invalid.[8]
[8] [Deleted].
According to submissions from the applicant he applied for a further SHEV on 30 April 2020 (Third SHEV application). That was refused on 7 October 2020. The applicant sought a review in the Tribunal (differently constituted) and the Tribunal affirmed the decision on 21 May 2021. The applicant appealed and the decision to refuse the visa was upheld by the [Federal Circuit and Family Court] [in] August 2022. The applicant has appealed that decision to the Federal Court.[9]
[9] Applicant’s submissions dated 5 December 2022.
As noted above, this review concerns the cancellation of the first bridging visa. Section s 116 confers power to cancel a visa where the Minister is satisfied, relevantly, that a prescribed ground for cancelling a visa applies to the holder. Within Pt 2 of the Migration Regulations 1994 (Cth) (the Regulations), Div 2.9 addresses the cancellation and refusal to grant visas. In the case of the holder of a Subclass 050 (Bridging (General)) visa prescribed grounds for the purposes of s 116(1)(g) are that the Minister is satisfied the holder has been charged or convicted of, relevantly, an offence against a state law.[10]
[10] Para 2.43(1)(p)(i)-(ii).
The delegate cancelled the visa under s 116(1)(g) on the basis of the applicant’s convictions for a number of serious domestic violence and drug offences. The delegate was satisfied that the prescribed grounds for cancelling the visa set out in reg 2.43(1)(p)(i) of the Regulations existed and therefore the grounds for cancellation existed. Having considered the applicant’s circumstances the delegate decided that the visa should be cancelled. The applicant provided a copy of the delegate’s decision to the Tribunal.[11]
[11]
The Tribunal, being satisfied that the ground for cancellation of the visa was made out, examined both the primary and secondary considerations addressed by Direction No 63, Bridging E visas – cancellation under section 116(1)(g) and affirmed the delegate’s decision.
Federal Circuit Court proceedings
The decision of the Tribunal was appealed to the Federal Circuit Court.
The sole ground of review raised in the further amended application before the Federal Circuit Court ([Judge A]), was that the Tribunal did not have jurisdiction to ‘affirm’ the decision of the delegate, and had jurisdiction or power only to ‘set-aside’ the decision of the delegate and, as was submitted, ‘nothing else’. By affirming the delegate’s decision to cancel the visa, it was contended that the Tribunal’s decision was affected by jurisdictional error. Before the Federal Circuit Court, the applicant contended that the only power open to the Tribunal was to make a decision to set aside the delegate’s decision to grant the visa. This issue arose because, it was accepted, the decision to grant the bridging visa was affected by jurisdictional error. That was because an associated Safe Haven Enterprise visa application was invalidly made and, for that reason, a time of application criterion applying to the grant of the bridging visa was not met.
The issue in dispute at that point was whether the Tribunal could affirm a decision that purported to cancel a visa that was invalidly granted, or whether the Tribunal was confined to setting aside the delegate’s decision (as the applicant contended). It was accepted that the invalidity of the delegate’s decision to grant the first bridging visa did not deprive the Tribunal of jurisdiction to determine the application for review.
The Minister successfully argued that the decision to grant the visa was given sufficient effect by the Act for there to be an extant decision that the Tribunal had jurisdiction to affirm on review.
The Federal Circuit Court concluded that the Tribunal had jurisdiction and power to affirm the delegate’s decision to cancel the visa and dismissed the application.[12]
[12] [Details deleted].
The Tribunal notes that in his reasons for decision, [Judge A] noted that:[13]
Although it is accepted that the purported withdrawal of the first SHEV application would have had the effect that the first bridging visa ceased 28 days thereafter, the present application proceeded on the basis that it remained operative and was the subject of the events described below. Why this was so remains unexplained.
(Footnotes omitted)
[13] [Details deleted].
