Martinez and Minister for Immigration and Citizenship
[2009] AATA 714
•21 September 2009
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2009] AATA 714
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/1127
GENERAL ADMINISTRATIVE DIVISION )
ReAlejandro Toro MARTINEZ
Applicant
AndMinister for Immigration and Citizenship
Respondent
INTERLOCUTORY DECISION
TribunalMr R P Handley, Deputy President
Date21 September 2009
PlaceSydney
DecisionThe power to cancel a visa under s 501(2) of the Migration Act 1958 can be applied in the case of the Applicant’s visa.
...............[sgd]...............................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP - Migration Legislation Amendment Act (No. 1) 2008 - transitional (permanent) visa is taken always to have been valid for purposes of s 501(2) Migration Act so as to be susceptible of cancellation on character grounds — whether decision of delegate to cancel transitional permanent visa is valid
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RELEVANT ACTS
Administrative Appeals Tribunal Act 1975 (Cth): ss 43
Migration Act 1958 (Cth): 501
Migration Legislation Amendment Act (No 1) 2008
Migration Reform Act 1992 (Cth)
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CITATIONS
Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56
Martinez v Minister for Immigration and Citizenship (No 2) [2008] FCA 1995
Martinez v Minister for Immigration and Citizenship [2009] FCA 528
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Powell & Anor v Administrative Appeals Tribunal (1198) 1641 ALR 15
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REASONS FOR DECISION
| 21 September 2009 | Mr RP Handley, Deputy President |
Mr Toro Martinez has applied for a decision on a preliminary issue in these proceedings – whether the power to cancel a visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) is capable of applying to his visa.
background
On 10 March 2008, a delegate of the Minister decided to cancel Mr Martinez’s Transitional Permanent (Class BF) visa pursuant to s 501(2) of the Act. Mr Martinez sought a review of that decision by the Tribunal which, on 19 June 2008, affirmed the decision. Mr Martinez appealed against the Tribunal’s decision to the Federal Court.
On 17 July 2008, the Full Federal Court published its decision in another matter, Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 (Sales), in which it held that there was then no power in s 501(2) of the Act to cancel a Transitional Permanent (Class BF) visa because Mr Sales was not the holder of a visa that had been granted.
The effect of this decision was that the decision made on 10 March 2008 to cancel Mr Martinez’s visa was invalid. The Department of Immigration and Citizenship (the Department) informed Mr Martinez of this by letter dated 24 July 2008 and he was released from immigration detention at Villawood. Consequently, on 26 August 2008, Mr Martinez filed a notice of discontinuance in relation to his appeal to the Federal Court.
On 15 September 2008, the Migration Legislation Amendment Act (No 1) 2008 (the Amending Act) received the Royal Assent. This legislation, amongst other amendments, inserted a new provision – s 501HA – into the Act, to address the consequences of the decision in Sales.
The amendment was effected by item 5 of Schedule 4 of the Amending Act. The application of this amendment was addressed in item 6(3) and pre-commencement decisions were addressed in item 7. These provisions state relevantly:
5.After section 501H
Insert:
501HAApplication of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas
If, under the Migration Reform (Transitional Provisions) Regulations, a person:
(a)held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or
(b)held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or
(c)is taken to hold a transitional (permanent) visa;
the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa.
6.Application
…
(3)The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences.
7.Validation of pre‑commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas
501HA
(1)To avoid doubt, any decision made or purported to have been made:
(a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or
(b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences;
to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.
(2)In subitem (1):
transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations.
transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations.
Item 5 commenced on 19 September 2008.
By letter dated 29 September 2008, the Department informed Mr Martinez that, as a consequence of the legislative amendments, the decision to cancel his visa dated 10 March 2008 had been validated and he was again liable to be detained and removed from Australia. Mr Martinez was then again detained at Villawood and, on 18 November 2008, filed a fresh appeal against the Tribunal’s decision in the Federal Court. On 5 December 2008, Emmett J dismissed the new appeal as incompetent but granted leave to Mr Martinez to withdraw his notice of continuance in the present proceedings: Martinez v Minister for Immigration and Citizenship (No 2) [2008] FCA 1995.
