CSH18 v Minister for Home Affairs
[2018] FCCA 3226
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSH18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3226 |
| Catchwords: MIGRATION – Protection visa – review of decision of Administrative Appeals Tribunal – invalidity of cancellation decisions – whether the Tribunal had power to review “decision” – whether the Tribunal had power to affirm that decision – found that the Tribunal did not have the power to affirm decision – directions made. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth), ss.65, 109, 411, 414, 415, 496, pt.7 |
| Cases cited: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Owendale Pty Ltd v Anthony (1967) 117 CLR 539 |
| First Applicant: | CSH18 |
| Second Applicant: | CSI18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1469 of 2018 |
| Judgment of: | Judge Smith |
| Hearing date: | 22 October 2018 |
| Date of Last Submission: | 22 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicants: | Ms T Baw with Mr D J McDonald-Norman |
| Solicitors for the Applicants: | Michael McCrudden Solicitors Pty Ltd |
| Counsel for the First Respondent: | Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison |
DIRECTIONS
The parties are directed to submit short minutes of orders reflecting my reasons within 7 days of the date of this judgment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1469 of 2018
| CSH18 |
First Applicant
| CSI18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Statement of the issue
This matter was heard together with the matter of Minister for Home Affairs v Administrative Appeals Tribunal & Ors [2018] FCCA 3229. The applicants in the first matter are citizens of Pakistan who were granted protection visas on 15 January 2013. They were both issued with notices of intention to consider cancelling those visas.
On 23 May 2017 an officer of the Department of Immigration purported to make decisions cancelling the applicants’ visas under s.109 of the Migration Act 1958 (Cth). The officer did so on the understanding that the Minister had delegated to her his power of cancellation. In fact, that understanding was incorrect and there was no valid delegation to the officer of the power to cancel a visa. Unaware of that, the applicants both applied to the Administrative Appeals Tribunal for review of the cancellation decisions. Did the Tribunal have any power to review those decisions and, if so, what was the extent of that power?
Background facts
There was no dispute about the relevant facts including the absence of proper delegation of the power to cancel. The following summary is taken from the applicants’ written submissions.
1. On 20 November 2010, the first applicant arrived in Australia, the second applicant arrived seven days later. On 28 June 2011, the first and second applicants submitted a combined application for protection visas in which they claimed to fear persecution in Pakistan by reasons associated with their interreligious marriage: CB 1 to 27.
2. On 16 September 2011, a delegate of the first respondent (“the Minister'”) refused the application: CB 28 to 44.
3. The applicants then applied to have the merits of the delegate’s decision reviewed by the second respondent (the “Tribunal”) (altogether “the first review proceedings”). On 25 October 2012, the Tribunal published its reason for decision in the first review proceedings. The Tribunal remitted the matter to the Department with a direction that the first and second applicants satisfied the criteria in s.36 of the Migration Act 1958 (Cth): CB 45 to 71.
4. On 15 January 2013 the applicants were granted protection visas.
5. On 11 July 2016, an officer of the Department issued a notice of intention to consider cancelling the protection visas of the applicants on the basis that they had provided incorrect information in support of their protection visa application: CB 173 to 187.
6. In response to the aforementioned notice, the applicants maintained they were at all relevant times, and continued to be, in a genuine spousal relationship and feared harm in their home country on account of their relationship.
7. On 23 May 2017, departmental officer position number 60047655 made a purported decision to cancel the protection visa of first applicant and as a result of that purported decision her visa was taken as having been cancelled: CB 189 to 210. As consequence of the first applicant’s visa being cancelled, the second respondent’s visa was automatically cancelled pursuant to s.140 0f the Migration Act.
8. On 26 May 2017, the first applicant commenced these second review .proceedings: CB 212 to 2018. They were commenced because the applicants maintained that there was no basis for their visas to be cancelled and, in any event, their visas should not be cancelled because there was a real chance they would be persecuted if they were returned to their home country.
9. At the time the second review proceedings were commenced the applicants, were unaware that the departmental officer who made the purported cancellation decision did not have the power to do so.
10. On 8 December 2017, the migration agent assisting the first applicant in the second review proceedings was notified by the Tribunal that the departmental officer who made the purported cancellation decision was not delegated to do so: CB 245 to 247.
11. On 14 February 2018, the first applicant was invited to attend a hearing before the Tribunal. The hearing was for the purpose of the first applicant making submissions as to whether the Tribunal had jurisdiction to conduct a review in relation to the purported decision to cancel her protection visa; and if the Tribunal could conduct a review, what powers it was capable of exercising as part of that review: CB 249 to 264.
