Tran and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 814

DECISION AND REASONS FOR DECISION [2002] AATA 814

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/981

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SEN VAN TRAN    
  Applicant
           And    MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS             
  Respondent

DECISION

Tribunal       Hon. R N J Purvis Q.C., Deputy President         

Date19 September 2002

PlaceSydney

Decision      The decision under review is set aside with a declaration that the subject Bridging Visa application was not a valid application.    

[SGD] Hon. R N J Purvis Q.C.
  Deputy President
CATCHWORDS
IMMIGRATION – cancellation of permanent residence visa under section 501 of the Migration Act 1958 – subsequent application for Bridging Visa – whether delegate had power to grant or refuse to grant the Bridging Visa – Applicant was in the migration zone at the relevant application time for the purposes of the Migration Act – section 501E prohibition on applying for other visas – declaration that the Bridging Visa application was not a valid application.

Migration Act 1958 sections 5, 46, 47, 65, 501(1), 501(2), 501(E)
Administrative Appeals Tribunal Act 1975 section 43

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307
Fletcher and Others v Federal Commissioner of Taxation (1988) 84 ALR 295
Minister for Immigration and Multicultural Affairs v Li (2000) 178 ALD 523

REASONS FOR DECISION

19 September 2002           Hon. R N J Purvis Q.C., Deputy President  

THE PRESENT APPLICATION

1. Mr Sen Van Tran ("the Applicant") has applied to the Tribunal for a review of a decision made by a delegate of the Department of Immigration and Multicultural and Indigenous Affairs ("the Respondent") on 8 July 2002. By such decision the delegate decided that:

   "I have considered all relevant matters including:
   (1) An assessment of the Character Test as defined by s 501(6) of the Migration Act 1958,
   (2) Minister's direction under s 499 of that Act and Mr Tran's comments and have decided that,
   …
   I reasonably suspect that Mr Tran does not pass the character test and Mr Tran has not satisfied me that he passes the character test and I have decided to exercise my discretion under subsection 501(1) of the Act to refuse the visa so I hereby refuse the visa."

2. The Respondent now maintains that pursuant to the provisions of the Migration Act 1958 ("the Act") it was without power to make the refusal decision in that the Applicant was precluded from making a valid application for a visa by reason of the provisions of section 46 and section 501(E) of the Act. If this be so, the Tribunal whilst having power to determine the validity or otherwise of the making of the visa application, does not have power to review the Applicant's substantive application on its merits. The Respondent by this present application asks the Tribunal to set aside the decision under review and determine that the visa application was and is not a valid application.

THE RELEVANT FACTS

1. The Applicant was born in Vietnam on 20 October 1971. He arrived in Australia on 31 January 1982 as an Indo-Chinese refugee accompanying family members. He was then aged 10 years 3 months. At the present time, his parents and nine brothers and sisters reside in Australia.

2. The Applicant obtained secondary education to Year 10, left school without his School Certificate and thereafter obtained little employment, all of an unskilled nature. He commenced a de facto relationship in about 1989 and separated from his partner in 1995. There was a son born of the relationship in 1991 who is an Australian citizen.

3. The Applicant has an extensive criminal record and was a heroin addict for a number of years. He was considered for deportation in 1991 on account of offences including robbery for which he had been sentenced to 12 months imprisonment with an additional term of 2 years. On 6 May 1999, the Applicant was convicted of common assault and bridging a domestic violence order. In all, since 1988, the Applicant has been convicted on not less than 27 occasions. In November 2001, the Applicant was again considered for deportation on account of his having committed offences involving the supply and possession of heroin. On 9 April 2002, the Minister cancelled the Applicant's permanent residence visa pursuant to section 501(2) of the Act.

4. The Applicant has applied to the Federal Court for judicial review of the Minister's decision cancelling the visa.

5. On 10 May 2002, the Applicant lodged an application with the Respondent seeking the grant of a Bridging Visa E Subclass 050. On 14 May 2002 a delegate of the Respondent refused the application. The Applicant applied to the Migration Review Tribunal for review of such refusal decision and on 29 May 2002 the Migration Review Tribunal set aside the refusal and remitted the matter for reconsideration with directions. On 8 July 2002, the application for the Bridging Visa was again refused by a delegate of Respondent, this time pursuant to section 501(1) of the Act. On 10 July 2002 the Applicant applied to the Administrative Appeals Tribunal for review on its merits of the latter decision. Such review is pending.

6. Maintaining now as it does that the application for a Bridging Visa was not valid, the Respondent has applied by the present application to have the decision under review in the substantive application set aside and a declaration made that the Bridging Visa application was invalid, this by reason of a delegate having no power to consider the application and no power to grant or refuse the visa.

THE HEARING

1. At the hearing of the present application, the Applicant appeared in person with the assistance of one of his brothers and his father. The Respondent was represented by Ms Sharon Hanstein, solicitor of Messrs Blake Dawson Waldron.

