Nguyen and Minister for Immigration and Citizenship

[2008] AATA 1014

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2008] AATA 1014

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4768

GENERAL ADMINISTRATIVE DIVISION        )

Re             NGUYEN Ngoc To

Applicant

AndMinister for Immigration and Citizenship

Respondent

JURISDICTION DECISION

TribunalProfessor GD Walker, Deputy President

Date11 November 2008

PlaceSydney

DecisionThe application is dismissed under s 42A for lack of jurisdiction.

………………[sgd]…………………...

Professor GD Walker
  Deputy President

CATCHWORDS - IMMIGRATION – visa cancellation – whether decision under section 501 of the Migration Act 1958 made personally by the minister is reviewable by the tribunal – tribunal has no jurisdiction to review – application is dismissed.

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RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501

Migration Legislation Amendment Act (No 1) 2008: schedule 4, Item 7

Administrative Appeals Tribunal Act (AAT Act): ss 25, 42A

CITATIONS

Nguyen v Minister for Immigration and Citizenship [2008] FCA 199

Sales v Minister for Immigration and Citizenship [2008] FCAFC 132

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OTHER AUTHORITIES

Direction No 21

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REASONS FOR JURISDICTION DECISION

11 November 2008	Professor GD Walker, Deputy President
Background

1.      The applicant Mr Nguyen Ngoc To applied to this tribunal on 10 October 2008 for review of a decision made by the Minister for Immigration and Citizenship on 19 September 2008 to cancel his transitional (permanent) (BF-C) visa under s 501(2) of the Migration Act 1958 (Cth) (the Act).

2.      The applicant sought judicial review of the cancellation decision.  His application was dismissed by Sackville J on 6 March 2008: Nguyen v Minister for Immigration and Citizenship [2008] FCA 199.

3.      Following the decision in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132, the applicant was released from immigration detention as the holder of a transitional (permanent) visa, his case having been found to have been affected by Sales.  Sales raised issues concerning the validity of the decision to cancel his visa, because it held that a transitional (permanent) visa was not “granted” to the holder and therefore could not be cancelled under s 501 of the Act.

4.      The Act was therefore amended and on 19 September 2008 amendments came into force through the Migration Legislation Amendment Act (No 1) 2008 (the Amendment Act). Item 7 of Schedule 4 of that Act deems such visas to have been granted and retrospectively validates their cancellation.

5. By letter dated 29 September 2008, the department informed the applicant that by virtue of the Amendment Act, the applicant no longer held a valid visa and was therefore liable to be detained under s 189 of the Act and removed from Australia. He was re-detained on 2 October 2008.

6.      At a directions hearing held on 3 November 2008, a timetable for preparations leading up to the scheduled substantive hearing of the matter on 16 and 17 December 2008, was settled.  The directions hearing was by telephone and an interpreter translated for the applicant.

7. At that directions hearing the respondent moved for dismissal of the substantive application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the ground that the tribunal lacked jurisdiction to entertain the application.

8.      I explained to the applicant that he had a right to attend in person an open hearing of the motion to dismiss, but that it would not be possible to arrange a court room at Parramatta until 24 November, by which time he was due to have lodged his witness statements and other evidence in preparation for the substantive hearing.  The jurisdiction application could, however, be heard more quickly if he accepted to have the dismissal application heard at a directions hearing by telephone.  He agreed, and a telephone directions hearing was scheduled for Friday, 7 November 2008 to hear the dismissal motion.

9.      At the adjourned telephone jurisdiction hearing on 7 November, the applicant appeared in person and an interpreter, Ms Lily Tran, translated for him.  Mr Avenish Chand of Clayton Utz represented the respondent.

Basic facts

10.     The summary of the facts below is from Sackville J’s reasons for decision:

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[6]The applicant was born in Vietnam in 1960 and is a Vietnamese citizen.  In November 1977, he escaped by boat from Vietnam to Thailand, accompanied by one of his brothers and a sister.  He arrived in Australia with his two siblings on 31 March 1978, under the Offshore Refugee Program.

[7]Upon his arrival in Australia, the applicant was granted permanent residency. His permanent resident status was deemed to continue in effect on and after 1 September 1984 under the Migration Reform (Transitional Provisions) Regulations, by way of a Transitional (Permanent) (BF-C) visa. In addition, on 14 November 2005, it was determined that the applicant was the holder of an Absorbed Person visa. This visa allows a holder to remain in Australia indefinitely.

[8]The applicant has a very extensive criminal record, commencing shortly after his arrival in Australia at the age of 17 years.  On 1 August 1979, for example, he was convicted in the District Court of New South Wales of malicious wounding and sentenced to twelve months periodic detention.  In September 1981, the applicant was convicted in Wallsend Court of Petty Sessions of assault and of carrying a fire arm under the influence of alcohol.  On this occasion he was sentenced to three months imprisonment and fined.

[9]In 1981, the applicant commenced a de facto relationship with his future wife.  In 1982, a daughter was born and in 1986 the couple had a son.

[10]On 8 December 1987 the applicant was involved in a shooting in a restaurant.  He was arrested in June 1988 and taken into custody.  Shortly thereafter, while in Long Bay Prison, the applicant married his de facto partner.

[11]On 15 December 1989, the applicant was convicted in the Supreme Court of New South Wales of murder and of wounding with intent to murder.  He was sentenced to life imprisonment.