12. On 21 March 2018, the migration agent for the first applicant provided submissions to the Tribunal in which he argued that the second respondent did not have jurisdiction to consider the purported cancellation decision: CB 267 to 275.
13. On 29 March 2018, the migration agent for the first applicant attended a hearing before the Tribunal. During the hearing the migration agent maintained that no decision had been made pursuant to s.116 of the Migration Act and consequently, the second respondent did not have jurisdiction to conduct a review.
14. At the conclusion of the hearing on 29 March 2018, the migration agent sought an adjournment of the hearing pending a decision by the first applicant on whether to commence proceedings on the issue of the jurisdiction of the Tribunal.
15. On 21 June 2018, the current proceedings (SYG 1469/2018) were commenced in this Court.
16. On 17 August 2018, the Minister in SYG 1469/2018 commenced parallel proceedings (SYG 2202/2018) in this Court.
17. The two parallel proceedings are to be heard together as there is an overlap in the issues. It is whether the Tribunal has jurisdiction to review the purported cancellation decision; and is essentially determined by
whether there was a reviewable decision under the Migration Act.
(Without alteration)
Parties’ contentions
The applicants’ primary argument was that the Tribunal had no authority to review the decisions to cancel because they were not “Part 7-reviewable decisions” within the meaning of s.411 of the Act. The essence of the argument is that, by operation of s.415(1), the Tribunal only has the powers and discretions of the “person who made the decision”. Here, because the person who made the decision had no authority at all, neither did the Tribunal. It would be inconsistent with s.415(1) to construe a “decision” referred to in s.411 of the Act as one made by a person who had no authority to make the decision at all and so s.411 should be understood to exclude such decisions.
The applicants sought to distinguish Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 on the basis of the differences in the statutory provisions considered in that case and those relevant to these proceedings.
The applicants argued in the alternative that, if the Tribunal did have the authority to review the decisions to cancel, its power on review was restricted to setting aside the decisions in light of s.415(1).
The Minister argued that this Court was bound to apply Brian Lawlor to pt.7 of the Act and so the decisions to cancel were “Part 7-reviewable decisions” within the meaning of s.411 even though the officer had no authority to make the decisions.
Counsel for the Minister also argued that, once the applicants had properly applied to the Tribunal for review of the cancellation decisions, the Tribunal was required to review those decisions on their merits and was entitled to make any of the decisions referred to in s.415(2) as it considered appropriate. In this respect, the Minister argued that the words “person who made the decision” in s.415(1) are to be understood as a reference to a decision that is authorised to be made under the Act. As the Minister had the authority to make a decision to cancel the applicants’ visas (if satisfied of the relevant matters), the Tribunal could exercise all the powers of the Minister in relation to the making of such a decision.
The Minister’s submissions in respect of s.411 of the Act are correct but the applicants’ submissions in respect of s.415(1) are correct. The Tribunal’s only power on the review was to set aside the officer’s decision to cancel the applicants’ visas.
Consideration
It is first necessary to set out the relevant statutory provisions.
The relevant scheme is provided for in the following sections of the Act:
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
411 Definition of Part 7‑reviewable decision
(1) Subject to subsection (2), the following decisions are Part 7‑reviewable decisions:
(a) a decision, made before 1 September 1994, that a non‑citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i) subsection 5H(2), or 36(1B) or (1C); or
(iii) paragraph 36(2C)(a) or (b);
(d) a decision to cancel a protection visa, other than a decision that was made because of:
(i) subsection 5H(2) or 36(1C); or
(ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iii) paragraph 36(2C)(a) or (b).
(2) The following decisions are not Part 7‑reviewable decisions:
(aa) any decision to cancel a protection visa that is made personally by the Minister;
(a) decisions made in relation to a non‑citizen who is not physically present in the migration zone when the decision is made;
(b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3);
(c) fast track decisions.
(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) it would be contrary to the national interest for the decision to be reviewed.
414 Tribunal to review Part 7‑reviewable decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
415 Tribunal powers on review of Part 7‑reviewable decisions
(1) The Tribunal may, for the purposes of the review of a Part 7‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
496 Delegation
(1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.
(1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.
(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act.
(3) If an application for a visa that has a health criterion is made, the Minister may:
(a) delegate to a person the power to consider and decide whether that criterion is satisfied; and
(b) consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application.
(4) To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:
(a) Subdivision AB of Division 3 of Part 2 has effect accordingly; and
(b) for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion for the visa has been satisfied if the delegate who was given that delegation is so satisfied or not so satisfied, as the case may be.
(5) Subsection (1A) does not limit subsection 499(1).
