Parminder Bir Singh Sahi v Minister for Immigration
[2012] FMCA 994
•2 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARMINDER BIR SINGH SAHI V MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 994 |
| MIGRATION – Review of decision of the Migration Review Tribunal – whether an “automatic” cancellation of a visa pursuant to s.137J of the Migration Act 1958 (Cth) is a decision for the purposes of the Act – meaning of decision – whether the Tribunal did have jurisdiction to hear the review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.137J, 137K, 137L, 137M, 338, 349, 474, 476, 495A Education Services for Overseas Students Act 2000 (Cth), s.20 Administrative Appeals Tribunal Act 1975 (Cth), s.44 Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), Sch.1 |
| Prasad v Department of Immigration and Citizenship [2008] FCA 945 Prasad v Minister for Immigration and Citizenship [2007] FMCA 2147 Shao v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 Director General of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571 Zheng v Minister for Immigration [2010] FMCA 92 Kumar v Minister for Immigration [2008] FMCA 1458 Yijin Zhou v Minister for Immigration & Anor [2012] FMCA 62 Foster v Northern Territory of Australia [1999] FCA 1235 Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253 |
| Applicant: | PARMINDER BIR SINGH SAHI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2871 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr LJ Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr JD Smith |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The application made on 14 December 2011, and amended on 14 March 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2871 of 2011
| PARMINDER BIR SINGH SAHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 14 March 2012, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 November 2011, which determined it did not have jurisdiction to review the application made to it by Mr Sahi (“the applicant”).
Background
The applicant is a citizen of India (Court Book – “CB” – CB 8). He arrived in Australia in January 2009 (CB 12) with a student visa (CB 1). He enrolled in a Business Technology course at the Crown Institute for Business and Technology (“CIBT”).
On 22 December 2010, the CIBT issued a “s.20 Notice” to the applicant, that is, a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) as his attendance at CIBT had dropped below the required threshold for his enrolment (CB 26 and CB 58 – CB 64). Following that notice, on 20 January 2011, the applicant’s student visa was “automatically” cancelled (CB 13).
On 28 January 2011, the applicant wrote to the Department of Immigration and Citizenship (“the Department”) requesting that the automatic cancellation of his student visa be revoked (CB 1). Also on that date, the applicant applied to the Tribunal for what the Tribunal ultimately concluded was a review of the automatic cancellation of his visa (CB 38 – CB 47).
On 25 February 2011, the applicant wrote, by email, to the Department to provide reasons in support of his request for revocation of the automatic cancellation of his student visa. In his email the applicant stated that, in October 2010, he had been unable to attend scheduled classes for “a few days” as his mother, who lived in India, was ill and it had been a “stressful” time for him (CB 12 – CB 24).
On 23 March 2011, the applicant was notified, by email, of the decision not to revoke the automatic cancellation of his student visa (CB 34 – CB 37). The email specified that the applicant was entitled to apply to the Tribunal for review of the decision not to revoke the cancellation of his visa (CB 35).
The Tribunal
The application to the Tribunal for review of the “automatic” cancellation of his visa is dated 28 January 2011 (CB 38 – CB 47).
On 23 August 2011, the Tribunal wrote to the applicant inviting him to comment on, or respond to, certain information that, at that time, the Tribunal considered would be the reason for affirming the decision. The applicant was to comment on, or respond, by 8 September 2011 (CB 78 – CB 80). On 9 September 2011, the Tribunal again wrote to the applicant informing him that, as he had failed to respond to the Tribunal’s invitation to comment on, or respond to, certain information, he had lost the right to appear before the Tribunal to give evidence and present arguments (CB 87 – CB 88).
On 13 September 2011, the applicant’s migration agent wrote to the Tribunal advising that he had been appointed to act on behalf of the applicant (CB 89). On 4 October 2011, the applicant’s representative forwarded to the Tribunal for consideration a Statutory Declaration made by the applicant. That Statutory Declaration included translated hospital reports for the applicant’s mother and a death certificate for the applicant’s grandmother (CB 100) (see further below).
On 31 October 2011, the Tribunal wrote to the applicant to advise that as the applicant had lodged a request for review with the Tribunal before a reviewable decision had been made, that application may not be valid (CB 111).
On 15 November 2011, the applicant’s representative wrote to the Tribunal explaining that the applicant was under the impression, from information given to him by his then former migration agent and by a Tribunal officer, that the request for review would be put “on hold” by the Tribunal until a decision to not revoke the “automatic” visa cancellation had been made, at which time the request would be activated (CB 113). The applicant’s representative attached a Statutory Declaration from the applicant confirming the reasons for the “early” application (CB 115).
