PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 485

PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 485 (11 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8709
Re:PDWL (a pseudonym)
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr N A Manetta, Senior Member
Date:11 March 2020
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant be granted a safe haven enterprise visa.
........................[sgnd].....................................
Dr N A Manetta, Senior Member
Catchwords
MIGRATION – where Minister’s delegate refused application for a protection visa under section 501 on character grounds – effect of BAL19 v Minister for Home Affairs – no jurisdiction in delegate so to act – whether Tribunal should remit matter with directions or substitute decision that protection visa be granted – held that it was appropriate to decide to substitute a decision that a visa be granted as all criteria met
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
Commonwealth Bank Officers Superannuation Corporation Pty Ltdv Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Re Control Investment Proprietary Limited and Australian Broadcasting Tribunal(No 2) (1981) 3 ALD 88
Re Reference under Section 11 of the Ombudsman Act 1976 (1979) 2 ALD 86
Re Watt and Department of Transport [1978] AATA 35; 1 ALD 242
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA, 20 December 2018
REASONS FOR DECISION
11 March 2020
Senior Member Dr N A Manetta

This is an application by PDWL seeking a review of a decision of the Respondent’s delegate notified to him on 18 December 2019. The Applicant had applied for a protection visa under section 36 of the Migration Act, 1958. A delegate of the Respondent (who exercised delegated authority under section 501 of the Migration Act only) decided to refuse the protection visa application because the Applicant failed what is known as the “character test” under that section and because the delegate believed the discretionary grant of a visa should not be made in the circumstances of the case.[1]
[1] The delegate applied Direction 79 issued under s 499 of the Migration Act in his or her consideration of the exercise of the discretion.
Between the date of the delegate’s decision and the hearing in this Tribunal, the Federal Court’s decision in BAL19 v Minister for Home Affairs[2] was handed down.[3] It was agreed between the parties that this authority requires me to set aside the Respondent’s delegate’s decision for reasons I shall explain. The only question that was contested before me was the further order I should make under s 43(1)(c) of the Administrative Appeals Tribunal Act, 1975 (the AAT Act). The section gives me two options: first, I might remit the matter to the Respondent for further consideration with directions or recommendations,[4] or I might substitute a new decision on the visa application.[5] At the hearing before me, Mr Soo appeared for the Applicant; Ms Griffin, for the Respondent.
[2] [2019] FCA 2189.
[3] On 24 December 2019.
[4] Section 43(1)(c)(ii).
[5] Section 43(1)(c)(i).
I heard extensive argument on the question of the appropriate course to take. In my opinion, I ought to substitute a new decision that the Applicant be granted a protection visa on his application. I set out below the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The background facts may be summarised as follows. The Applicant is a 34-year-old citizen of Afghanistan of Hazara ethnicity. He is also a Shia Muslim by faith. In late 2012, he arrived in Australia and in 2016 he applied for what is called a “safe haven enterprise visa” under the Migration Act. A safe haven enterprise visa is designated a type of protection visa under section 35A of the Migration Act.
The Respondent’s Department assessed the Applicant as a person who would face an appreciable risk of harm were he to return to Afghanistan in the foreseeable future. He was a former member of the Afghan National Army, and he had undertaken work for the Afghan Department of Education. Were he to return to Afghanistan, he would be identified by the Taliban as a Government supporter. At the hearing before me, Ms Griffin accepted that the Applicant satisfies the criteria specified in section 36 of the Migration Act for the grant of a protection visa.
Ms Griffin informed me that as part of the Respondent’s consideration of this matter, the application for the protection visa was passed from the so-called “section-65 delegate”, who would normally have finalised the grant of the visa, to the so-called “section-501 delegate”. That transfer occurred, it would appear, because of a criminal conviction that the Applicant has.
The Applicant had been sentenced on 21 March 2018 to a term of imprisonment for intentionally causing harm. The Applicant and a friend had been out drinking together and had become intoxicated. In a fight over a mobile phone, the Applicant assaulted his friend. He was charged with an offence of intentionally causing harm, and he pleaded guilty. He was sentenced to a term of imprisonment of approximately one year and nine-and-a-half months with a non-parole period of twelve months.[6]
[6] The friend died, but it was not clear that the injuries inflicted by the Applicant were responsible for his death. The Applicant was charged only with intentionally inflicting harm.
It is clear from the Department’s consideration of the matter[7] that the Applicant was not considered to be a danger to the Australian community notwithstanding the violent incident in which he had been involved. It also became clear in the course of the hearing before me that all the criteria for the grant of a protection visa had been satisfied, with the exception of the so-called “character test” criterion.[8] The relevant criteria are set out in section 36 and in certain so-called Public Interest Criteria (that is, PICs 4001, 4003A and 4019).[9]
[7] Ex R1, p 69.
