Zubair v Minister for Immigration & Multicultural & Indigenous Affairs

In the case of Zubair v Minister for Immigration & Multicultural & Indigenous Affairs, the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs, sought to cancel the visa of the appellant, a non-citizen who was in the migration zone at the time of the cancellation. The appellant challenged the decision, arguing that the decision of the delegate was 'no decision at all' and therefore the Tribunal had no jurisdiction to review it. The court was required to determine whether the Tribunal had the power to review the decision of the delegate of the respondent to cancel the visa, and whether the Tribunal was obliged to review the decision.

The court held that the decision of the delegate of the respondent to cancel the visa was a 'MRT-reviewable decision' within the meaning of s 338 of the Act, and the Tribunal was not only entitled to, but obliged to, review it. The court found that the Act provides for a full merits review by the Tribunal of decisions which may be brought to it, and that the Tribunal has the power to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. The court held that the review process applicable to the Tribunal is a full merits review, and that the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. The court also held that the Tribunal is obliged to review the decision of the delegate of the respondent to cancel the visa, even if the delegate may, or arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or arguably, have committed an error of law either in determining the applicable law or in applying the law.

The court dismissed the appeal and ordered that the appellant pay the respondent’s costs of the appeal. The court held that the Tribunal had the power and obligation to review the decision of the delegate of the respondent to cancel the visa, and that the Tribunal had fully reviewed the decision on the merits. The court found that the Tribunal had exercised its power to review the decision in accordance with the provisions of the Act, and that there was no error of law in the Tribunal’s decision.