The applicant was advised by letter, dated 23 November 2011, that the Tribunal decided it had no jurisdiction to consider his request for review (CB 119). The Tribunal found that an “automatic” cancellation of a visa was not an actual “decision” under the Act, and as such the Tribunal could not conduct a review where a decision had not been made at the time that the applicant for review was made ([15] at CB 124).
The Application to the Court
The amended application to the Court is in the following terms:
“1. The Tribunal erred in finding that it had no jurisdiction to review the cancellation of the applicant’s visa pursuant to section 137J of the Migration Act.
Particulars
(a) The cancellation pursuant to section 137J was a ‘decision’ in terms of section 474(3)(b) and/or 474(3)(g) of the Migration Act.
(b) The cancellation pursuant to section 137J was an ‘MRT reviewable decision’ within the meaning of section 338(3) of the Migration Act.
2. The Tribunal erred in finding that it did not have jurisdiction to review the decision on (sic) to revoke the cancellation of his visa pursuant to section 338(3A) of the Migration Act.
Particulars
(a) The decision was made within the time limited by section 347(b)(i) of the Migration Act.”
Before the Court
At the hearing Mr LJ Karp of counsel appeared for the applicant. Mr JD Smith of counsel appeared for the Minister.
At the beginning of the hearing Mr Karp stated that an amended application had been filed, but that the second ground in that application was not pressed.
At the hearing an issue was raised as to the relevance of Prasad v Department of Immigration and Citizenship [2008] FCA 945 and Prasad v Minister for Immigration and Citizenship [2007] FMCA 2147 (“Prasad”). I consequently granted leave to the parties to file and serve supplementary written submissions in relation to this issue. Both parties took this opportunity, with the applicant filing written submissions on 13 September 2012 and the Minister filing written submissions on 14 September 2012.
Legislation
The following legislation is relevant to the these proceedings.
Section 137J of the Act relevantly states:
“Non-complying students may have their visas automatically cancelled
(1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen's visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
(2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette ;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.”
Section 338 relevantly states:
“Decisions reviewable by Migration Review Tribunal
…
(3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501.
(3A) A decision under section 137L not to revoke the cancellation of a non-citizen's visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.
…”
The Issue
The issue for consideration in these proceedings is whether the (“automatic”) cancellation of a visa by operation of s.137J of the Act is a “decision” within the meaning of s.338(3) of the Act, such that it is an “MRT-reviewable decision”. The applicant proposes that it is. The Minister opposes.
The short answer in disposing of this application in this Court is that in Shao v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 (“Shao”), Lander J held at [54]:
“… First, s 137J is, in my opinion, unambiguous. It operates to cancel the non-citizen’s visa where a notice has been sent to a non-citizen under s 20 of the ESOS Act. As I have already said, no decision is made to cancel a visa. Section 137J itself operates to cancel the visa.”
For current purposes and on a simple application to similar facts, that means that where a s.20 Notice has been given, and s.137J of the Act operates to cancel the visa, that cancellation is not a “decision” such that it is caught by s.338(3) of the Act.
That judgment, being of a Court superior to this, is binding on this Court. No amount of interesting argument by the applicant now can change that state of affairs.
What follows is the consideration of the detail of the applicant’s case put before the Court, in light of the above.
Applicant’s Submissions
The applicant submitted that the Tribunal was wrong to find that it did not have jurisdiction to review a matter for the reason that a “137J cancellation” is not a decision under the Act.
The applicant submitted that the “automatic” cancellation of his visa was a “decision” within the meaning of s.338(3) of the Act. In support of this argument he referred to both the common law and the relevant statutory provisions to define “decision”. It was accepted by both parties that “decision” is not specifically defined for the purposes of s.338 of the Act.
With reference to the common law, the applicant relied on the Full Federal Court in Director General of Social Security v Chaney [1980] FCA 87; (1980) 31 ALR 571 at 591-2 per Deane J (with whom Fisher J agreed at 596-7, Northrop J dissented), which held that a “decision”, in the context of s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), was the “ultimate or operative determination” of a person’s rights. Consequently the applicant submitted that, on the basis of this precedent, it was clear that a “decision” was made in this case because the cancellation of the applicant’s student visa met the criterion of being the “ultimate or operative determination”.
The applicant submitted that the use of the word “decision” in regard to s.338 of the Act referred to having “rights determined”, whereby, it was argued that a s.137J cancellation of a visa determined rights. The applicant further submitted that s.338 of the Act did not indicate that a “decision” needed to be made by a person, nor that it must be made in the “exercise of discretion”.
