Mora (Migration) - [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

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).
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.
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 lacked jurisdiction.
The applicants contend that the tribunal’s decision, because it was explicitly based on the overruled decision of Lee, patently was infected by jurisdictional error. They submit, on the authority of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj) that the tribunal has authority to revoke its earlier ‘no jurisdiction’ decision.
Ms Mora and Mr Santamaria’s case is that it would be unreasonable for the tribunal to require them to seek judicial review given that that course could lead to only one result. Their application inevitably would be remitted by the court to the tribunal to hear their review according to law. To avoid that unnecessary step and costs, the tribunal itself could and should, acknowledge that its earlier ‘decision’ was a nullity. They want the tribunal to give them the review they were denied.
To hear and determine this unusual but interesting and important question the tribunal was re-constituted to include the President of the tribunal and the Division Head of the Migration and Refugee Division (MRD). Our decision will provide guidance to applicants, their representatives and members of the MRD as to the relevant principles that govern when the tribunal may reconsider or reopen decisions previously made in that Division.
Ordinarily, neither the primary decision-maker nor the Secretary, Department of Immigration and Border Protection (DIBP) is a party to or makes submissions in relation to a review conducted in the Migration and Refugee Division (MRD) of the tribunal. However where it may be of assistance, the tribunal can seek submissions from the Secretary, DIBP. That course was followed in this instance. The Tribunal was greatly assisted by well-argued submissions advanced on the Secretary’s behalf.
The Secretary accepted that the decision of the High Court of Australia in Bhardwaj confers authority on the tribunal to reconsider an earlier decision if it has fallen into jurisdictional error.
The Secretary submitted as follows. In the specific circumstances of this case the tribunal’s erroneous decision was merely a preliminary determination about jurisdiction. For that reason it did not amount to a ‘decision on a review’ for the purposes of s 348(1) or s 368 of the Migration Act 1958 (Cth) (the Migration Act). That led to the conclusion that not only was the tribunal entitled to reconsider its earlier decision, but that it had a duty to do so. Because its legal duty had not been discharged, on timely application being made to it, the tribunal was bound to reopen the proceedings to fulfil its legal responsibility to conduct the review it had wrongly declined to consider.
We accept the Secretary’s premise that the tribunal has authority to reconsider its earlier ‘no jurisdiction’ decision in the specific circumstances of this case.
However we reject the proposition that where the tribunal has fallen into jurisdictional error, it must follow that it is the duty of the tribunal, in the absence of a judicial determination, to treat its earlier decision as a nullity. We make no distinction regarding whether that earlier decision be a preliminary determination about jurisdiction or otherwise.
It is important to recognise the underlying constitutional position that it is not competent for an administrative tribunal to make a binding ruling as to whether it has fallen into jurisdictional error. Bhardwaj decided that a tribunal may identify as a matter of fact that it has fallen into such error. Such self-identification may lawfully permit the tribunal to reopen a previous decision that it has concluded, for that reason, to be a nullity.
However, a tribunal is not automatically duty-bound to exercise the power to reopen. A tribunal must also consider whether it would be wise for that power to be exercised.
As Hayne J presciently noted in Bhardwaj at [150], the availability of the power to reopen a hearing is not concomitant with the wisdom of its exercise. The wisdom of doing so is a separate and distinct question. Not everything that is lawful is expedient or desirable.
Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) states that this tribunal has an objective of providing a mechanism of review that is fair, just, economical and quick. It is also charged with the objective of promoting public trust in its decision-making. There will be instances where the power to reopen a previously reached decision is consistent with those objectives. However, in the ordinary course, permitting the re-litigation of matters which otherwise would be regarded as final would be inconsistent with those obligations.
Because authority to make conclusive rulings of law is exclusively reserved to the judicial power, a Commonwealth administrative tribunal must be cautious lest it open up further disputes as to which of two contestably purported decisions was the proper exercise of its jurisdiction. If a tribunal makes a ‘decision’ that its first ‘decision’ is a nullity, a party wishing to rely on the first decision may seek judicial review. In such a case the court would have to grapple with which of two assertions of jurisdiction by the tribunal was valid.
That consideration irresistibly leads to the conclusion that a tribunal should consider treating an earlier decision as a nullity only if the existence of jurisdictional error in its earlier decision is so obvious as to leave no real doubt about that conclusion, and there are no plausible countervailing considerations weighing against doing so, including but not limited to fairness to the parties.
For that reason we endorse, as necessary for the proper operations of the tribunal in the MRD, the conclusion expressed by President Downes J at [17] in Re Michael and Secretary, Department of Employment, Science and Training [2006] AATA 227; (2006) 90 ALD 457 (Re Michael) that when the tribunal is asked to reconsider one of its own decisions “[i]n all but the rarest of cases, tribunal decisions must be treated as final…”.
This however is one of those rare cases in which it is both lawful and sound to act on the basis that the tribunal’s earlier decision was a nullity.
The considerations that have led us reach that conclusion are as follows:

