Singh and Minister for Home Affairs (Migration)

[2018] AATA 430

Singh and Minister for Home Affairs (Migration) [2018] AATA 430 (9 March 2018)

Division:GENERAL DIVISION

File Number:           2018/1039

Re:Sukhdeep Singh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:9 March 2018

Place:Sydney

The application for review is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

........................[sgd]...............................................

Mr P W Taylor SC, Senior Member

CATCHWORDS

Practice and Procedure – migration - application for review – whether decision reviewable by the Tribunal –cancellation of visa - decision made by Minister for Home Affairs – decision not made by a delegate of the Minister – decision not reviewable by the Tribunal

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42A

Migration Act 1958 (Cth), ss 500, 501

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

9 March 2018

1. On 5 March 2018 Mr Singh lodged with the Tribunal an application which he contends validly invoked the Tribunal’s review jurisdiction.  His application related to what he described as the cancellation of his Class TU Subclass 573 Student visa by the “Department of Home Affairs”.

2. In support of his application document was a three page letter, headed “Notice of visa cancellation under subsection 501(2) of the Migration Act 1958”, and dated 23 January 2018.  That letter was signed by “Kathy” – a person apparently employed at the National Character Consideration Centre of the Department of Home Affairs.

3. The notice stated (on page 2) that the decision to cancel the visa had been made in the exercise of the power conferred by Migration Act 1958, s 501(2), and that it had been made by “the Minister”.  It included as an attachment a page, which was obviously part of a submission document, that contained three alternatives set out under headings “Non-cancellation outcomes” and “Cancellation outcome”.  The printed page bore the name of the Honourable Peter Dutton, described him as the Minister for Home Affairs and the Minister for Immigration and Border Protection. 

4. That page of the Notice communication has been signed by “Peter Dutton”, dated (9 January 2018) and has been hand annotated to select the “Cancellation outcome”.

5. Also accompanying the Notice document is a 9 page Statement of Reasons – which also bears the name and signature of “Peter Dutton” – in the same style as described above.

6. Notwithstanding the appearance of the Notice communication, Mr Singh wishes to contend that the visa cancellation decision was not made by the Minister.  He says that the Minister would not have had time to make such a decision, and that Departmental officers merely used Mr Dutton’s name for a decision made by “Kathy”.  The contention is that “Kathy” was a delegate of the Minister.  Alternatively, the decision was made by “John”, a person who signed a 31 January 2017 Notice of intention to cancel Mr Singh’s visa.

7. There is no evidentiary basis for a finding that the visa cancellation decision was made by anyone other than the Minister.

8. The Tribunal only has review jurisdiction that has been conferred by a relevant statutory provision:-  see the Administrative Appeals Tribunal Act 1975, s 25(1) & (3).  The only relevant statutorily conferred review jurisdiction relating to visa cancellation decisions is that contained in Migration Act 1958, s 500(1)(b).  That jurisdiction only applies to cancellation decisions made by “a delegate of the Minister”.

9. I am satisfied, having regard the form of the documents to which I have referred, and the essentially speculative nature of Mr Singh’s contentions about “Kathy” and “John”, the Tribunal has no jurisdiction to review the decision to cancel Mr Singh’s visa.  Satisfaction of that kind permits the exercise of the dismissal power conferred by s 42A(4) of the Administrative Appeals Tribunal Act 1975.

10. The application for review is dismissed.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

...............................[sgd].........................................

Associate

Dated: 9 March 2018

Date of hearing: On the papers