[8] Public Interest Criterion 4001.
[9] See clause 790.226 of Schedule 2 of the Migration Regulations 1994.
The Applicant’s application for a protection visa appears to have been forwarded to the section-501 delegate for a decision as to whether or not the protection visa ought to be refused under section 501. I am not sure why this course was taken because the “character test” was prescribed to be a relevant public interest criterion the Applicant had to meet.[10]
[10] See PIC 4001, made relevant to the section 65 delegate’s decision by s 65(1)(a)(ii) of the Migration Act and clause 790.226 of Schedule 2 of the Migration Regulations 1994.
The section-501 delegate decided that the Applicant’s visa application ought to be refused. As I have said, the decision was notified to the Applicant on 18 December 2019. The Applicant has applied for a review of that decision in this Tribunal.
After the notification of the delegate’s decision to the Applicant, the Federal Court’s decision in BAL19 was delivered. So far as it is relevant to the application before me, the case decides that the Minster has no power under section 501 of the Migration Act to refuse a protection visa simply because the visa applicant fails the character test. Rather, section 36(1C), paragraph (b) should be taken to be an exclusive statement of the relevant disqualifying criterion in this regard.[11] Paragraph (b) makes it clear that a person must be considered to be a danger to the Australian community (in addition to having been convicted of a particularly serious crime, as defined) before a protection visa may be refused him or her. Moreover, PIC 4001 was held to be invalid as an additional criterion for a protection visa because it was inconsistent with s 36(1C) of the Migration Act.[12]
[11] At [85] and [88].
[12] At [86] and [89].
As I have noted, it is clear that the Department has reached the decision that the Applicant is not a risk to the Australian community. It follows that section 36(1C)(b) is satisfied in the Respondent’s Department’s view.
REASONS
Ms Griffin conceded properly that I am bound to follow the decision in BAL19, although in her submission it was wrongly decided. I must, therefore, set aside the decision under review because there was no power to refuse the Applicant’s protection visa application under that section. That will be my first order.
The next question is whether I should remit the matter for further consideration to the Respondent’s delegate or whether I should substitute a new decision. The parties disagreed on the correct approach.
Ms Griffin submitted to me that I ought to remit the matter for further consideration by the Respondent’s delegates. I do not accept this submission and I now turn to explain why.
First, Ms Griffin suggested that section 43(1) of the AAT Act was not wide enough to allow me to substitute a decision that a visa should be granted. Section 43(1) is in the following terms:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Ms Griffin drew a distinction between the powers of the “section-65 delegate” and those of the “section-501 delegate”, who were different people. She submitted that the section-501 delegate does not have delegated authority to grant the visa under section 65 but only delegated authority to refuse one under section 501.
It followed in her submission that, standing in the shoes of the section-501 delegate and exercising all the powers and discretions conferred by the Migration Act on the delegate who made the decision under review, I did not have authority to grant the visa under section 65, but was limited to the powers the section-501 delegate had under his or her instrument of delegation.
I do not think that section 43(1) should be interpreted in this narrow way. The reference in section 43 (1) to “all the powers and discretions conferred by any relevant enactment on the person who made the decision” should not be taken to be one to only those powers and discretions that have been conferred on a delegate (where a delegate makes a decision). Ms Griffin conceded quite properly that if in this case, for example, the section-501 delegate had the powers of the section-65 delegate as well, it would follow on her argument that the Tribunal would have power to grant a visa. In my opinion, the conferral of power on this Tribunal in section 43(1) was not intended to be affected by the chance division of delegated authority in the Minister’s department. Rather, in my opinion, the reference to “all the powers and discretions conferred on the person who made the decision” should be taken to be a reference to the powers and discretions that are conferred on the person who is nominated in the Act as the decision-maker (whether or not that person has delegated his or her authority to make the decision). Although a delegate may be said in law to act in his own name, and not as an agent,[13] it is nevertheless the case that a delegate acts by virtue of a derived, and not an original, authority. In this case, it is accurate to say the Minister is responsible in law for the decision taken by his or her delegate under the instrument of delegation the Minister has executed. There is no reason to view the reference in s 43(1) to “all the powers and discretions of the person who made the decision” as excluding the powers and discretions of the delegator. Ms Griffin’s submission also implies that s 43(1) will operate differently when a decision is taken on behalf of the nominated decision-maker rather than under a delegation.[14] In such a case, the act is taken in law to be the act of the nominated decision-maker.
[13] See Re Reference under section 11 of the Ombudsman Act 1976 (1979) 2 ALD 86.