Later in the decision His Honour noted:[14]
The decisions taken on 29 November 2018 to issue a notice and cancel the first bridging visa are somewhat anomalous in the circumstance that the purported withdrawal of the first SHEV application had the effect that the first bridging visa had ceased. This was apparently agreed and despite this, the present application proceeded on the basis that the visa remained operative and was the subject of the events described above. While the foundation for the application was not explained, I am not inclined to adopt the course taken by the majority in Minister for Immigration and Multicultural Affairs v A. I have accepted that this was part of the applicant’s strategy to achieve a result reflecting what was perceived to be the correct, preferred and counterintuitive legal position. Given the procedural history of the matter, it is best to provide a decision.
(Footnotes omitted)
[14] [Details deleted].
Federal Court proceedings
The applicant lodged an appeal from the decision of the Federal Circuit Court of Australia on [In] February 2022 the Federal Court of Australia ([Judge B]) made the following orders:
1. The appeal be allowed.
2. The orders of the Federal Circuit Court of Australia made [in] April 2020 be set aside, and in lieu thereof, the Court orders that:
a.A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 7 December 2018 (Case number: 1835389).
b.A writ of mandamus issue directed to the Second Respondent requiring the application for review made on 2 December 2018 to be determined according to law (taking account of the notes set out below).
c.The First Respondent pay the Applicant’s costs as agreed or assessed.
3. There be no order as to costs of the appeal.
NOTES:
A. The Bridging (General) (Subclass 050) visa granted to the appellant on 20 October 2016, and that was the subject of the cancellation decision of the First Respondent dated 29 November 2018, had ceased on 8 September 2017.
B. The First Respondent concedes that the Second Respondent proceeded on an essential premise that the Bridging visa had not ceased, which was incorrect. That incorrect premise was critical to the Second Respondent’s exercise of its discretion and, in acting on that premise, the Second Respondent fell into jurisdictional error.
On 6 December 2022 the Tribunal became aware that his Honour had delivered brief ‘Reasons for Judgment’ in relation to the costs arising from the orders.[15] These were not included with the remittal to the Tribunal presumably because they related to a costs order. However, His Honour made comments on the orders in the substantive application and the Tribunal has had regard to those comments.
[15] [Details deleted].
His Honour noted:[16]
All parties are now agreed that the Appellant never made a valid application for the visa. They are also agreed that the effect of this is that neither the delegate nor the Tribunal on review had any power to cancel the visa. The effect of this from the Appellant’s perspective is that whilst he does not have the visa, he is not a person who has had his visa cancelled. He remains at liberty to apply for another one.
It is evident from the reasons of the court below that the Appellant did pursue an argument that his visa did not exist in law so that its purported cancellation was erroneous. The primary judge recorded this argument at [81]. The primary judge rejected this argument at [147] concluding that whilst it was contrary to the Migration Act 1958 (Cth) to have issued the visa this did not result in invalidity.
Since the primary judge reached that conclusion, this Court has reached the contrary conclusion in another case: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 (‘CBW20’). The High Court refused special leave to appeal on 10 December 2021: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] HCATrans 217. The evidentiary basis on which CBW20 rested was not identical with the evidentiary basis on which this case proceeded.
[16] [Details deleted].
These comments are considered further below in light of the parties’ submissions regarding the correct or preferrable decision to be made on the remitted application.
Proceedings before the Tribunal
The matter was remitted to the Tribunal for re-consideration. For reasons which are not clear it appears the Tribunal was not notified of the remittal until 28 October 2022. The matter was not constituted to a member until 23 November 2022. In light of these delays and the uncertainty around the issues arising on remittal, the Tribunal sought and received the applicant’s consent to an extension in the time to provide reasons until 16 December 2022.
Prior to an initial hearing the Tribunal invited the applicant’s representative to make submissions in relation to the appropriate disposition of the application in light of the orders of the Federal Court. The applicant provided written submission on 5 December 2022. Those submissions noted as follows:
The review presently before the Tribunal is in relation to the cancellation decision dated 29 November 2018 cancelling the Applicant’s Bridging (General)(Subclass 050) visa that was granted to him on 20 October 2016 and which had ceased on 8 September 2017.