On 18 March 2009, the original appeal was heard by Rares J in the Federal Court. In his decision dated 21 May 2009, his Honour found in favour of Mr Martinez on the ground that the Tribunal made a jurisdictional error, and ordered the issue a writ of certiorari quashing the decision of the Tribunal made on 10 June 2008 and a writ of mandamus ordering the Tribunal to hear and determine the proceedings according to law: Martinez v Minister for Immigration and Citizenship [2009] FCA 528 (Martinez (2009)).
In the present proceedings, the parties provided the Tribunal with written submissions on the preliminary issue raised by the Applicant and also made submissions at a hearing on 8 September 2009.
the applicant's submissions
Mr Potts, for the Applicant, submitted that s 501HA does not apply in this case because the decision to cancel was made before 19 September 2008. Thus, the version of s 501(2) that applies is that in effect at the time of the decision in Sales. As a consequence, the only correct or preferable decision open to the Tribunal is that Mr Martinez’s visa is not one of a kind that can be cancelled under s 501(2) because his visa was not granted to him. The Tribunal should, therefore, set aside the decision to cancel and substitute a decision refusing to cancel the visa.
Mr Potts referred to the decision of Rares J in Martinez (2009). He submitted that the Tribunal is in the same position as the original Tribunal that heard this matter and should find that the delegate of the Minister had no power to cancel Mr Martinez’s visa. Rares J found, at [23], that the Tribunal’s decision was affected by jurisdictional error at the time of its decision on 19 June 2008, because the only correct or preferable decision which it could have made was to set aside the decision to cancel the visa, that decision not having been made in accordance with s 501(2) of the Act. Mr Potts noted that his Honour found that item 7 of Schedule 4 of the Amending Act only operates to validate certain decisions made or purported to be made by the Minister or a delegate of the Minister. It does not validate decisions made by the Tribunal. Item 7 “should not be read to validate other decisions to which it is not expressly directed” [at 31]. Thus, “The 2008 amendment did not affect the tribunal’s decision or give it any validity” [at 33].
Mr Potts also referred to the High Court's decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) and the discussion there of the function of the Tribunal. The Court said the question for determination by the Tribunal is whether the decision under review is the correct or preferable one on the material before the Tribunal, including any additional material available to it at the time of its review (see Kirby J at [33] to [37]). The jurisdiction of the Tribunal depends on there having been a decision which it is authorised to review: per Kiefel J at [132]. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker. In Mr Martinez’s case, his visa had not been granted and so there was no power to cancel.
the respondent’s submissions
Ms Francois, for the Respondent, said the effect of the Amending Act is twofold. First, for those persons who held the particular type of visa identified and whose visa had not been purported to be cancelled before the commencement of s 501HA of the Act, the Amending Act deemed they had been granted that visa “on and after the day” on which the s 501HA amendment commenced, that is 19 September 2008 (item 6(3) of Schedule 4). Secondly, for those persons who held the particular type of visa identified and whose visa had purportedly been cancelled before the s 501HA amendment commenced, item 7(1) of Schedule 4 required that the decision be treated as if it had always been valid, as it would have been had the visa been granted.
Ms Francois submitted that, in this case, the matter falls into the second category and the Tribunal must treat the delegate’s decision to cancel Mr Martinez’s visa as valid, as if Mr Martinez’s visa had been granted.
Ms Francois said that in Martinez (2009), Rares J found the Tribunal had made a jurisdictional error because the fiction created by the Amending Act did not apply to Tribunal decisions. His Honour said, at [24], that at the time of the Tribunal’s decision:
… the only correct and preferable decision to which it could have arrived on 19 June 2008 was to set aside the decision to cancel the visa as not having been made in accordance with s 501. The visa had never been granted to Mr Toro Martinez and was therefore outside the reach of s 501(2): Sales.