[12]Between 1989 and 1998, the applicant was incarcerated in a series of correctional institutions.  He completed various courses, including English, although he is apparently not fluent in the language.  In addition, he undertook some vocational training.

[13]In 1998, the applicant applied to the Supreme Court of New South Wales for a redetermination of his life sentence.  On 13 August 1998, Studdert J ordered that the applicant should be sentenced to 21 years imprisonment in respect of his conviction for murder, with a minimum term of 16 years.

[14]Between August 1998 and a grant of parole in October 2005, the applicant completed a number of additional vocational and general courses while in prison.  In 2002, during his term of imprisonment, his sister died of cancer.

[15]On 22 July 2004, the then Minister decided to cancel the applicant’s visa.  In view of the Minister’s decision, the applicant was taken into immigration detention when his parole took effect on 7 October 2005.

[16]On 14 November 2005, the applicant was released from immigration detention by reason of his status as an ‘Absorbed Person’, in conformity with the decision of the Full Federal Court in Nystrom v Minister for Immigration (2005) 143 FCR 420.

[17]On 8 November 2006, the High Court allowed an appeal from the judgment of the Full Federal Court: Minister for Immigration v Nystrom (2006) 230 ALR 370.  In consequence of the High Court’s decision, on 28 November 2006 the applicant was again taken into immigration detention.

[18]On 1 December 2006, the applicant was interviewed by a Departmental officer while in detention at Villawood.  On 20 December 2006, the Department of Immigration advised the applicant that the previous cancellation of his visa was being reviewed.

[19]On 23 January 2006, the applicant was released from immigration detention following the decision in Sales v Minister for Immigration [2006] FCA 1807. This decision apparently was taken to suggest that there may have been a failure to accord the applicant procedural fairness in relation to the earlier cancellation of his visa.

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Applicable legislation

11.     Section 500(1) of the Act reads as follows:

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Review of decision

(1)Applications may be made to the Administrative Appeals Tribunal for review of:

(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b)decisions of a delegate of the Minister under section 501; or

(c)a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);

other than decisions to which a certificate under section 502 applies.

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12. Section 501(2) of the Act reads as follows:

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(2)The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

Decision of Minister--natural justice does not apply

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13. Item 7 of Schedule 4 of the Amendment Act reads as follows:

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(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.

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14.     “Substantial criminal record” is defined in s 501(7):

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(7)For the purposes of the character test, a person has a substantial criminal record if:

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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

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Submissions

15. At the jurisdiction hearing Mr Chand reiterated the propositions in the letter dated 22 October 2008 from the respondent’s solicitors to the tribunal and the applicant. He concluded that the minister’s decision to cancel the applicant's visa taken on 20 September 2007 became, by virtue of the Amendment Act, the operative decision and the basis for the applicant’s detention. That was the decision of which the applicant sought review, but the tribunal had no jurisdiction to entertain the application.

16.     The applicant said that he wished to appeal to the tribunal because he had been detained and released three times.  After his initial release, he had worked in a factory for two years, six days a week, and had committed no offences during that time.  Now he was facing some sort of crisis.

17.     He had no legal representation because he lacked funds.  He had applied for legal aid yesterday (6 November) but had heard nothing.

18.     He said that he has a wife and two children in Australia and that he has been living here for more than 30 years.  How would he be able to reintegrate into life in Vietnam?

19.     He asked the tribunal to help him and to be understanding because he is striving to be a good person.  The tribunal (sic) had allowed him to be released three times and could not keep doing this.

20.     Mr Chand replied that the applicant’s submissions went to the merits of his application, not to jurisdiction and repeated that the tribunal does not have jurisdiction to review the minister's decision.

Consideration

21. The AAT Act provides in s 25 that an enactment may provide that applications for review of specified categories of decisions may be made to this tribunal. That is the only way in which this tribunal can acquire jurisdiction.

22.     Section 500(1) of the Act is such an enactment that confers jurisdiction on the tribunal.  It relevantly provides that applications may be made for review of “(b) decisions of a delegate of the Minister under s 501”.

23. The Amendment Act has the effect of deeming transitional (permanent) visas of the kind held by the applicant to have been “granted” and, if cancelled by the minister or by a delegate, to have been validly cancelled. The cancellation is taken always to have been valid, and the legislation therefore operates retrospectively.

24.     The applicant's transitional (permanent) visa was thus validly cancelled and the applicant would have had the right to apply to this tribunal for review of the cancellation decision if the decision had been taken by a delegate.

25.     As the memorandum recording the decision and the reasons for it is signed personally by the Hon. Kevin Andrews, Minister for Immigration and Citizenship, however, the tribunal lacks jurisdiction because s 500 of the Act confers on the tribunal the jurisdiction to review s 501 decisions only when made by a delegate, not by the minister personally.

26.     Sackville J stated the law in these terms in his reasons for decision on the applicant’s judicial review application:

…  While a revocation decision made by a delegate of the Minister is reviewable by the Administrative Appeals Tribunal (s 500(1)(b)), a decision by the Minister is not so reviewable (at para [5]).

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27. The tribunal thus lacks the jurisdiction to entertain the application to review the minister’s decision and the application must be dismissed under s 42A(4) of the AAT Act.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   …………………[sgd]………………………………

Renee Wallace, Associate

Date/s of Jurisdiction Hearing:          7 November 2008
Date of Decision:  11 November 2008
Solicitor for the Applicant:                  Self-represented
Solicitor for the Respondent:             Mr A Chand, Clayton Utz