Lakalaka and Minister for Immigration and Multicultural and Indig Enous Affairs

[2003] AATA 425

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 425

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/502

GENERAL ADMINISTRATIVE DIVISION		)
Re		SOANE LAKALAKA

Applicant

And MINISTER for IMMIGRATION and MULTICULTURAL and INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date28 April 2003

PlaceSydney

Decision

For reasons given orally at the conclusion of the hearing in this matter and being satisfied the Tribunal does not have jurisdiction, the Tribunal directs that the application be dismissed pursuant to the Administrative Appeals Tribunal Act 1975.

The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.
The said transcript is annexed hereunto and furnished to each of the Applicant and to the Respondent as the reasons for the Tribunal’s decision.

    Mr J  Block

  Deputy President

CATCHWORDS

Migration - whether the Tribunal has jurisdiction to hear application - there is no provision conferring power on the Tribunal to review a decision made by the Minister under section 501 Migration Act 1958.

REASONS FOR DECISION

28 April 2003 Mr J Block, Deputy President       

1. In this matter a visa issued to the Applicant, Mr Soane Lakalaka was cancelled by the Respondent Minister, and being the Minister for Immigration and Multicultural and Indigenous Affairs. In a letter to the Applicant personally addressed to him at 38 Bangaroo Road, Dapto dated 17 March 2003, the Department of Immigration and Multicultural and Indigenous Affairs notified the Applicant that the Minister had decided to cancel his visa pursuant to section 501 (2) of the Migration Act 1958.. In that letter the Department noted that the grounds upon which the cancellation was based was that he did not pass the character test under sections 501 (6)(a) and 501(6)(c)(i) of the Migration Act 1958.

2.      The Applicant acknowledged receipt of the notice of cancellation dated 17 March 2003.  His acknowledgment reads: "I Soane Lakalaka acknowledge the receipt of the following documents sent by the Department of Immigration and Multicultural and Indigenous Affairs:

* notice of visa cancellation under s501 (2) of the Migration Act 1958
 * notice of removal and maintenance costs
 * visa cancellation decision record."

3.      Until recently the Applicant was represented by Messrs Brett Slater, Solicitors of Sydney.  However, they withdrew a short time ago.  Mr Lakalaka said in the hearing today that he had withdrawn his retainer to Brett Slater because they had asked for more money than he could afford.

4.      It was arranged originally that Mr Lakalaka would be present in person at this jurisdiction hearing.  However, I was informed this morning that the Villawood Correctional Centre insisted on handcuffing Mr Lakalaka, in respect of the journey to the Tribunal and that he refused to be handcuffed.  I asked Ms Lyn Hespe (Deputy Registrar) to advise Villawood that so far as I was concerned, it was not necessary for him to be handcuffed on his way from Villawood to the Tribunal hearing room, but that of course I did not have any power to issue directions to Villawood as to the manner in which they should exercise their duties outside the Tribunal.  However, I note, having regard to the Applicant’s record, that he does not appear to have been found guilty of crimes of violence, and that if he had appeared before me in the hearing room today, I would have directed the removal of the handcuffs. For these reasons, the Applicant was present at the hearing but through a telephone link to him at Villawood.

5. In written submissions furnished by Ms Dale Watson on behalf of the Respondent Minister dated 23 April 2003, Ms Watson set out the basis upon which the Minister contends that the Tribunal does not have power to review a decision by the Minister personally made under section 501 of the Migration Act1958.  The Respondent’s submissions on jurisdiction read as follows:

"1. The applicant seeks to review a decision to cancel his visa under s.501 of the Migration Act 1958 which was made personally by the Minister on 26 August 2002.

2. The respondent submits that the Administrative Appeals Tribunal ("the Tribunal") does not have jurisdiction to hear this application.

3. The Tribunal does not have general jurisdiction in relation to administrative decisions.  Section 25(1) of the Administrative Appeals Tribunal Act 1975 provides that an enactment may provide that application may be made to the Tribunal and s.25 (4) provides that the Tribunal has power to review any decision in respect of which application is made to it under any enactment.

4. Under the Migration Act, the Tribunal has power to review a decision made by a delegate of the Minister under s.501 - see s.500 (1)(b). There is no provision conferring power on the Tribunal to review a decision made by the Minister under s.501.

5. Section 501(1)(b) was amended by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 No. 114 of 1998.. Prior to the amendment, s.500 (1)(b) stated that the Tribunal had jurisdiction in relation to decisions of the Minister under s.501. The Explanatory Memorandum for the amending bill stated at item 19 in relation to s.500(1)(b):

"Subsection 500(1) of the Act specifies the decisions in respect of which an application for review may be lodged with the AAT.  This item amends paragraph 500(1)(b) of the Act by inserting a reference to decisions of a delegate of the Minister under section 501.  This amendment is required to ensure that decisions made personally by the Minister under section 501, as inserted by this Act, are not reviewable by the AAT.”

6.    In Re: Patterson; ex parte Taylor (2001) 207 CLR 391, Gummow and Hayne JJs observed as follows:

"Decisions made under s.501 by the Minister personally are outside the avenue of review by the Administrative Appeals Tribunal which is provided by s.500 (1)(b) (at p.446).”

7.    The respondent therefore submits that the application for review should be dismissed."

6. It is abundantly clear to me that the Respondent’s contentions are well founded. The visa was indeed cancelled by the Minister himself under section 501; in particular it was not cancelled by a delegate of the Minister under that section. The juxtaposition of sections 501 (1) (a) and 501 (1) (b) of the Act indicate in the clearest possible terms, that the legislature intended to draw a distinction between decisions of the Minister personally, in certain circumstances, as compared with decisions of a delegate. In particular section 500(1)(a) would permit the review of a decision by the Minister personally where it was made under section 200. By contrast a decision under section 501 is reviewable if made by a delegate of the Minister but not where it is made by the Minister personally.

7. It is not necessary in my view to refer to the Explanatory Memorandum given that the legislation is absolutely clear in its terms. However, and if there was any doubt, and I do not believe that there is, item 19 of the relevant Explanatory Memorandum indicates that it was intended that this Tribunal should not have power to review a decision made personally by the Minister under section 501.

8.      When asked whether he had anything to say, the Applicant, Mr Lakalaka, simply said that he did not accept that he failed the character test.  When it was pointed out to him that the hearing was one as to jurisdiction only and so that discussions of character were not apposite he said that he thought that I ought to overrule the Minister.  This Tribunal is a creature of statute; it has no inherent jurisdiction.  It has power only to determine matters within such limits as are imposed by any relevant referring legislation.  To suggest that I have power to overrule the Minister is of course untenable. 

9.      It is clear that the Tribunal cannot hear this matter simply because it has no jurisdiction.  In the circumstances the objection by the Respondent Minister on the grounds of jurisdiction is sustained, and the application is dismissed...

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed:         .......................................................................................
  Associate

Date of Hearing  28 April 2003
Date of Decision  28 April 2003
Advocate for the Applicant       Self-Represented
Solicitor for the Respondent     Ms D Watson, Australian Government Solicitor