(1)there is clear, recent and unambiguous judicial authority available to support the conclusion that the tribunal’s earlier ‘no jurisdiction’ decision was plainly wrong;
(2)the application to reopen was filed promptly;
(3)the tribunal has not yet considered, let alone made a decision on, the merits of the review;
(4)the ‘parties’ (using that term loosely to include the Secretary) agree as to what course the tribunal should adopt;
(5)we discern neither unfairness nor any detriment to sound administrative practice that might flow from acceding to that common view;
(6)there appear to us to be no discretionary reasons that might have been raised as reasons for a court to refuse the applicants relief had they instead sought judicial review; and
(7)the outcome is consistent both with the tribunal’s objectives of providing a mechanism of review that is fair, just, economical and quick, and not inconsistent with promoting public trust in its decision-making.

Taking those factors collectively into account, we have concluded it is within the tribunal’s lawful authority and not unwise for us to set aside the tribunal’s earlier ‘no jurisdiction’ decision.
Our further reasons follow.

Background to applications

The Migration Act and the Migration Regulations1994 (Cth) (the Regulations) empower the Minister for Immigration and Border Protection or his delegate to grant permission to a non-citizen to travel to, enter and remain in Australia in certain circumstances. The instrument granting the permission, which may be temporary or permanent, is known as a visa. The kinds of visas and circumstances under which they may be granted are prescribed in the Migration Act and the Regulations.
Relevantly, a person may remain in Australia for up to four years if he or she is sponsored and nominated for employment in an occupation by a business that has been approved. Such visas are known as Temporary Business Entry (Class UC), subclass 457 – Temporary Work (Skilled) visas. The criterion for the grant of such a visa is set out in Schedule 2, Pt (subclass) 457 of the Regulations.
The original decision of the tribunal that it lacked jurisdiction arose in the context of a somewhat complicated history relating to Ms Mora’s entitlement to such a visa. There are two threshold conditions for the grant of a subclass 457 visa: the approval of business as a standard business sponsor, and the approval of a nomination of an occupation by the sponsor in respect of which it is proposed the applicant for the 457 visa is to be employed.
Ms Mora and Mr Santamaria are trustees for the Osorio Munoz Family Trust (OMFT). The trust operates a cleaning business. On 30 June 2014 the applicants lodged an application for approval as a standard business sponsor and an application for approval of a proposed occupation nomination on behalf of the OMFT. On 21 July 2014 Ms Mora and Mr Santamaria lodged applications in their personal capacity for temporary business entry under Pt (subclass) 457. Ms Mora was the primary applicant as the person proposed to be employed. Mr Santamaria was the secondary applicant as Ms Mora’s dependent.
The application for sponsorship was approved on 28 August 2014 for a period of 12 months and was extended on 25 September 2015 until 25 September 2020. However, their application for approval of a proposed occupation nomination was refused on 10 September 2014. On 23 December 2014 the applicants lodged a second, revised, application for approval of an occupation nomination for a business development manager/sales and marketing manager. On 16 April 2015, a delegate of the Minister refused the application for approval of the nominated occupation on the basis that the position associated with the nominated occupation was not genuine (r 2.72(10)(f)).
On the same day the delegate then refused the visa applications for temporary business entry made by Ms Mora and Mr Santamaria under subclass 457 because, amongst other things, Ms Mora was not the subject of an approved nomination.
The notice of the subclass 457 visa decision which was sent to the applicants erroneously advised them they had no right of review in respect of this refusal.
On 13 May 2015 the applicants initiated judicial review proceedings in respect of the delegate’s decision in relation to the visa application. The judicial review proceedings were dismissed by consent on 22 February 2016, after the DIBP accepted that the applicants had been incorrectly notified that they had no review rights. Consequently, the DIBP proposed that it would renotify the applicants of the delegate’s decision properly setting out the review rights under the Act.
Ms Mora and Mr Santamaria lodged their applications for review of the nomination decision with the Migration Review Tribunal on 27 April 2015.
Further, notwithstanding the erroneous advice in the notice they had been sent on 16 April 2015 to the effect that they had no right of review in the tribunal, shortly thereafter on 13 May 2015, they also lodged an application for review of the refusal of their temporary business entry visas.
On 11 August 2015, the tribunal, as then constituted, decided that it had no jurisdiction in relation to their applications for review of the refusal of their temporary business entry visas.
Consistently with the decision of the Federal Circuit Court in Lee, which the tribunal correctly understood as then binding on it, the tribunal held that it was immaterial that an application for review of their occupational nomination decision was pending in the tribunal. It held that it had no jurisdiction to hear and determine those applications because no approved occupation nomination was then in place.
However, on 16 December 2015 the Full Court of the Federal Court (Katzmann, Robertson and Griffiths JJ) held in Ahmad that on proper construction of the relevant provisions of the Migration Act, where there was a pending review of an occupational nomination decision the tribunal had jurisdiction to conduct a review of the refusal of a subclass 457 visa. Lee was overruled.
There is no dispute that both at the time Ms Mora and Mr Santamaria had applied to the tribunal for a review of the refusal of their temporary business entry visas, and at the time of the tribunal’s dismissal of this application, the applicants’ applications for review of the nomination refusal remained pending before the tribunal.
It is convenient to set out the reasoning of the Full Court on the question of jurisdiction in some detail. In considering whether the tribunal had jurisdiction to review the refusal of Mr Ahmad’s subclass 457 visa, the Full Court identified the critical questions and found there was jurisdiction at [95] to [106] as follows:
95       In our opinion, the starting point must be whether, within the meaning of s 338(2)(d), it is a criterion for the grant of the visa that the non-citizen, Mr Ahmad, “is sponsored by an approved sponsor”.
96. It was common ground between the parties that being “sponsored by an approved sponsor” is such a criterion. Clause 457.223(1) of Sch 2 to the Migration Regulations confirms that this is so, as a criterion to be satisfied at the time of decision. It may be noted that the requirement relates, in part, to a nomination of an occupation in relation to the applicant approved under s 140GB and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved: cl 457.223(4)(a)(i) and (ii).
97.      The next question is the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i).
98. The definition of the word “sponsored” in s 337, which applies to s 338 (see [34] above), picks up the meaning of the word “sponsored” in the regulations. Regulation 4.02(1AA) states that for s 337, sponsored includes being identified in a nomination under s 140GB. It follows that “sponsored by an approved sponsor” in s 338(2)(d)(i) includes not only “approved sponsor” as defined in s 5(1) of the Migration Act (relevantly, a person who has been approved by the Minister under s 140E) but also includes, by virtue of reg 4.02(1AA), being identified in a nomination under s 140GB.
99.      Turning to s 338(2)(d)(ii), the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB.
100.    On the facts of the present case, an application for review of the decision not to approve the sponsor had been made and was pending at the time the application to review the decision to refuse to grant the visa to Mr Ahmad was made.
101.    It follows that the tribunal had jurisdiction.
102.    In our opinion, this construction maintains the symmetry of s 338(2)(d), and is consistent with its purpose, as set out at [33] above. It avoids construing s 338(2)(d)(i) as if it contained unexpressed words dealing with review of a decision and permits s 338(2)(d)(ii) to do the work intended for it, that is, to give the tribunal jurisdiction to review the refusal to grant a non-citizen a visa where there has been an adverse decision in relation to the approval of the sponsor, including the nomination under s 140GB, but a review is pending.
103.    Section 338(9) is important in this respect. Amongst the decisions prescribed by reg 4.02(4) as Part 5-reviewable decisions are decisions under s 140E(1) to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor and a decision under s 140GB(2) to refuse to approve a nomination.
104.    This construction does not accept the bifurcation of the concept of “sponsored by an approved sponsor” where neither in concept nor by resort to legislative history is that bifurcation established. Put differently, the amendments to which we have referred involve including s 140GB in the meaning of sponsored as required by reg 4.02 (1AA).
105.    Thus we accept Mr Ahmad’s submission that it is sufficient that at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision.
106.    At the time Mr Ahmad was refused a subclass 457 visa, he was “sponsored by an approved sponsor” in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision, and the review was pending.

