Sio and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Mr Sio for review of a decision by the Minister's delegate not to revoke the mandatory cancellation of his visa. The Administrative Appeals Tribunal (the Tribunal) had jurisdiction to hear this review under section 500(1)(ba) of the *Migration Act 1958* (Cth), which applies to decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

The primary legal issue before the Tribunal was whether it had the authority to review the delegate's decision not to revoke the visa cancellation, given that the original decision to cancel the visa under section 501(3A) of the Act was affected by jurisdictional error. This jurisdictional error meant the original cancellation decision was a nullity, raising questions about the applicability of section 501CA and the Tribunal's subsequent jurisdiction.

The Tribunal reasoned that, following the High Court's decision in *Pearson v Minister for Home Affairs*, a visa cancellation decision affected by jurisdictional error is a nullity, meaning it is taken to be no decision at all. Consequently, if there was no valid decision to cancel the visa under section 501(3A), the provisions of section 501CA, which allow for the revocation of such cancellations, do not apply. Therefore, the discretion conferred by section 501CA(4) is not enlivened, and any subsequent decision made under that section, including the delegate's decision not to revoke the cancellation, is also a nullity. The Tribunal concluded that it had no authority to review a decision that was a nullity, as its jurisdiction under section 500(1)(ba) was predicated on the existence of a valid decision by a delegate under section 501CA(4).

Accordingly, the Tribunal dismissed Mr Sio's application as misconceived, as it lacked the jurisdiction to review the delegate's decision.