[14] As is the case for example when an agent acts on behalf of a Minister in accordance with the so-called “Carltona” principle: see Re Reference under section 11 of the Ombudsman Act 1976 (1979) 2 ALD 86 at 93.
I note that my view accords with what was put by the Tribunal in Re Watt and The Department of Transport [1978] AATA 35; 1 ALD 242 at 244:
Although it is clear that the actual decision to refuse to grant a licence was taken by Mr Knudsen, and although that is formally the decision which it is sought to have reviewed in these proceedings, the component of the decision-making process, the correctness of which the applicant really wishes to challenge, is the anterior decision of Dr Lane that he was not satisfied that the applicant met the requisite medical standards. As both Mr Knudsen and Dr Lane, however, are exercising powers delegated to them respectively by the Secretary, Department of Transport, the Tribunal has proceeded (without objection from the parties) on the basis that the decision for review includes all the components of the decision-making process which under the Regulations the Secretary is empowered to exercise in his own right. If, for reasons of departmental convenience and efficiency the decision-making process is divided into components as to which separate delegations are given to designated officers within the Department, the Tribunal does not take the view that its powers of review are limited to reviewing only that component of the decision-making processes exercised by the delegate of the Secretary who had the final power of decision.
Ms Griffin also submitted that because the matter had come to me as a review of a decision under section 501, I did not have any authority to exercise any powers outside section 501. This submission was not supported by a reference to any case authority. The authorities I have consulted suggest that this is a submission I ought not to accept. It is sufficient to refer to two decisions.
In respect of an argument that the word may in section 43(1) authorises the Tribunal to limit its function as it sees fit, his Honour Justice Davies, President of the Tribunal, held in ReControl Investment Proprietary Limited and Australian Broadcasting Tribunal(No 2) (1981) 3 ALD 88, at 92 as follows:
Mr Morris submitted that the word ‘may’ in s 43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorize the Tribunal to limit its function as it sees fit. But the provision ‘For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision…’ is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.
Secondly, I would refer to the decision of the Full Court of the Federal Court in Commonwealth Bank Officers Superannuation Corporation Pty Ltdv Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427 at [29] – [30]:
[29] Ultimately, the question turns upon the proper construction of s 43 of the AAT Act. Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review - see Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39 – 40. (emphasis in the original)
[30] Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision maker who made the decision, can be exercised by the Tribunal. Clearly, the Surcharge Act is a relevant enactment. Section 8(5)(b) of the Surcharge Act confers a discretion on the Commissioner to give or withhold approval of another method. The decision that is to be reviewed by the Tribunal is the Commissioner’s objection decision of 26 August 2004 in respect of the assessment of the surcharge liability relating to Mr Cocks. The unequivocal words of s 43(1) are that, for the purpose of reviewing that decision, the Tribunal may exercise all the powers and discretions that are conferred by the Surcharge Act, as a relevant enactment, on the Commissioner. (emphasis in the original)
I think these two authorities make it clear that the Tribunal’s jurisdiction extends in this case to a decision that the protection visa be granted provided that it is taken for the purpose of reviewing the decision under review. In this regard, it is important to bear in mind that what was refused under section 501 was an application for a specific visa. There is, in my opinion, no limitation on the Tribunal’s jurisdiction preventing it from deciding to grant the requested visa if that decision is taken for the purpose of reviewing the refusal of the visa by the delegate. I make the obvious point that whether the jurisdiction exists in law is not the same question as whether the jurisdiction should be exercised in any given case.
Ms Griffin also submitted that the power “to substitute a new decision” does not extend in law to a decision that a visa be granted. In this regard, Ms Griffin referred to what she asserted was a universal practice in the Migration and Refugee Division of the Tribunal not to order the grant of protection visas under section 415 of the Migration Act despite the presence of a power cast in the same terms as section 43 of the AAT Act. She was not able to cite any reasoned authority to support this submission of law;[15] rather she asked me to infer that such a legal restriction must exist if the Tribunal does not order the grant of visas. Mr Soo referred to what he asserted was a regular practice in the Migration and Refugee Division of substituting decisions under section 349 of the Migration Act that nominations be accepted when certain other visas were considered by the Migration and Refugee Division.
[15] Ms Griffin referred to a single instance where a Deputy President of the Tribunal corrected an error in his decision to grant a visa and subsequently substituted a decision that the application be remitted for further consideration, but Ms Griffin advised that there were no reasons given by the Deputy President for this course.
In my opinion, it is not desirable or helpful for me to review what are asserted to be practices in the Migration and Refugee Division of this Tribunal. I do note that a Practice Direction entitled “Conducting Migration and Refugee Reviews” has been issued by the President to govern hearings in the Migration and Refugee Division; and the Direction requires in paragraph 8.1 that “[g]enerally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application for review.”