Therefore, Ms Mora and Mr Santamaria’s applications regarding their visas, while not within jurisdiction according to Lee, were within jurisdiction according to Ahmad. However, the present applicants did not seek judicial review in relation to the Tribunal’s decision. Instead, they filed an application on 22 March 2016 asking the tribunal, having regard to the conclusions the Full Court of the Federal Court of Australia had reached in Ahmad, to reconsider its earlier ‘no jurisdiction’ decision.
To complicate the picture, that application was filed a day after Ms Mora and Mr Santamaria had lodged ‘fresh’ applications with the tribunal seeking review of the delegate’s initial refusal decision. Those further applications were filed after the applicants had been told by the DIBP that it now accepted that the original notices of decision that had been sent to them, advising they had was no right of review, had been in error. They were to be renotified. A corrected notice was sent to the applicants on 18 February 2016 but to a wrong address. A further corrected notice was sent to their correct address on 23 March 2016.
Thus, there are two applications before the tribunal appearing to relate to the same subject matter: the first being the application for reconsideration of the decision made on 11 August 2015 in matter no 1506558 and the second being their applications for review of the refusal made on 16 April 2015, as renotified on 18 February and then again on 23 March 2016, in matter no 1603849. The question therefore arises as to whether one or both of these applications should proceed and, if so, on what basis. Both applications were listed before this Tribunal for determination.
Our brief reasons for concluding that the subsequent applications are immaterial to the proper disposition of this review are set out towards the conclusion of this decision.
Although not a party to the review, the tribunal requested submissions from the Secretary of the DIBP on behalf of the Minister. Those submissions were provided on 5 May 2016 and were provided to the representative for the applicants. The Tribunal conducted a hearing of the application on 12 May 2016 and made directions for the applicants to provide any written submissions by 26 May 2016. At the applicants’ request, the time for them to file submissions was extended to 31 May 2016.
We observe in passing that, as the decision-maker is not a party, whenever reconsideration of a prior decision is in contemplation in the MRD it will be sound practice for the tribunal to seek submissions from the Secretary. That does not mean that whenever a request to reopen is made the tribunal should initiate that procedure. However, if a matter appears to justify reopening, doing so in those circumstances will allow the tribunal to be advised of, and to consider, such contrary or supportive submissions as the Secretary may see fit to advance. Given our view that it will be only in the rarest of circumstances that the tribunal will reconsider a decision, we do not expect that responding to such requests will be burdensome for the Secretary.

Underlying constitutional considerations

It is well settled that Ch III of the Australian Constitution requires that the judicial power of the Commonwealth be exercised only by judges. A Commonwealth administrative tribunal cannot be invested with a power to make binding rulings of law.
The High Court has an entrenched jurisdiction, conferred on it by s 75(v) of the Constitution, to supervise the lawfulness of the exercise of power by any officer of the Commonwealth. If a Commonwealth tribunal exceeds its authority by committing ‘jurisdictional error’ its decision is liable to be set aside.
In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157) at [76] the High Court set out the correct approach to be taken to the application of the privative clause in s 474 of the Migration Act. The High Court held that jurisdictional error affecting a decision is sufficient to take any merely purported decision outside the protection of the privative clause, because a decision affected by jurisdictional error was not `a decision ... made under this Act'.
Although it was necessary to read the relevant legislation as a whole, including having regard to a privative clause, in order to determine whether a particular error is to be regarded as a jurisdictional error, the High Court also concluded that Parliament lacked authority to enact a privative clause requiring judicial deference to merely purported decisions. At [76], in a joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
This court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all”. (citation omitted)
Such a decision confers no rights and imposes no duties or obligations. In legal theory it is entirely without legal consequence.
That a facially regular administrative decision may later be held by a court on review to have been ‘no decision at all’ is one of the less intuitive notions of public law. Nonetheless, notwithstanding the theoretical and practical objections that may be advanced to it (see, for example, discussion in Orr R and Briese R, “Don’t think twice? Can administrative decision-makers change their mind?” (2002) 35 AIAL Forum 11, 11-43) the notion is entrenched in Australia’s jurisprudence.
The above considerations do not prevent Commonwealth administrative tribunals considering, and making decisions about, whether or not they have jurisdiction. Tribunals must routinely grapple with such questions in order to undertake their duty.
Nor do they prevent an administrative decision made in excess of jurisdiction potentially having practical operational effect. As Finkelstein J observed in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413:
There is no doubt that an invalid administrative decision can have operational effect. For example, it may be necessary to treat an invalid decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason.
The final sentence recognises that there may be a range of discretionary considerations relevant to judicial review such as but not limited to: bad faith, delay, lack of standing, futility, adverse effect on the public interest and the public interest in good administration, any of which can lead a court to decline relief notwithstanding such error having been found (see Robertson A, “Administrative Law Remedies: Some discretionary considerations” (2002) 22 Aust Bar Rev 119).
However, whenever a Commonwealth tribunal is alleged to have fallen into jurisdictional error, that allegation can be advanced by means of an application for judicial review. While broader review grounds can be provided for by the Parliament, access to judicial review for jurisdictional error is a constitutional entitlement.
To lessen the burden on the High Court in its original jurisdiction, Parliament has made judicial review for jurisdictional errors alleged to have been committed by this tribunal available in the Federal Circuit Court of Australia. Subject to further appeals within the judicial system, as occurred in Ahmad, its decisions are binding on the tribunal.