With reference to the Act, the applicant relied on s.474(3)(b) and (g), which relevantly states:
“(3) A reference in this section to a decision includes a reference to the following:
…
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
…
(g) doing or refusing to do any other act or thing;”
The applicant noted that the use of the word “decision” in this section was a reference to a “privative clause decision” which is defined in s.474(2) of the Act as:
“(2) In this section:
‘privative clause decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”
The applicant noted, in his written submissions, the difficulty in construing an “automatic” cancellation of a visa as an “administrative decision”. At that point the applicant was not prepared to make any relevant concessions.
At the hearing, in regards to the judgment of Lander J in Shao, the applicant was willing to concede that a visa cancellation pursuant to s.137J of the Act was not an “administrative decision”, but submitted that that concession did not preclude the cancellation from being “a decision of another kind” where an “alternative categorisation” of the act of automatically cancelling a visa was that of a “non privative clause decision”.
The applicant further relied on the wording used in s.495A of the Act which enables the “use of computer programs to make decisions”. The applicant submitted that there was “no realistic difference between a computer program reaching an operative conclusion on the basis of available data and a conclusion being reached by automatic application of a statute on the basis of available data”. Therefore it was not necessary for a person to be involved for a “decision” to be made.
Respondent’s Submissions
The Minister emphasised in his response that in considering the meaning of “decision” within s.338 of the Act, and in particular s.338(3) of the Act, the starting point is that the usual statutory interpretation principles should be applied in order to construe the words to give an understanding of their context, relevantly, the immediate context and then the broader context.
The Minister also referred to the definition of “decision” as given by the Shorter Oxford English Dictionary whereby its “ordinary meaning includes the action of deciding (a contest or question), a settlement, determination, conclusion or judgment”.
The Minister noted that the applicant’s reliance on s.474(3) of the Act to give scope to the meaning of “decision” was “expressly limited in its application to this section, that is, s.474”. The Minister noted that this section is found at Div.1 of Pt.8 of the Act, which deals with judicial review and therefore was not relevant to the purpose of this matter.
The Minister also noted that s.338 of the Act is found in Div.2 of Pt.5 of the Act, namely concerning review of decisions by the Tribunal. The Minister highlighted Div.3, the obligation on the Tribunal to review, where relevantly s.349(1) and (3) of the Act states:
“Powers of Migration Review Tribunal
(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
…
(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…”
[Emphasis added.]
Consequently the Minister submitted that a “decision” is “one that is made by someone rather than being a result of the operation of the Act”. This point was emphasised by the Minister’s construction of the purposes of ss.137J, 137K, 137L and 137M of the Act.
The Minister submitted that s.137J is found in Sub-Div.GB of Div.3 of Pt.2 of the Act which was included in the Act by item 2 of Sch.1 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (and item 11 of Sch.1 added s.338(3A) to the Act). It was submitted that the scheme in this subdivision was added to enable a person who had their visa cancelled, in certain circumstances, to apply to have that cancellation revoked pursuant to s.137K of the Act. Further, that that application must be considered by the Minister pursuant to s.137L of the Act. Merits review was available for that decision.
In support of this construction, the Minister relied on the inclusion of s.338(3A) into the Act , whereby Lander J in Shao at [57] said:
“The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister’s decision making only extends to considering whether the statutory cancellation should be revoked.”
Section s.338(3A) of the Act states:
“(3A) A decision under section 137L not to revoke the cancellation of a non-citizen’s visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.”
The Minister noted that the insertion of this sub-division (3A) within s.338 of the Act was indicative that the intention of the Parliament in including new cancellation provisions in Sub-Div.GB “was that the automatic cancellation not be reviewable other than by means of a consideration of whether to revoke that cancellation”.
The Minister further submitted that, in this situation, the Tribunal served no purpose (as a reviewing body) as it could not affirm, set aside, or vary the cancellation. If, however, the applicant contended that the Tribunal could determine whether the actual cancellation of the visa was valid, with reference to whether a s.20 Notice was issued or not, the Minister submitted that to ask such a question of the Tribunal was “more akin to judicial review than the administrative merits review contemplated by Part 5 of the Act”.
Consideration
As set out above, the only question to consider in this case is whether an “automatic” cancellation of a student visa is a “decision” within the meaning of s.338 of the Act, and therefore is reviewable by the Tribunal.
I agree with the Minister’s construction of the relevant statutory scheme. The parts of that scheme immediately relevant to the disposition of the current proceedings are also informed by the wider context as outlined below.