I am, of course, exercising jurisdiction in the General Division. As a matter of general practice across this Division, I accept that matters are frequently remitted to decision-makers for further consideration with directions or recommendations when there are outstanding matters that need to be considered, thus making it inappropriate for the Tribunal to substitute a new decision. If there had been matters in the application before me that had not been considered within the Respondent’s Department, it would have been appropriate for the visa application to be remitted to the Respondent with directions that the outstanding matters be considered promptly and a decision taken either to grant the visa or refuse it.
It became clear in the course of the hearing, however, that there are in fact no outstanding issues to be addressed by the Respondent. The records tendered by the Respondent[16] make it clear that the Applicant has satisfied the valid criteria specified under the Regulations for the grant of a protection visa. In particular, the Applicant has signed a values statement (PIC 4019), has passed a health examination (cl 790.222 and 790.223), and has received a security clearance (PIC 4003A).
[16] Ex R2, p 72 and Ex R3.
There is a further public interest criterion (namely, the character test in PIC 4001) which it is accepted that the Applicant fails. However, as I have indicated, this criterion was specifically ruled invalid in BAL19[17] and, in the circumstances, I do not believe I should apply it.
[17] At [89].
Ms Griffin submitted that it was open to me to conduct my own re-assessment if I were minded to do so. I do not think I should embark on any re-assessment of fundamental issues where the Respondent’s delegates, who are responsible for the administration of the Migration Act, have expressed a view that is favourable to the Applicant. In this regard, I would refer to the dicta of his Honour Justice Davies in Re Control Investment (No 2) at pp 92 – 93, which very helpfully sets out an appropriate practice in the Tribunal. In the circumstances, I believe I should rely on the Department’s findings in my review.
Ms Griffin also suggested to me that the Minister’s delegate may choose, if the matter is remitted, to refuse to grant a visa until the full Federal Court (and presumably the High Court on any appeal) had determined finally the validity of BAL19. Indeed, the possibility of deferring a grant of the visa seems to explain why the Respondent was not in a position to finalise this matter promptly before me by indicating that a visa would be granted forthwith.
I must say that it concerned me that a delegate would believe that he has or she has a right to defer consideration of an application and a right not to apply the law as determined by the Federal Court in his or her consideration of a matter. The delegate, and the Tribunal on review, must, of course, always apply the law. A reasoned decision of a single judge of the Federal Court that is not inconsistent with other decisions of that Court or of the High Court ought, in my opinion, to be followed and applied by administrators and by the Tribunal.
I would note in this regard that the Minister’s delegate was not prevented from granting the visa despite the earlier refusal decision under section 501. The section-501 delegate exceeded jurisdiction: the decision refusing the visa was not a legally effective one. The section-65 delegate had authority, I believe, to decide to grant the protection visa notwithstanding the earlier defective decision. So much follows from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597.
However that may be, the matter has now come before the Tribunal on a review. Ms Griffin conceded properly that all valid criteria in section 36 and the Regulations were satisfied, although her formal position was that BAL19 was wrongly decided. I note that section 65 of the Act provides that the Minister “is to grant the visa” if satisfied of the requisite matters.
Since the Applicant satisfies all criteria for the grant of a visa (with the exception of one criterion that has been found to be invalid in BAL19), I see no reason why I should not decide that the Applicant’s application for a visa should be granted. It is in my opinion the preferable course to take in the exercise of my jurisdiction. I note that I am obliged under section 2A of the AAT Act to pursue the objective of providing a mechanism that is, amongst other things, “fair, just, economical, informal, and quick”. In the circumstances of this case, where the Respondent fully accepts that there is no impediment to the grant of a visa (except for the question of character which has been determined by the Federal Court to be legally irrelevant), I have decided I should finalise this matter by substituting a decision that the Applicant be granted a safe haven enterprise visa under s 36. In this regard, I would note that the Applicant indicated at the hearing that he has been in detention for some considerable time and is understandably anxious to be reunited with his wife and children. In the circumstances, the grant of the visa should be made promptly.
FORMAL DECISION
The formal decision of the Tribunal will be to set aside the decision under review and to substitute a decision that the Applicant be granted a safe haven enterprise visa.
I certify that the preceding 36 (thirty-six)
paragraphs are a true copy of the reasons
for the decision of Dr N A Manetta, Senior
Member
……………[sgnd]………………………
Dated 11 March 2020
Dates of hearing:  24 and 25 February 2020
Applicant’s Representative:               Mr C K Soo, Australia One Migration
Respondent’s Representative:          Ms B Griffin, Australian Government Solicitor