Statutory framework

Section 65 of the Migration Act provides that the Minister must grant a valid application for a visa if satisfied that the health criteria (if any) for the visa had been satisfied, the other criteria prescribed by the Migration Act and Regulations have been satisfied, the visa application fee payable has been paid and a grant of the visa is not precluded by the Migration Act (for instance providing bogus documents) or by any other law of the Commonwealth. If not so satisfied, the Minister must refuse to grant the visa (s 65(1)(b)).
The Minister may delegate those powers under the Migration Act subject to directions (s 496). Any decision about the grant or refusal to grant a visa must be notified to the applicant in writing. A decision to refuse an application must include information about the right to have the decision reviewed, unless the Migration Act does not provide for review (s 66).
Certain decisions made by the Minister or the Minister’s delegate, may be reviewed by the tribunal in either the MRD or its General Division. Decisions relating to the grant or cancellation of visas other than protection visas are reviewable in the MRD under Part 5 of the Migration Act. That applies to the current applications.
Section 338 sets out the definition for “Part 5 – reviewable decision”.[1] Relevantly, s 338(2)(d)(ii) provides that the tribunal has jurisdiction to review a decision to refuse the grant of a visa to a non-citizen where it is a criteria for the grant of the visa that the non-citizen is sponsored by an approved sponsor, the visa is a temporary visa and, at the time the application for review is lodged, there is a pending application to review a sponsorship decision. As noted above, the Full Court in Ahmad concluded that a pending application for review of a sponsorship decision includes a pending review of a nomination decision.
[1] At the time the review application was lodged by the applicants, it was under the old Migration Act provisions which referred to “MRT - reviewable decision”. But on 1 July 2015 this was amended to “Part 5 – reviewable decision” as part of the amalgamation.
Section 347(1) contains provisions that outline requirements for when and how a Part 5 – reviewable decision can be made, which include the fees payable, the prescribed form of the application for review, the period within which an application for review is to be lodged and the persons or entities that are entitled to lodge such a review. Sections 347(2), (3) and (3A) set out who is entitled to make an application for review of a Part 5 – reviewable decision. It is not in contest that the applicants have complied with those requirements.
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.

Submissions

The applicants submitted as follows.

(1)Their initial application for review, namely 1506558, is a valid application for review and remains on foot. It remains valid because the notice of refusal given by the DIBP on 16 April 2015 did not give notice of the review of rights and time did not commence to run.
(2)The initial decision of the tribunal that it had no jurisdiction was not a refusal.
(3)The Tribunal is not bound by any doctrine of functus officio not to reconsider its ‘no jurisdiction’ decision because no decision on review was ever made by the tribunal. A beneficial interpretation should be given to s 348 of the Migration Act because merits review is remedial. That is reinforced by s 15 AA of the Acts Interpretation Act 1901 (Cth) which provides as follows:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

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.

(1)The Secretary accepts that the purported notification to the applicants was defective in so far as they were incorrectly informed that they did not have a right of merit review. Proper notification only occurred on 23 March 2016.
(2)Having regard to Ahmed, the Secretary accepts that the tribunal does have jurisdiction to review the refusal of the applications for temporary business entry made by Ms Mora and Mr Santamaria. The application for review was properly made and attracted the duty under s 348(1) for the tribunal to review the decision of the delegate.
(3)The decision of the tribunal not to review the decision was a preliminary decision on jurisdiction and did not amount to a decision on a review for the purposes of s 348(1) or s 368 of the Migration Act.
(4)The duty of the tribunal to review the decision was enlivened at the time of the application. That duty remains undischarged as a matter of fact.
(5)The Tribunal therefore has the power and in fact the duty to conduct a review of the decision as requested in application matter number 1506558.
(6)There are two potentially valid applications for review in respect of the same decision before the tribunal. The Tribunal can only make one valid decision on the review of the delegate’s decision and therefore one of those applications should be withdrawn.
(7)While it is not the position in this case, it was the Secretary’s contention that it should not be assumed that all decisions affected by error will result in the tribunal having an undischarged duty under s 348(1) to conduct a review. There may be other reasons why no such duty arises, for instance, failure to lodge an application in time or to pay the prescribed fee.
(8)Where decisions or purported decisions have been made by the tribunal under s 349 of the Migration Act, different considerations will arise as to whether the tribunal should look again at the decision.

Does this Tribunal have power to reconsider its previous decisions?