A s.20 Notice under the ESOS Act is issued by a education service provider. The legislative scheme provides a student with a number of options. First, he or she may, within 28 days of the date specified in the s.20 Notice, comply with the s.20 Notice. Such compliance avoids cancellation of the visa (s.137J(2)(a) of the Act).
Second, the student may avoid “automatic” cancellation of the visa by presenting him, or herself to, again within the 28 day period from the specified date of the s.20 Notice, to an office of the Minister’s department and making him or herself available to an officer of the Department for the purpose of making submissions about the circumstances that led to the breach which was the subject of the s.20 Notice (s.137J(2)(b) of the Act).
Third, if a student does not avail him or herself of either of these options then the visa is “automatically” cancelled (s.137J of the Act).
Fourth, the student may apply for revocation of that cancellation (s.137K of the Act). The bases on which this can be done, and applicable restrictions, are set out at s.137K of the Act.
Fifth, how the Minister deals with such an application to revoke the cancellation is set out at s.137L of the Act, with notification requirements as set out at s.137M of the Act.
In this scheme the remedy available to a student aggrieved by a cancellation under s.137J of the Act is to seek the revocation of that cancellation. There was no dispute between the parties that a decision not to revoke was a decision that was an “MRT-reviewable decision”. Such concord is not surprising given the very plain language of s.338(3A) of the Act:
“A decision under section 137L not to revoke the cancellation of a non-citizen's visa is an MRT-reviewable decision if the non-citizen was in the migration zone when the decision was made.”
In the current case the applicant did just that on 28 January 2011 (CB 1). However, on the same day he also applied to the Tribunal “to review my cancellation” (CB 38 and CB 39 – CB 45).
On 13 September 2011 he instructed “Parish Patience Immigration Lawyers” to represent him before the Tribunal (CB 89). They also act for him now before the Court.
By letter dated 15 November 2011, the applicant’s lawyers wrote to the Tribunal and conveyed that the applicant had instructed them that when he lodged his application form for review with the Tribunal he was told by a Tribunal officer that the Tribunal “would keep the appeal he had lodged on hold until the refusal had issued from the Department at which point the appeal would be activated.” (CB 113, and in particular, CB 113.6.) It is clear that the “refusal” was a reference to a refusal to revoke the cancellation.
The Tribunal specifically considered this explanation offered by the applicant ([10] at CB 123). Not surprisingly, given the applicant’s plain words at the time of lodging the application, the Tribunal found that what the applicant intended at the time of lodging his application was a review of the cancellation, not a review of the decision not to revoke, which of course, and additionally, had not been made at the time ([11] at CB 123 – [15] at CB 124).
While the applicant’s solicitors before the Tribunal made plain that they were acting under instruction, what is plainly implicit in the assertions presented was that they well understood the statutory scheme as set out above, but which they now seek to challenge before this Court.
The applicant relies on the argument that a “decision” is one where “rights have been determined or concluded” and therefore, because the applicant’s rights had been affected, whereby his visa was cancelled, (even though that was by the “force of the law”), that was a “decision” for the purpose of s.338 of the Act. This is in stark contrast to the Minister’s submission that a “decision” is, effectively, one made by a person.
As the Minister, correctly, in my view, submitted that s.349 of the Act provides for the scope of the Tribunal’s powers and what was described by him as the “character of the review” being undertaken by the Tribunal. I agree with the Minister that s.349 of the Act gives s.338 of the Act some context that a “decision” is made by a person, specifically the Minister (or his delegate).
In my view this counts against the applicant’s argument that an outcome from an input into a computer is a “decision” for the purpose of the Act. By that reasoning, an outcome by “force of law” is also a decision. Section 495A specifically refers to a decision being made by the Minister. It is the Minister’s decision which is made possible by the operation of a computer, and it is that which removes the computer “consequence” to that of “decision”. It is not as Mr Karp now submits that the output of the computer, by itself, is a decision.
I agree with the Minister that the common thread between all dictionary definitions of the word “decision” is that “it is something that is done by somebody or something”. A “decision” therefore, as such, is not descriptive of a consequence, whether it be automatic or otherwise. In that sense the outcome of the operation of s.137J of the Act is not deemed a “decision”.
The relevant legislative scheme (outlined above at [18] and [19]), and when considered in light of what Lander J said in Shao, contemplates one review. That is, a review of the Minister’s determination to revoke, or more precisely not revoke, the “automatic” cancellation of a visa. It is this determination which is a “decision” for the purposes of the Act and is therefore amenable to review by the Tribunal.