Then, at [31], his Honour said, “item 7 should not be read to validate other decisions to which it is not expressly directed”. Because the 2008 amendments did not validate the Tribunal’s decision, and that decision was “infected by jurisdictional error” and “was no decision at all”, the Tribunal was “yet to perform its function of review of that decision [to cancel] in accordance with law” (at [32]).
Ms Francois submitted that the function of the Tribunal in the present proceedings is to review the decision of the delegate as if it was a valid decision and Mr Martinez had been granted a visa. If the Tribunal finds that the delegate made the correct decision, the Tribunal exercises its powers under s 43(1) of the AAT Act to affirm the decision under review: Shi, at [100], per Hayne and Heydon JJ; Powell & Anor v Administrative Appeals Tribunal (1198) 1641 ALR 15 (Powell) at [26], per French J.
consideration
In my view, the Respondent’s submission as to the two categories of decisions to which Schedule 4, items 5 to 7 are directed is correct. First, item 6(3) clearly provides for s 501HA (the amendment effected by item 5), to apply in respect of decisions to cancel made on or after the day on which the amendment takes effect, that is 19 September 2008. Secondly, item 7(1) provides for validation of decisions to cancel made before that date. The decision affecting Mr Martinez falls into the second category, and item 7(1) states that such a decision to cancel:
… is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.
In my view, it appears this may have been assumed by Rares J in Martinez (2009) when he found, at [32], that “although the Minister’s delegate’s decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law”. This was because he found item 7 did not extend to validating the Tribunal’s decision which was, therefore, invalid for jurisdictional error.
In terms of the functions and decision-making powers of the Tribunal, I agree with the Respondent that the Tribunal’s powers, having conducted a review of a decision, are those set out in s 43(1) of the AAT Act. The Tribunal is expressly empowered to exercise all the powers and discretions conferred by law on the original decision-maker. The Tribunal might do so if, for example, it exercises its s 43(1)(b) power to vary the decision under review or, pursuant to s 43(1)(c)(i), to set aside the decision and substitute a decision, in both instances requiring the exercise of the original decision-maker’s powers. The Tribunal affirms a decision under s 43(1)(a) where it finds the decision to be the correct or preferable decision. So in this instance, and in the case of a set aside and remittal under s 43(1)(c)(ii), the Tribunal does not exercise the original decision-maker’s powers. Where the Tribunal remits a matter for reconsideration, the further exercise of powers is left to the original decision-maker to whom the matter is remitted: see Shi, especially Kiefel J at [136].
In Mr Martinez’s case, the exercise of decision-making power by the Minister’s delegate on 10 March 2008 has been validated by item 7 of Schedule 4 of the Amending Act. In my view, the Tribunal, in reviewing the delegate’s decision, is bound to recognise the validation of the s 501(2) decision to cancel afforded by item 7(1). Even though Mr Martinez’s visa was not in fact granted, but was conferred on Mr Martinez by operation of law from the commencement of the Migration Reform Act 1992 (Cth) on 1 September 1994, this does not now affect the validity of the decision to cancel made under s 501(2) of the Act.
Thus, in terms of the preliminary issue raised by the Applicant, I am satisfied that the power to cancel a visa under s 501(2) of the Act can be exercised by the Respondent in Mr Martinez’s case. The next stage in the proceedings, therefore, will be for the Tribunal to proceed with a review of the delegate’s decision.
decision
The power to cancel a visa under s 501(2) of the Migration Act 1958 can be applied in the case of the Applicant’s visa.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .................[sgd].........................................................
A Veness, Associate
Date of Hearing: 8 September 2009
Date of Decision: 21 September 2009
Applicant counsel: Mr J A C Potts with Mr D Klineberg
Respondent representative: Mr T Eteuati, Clayton Utz
Respondent counsel: Ms R Francois
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