The Applicant seeks a finding that as the Bridging visa had ceased on 8 September 2017, thus there was nothing to cancel on 29 November 2018. The Applicant seeks a direction that the cancellation be set aside.
The Tribunal has the power to set aside the cancellation decision. The Tribunal’s correct and preferable decision is to set aside the cancellation decision.
The Applicant refers and repeats his submissions made in the Courts in relation to the cancellation decision that the visa granted on 20 October 2016 did not exist on 29 November 2018 and thus there was nothing to cancel on 29 November 2018.
The Tribunal do not have the power to affirm the cancellation decision nor the power to replace the decision with a decision not to cancel.
It is noted that the Applicant’s argument in the Federal Circuit Court before His Honour [Judge A] was that the Bridging visa granted on 20 October 2016 was not valid and thus there was nothing to cancel on 29 November 2018. The Applicant did not succeed in the Federal Circuit Court.
In the Federal Court, the Applicant’s argument was that the visa granted on 20 October 2016 had ceased and thus there was nothing to cancel on 29 November 2018. This was conceded by the Minister, which has resulted in the matter being returned to the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 6 December 2022 at a brief hearing to discuss the application. The applicant appeared via Teams for the detention centre and was represented by his lawyer. The hearing was conducted with the assistance of an interpreter fluent in the English and Vietnamese languages.
At that hearing the Tribunal explained the nature of the application to the applicant and indicated it would be seeking further written submissions from his representative and the Minister with respect to the application. Depending on the nature of those submissions the Tribunal may be able to decide the matter on the papers but if not the matter would be listed for a further hearing to allow the applicant another opportunity to give evidence and make submissions.
While the Tribunal did not take substantive evidence from the applicant in relation to matters arising for consideration in the cancellation the applicant asked that he be given a visa so he could be home for Christmas. The Tribunal explained that it was not the Tribunal’s role to grant him a visa and that event if it were, the presentation of the case and the submissions made on his behalf were to the effect that the visa which was the subject of this application had ceased before it was cancelled such that even if the Tribunal set aside that decision, he would still not hold a visa. It was not clear to the Tribunal that the applicant understood this, however given the complexities of his immigration process to date that is perhaps unsurprising.
The hearing was adjourned to allow the applicant’s representative to make further written submissions, specifically addressing whether the Tribunal had the power to make an order merely to set aside the decision (as contended in the earlier written submission) given the Act referred to the Tribunal setting aside a decision and substituting a new decision.[17] The Tribunal also sought submissions on the factual finding sought with respect to when the first bridging visa was said to have ceased.
[17] Section 349 of the Act.
Following receipt of further written submissions form the Minister and the applicant, the Tribunal determined that it could make a decision in the applicant’s favour without the need for a further hearing.
Minister’s submissions
As noted above, given the unusual nature of the application and the lack of clarity around the terms of the order sought, the Tribunal requested the Minister provide his view on the orders.

On 6 December 2022 the Tribunal received the following comments from the Department:
We acknowledge the statement of the Court in [the cited case]. The Minister refers the Tribunal to the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63, which makes clear that the applicant’s application for a Safe Haven Enterprise Visa, and the associated Bridging visa (now under review in the Tribunal), were valid applications. The Minister, respectfully, does not accept that the agreement referred to [in the cited case] was made. Placing aside the reasons, it is the orders remitting the matter to the Tribunal which are of binding effect on the Tribunal, not the reasons for judgment. As set out in the concession note to the orders remitting the matter, the error of the Tribunal was that it had proceeded on the basis that the bridging visa was still operative, when it had in fact ceased. We attach for the Tribunal’s consideration a copy of the Minister’s submissions filed 17 January 2022 in relation to the concession. We draw your attention to paragraphs [5]-[6] and [8] and, specifically, footnote 3. The Minister expressly contemplated that the Tribunal would use the power in s 349(2)(d) of the Migration Act 1958 (Cth) on remittal.
