Mora (Migration)

Case [2016] AATA 4198

Mora (Migration) [2016] AATA 4198 (15 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marcela Osorio Mora
Mr Benjamin Munoz Santamaria

CASE NUMBERS:  1506558 & 1603849

DIBP REFERENCE(S):  BCC2014/1779446

MEMBERS:President Duncan Kerr (Presiding)

Deputy President Jan Redfern

Senior Member Miriam Holmes

DATE:15 August 2016

PLACE OF DECISION:  Hobart

DECISION:The tribunal’s purported decision that it lacked jurisdiction in matter no 1506558 is reconsidered and set aside. The tribunal will be reconstituted for the purpose of hearing and determining the review.

CATCHWORDS:  MIGRATION – Administrative Appeals Tribunal – Application for a Temporary Business Entry (Class UC) Subclass 457 Visa – Reconsideration of earlier AAT decision – Where earlier decision relied on judicial authority which subsequently was overturned – Where earlier decision was a ‘no jurisdiction’ decision – Where earlier tribunal performed no review on merits – Application of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 – Whether AAT has power to reconsider its earlier decision affected by jurisdictional error – Whether AAT should exercise the power to reconsider its earlier decision – Consideration of wisdom in reopening required – AAT should exercise this power only in the rarest of cases – Considerations leading the tribunal to conclude that it should reconsider – Jurisdictional error in the earlier decision so obvious as to leave no real doubt – Migration Act 1958 (Cth), ss 65, 66, 337, 338(2)(d)(ii), 347, 348, 368, 496 – Acts Interpretation Act 1901 (Cth), s 33(1) – Administrative Appeals Tribunal Act 1975 (Cth), s 2A – Australian Constitution, s 75(v)

STATEMENT OF DECISION AND REASONS

Introduction and summary of conclusions

  1. This matter involves an application by Ms Marcela Osorio Mora and Mr Benjamin Munoz Santamaria. They have asked the Administrative Appeals Tribunal (the tribunal) to reopen its previous decision in Mora (Unreported, Administrative Appeals Tribunal, Member Hunt, 11 August 2015).

  2. The issue that concerns them arises as follows. Ms Mora applied for a visa under the business visa scheme allowing her to remain and work in Australia. Mr Santamaria was a secondary applicant as Ms Mora’s partner. Their applications were refused. They then sought review of those refusals in the tribunal. On 11 August 2015 the tribunal held that, in the factual circumstances applying, it lacked jurisdiction to undertake that review.

  3. The applicants now want the tribunal to reconsider its previous ‘no jurisdiction’ decision. They lodged an application on 22 March 2016 seeking this outcome in the aftermath of a decision of the Full Federal Court of Australia, Ahmad vMinister for Immigration and Border Protection [2015] FCAFC 182; (2015) 237 FCR 365 (Ahmad) delivered on 16 December 2015. They cite Ahmad as justifying their request for the tribunal to revoke its earlier decision. Relevantly, Ahmad overruled a decision of the Federal Circuit Court of Australia, Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (Lee). The Tribunal applied Lee in reaching its conclusion, adverse to the applicants, that it…

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Mora (Migration) [2016] AATA 4198
Case
[2016] AATA 4198
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CaseChat Overview and Summary

The applicants sought review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their migration matters. The Secretary of the Department of Immigration and Border Protection was the respondent. The core of the dispute revolved around the AAT's power to review or reconsider decisions it had already made, particularly in light of a second review application lodged by the applicants which they preferred to proceed with.

The legal issues before the court were whether the AAT had the power to review or vary a decision it had already made, and whether the lodging of a second application for review, which the applicants wished to pursue over their initial application, could be considered a valid application for review that the Tribunal was obliged to consider. The applicants contended that their second application was valid and should proceed, and that they would withdraw their first application if the second were granted.

The court considered the provisions of the Migration Act 1958, specifically sections 348, 339, and 368(2A), and the definition of a "decision on a review" under section 337. It noted that section 368(2A) generally prohibits the Tribunal from varying or revoking a decision once made. However, the court also referred to the principle that administrative decision-making is not necessarily constrained by the same strict doctrines of finality as judicial decisions, citing observations from *Ridge v Baldwin* and *Bhardwaj*. The court also considered section 33(1) of the Acts Interpretation Act 1901, which permits powers to be exercised from time to time, subject to contrary indications in other legislation. The court's reasoning appears to be exploring whether the specific provisions of the Migration Act, or the nature of administrative review, allowed for the reconsideration of a decision or the acceptance of a subsequent application in these circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 348 then provides as follows:Tribunal to review Part 5-reviewable decisions (1) Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339. There is no suggestion that the Minister has issued a certificate under s 339. When conducting a review, the tribunal may exercise all of the powers and discretions conferred under the Migration Act on the person who made the decision. Where the tribunal makes a decision on a review, other than an oral decision, the tribunal must provide a written statement of decision. Section 368(2A) of the Migration Act then provides that where the tribunal has made a “decision on a review”, it has no power to vary or revoke that decision. The definition for a “decision under a review” is contained in s 337, which provides:"decision on a review " means any of the following decisions of the tribunal in relation to an application for review of a Part 5-reviewable decision: (a) a decision to affirm the Part 5-reviewable decision; (b) a decision to vary the Part 5-reviewable decision; (c) a decision under paragraph 349(2)(c) to remit a matter in relation to the Part 5-reviewable decision for reconsideration; (d) a decision to set the Part 5-reviewable decision aside and substitute a new decision; (e) a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application. The applicants submitted as follows. The applicants additionally referred to the fact that they had lodged a second review application. They submitted that that was also a valid application for review. They indicated that they would prefer that latter application to proceed because it covered more updated material and facts. They indicated if the tribunal were to grant their second application they would seek to withdraw their first application. The Secretary of the DIBP submitted as follows. Chief Justice Gleeson, citing with approval observations of Lord Reid in Ridge v Baldwin [1964] AC 40 at [79], observed in Bhardwaj at [5] that there was nothing in the nature of an administrative decision which requires the conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. The position therefore appears to be that strict analogies to the doctrine of ‘res judicata’ which limits a court’s capacity to reconsider its decisions do not identically constrain administrative decision-making. Moreover, s 33(1) of the Acts Interpretation Act1901 provides that where an Act confers a power or imposes a duty the power may be exercised and the duty shall be performed ‘from time to time as the occasion requires’. However, that statutory statement applies subject to contrary indications in other relevant legislation. For a discussion of the position that applies in AAT with respect to principles of finality (funcus officio) in its divisions other than the MRD and the Security Division, see Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015) at [17.7]-[17.8] and [17.26]-[17.29].

Ratio Decidendi

Legal Principle Established

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