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].
In the present case, s 368(2A) of the Migration Act expressly provides that once the tribunal has made a ‘decision on a review’ it has no power to vary or revoke its decision. This tribunal, having finalised a review under Part 5 of the Migration Act clearly cannot simply change its mind.
However, consistently with the underlying constitutional principles articulated by the High Court in Plaintiff S157, and as was made explicit in the Explanatory Memorandum for the Migration Amendment Bill 2013 at [67], s 368(2A) of the Migration Act “applies only to a decision that has been validly made and that does not involve legal error”.
For that reason, although we accept the relevance of the tribunal’s initial decision in this instance not amounting to a “decision on a review” for the purposes of s 348(1) or s 368 of the Migration Act, we are not of the view that the tribunal’s power to reopen a previous decision when jurisdictional error has been identified can be limited to that narrow circumstance. Indeed Bhardwaj provides an example to prove the contrary.
In Bhardwaj the High Court (Gleeson CJ, McHugh, Gummow, Gaudron, Hayne and Callinan JJ; Kirby J dissenting) upheld the validity of a decision made by the Immigration Review Tribunal (IRT) to correct an error it had identified only after it had finalised its first decision. The error which had generated the tribunal’s reconsideration of its earlier decision was blatant and undisputed. The tribunal had proceeded on a mistaken understanding that the applicant had not sought to be heard.
The tribunal, on discovering its error, conducted a further hearing and gave the applicant the opportunity to participate. The tribunal then made a decision in favour of the applicant, reversing the outcome of the earlier decision.
The Minister appealed. The High Court rejected Minister’s contention that the tribunal had become functus officio and was without authority to reconsider its earlier refusal once it had finalised its first decision. Each of the plurality, while expressing the proposition in slightly different terms, concluded that the IRT’s first decision had been infected by jurisdictional error because the tribunal had failed to afford the applicant procedural fairness. It thereby had failed to exercise its statutory function.
The decision of the High Court confirmed that once the IRT had identified its own error, the fact there was an earlier invalid decision did not preclude the IRT affording the applicant a hearing and, having done so, making a subsequent valid decision.
We think it unnecessary to separately analyse the reasoning of each of the Justices constituting the plurality for the purpose of these reasons. Illustratively, Hayne J held that because the IRT had failed to give the applicant a hearing, the IRT’s earlier decision was not authorised by and did not constitute performance by the tribunal of its duty under the Migration Act (at [149]). His Honour noted the difference between courts and tribunals where orders are made in excess of jurisdiction and observed at [152] to [153]:
152. This is not to adopt what has sometimes been called a "theory of absolute nullity" or to argue from an a priori classification of what has been done as being "void", "voidable" or a "nullity". It is to recognise that, if a court would have set the decision aside, what was done by the tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the tribunal has not been exercised. As Dixon J said in Posner v Collector for Inter-State Destitute Persons (citation omitted)
"[W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so. ...
When there has been a failure of the due process of law at the making of an order, to describe it as void is not unnatural. But what has been said will show that, except when upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity." (Emphasis added.)
153. Nothing in the Act requires (or permits) the conclusion that despite the jurisdictional error, some relevant legal consequence should be attributed to the September decision. In particular, the fact that the Federal Court had only limited jurisdiction to review the decision does not lead to the conclusion that the September decision is to be treated as having some effect. Once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences.