The submissions of 17 January 2022, referred to in the submissions from the Department provided, in part, as follows:
Further evidence: The Minister understands that the Appellant now consents to leave being given to the Minister to rely on further evidence. That further evidence, read with Minister for Immigration v CBW20 [2021] FCAFC 63 (CBW20), establishes that the Temporary Safe Haven (TSH) visa purportedly granted to the Appellant on 17 September 2014 is invalid.
4. The Tribunal’s decision should be set aside: A consequence of the TSH visa being invalid is that the Tribunal decision (the decision under review) should be set aside. As explained below, an essential premise of the Tribunal decision was that the Appellant’s 1st bridging visa was still in operation, because the Appellant’s 1st application for a SHEV was invalid. However, CBW20 means that this essential premise is incorrect.
5. Essential premise of Tribunal’s decision: In November 2018, the Appellant’s 1st application for a SHEV was thought to be invalid because, contrary to the Department’s previous understanding, the Appellant was not an unauthorised maritime arrival. On this understanding, it was thought that the event that would otherwise have caused the Appellant’s 1st bridging visa to cease to have effect (the withdrawal of the 1st SHEV application) had not in law occurred because there was nothing to withdraw, and the 1st bridging visa was still in effect. This understanding is set out in internal Department consideration of the Appellant’s case, and that understanding forms the basis of the consideration by both the delegate and the Tribunal of whether there were grounds for cancelling the 1st bridging visa.
6. However, the effect of CBW20 is that the Applicant never in law held a TSH visa, which in turn means that he was not prevented by s 91K of the Migration Act 1958 (Cth) (the Act) from applying in August 2017 for a SHEV. Therefore, the essential premise of the Tribunal decision set out above (that the 1st bridging visa was still in effect) was incorrect. Instead, the visa period for the 1st bridging visa1 ended 28 days after the withdrawal of the Appellant’s 1st SHEV application on 11 August 2017. By analogy with CBW20, this misunderstanding by the Tribunal was fundamental to its decision.
7. Section 68(4) does not apply here: The Minister accepts that s 68(4) of the Act does not alter the position in this case. Section 68(4) only makes provision for a bridging visa to be reactivated during “the visa period for the visa”. As just noted, the visa period for the 1st bridging visa ended in September 2017, well before the Tribunal decision in December 2018.
8. Form of orders: The Minister therefore accepts that orders should be made allowing the appeal and setting aside the Tribunal decision. In accordance with usual practice, there should be a further order requiring the Tribunal to deal with the original review application according to law.
However, as noted in the proposed orders, the 1st bridging visa ceased effect in September 2017, so the original reason for exercising the cancellation power in respect of this visa does not exist.
Thus the proposed orders do not contemplate that the Tribunal would enter on any substantive consideration of whether to cancel the Appellant’s 1st bridging visa.3 The operative decision is the decision by a delegate dated 27 November 2018 to cancel the Appellant’s 2nd bridging visa.
A copy of this submission was provided to the applicant’s representative on the same day and the applicant’s submissions included a response to the issues raised in the response.
Applicant’s post hearing submissions in response
Following the hearing and having been provided the submissions from the Department the applicant made further submission on 9 December 2022. With those submissions the applicant submitted the following documents:
·A copy of the Applicant’s bridging visa E granted to him on 20 October 2016 (with a note this was incorrectly referred to in the Decision Record, being the bridging visa cancelled on 29 November 2018), and subject of the review). It was submitted that this is the first bridging visa and that the visa was granted in association with the applicant having made a valid SHEV application, the first SHEV application.
·A copy of the Department’s ‘Acknowledgement of withdrawal’ of the first SHEV application, dated 15 August 2017. It was submitted that this is the Department’s withdrawal notice of the first SHEV application. The applicant submitted that paragraph [6] of the Minister’s Submissions dated 17 January 2022 included a date of 11 August 2017 which was the date that the Applicant had provided to the Department the “Withdrawal Form” signed by him, however, it was not until 15 August 2017, that the Department then acknowledged the withdrawal.