2. The documents lodged on behalf of the Respondent pursuant to the Act were admitted into evidence.

3. The matter proceeded to a hearing by way of submissions made by Ms Hanstein, the Applicant, his brother and father. The latter gentlemen sought to address and draw to the attention of the Tribunal matters which included those pertaining to:

   ·alleged misconduct by the officers of the Respondent in the course of interviewing the Applicant;

   ·an alleged lack of notice of the Respondent's intention to cancel the residence visa and the officers intent to detain the Applicant;

   ·an alleged absence of an interpreter at interview;

   ·the contended recovery of the Applicant from his drug addiction and the support now provided to him by his family;

   ·the contended unlikelihood of the Applicant re-offending;

   ·the Applicant come into Australia from Vietnam when he was young, nearly his whole family being in Australia and he having  little or no association now with his country of birth;

   ·the presence in Australia of his son, now in the absence of the mother been cared for by an aunt;

   ·the Applicant having a poor memory and not fully understanding the detention process.

4. The matters so raised by and on behalf of the Applicant may well be relevant to a review, if it be competent, of the substantive decision to not grant the Bridging Visa pursuant to section 501(1) to the Act. They are not such as to bear upon the issue as to whether there is a power in the Respondent to grant or not grant a visa of the nature of that sort by the Applicant in circumstances where a visa previously held by him has been cancelled, such cancellation being the subject of reference to the Federal Court.

THE RELEVANT LEGISLATION

1. So far as it is relevant to the present application the Act provides:

   " Section 5 Interpretation
   …
   migration zone means the area consisting of the States, the Territories, Australian resources installations and Australian sea installations and, to avoid doubt, includes:

   (a)      land that is part of a State or  Territory at mean low water;
   (b)      sea within the limits of both of a State or a Territory and a port; and

   (c) piers, or similar structures, any part of which is connected  to such land or to ground under such sea;

   but does not include sea within the limits of a State or Territory but not in a port.

   Section 46 Valid visa application

   (1) Subject to subsections (1A) and (2), an application for a visa is valid if, and only if:

   …

   (d) it is not prevented by section … 501E (visa refused or cancelled on character grounds).

   Section 47 Consideration of valid visa application

   (1)       The Minister is to consider a valid application for a visa.
   …

   (3) To avoid doubt, the Minister is not to consider an application that is not a valid application.

   (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse or grant the visa.

   Section 65 Decision to grant or refuse to grant  visa

   (1)      After considering a valid application for a visa, the Minister:

   (a)       if satisfied that:

   …

   (iii)the grant of the visa is not prevented by section … 501(special power to refuse or cancel) …

   is to grant the visa; or

   (b)      if not so satisfied, is to refuse to grant the visa.

   Section 501E Refusal or cancellation of visa – prohibition on applying for other visas

   (1) A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

   (a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

   (b) the decision was neither set aside nor revoked before the application time.

   …"

DISCUSSION AND DECISION

1. It is maintained that the application for the Bridging E Visa was not a valid application in that the Applicant was in the migration zone at the time he applied for the Bridging Visa and at an earlier time the Minister had made a decision to cancel the Applicant's residence visa pursuant to and under section 501 of the Act. The cancellation decision was then at the time of the making of the application under the appeal to the Federal Court and had not then been set aside or revoked. The application was not a valid application, the delegate on neither occasion had power to consider it in the sense of granting or refusing to grant the visa.

2. The Tribunal agrees with the position, as it is maintained on behalf of the Respondent.

3. This Tribunal has power pursuant to section 43 of Administrative Appeals Tribunal Act 1975 for the purpose of reviewing a decision to exercise all of the powers and discretions that are conferred by the Act on the Minister or a delegate of the Minister who made the relevant decision and to itself make a decision inter alia setting aside a decision and making a decision in substitution for that earlier made. That is the Tribunal has the power to review a decision in order to arrive at a conclusion as whether there was or was not the power in the original decision maker to so decide (see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 at 315, 377).

4. The power of the Tribunal is as is the power of the original decision maker. Not more and not less. The power is to review a decision and having considered all material relevant to the original decision to itself arrive at a decision that is preferable or the proper decision. The original decision maker had the power in the present instance to decide as an initial step in the consideration process leading up to the grant or otherwise of a Bridging Visa whether the application was valid. By reason of the delegate proceeding to refuse the application there was inevitably an implied decision that the application was valid. It is this implied decision that the Tribunal is presently considering (see Fletcher and Others v Federal Commissioner of Taxation (1988) 84 ALR 295; Minister for Immigration and Multicultural Affairs v Li (2000) 178 ALD 523. If the threshold decision was wrong and this Tribunal so finds, there is no power to proceed to a substantive review of the visa refusal decision.

5. Accordingly the decision under review is set aside with a declaration that the subject Bridging Visa application was not a valid application.   

   I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. R N J Purvis Q.C., Deputy President

   Signed: H Sim         .....................................................................................
     Associate

   Date of Hearing  3 September 2002
   Date of Decision  19 September 2002
   Representative for the Applicant   Ty Van Tran 
   Solicitor for the Respondent         Sharon Hanstein, Blake Dawson Waldron