His Honour’s reasoning, as with that of the other members of the plurality, substantially anticipated the High Court’s subsequent definitive statements in Plaintiff S157.
However, and critical to the principles relevant to the matter currently before the tribunal, Hayne J also observed at [150]:
The question that now arises is not one concerning good administrative practice. It is not the province of the courts to say whether particular administrative practices are prudent or efficient and yet there would be little dispute that characteristics of prudence and efficiency are relevant to good administrative practice. It is, therefore, not to the point to ask whether the tribunal was wise to make its October decision without first having the comfort and certainty of a court order holding the September decision to have been not a lawful performance of the tribunal's duties any more than it is to the point to ask about the efficiency of adopting the course that was followed in this matter.
His Honour’s observations clearly distinguish the power to reconsider from the desirability and wisdom of doing so. We are not aware of any instance in which those remarks have been doubted. They have been previously applied by the Administrative Appeals Tribunal in its other Divisions.
In Re Michael the former President of the AAT, Downes J, considered two “unusual requests” (at [1]) for the tribunal to reconsider decisions previously made by the tribunal. The first was a decision made by the tribunal that it did not have jurisdiction to review an application under the Health Insurance Act 1983 (Cth).
The second involved a decision made by the tribunal, after conducting a review, that it was not appropriate to remit a debt under the Higher Education Funding Act 1988 (Cth) in the circumstances of the case. In the latter the tribunal had affirmed the decision under review and the applicant wished to have the matter reconsidered, to allow him raise whether the tribunal had wrongly applied the relevant legislation as had been construed by the Federal Court.
In respect of the first application, his Honour concluded that the original decision had been correct. He declined, on that basis, to accede to that applicant’s request.
In relation to the second matter Downes J accepted there could be some merit to the applicant’s claim that there had been an error of law in the tribunal’s first decision, but also declined to reopen that review, referring to Hayne J’s observations regarding the distinction between the power to remake a decision and the wisdom to so.
The issue, his Honour concluded, properly should be pursued through an appeal. He reasoned at [9] to [15] as follows:
9. Bhardwaj was a simple, and perhaps obvious, case. An administrative error resulted in the person constituting the tribunal being unaware of an application for an adjournment. The matter proceeded without consideration of the application and in the absence of the applicant. When the error was discovered it is not surprising that the matter was relisted and considered afresh. These were the facts which the High Court was asked to consider. The Court did not address the question of when it is appropriate for a Tribunal to reconsider a matter.
10. There are problems of substance as well as practical problems in a tribunal reconsidering its own decision. The original decision contains its own assertion, express or implied, that it is given within jurisdiction. How can the same tribunal be subsequently reconstituted with power to determine that the first assertion is wrong? How are such applications to be dealt with in practice? A fresh application for review seems inappropriate because the argument is that the original application is on foot and has not been dealt with. On the face of the tribunal’s record, however, the application has been dealt with and the tribunal is functus officio. The practical problems are obvious. Does every application for reconsideration have to be heard? Should such an application be heard by the tribunal as originally constituted or by a differently constituted tribunal? In the latter case, is it appropriate for the tribunal to follow the earlier decision, in comity? Should every complaint made by a disappointed party be treated as an application for reconsideration under Bhardwaj?
11. Bhardwaj itself was an example of the kinds of problems which can arise. The real issue in Bhardwaj was which of the two purported decisions of the tribunal was the proper exercise of jurisdiction (see Hayne J at 647; compare at 642). If the first decision was within jurisdiction then that was its lawful decision. The second decision is the decision which was no decision at all. This indeed was the argument presented on behalf of the Minister for Immigration and Multicultural Affairs.
12. It is not competent for a Tribunal to make a binding, or any, ruling as to whether it has made an error of law. It is at least theoretically possible that the Federal Court or the High Court might have ruled in Bhardwaj that it was not a denial of natural justice to proceed with the first hearing because, for example, the adjournment application was not supported by evidence or was the latest of many similar applications. In that event, the second decision of the Immigration Review Tribunal would only have created needless doubt.
13. It follows that, except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at the least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided.
14. Only one justice in Bhardwaj addressed the question of when it might be appropriate for a tribunal to reconsider a decision. Hayne J said this (at 645):
"It is, therefore, not to the point to ask whether the tribunal was wise to make its October decision without first having the comfort and certainty of a court order holding the September decision to have been not a lawful performance of the tribunal’s duties any more than it is to the point to ask about the efficiency of adopting the course that was followed in this matter."
