MIGRATION – appeals from orders of the Federal Circuit Court of Australia – whether the statutory expression in s 415(1) of the Migration Act 1958 (Cth) conferring on the Administrative Appeals Tribunal “all the powers and discretions that are conferred by this Act on the person who made the decision” applied to confer those powers and discretions on the Tribunal where the person who made the decision was not validly made a delegate of the Minister
Pearce D, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) [7.66]
Date of hearing:
17 May 2019
Date of last submissions:
23 May 2019
Registry:
New South Wales
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
89
Counsel for the Minister for Home Affairs:
Mr G Johnson SC with Ms R Graycar
Solicitor for the Minister for Home Affairs:
Minter Ellison Lawyers
Counsel for CSH18 and CSI18:
Ms S Pritchard SC with Ms T Baw and Mr D McDonald-Norman
Solicitor for CSH18 and CSI18:
Michael McCrudden Solicitors Pty Ltd
Counsel for the Administrative Affairs Tribunal:
The Administrative Appeals Tribunal submitted to any order of the Court, save as to costs
ORDERS
NSD 2277 of 2018
BETWEEN:
MINISTER FOR HOME AFFAIRS
Appellant
AND:
CSH18
First Respondent
CSI18
Second Respondent
ADMINISTRATIVE AFFAIRS TRIBUNAL
Third Respondent
JUDGES:
JAGOT, ROBERTSON AND STEWART JJ
DATE OF ORDER:
28 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Declarations 1 and 3 and order 1 made on 16 November 2018 be set aside.
3.The matter…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
MHA v CSH18 [2019] FCAFC 80
Case
[2019] FCAFC 80
Decision Date
CaseChat Overview and Summary
The appellant, the Minister for Home Affairs, appeals from orders of the Administrative Appeals Tribunal (AAT) in relation to two respondents, CSH18 and CSI18. The appeal concerns the AAT's jurisdiction to hear and determine merits review applications in relation to the respondents’ visas, and, if it had jurisdiction, what powers the AAT had in relation to those applications. The AAT had indicated its intention to make a guidance decision under s 420B of the Migration Act 1958 (Cth) on the issue of its jurisdiction and, if it had jurisdiction, what powers it had. The respondents sought an adjournment to consider whether to commence proceedings in a court. The court had to determine whether the statutory expression in s 415(1) of the Migration Act conferring on the AAT “all the powers and discretions that are conferred by this Act on the person who made the decision” applied to confer those powers and discretions on the AAT where the person who made the decision was not validly made a delegate of the Minister. The court had to consider whether the AAT had jurisdiction to hear and determine merits review applications in relation to the respondents’ visas, and if so, what powers it had in relation to those applications. The court found that the AAT did not have jurisdiction to hear and determine merits review applications in relation to the respondents’ visas because the person who made the decision was not validly made a delegate of the Minister. The court found that the statutory expression in s 415(1) did not apply to confer those powers and discretions on the AAT because the person who made the decision was not validly made a delegate of the Minister. The court found that the AAT did not have the power to set aside the cancellation decisions and substitute new decisions because the AAT did not have jurisdiction to hear and determine merits review applications in relation to the respondents’ visas.
The appeal is allowed. The declarations 1 and 3 made on 16 November 2018 are set aside. The matter is remitted to the first respondent to be heard and determined according to law. There is no order as to the costs of the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. Declarations 1 and 3 made on 16 November 2018 be set aside.
3. The matter be remitted to the first respondent to be heard and determined according to law.
4. There be no order as to the costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Section 415 provides: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. The point of construction arises in these appeals because, on 23 May 2017, an officer of the Department purported to make a decision cancelling CSH18’s and CSI18’s (the respondents’) protection visas under s 109 of the Migration Act where there was no valid delegation to the officer of the power to so cancel. An instrument of delegation, made on 9 May 2017 in relation to departmental officers who usually made decisions to cancel visas under s 109, had accidentally omitted a reference to that section. Section 109 provides: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; an`d(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. The power to delegate is as follows: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) ….(3) ….(4) ….(5) Subsection (1A) does not limit subsection 499(1). These appeals do not concern circumstances where no valid visa application has ever been lodged: see SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487. The appeals arose in the following way. Before the respondents were aware of the error in the delegation they applied to the Administrative Appeals Tribunal to review and set aside the cancellation decisions. Thereafter the Department of Immigration and Border Protection advised the Tribunal of the delegation error, which also affected a number of other cases. The Department took the view that the cancellation decisions stood unless set aside by a court or the Tribunal, and that the Tribunal had jurisdiction to hear the merits review applications and to exercise the full suite of powers in relation to those applications. The Tribunal then indicated to the respondents its intention to consider making a guidance decision under s 420B of the Migration Act on a specified application for review on the issue whether the Tribunal had jurisdiction in the merits reviews and, if so, what powers it had. The respondents’ matter was identified as suitable for this purpose. The respondents were invited to provide written submissions and evidence, and the matter was listed for hearing. At the conclusion of that hearing, the respondents sought an adjournment to consider whether to commence proceedings in a court.