Lesi v Minister for Immigration and Multicultural and Indigenous Affairs

Lesi, the appellant, challenged the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, over the validity of a deportation order and its impact on his permanent visa. The case was heard in the Federal Court of Australia. The appellant argued that the initial decision to deport him was invalid as no valid certificate under section 502 had been issued, and that the subsequent order by the Tribunal under section 43 of the Administrative Appeals Tribunal (AAT) Act had no effect on the validity of the original decision. The respondent contended that the Tribunal's decision to set aside the original deportation order did not invalidate the initial decision and that at the time of the appellant's deportation, a valid deportation order was in place.

The court considered whether the setting aside of the original deportation order by the Tribunal meant that the initial decision was invalid. The court examined section 43(1) of the AAT Act, which outlines the powers of the Tribunal in reviewing a decision, including the ability to set aside and substitute a decision. The court noted that the Tribunal, when exercising these powers, does not engage in judicial review but rather exercises its own administrative decision-making powers. The court found that the Tribunal's task is to determine the correct or preferable decision based on the evidence before it, which may differ from the evidence before the original decision-maker. The court concluded that the Tribunal's exercise of its powers under section 43 did not affect the validity of the initial decision to deport the appellant.

The court held that the appellant's deportation on 19 October 2000 was lawful under a valid deportation order in effect at that time, and that the operation of section 82(4) of the Act caused his permanent visa to cease because of the deportation order. Therefore, the appeal was allowed, the previous judgment was set aside, and it was declared that the appellant's permanent visa remained in force. The respondent was ordered to pay the appellant's costs for the application and the appeal.