15. It seems to me that because of the substantive and practical problems I have adverted to it will very rarely be "wise" for a tribunal to reconsider its own decisions.
In Christiansen v Social Security Appeals Tribunal [2010] FCA 1146; (2010) 126 ALD 423, Collier J, when considering whether the Social Security Appeals Tribunal had power to make an ‘addendum decision’ after it had published reasons on child-support matter, cited Downes J’s decision in Re Michael with approval. Her Honour noted that reconsidering a decision once finalised was “not a process to be followed lightly” (at [66]) while holding that in the circumstances of the case before her, it had been properly open to the tribunal to do so because it was apparent that the decision was “incomplete” (at [67]).
We think those authorities make it clear that while the power may be accepted to exist, even if it is, there remains a separate question as to the wisdom of its exercise.
We therefore reject the suggestion that whenever this tribunal forms the opinion it may have fallen into jurisdictional error, it necessarily follows that it is the duty of the tribunal, in the absence of a judicial determination, to treat its earlier decision as a nullity.
Moreover, the protean nature of jurisdictional error reinforces Downes J’s caution against the tribunal too readily granting applications to reopen. The general principles concerning the identification of jurisdictional error remain as stated by the High Court in Craig v South Australia (1995) 184 CLR 163 at 178-179:
Jurisdictional error is at its most obvious when [an] inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge.…
If… an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Given those premises it is self-evident that much of what may be contended to give rise to invalidity in a tribunal decision will often involve latent, rather than patent, errors. Where there may be doubt as to whether there has been jurisdictional error we are of the view it must fall to the judicial function to make binding decisions in relation to the lawfulness of challenged administrative decision-making.
An application to re-open a tribunal’s decision that is fairly contestable ought to be robustly and summarily refused. The reasons that would justify refusal include the existence of any circumstances that might lead a court to refuse relief in the exercise of its discretion. It would be contrary to sound administrative practice for this Tribunal to allow applications for reconsideration of such matters. There would never be finality.
Even if the asserted jurisdictional error is such that judicial review clearly would be available, the power to reconsider a decision should only be exercised in the “rarest of cases”. We respectfully endorse the comments made by Downes J in Re Michael at [17] that “it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong…”.
That is not to suggest that the power to reconsider an earlier decision must never be exercised. Bhardwaj itself is an instance where the power was both available and properly exercised. Bhardwaj involved the tribunal self-identifying an obvious error that it had made, as opposed to a disappointed litigant pursuing an alternative pathway to that otherwise more appropriately available by way of judicial review. The same may be said of Christiansen.
Should circumstances similar to Bhardwaj or Christiansen arise we would not want our general expression of caution to stand in the way of those sound examples being followed.
We add one caveat because of the different constitutional position of the tribunal and the courts. Once judicial review proceedings have been commenced it would be improper for the tribunal to do otherwise than to submit to the supervisory jurisdiction of the court. The tribunal would risk being perceived as seeking to avoid that scrutiny if it was to consider re-opening, even on the firmest of grounds, while an application for judicial review is pending.
We have set out at [20] of these reasons the considerations that in this instance have led us reach the conclusion that this is a special case. We need not repeat them. We add only that the tribunal has been made aware of instances on all fours following the Ahmad decision. The applicants in those other matters sought judicial review and those matters have been remitted to the tribunal by the court by consent. We consider that to be an additional relevant consideration. It makes clear that there is no inconsistency between those previous outcomes and our decision that the tribunal’s earlier decision was a nullity. The tribunal has therefore decided that matter no 1506558 should be re-opened and the review sought undertaken.
In respect of what otherwise might appear to be delay, we have taken into consideration that the applicants took prompt action in relation to the decision to refuse the subclass 457 visa by initiating judicial review proceedings. In February 2016, they discontinued those proceedings by consent following advice from the DIBP that they would be formally renotified of the relevant refusal decision. We are satisfied that there was no disqualifying delay in their applying to the Tribunal to reopen.
Finally, we distinguish the particular circumstances in this matter from when a relevant judicial authority has been overruled, but after the tribunal has reached a decision on the merits. If a decision turning on particular facts is asserted to be ‘no decision in law’ because the tribunal has applied to those facts a construction of the law correct at the time but later overruled, it will rarely, if ever, be appropriate for the tribunal, absent a direction from a court, to permit the matter to be reconsidered in those circumstances. The complexities inherently arising almost always will justify the summary refusal of any application to reopen in such instances. Those complexities include that discretionary considerations may exist (see [52] above), that the facts might be distinguished and that the decision might be sustained on other grounds.

