Engi and Minister for Home Affairs (Migration)
[2018] AATA 4037
•23 October 2018
Engi and Minister for Home Affairs (Migration) [2018] AATA 4037 (23 October 2018)
Division:GENERAL DIVISION
File Number: 2018/6114
Re:Joseph Engi
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 October 2018
Date of written reasons: 25 October 2018
Place:Brisbane
The application for review is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[sgd].................................................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – where Applicant’s visa cancelled personally by the Minister under s 501BA of the Migration Act 1958 (Cth) – whether Migration Act 1958 (Cth) allows the Tribunal to review decisions made under s 501BA – no review rights exist – application for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42A
Migration Act 1958 (Cth), ss 500, 501, 501BA, 501CACASES
Engi and Minister for Immigration and Border Protection
[2017] AATA 1450
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs[2007] AATA 1309
Rana and Defence Force Retirement and Death Benefits Authority[2009] AATA 404
Re Bienstein and Commonwealth Ombudsman[2003] AATA 1197
Re Dennis and Secretary, Department of Transport(1979) 2 ALD 255
Re Laird and Australian Broadcasting Tribunal[1979] AATA 52
Re McLindin and Acting Commissioner for Superannuation(1979) 2 ALD 261
REASONS FOR DECISION
Senior Member Theodore Tavoularis
25 October 2018
BACKGROUND
Mr Joseph Engi (“the Applicant”) resided in Australia on a Class TY subclass 444 Special Category (Temporary) visa. In 2016, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of 12 months or more. He applied for this cancellation to be revoked under s 501CA(4). Although a delegate of the then-Minister for Immigration and Border Protection refused to revoke the cancellation, the Applicant was successful in an appeal to this Tribunal.[1]
[1] Engi and Minister for Immigration and Border Protection [2017] AATA 1450.
On 27 June 2018, the Hon Peter Dutton MP, the Minister for Home Affairs (“the Minister”) personally made the decision to exercise his discretion to cancel the Applicants visa under s 501BA of the Act. It is this decision that the Applicant seeks to be reviewed by the Tribunal. On 23 October 2018, I decided that the Tribunal lacked jurisdiction to hear this matter and accordingly dismissed the Applicant’s appeal. The Applicant requested written reasons for this decision on 25 October 2018. These are the reasons for my decision.
DOES THE TRIBUNAL HAVE JURISDICTION TO HEAR THIS APPLICATION?
The Tribunal is a creature of statute and, accordingly, is bound by the statute that created it. Sections 25(1) and 25(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) establish the Tribunal’s jurisdiction to review decisions:
1An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
3Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
Importantly, this means the Tribunal can only hear and determine an appeal where an Act or other enactment expressly provides that it can.[2] Further, it has long been the position that the Tribunal must interpret provisions which grant it jurisdiction strictly.[3] The upshot of all of this is that I only have the power to review a decision where the legislation under which that decision was made says I can.
[2] See, e.g. Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309.
[3] See Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261; Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255; Rana and Defence Force Retirement and Death Benefits Authority [2009] AATA 404; Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197; Re Laird and Australian Broadcasting Tribunal [1979] AATA 52.
As the Applicant has experienced, the Tribunal has some review rights over decisions made under the Act – decisions made by a delegate of the Minister under s 501CA(4) being one significant class of those decisions. The Applicant’s visa was cancelled personally by the Minister under s 501BA(2) of the Act. The question then is whether the Act provides for the Tribunal to be able to review decisions made under that enactment.
The Tribunal’s review rights under the Act are conferred by s 500(1), which reads:
1Applications may be made to the Administrative Appeals Tribunal for review of:
(a) decisions of the Minister under section 200 because of circumstances specified in section 201, other than decisions to which a certificate under section 502 applies; or
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
(ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or
(c) a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on:
(i) subsection 5H(2) or 36(1C); or
(ii) paragraph 36(2C)(a) or (b) of this Act.
This provision does not include decisions made under s 501BA of the Act. Further, s 501BA(5) explicitly provides:
A decision under subsection (2) is not reviewable under Part 5 or 7.
There is no provision in the Act authorising the Tribunal to review decisions made personally by the Minister under s 501BA(2). Rather, it is clear to me that there is an intention in the Act that decisions made by the Minister under s 501BA(2) are not reviewable by the Tribunal.
It follows that there is no enactment which provides the Tribunal with authority to review decisions of the Minister under s 501BA(2). Accordingly, the Tribunal does not have the power to review it.
CONCLUSION
In view of the above, I have dismissed the application for review under s 42A(4) of the AAT Act.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........................[sgd]..............................................
Associate
Dated: 25 October 2018
0
4
0