The applicant, in argument, apparently conceded that a cancellation of a visa pursuant to s.137J of the Act was not an “administrative decision”. Rather, that such a course of action could be characterised as “some other decision”. The difficulty is that it was never satisfactorily explained just what this “other decision” was. References to it being a “non privative clause decision” (with obvious reference to s.474 of the Act) does not progress any relevant understanding given that that section, and the Part of the Act in which it appears, is relevant to judicial, and not administrative, review.
The applicant sought to draw the references to “administrative decision” and not just “decision” in Shao to argue that this still leaves open the possibility that the cancellation in s.137J of the Act can be characterised as “some other decision”. That is, not an “administrative decision”.
I respectfully understand Lander J to have used the word “administration” in the phrase “administrative decision” to be a descriptor of a decision made by some person acting in the administration of the Act. That is, the Minister, or one of his delegates.
In my respectful view, this is emphasised, and separately stands in clear answer to the applicant’s entire case, where Lander J stated at [57] of Shao:
“… The (statutory) scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision…”
That his Honour was referring to the Minister (or his delegate) in reference to the maker of an administrative decision is, in my respectful view, made clear with what immediately follows at [57] in Shao:
“… The Minister’s decision making only extends to considering whether the statutory cancellation should be revoked.”
Therefore, it is clear that no decision, administrative or otherwise, was made in the cancellation of the applicant’s visa, and therefore was not an MRT-reviewable decision for the purposes of the Act.
I am bound to follow Shao. With respect, in my view, the reasoning in Shao is clear. The arguments in this case put against that reasoning can, at best, be described as inventive and obscure. In my view it may be that the applicant has pursued this case in this Court in the face of Shao for another purpose. That is, other than seeking for this Court to depart from Shao, which, of course, it cannot.
In the meantime, I note that this Court has already followed Shao, as it must, on a number of occasions in similar factual circumstances. This in matters involving somewhat similar arguments to the ones advanced now (see, for example, Zheng v Minister for Immigration [2010] FMCA 92, Kumar v Minister for Immigration [2008] FMCA 1458 and Yijin Zhou v Minister for Immigration & Anor [2012] FMCA 62).
For the sake of completeness, and in a similar vein, I note that before this Court the Minister relied on Smith FM’s judgment in Prasad (upheld on appeal by Spender ACJ) that cancellation of a visa pursuant to s.137J of the Act was not an administrative decision. The facts of this case are similar to that case.
The Minister relevantly relied on [10] where Smith FM stated (also extracted at [13] of Spender ACJ’s judgment):
“The Tribunal explained that there was no decision of an administrative character made to cancel Mr Prasad’s student visa. There was no decision refusing to grant a visa of any class reviewable by the Migration Review Tribunal. In particular, if Mr Prasad was seeking to have the Tribunal review the effect of s.137J(2) on his student visa, there was no jurisdiction to do that since ‘cancellations of this kind do not involve decisions and are therefore not MRT-reviewable decision’. As I have indicated above, in my opinion, the Tribunal’s conclusion in that respect was undoubtedly correct, and has the support of authority including the decision of Lander J [at 55].”
In response the applicant submitted that the argument before Smith FM is different to what is before me now. The applicant submitted that both Spender ACJ and Smith FM cited Shao to find that the cancellation of a visa pursuant to s.137J is not an “administrative decision”, but they did not otherwise find it was merely a “decision”.
I agree with the Minister that it is irrelevant what arguments were put before Spender ACJ, what is crucial, and what I am bound by, are the principles settled in that case (Foster v Northern Territory of Australia [1999] FCA 1235 at [32]-[34] and Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253 at [39]-[41]).
As stated above, the question to be answered is whether, by virtue of a visa being cancelled pursuant to s.137J of the Act, a “decision” was been made. The applicant sought to distinguish between “administrative decision” and “some other decision”. As set out above, I apply the reasoning of Lander J in Shao that when a s.20 Notice is issued, leading to a cancelation of a visa pursuant to s.137J of the Act, no “administrative decision of any kind is made”. For this reason cancellation of a visa pursuant to s.137J of the Act is not an “MRT-reviewable decision”. Therefore the Tribunal was correct in concluding that it did not have jurisdiction to review the actual cancellation of the visa pursuant to s.137J of Act.
Conclusion
Consequently, ground one of the amended application does not reveal legal error on the part of the Tribunal. Therefore, accordingly, the application, as amended, should be dismissed with costs. I will make an order to this effect.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 2 November 2012
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