·A copy of a letter from the Minister dated 20 October 2016 advising of a purported decision to lift the s 46A bar to allow the applicant to make a SHEV and associated bridging visa application.
The submissions further noted that:
The Applicant does not dispute the submissions from the Department of Home Affairs ...
The Applicant further accepts and agrees with the contents set out in paragraphs [5]-[6] and [8] of the Minister’s Submission dated 17 January 2022. The Applicant accepts and agrees that the Tribunal’s power on review in this matter is in s 349(2)(d) of the Act.
In relation to the decision by the delegate dated 27 November 2018 to cancel the Applicant’s 2^nd bridging visa, refer to at [8], it is noted that this decision of 27 November 2018 is not the decision on review. The Applicant has not applied for review of this decision.
The applicant’s representative indicated that they were unable to locate the signed “Withdrawal Form” from either the Court Book of the Judicial Review Proceeding of the bridging visa cancellation or the Judicial Review Proceeding of the Applicant’s SHEV application. The Applicant’s evidence that he had withdrawn the SHEV application that the bridging visa dated 20 October 2016 was associated on 15 August 2017 as evidenced by the “Acknowledgement of withdrawal dated 15 August 2017”.
The applicant submitted that pursuant to cl 050.511(b)(iv) of the Regulations as in force at the time, the first bridging visa, the bridging visa that was cancelled on 29 November 2018, had ceased 28 days after the Applicant withdrew the first SHEV application, dated 5 October 2016.
The applicant referred to the ‘Acknowledgement of withdrawal’ of the first SHEV application dated 15 August 2017 noting that under the subheading “In reply please quote”, the Department records the “Date of visa application” as 5 October 2016. The applicant submitted it could be inferred that the date of application of the first SHEV is 5 October 2016.
The applicant further submitted that it should be inferred that the SHEV lodged on 5 October 2016 is the SHEV that the bridging visa dated 20 October 2016 was associated to and is the SHEV that was withdrawn on 11 August 2017, given the date of the SHEV application and date of visa grant are both in October 2016.
In summary, the applicant submitted that the bridging visa that was cancelled 29 November 2018 had ceased in September 2017, and was not in force and effect so as for it to be cancelled on 29 November 2018. The bridging visa had ceased because the Applicant had withdrawn the SHEV application that it was associated to.
The Applicant seeks a direction that: "The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa". The Applicant submitted that the Tribunal has the authority to make the direction sought by the Applicant.
consideration
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
In remitted matter 1835389, the Minister conceded that the applicant’s visa had ceased on 8 September 2017, which was before the delegate purported to cancel the visa. The notes in the consent order record the Tribunal fell into jurisdictional error by relying on an incorrect premise that the visa had not ceased, which was critical to the exercise of the Tribunal’s discretion to cancel the visa.
Cancellation decisions under s 116 are reviewable by the Tribunal if the visa holder was in Australia both at the time of the decision and at the time of the review application. [18] Such decisions will be reviewable even where the primary decision is invalid, for example, because the delegate failed to comply with the mandatory procedural requirements set out in the Act;[19] where the visa should not have been granted[20] or where the person who made the purported decision lacked the requisite delegation.[21] Decisions are reviewable where the visa would have already expired at the time of the Tribunal’s decision.[22]
[18] Section 338(4) provides that decisions to cancel bridging visas held by a person who is in immigration detention because of that cancellation are reviewable. Non-citizens with cancellation decisions reviewable under this sub-section would be in Australia when their visas are cancelled, as a visa is generally essential for non-citizens to travel to Australia (s 42) and immigration detention applies to and is authorised for unlawful non-citizens in Australia: see ss 178, 189.
[19] Zubair v MIMIA (2004) 134 FCR 344 at [28]–[32], applying Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary DSS v Alvaro (1994) 50 FCR 213, Yilmaz v MIMA (2000) 100 FCR 495 and Thayananthan v MIMA (2001) 113 FCR 297. Note, however, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1).