The status of the further application for review

At [41] we indicated that we would give brief reasons for concluding that the subsequent applications are immaterial to the proper disposition of this review.

100. This issue can be disposed of in short order.

101. The tribunal accepts the submission made on behalf of the Secretary that the tribunal can only make one valid decision on the review of the delegate’s decision.

102. Ms Mora and Mr Santamaria’s initial applications for review, by reason of the tribunal’s wrong ‘no jurisdiction’ decision and that of this Tribunal, remain yet to be heard and determined.

103. Because the tribunal has decided that matter no 1506558 should be reopened the review Ms Mora and Mr Santamaria first initiated remains to be heard and determined. That is the course we think should follow.

104. Contrary to what the applicants appear to believe, the tribunal must decide a review of the kind in question taking into account the circumstances existing at the time of the review, not those at the time of the application.

105. There is, therefore, no basis for the applicants’ belief that any further applications they may have filed later in time would permit them to cover more updated material and facts. Ms Mora and Mr Santamaria suffer no detriment and gain no advantage by reason of this aspect of our decision.

106. Given that we have granted the relief sought by the applicants in matter no 1506558 the further applications Ms Mora and Mr Santamaria have filed are otiose. It would therefore be convenient for those further applications to be withdrawn given that the tribunal can only make one valid decision on a review of the delegate’s decision.

Conclusion

107. The tribunal is satisfied that its decision in matter no 1506558 was infected by jurisdictional error. Accordingly that ‘decision’ is entitled to be regarded by the tribunal as ‘no decision in law’. The tribunal is further satisfied that it would be just and appropriate in all of the circumstances prevailing to grant the application made by Ms Mora and Mr Santamaria.

108. Because the visas the applicants seek can only be granted if they also succeed in overturning the delegate’s refusal of approval of their occupation nomination the President intends to reconstitute the tribunal by the same member to hear and determine both reviews. Doing so will promote public trust and confidence in the decision making of the tribunal by avoiding duplication and permitting all relevant considerations to be considered.

DECISION

109. 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.

Duncan Kerr
President

Jan Redfern
Deputy President

Miriam Holmes
Senior Member