(Emphasis in original)
The meaning of the word “decision” in statutes providing for merits review of administrative decisions was considered, in the context of the Administrative Appeals Tribunal Act 1975 (Cth), in Brian Lawlor. That decision was described and applied by the High Court in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481. The plurality in that case said, at [39]:
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a “landmark decision” in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a “decision” in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision”. The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: “[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”. In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.
(Citations omitted)
Their Honours went on to note, at [40], that the reasoning in Brian Lawlor had been applied to review authorities under the Act:
The Brian Lawlor construction was applied by the Full Court of the Federal Court to former references in the Act to “decisions” of the Minister or of a delegate capable of being reviewed by each of the former Refugee Review Tribunal and the former Migration Review Tribunal. A pertinent example, to which the Minister draws attention in the present case, is Kim v Minister for Immigration and Citizenship. The Migration Review Tribunal was there held to have had both jurisdiction to review, and power to affirm, a decision of a delegate which had been conceded to be invalid in a prior proceeding for relief under s 39B of the Judiciary Act 1903 (Cth). The affirmation was held to have resulted in a valid affirmed decision which operated from the date of the invalid original decision.
(Citations omitted)
The decisions to which the plurality[1] referred in this passage were decisions of the Full Court of the Federal Court and are binding on this Court.
[1] See also Edelman J at [95].
For that reason, the applicants’ efforts to distinguish Brian Lawlor from the relevant provisions in this case cannot be accepted.
In light of that, the officer’s decision to cancel the applicants’ visas were pt.7-reviewable decisions and, once the applicants had properly made applications to the Tribunal for review of them (and there is no dispute that they did), the Tribunal was obliged to review the decisions: s.414.
The next question is the extent of the Tribunal’s power on the review.
Here, the ordinary meaning of s.415(1) suggests that the Tribunal does not have any power to affirm the decisions, but only to set them aside.
Critically, that provision only endows the Tribunal with the powers and discretions conferred on the “person who made the decision” (emphasis added). The Minister argued that the “person who made the decision” was the Minister because the decision was made under s.65(1) of the Act which refers to the “Minister”. That argument must be rejected for two reasons: first, it is inconsistent with a plain reading of s.415(1) and, secondly, it is inconsistent with authority.
Unlike an agent, a person to whom a power is delegated exercises that power in his or her own name: Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562 (Windeyer J), 598 (Taylor J) and 611 (Owen J). For that reason, a person to whom the Minister delegates the power under s.65(1) of the Act makes a decision in his or her own name to grant or to refuse to grant a visa. The delegate is the person who made the decision.
The ordinary meaning of the phrase “person who made the decision” is the individual who made the decision to refuse to grant the visa. To read the word “person” in the context of s.415(1) as meaning the person in whom the Act itself reposes the power to grant or refuse the visa, requires the word “person” to be artificially widened well beyond its ordinary meaning. Such an expansion serves no apparent purpose. Indeed, it appears to be inconsistent with the scheme that provides for decisions to be made in the first place by the Minister or his or her delegates and then, on review, by the Tribunal.
The operation of s.415(1) has been considered in circumstances where there was no authority at all even to consider an application for a visa (and a fortiori, to grant or refuse to grant the visa). In Kundu v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 765 an applicant had not complied with the requirement of including certain information in the visa application form. That meant that the application was invalid and there was no power, or obligation, to consider the application. A delegate, however, made a decision to refuse the applicant a visa and the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision. When the RRT affirmed the decision of the delegate, the applicant applied to the Federal Court for review, arguing that the RRT only had power to set aside the delegate’s decision. Lindgren J, at first instance, agreed.
His Honour explained, at [18]:
The Minister relies on s 415(1) … as empowering the RRT, in effect, to grant or refuse to grant the visa. But that subsection endows the RRT only with the powers and discretions conferred by the Act on the original decision-maker, that is, the Delegate. ...
(Emphasis added)
The Full Court of the Federal Court dismissed the Minister’s appeal: Minister for Immigration & Multicultural Affairs v Li; Minister for Immigration & Multicultural Affairs v Kundu (2000) 103 FCR 486. The Court said, relevantly:
[82] ... The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.
I accept the Minister’s submission that Kundu (and others referred to in it) dealt with different circumstances. There, even the Minister had no power to consider the visa application let alone to refuse to grant the visa. Here, the Minister did have that power. That distinction, however, does not diminish the force of what was said about s.415(1) and, in particular, the fact that it applied to the delegate (as the person who made the decision).
For those reasons, although the Tribunal had the power to review the “decision” to cancel the applicants’ visas, it did not have the power to affirm that decision because to do so would be to exercise a power that the decision maker did not have.
Conclusion
I direct the parties to submit short minutes of orders reflecting my reasons within 7 days.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 November 2018
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