[20] Meng v MIAC [2007] FMCA 173
[21] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made. It also held that the words ‘powers and discretions that are conferred by this Act on the person who made the decision’ in s 415(1) ([pt 7]; s 349(1) [pt 5]) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective (at [65]).
[22] Kim v MIAC (2008) 167 FCR 578 at [32]–[34].
However, such decisions are generally not reviewable if:
·the visa holder was not in Australia (in the migration zone) at the time the decision was made
·for most Part 5 cases – the visa holder was in immigration clearance, unless they have had a bridging visa cancelled and that cancellation is reviewable under s 338(4)
·the decision to cancel the visa was made personally by the Minister
·the Minister has issued a conclusive certificate in relation to the decision
·for Part 7 cases – the decision was made in reliance on ss 5H(2), 36(1C) or s 36(2C)(a) or (b), or under s 36(1B) or a cancellation because ASIO has assessed the person to be a security risk.
Other cancellation decisions are not reviewable by the Tribunal under either Part 5 or Part 7 for the following reasons, and as there are no provisions otherwise conferring jurisdiction on the AAT, they are not subject to merits review:
·Sections 128 and 134B apply only to offshore visa holders
·Visa cancellations under s 500A (temporary safe haven visas) are expressly excluded from the definition of Part 5-reviewable decision
·Automatic cancellations under ss 137J, 137T, 140(1), 140(3), 164 and 500A(13) are by force of law and as they do not involve a ‘decision’ there is no AAT-reviewable decision
·Powers to cancel under ss 501A(2), (3), 501BA(2) and 501B(2), and the power to revoke a cancellation in s 501C(4) are personal powers of the Minister and are expressly excluded from merits review.
The Tribunal is not aware of any authorities which directly consider this point. The judgment in EUF20 v MICMSMA [2021] FCCA 436 concerned circumstances where the delegate had misidentified the visa held by the applicant and purported to cancel a visa that did not exist. The Court applied the existing authority in MIMIA v Schwart[2003] FCAFC 229 and held the purported cancellation was a nullity. The Court was of the view that it is a jurisdictional fact that the person whose visa is being cancelled holds that visa, and found that the delegate erred by misidentifying the visa to be cancelled, which was a fundamental error in fact finding which goes to jurisdiction (at [38]). By analogy, and in the absence of any judicial authority directly on point, it appears to be open to the Tribunal to find that the applicant did not hold the visa at the time of the delegate’s decision and therefore the power to cancel the visa does not arise in the circumstances.
With respect to whether the visa was still in effect at the time of cancellation, the Tribunal finds based on the evidence before it that it was not.
The Tribunal finds that by operation of s 82(7A) of the Act and Sch 2 cl 050.511(b)(iv) of the Regulations, as in force at the relevant time, the first the bridging visa which was purportedly cancelled 29 November 2018 had ceased 28 days after the application for the related visa was withdrawn on 11 August 2017.
As the visa had ceased, the Tribunal finds that there was no visa to cancel. As there was no visa to cancel, the power to cancel the visa does not arise. While the Tribunal was unable to find direct authority on that point, it is consistent with the submissions of the parties and the decision of the Federal Court in this matter.
The applicant sought an order that the decision under review be set aside and substituted with a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa. The Department submissions indicate that ‘the Minister expressly contemplated that the Tribunal would use the power in s 349(2)(d) of [the Act] on remittal’.
The Tribunal is satisfied that the correct or preferrable decision is that the cancellation decision be set aside and that the Tribunal has jurisdiction to make such an order. However, for the same reasons the Tribunal funds there was no power to cancel a visa that no longer exists, the Tribunal does not consider that it would be the correct decision to substitute a decision not to cancel the visa. Rather it seems the correct decision would be that the visa is not cancelled.
In such circumstances the appropriate decision would be to set the cancellation decision aside and substitute a decision that the applicant’s Subclass 050 (Bridging (General)) visa, issued on 20 October 2016, is not cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 050 (Bridging (General)) visa issued on 20 October 2016 is not cancelled.
Simone Burford
Senior Member