Tapel and Minister for Immigration and Citizenship

[2008] AATA 29

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5653

GENERAL ADMINISTRATIVE DIVISION        )

Re             Joel TAPEL

Applicant

AndMinister for Immigration and Citizenship

Respondent

JURISDICTION DECISION

TribunalProfessor GD Walker, Deputy President

Date14 January 2008

PlaceSydney

DecisionThe application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.

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

Professor GD Walker
  Deputy President
CATCHWORDS – Jurisdiction – visa cancellation – decision to cancel applicant’s visa was made personally by the Minister for Immigration and Citizenship – tribunal has no power to review decision of the Minister – application dismissed.

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RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975: s 42A(4)

Migration Act 1958: ss 500, 501

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CITATIONS

Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807

Re Patterson; ex parte Taylor (2001) 207 CLR 391

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REASONS FOR JURISDICTION DECISION

14 January 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Joel Tapel was born on 24 November 1971 in the republic of the Philippines and is a citizen of that country.  He first entered Australia on 14 August 1994 as the holder of a class BC subclass 100 (spouse) visa and has not left Australia since.  He is not currently in a marital relationship.

2.      On 30 May 2003, the applicant was convicted in the District Court of New South Wales, criminal jurisdiction, on three counts of sexual intercourse without consent, being sentenced to four years' imprisonment on one count and three years' imprisonment on each of the other counts.

3.      On 10 August 2006, the then minister decided to cancel the applicant’s class BC subclass 100 spouse (migrant) visa.  Subsequently, on 1 February 2007, Mr Tapel was informed that his case had been identified as similar to the case that was the subject of the Federal Court’s decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. He was accordingly told that he might not have been afforded procedural fairness in relation to the decision to cancel that visa under s 501 of the Migration Act 1958 (Cth) (the Act), and for that reason was now being treated as continuing to hold a permanent visa, specifically a class BF transitional (permanent) visa.

4. On 11 November 2007, the then minister, the Honourable Kevin Andrews, personally decided to exercise his discretion under s 501(2) of the Act to cancel that visa.

5. The department’s letter informing the applicant of that decision enclosed, among other documents, an information sheet stating that this tribunal does not have jurisdiction to review decisions to cancel a visa under s 501 if made by the minister personally, but the decision might still be reviewable by the Federal Court on legal grounds.

6.      The applicant lodged an application with this tribunal for review of that decision on 20 November 2007.

7.      On 23 November, the tribunal’s district registrar wrote to the applicant stating that as the decision was made by the minister personally, the tribunal did not appear to have jurisdiction to review it.  The letter invited the applicant to contact the tribunal within 14 days, however, to say why he thought the tribunal did have the power to review the decision.  The letter also stated that if the tribunal did not receive a response within the specified period, it would not be required to take any further action in relation to the application.

8.      The applicant did not respond to that letter, and on 20 December 2007, the district registrar wrote to the applicant informing him that the application had been listed for a telephone directions hearing during which the question of the tribunal’s jurisdiction to review the decision would be considered.

9.      That hearing was held by telephone conference call on 8 January 2008.  The applicant was unrepresented but a Tagalog interpreter translated the proceedings for him.

10. On behalf of the minister, Mr Eteuati relied on his written submissions dated 7 January 2008 and summarised them orally for Mr Tapel’s benefit. Mr Eteuati pointed out that the tribunal has no general jurisdiction in relation to administrative decisions, but may review such decisions only when an enactment provides that application may be made to the tribunal. The Act provides that decisions made by a delegate of the minister under s 501 may be reviewed by this tribunal (s 500(1)), but makes no provision for the review of decisions made personally by the minister. As the decision in question was made by the minister personally, the tribunal has no jurisdiction to review it.

11.     In response to those submissions the applicant said he was not in a position to answer the respondent’s arguments without discussing the matter with a lawyer.  He said he had tried to obtain legal advice but was no longer able to locate the lawyer he had originally contacted, nor did he have the funds to meet the lawyer’s fees.  He had not read the tribunal’s letter of 23 November 2007 because he was unable to understand it.  He had not, however, approached a welfare officer with a view to having it translated for him.  He was still waiting to obtain the services of a lawyer in order to show him that letter.

12.     The applicant's submissions can reasonably be treated as an application for an adjournment for the purpose of obtaining legal advice.  Despite his failure to take advantage of the opportunities he has had to have the district registrar’s letters translated for him and to take appropriate action, I would nevertheless be minded to adjourn the application were there any reason to believe that the applicant might have an arguable point.  But there is none.  There is no doubt that the decision was in fact made by the then minister personally.  Nor is there any doubt that the tribunal lacks the jurisdiction to hear applications to review such decisions.  As Gummow and Hayne JJ declared in Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 446, “Decisions made under section 501 by the Minister personally are outside the avenue of review by the Administrative Appeals Tribunal which is provided by section 500(1)(b)”.

13. The application is therefore dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ........................[sgd]..............................................
               R. Wallace, Associate

Date/s of jurisdiction Hearing:          8 January 2008
Date of jurisdiction Decision:            14 January 2008
Solicitor for the Applicant:                  Unrepresented
Solicitor for the Respondent:             Mr Tigiilagi Eteuati, Clayton Utz