FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v CSH18 [2019] FCAFC 80

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Declarations 1 and 3 and order 1 made on 16 November 2018 be set aside.

3.    The matter be remitted to the third respondent to be heard and determined according to law.

4.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Declarations 1 and 3 made on 16 November 2018 be set aside.

3.    The matter be remitted to the first respondent to be heard and determined according to law.

4.    There be no order as to the costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The resolution of these appeals turns on the meaning of s 415(1) of the Migration Act 1958 (Cth), in particular the meaning and application of the expression “the powers and discretions that are conferred by this Act on the person who made the decision”.

2    An important part of the context is provided by s 414, as follows:

414    Tribunal to review Part 7‑reviewable decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.

(2)    The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

3    Section 415 provides:

415    Tribunal powers on review of Part 7-reviewable decisions

(1)    The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)    The Tribunal may:

  (a)    affirm the decision; or

  (b)    vary the decision; or

(c)    if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

  (d)    set the decision aside and substitute a new decision; or

(e)    if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

4    The point of construction arises in these appeals because, on 23 May 2017, an officer of the Department purported to make a decision cancelling CSH18’s and CSI18’s (the respondents’) protection visas under s 109 of the Migration Act where there was no valid delegation to the officer of the power to so cancel. An instrument of delegation, made on 9 May 2017 in relation to departmental officers who usually made decisions to cancel visas under s 109, had accidentally omitted a reference to that section.

5    Section 109 provides:

109    Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; an`d

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

  (c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

6    The power to delegate is as follows:

496     Delegation

(1)    The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.

(1A)    The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.

 (2)    ….

 (3)    ….

 (4)    ….

 (5)    Subsection (1A) does not limit subsection 499(1).

7    These appeals do not concern circumstances where no valid visa application has ever been lodged: see SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487.

8    The appeals arose in the following way.

9    Before the respondents were aware of the error in the delegation they applied to the Administrative Appeals Tribunal to review and set aside the cancellation decisions. Thereafter the Department of Immigration and Border Protection advised the Tribunal of the delegation error, which also affected a number of other cases. The Department took the view that the cancellation decisions stood unless set aside by a court or the Tribunal, and that the Tribunal had jurisdiction to hear the merits review applications and to exercise the full suite of powers in relation to those applications. The Tribunal then indicated to the respondents its intention to consider making a guidance decision under s 420B of the Migration Act on a specified application for review on the issue whether the Tribunal had jurisdiction in the merits reviews and, if so, what powers it had. The respondents’ matter was identified as suitable for this purpose. The respondents were invited to provide written submissions and evidence, and the matter was listed for hearing. At the conclusion of that hearing, the respondents sought an adjournment to consider whether to commence proceedings in a court.

10    Before the determination on the guidance decision, the respondents applied directly to the Federal Circuit Court for declarations that the cancellation decisions were invalid and that the Tribunal did not have any jurisdiction to review those decisions. The Minister was named as the first respondent and the Tribunal as the second respondent.

11    After the Department was informed by the Tribunal that the guidance decision would be held in abeyance pending the outcome of the respondents’ applications to the Federal Circuit Court, the Minister himself brought an application in the Federal Circuit Court, naming the Tribunal as the first respondent and the present respondents as the second and third respondents. In those proceedings the Minister sought a declaration that the respondents’ application for review before the Tribunal was valid under s 412, a declaration that the Tribunal had jurisdiction to review, on the merits, the review application pursuant to ss 414 and 415, and a writ of mandamus requiring the Tribunal to review the review application on the merits pursuant to ss 414(1) and 415 of the Migration Act.

12    The two applications to the Federal Circuit Court were heard together, and although two separate judgments were delivered the reasons for judgment are essentially identical. These appeals are appeals from those judgments.

13    In the Federal Circuit Court, the respondents argued that the Tribunal had no jurisdiction to review the decisions. The primary judge said that the respondents’ efforts to distinguish Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; 41 FLR 338; 24 ALR 307 could not be accepted, and the officer’s decision to cancel the respondents’ visas were Part 7-reviewable decisions. Once the respondents had properly made applications to the Tribunal for review of them (and there was no dispute that they did), the Tribunal was obliged to review the decisions: Migration Act, s 414. The respondents have not sought to reagitate that question before this Court.

14    The respondents also argued in the Federal Circuit Court that the Tribunal’s power on review, in light of s 415(1), was restricted to setting aside the decisions as the particular person who made the decision, not being the subject of a valid delegation by the Minister, had no relevant powers and discretions conferred by ss 109 or 496 of the Migration Act.

15    The Minister argued that the words “person who made the decision” in s 415(1) were to be understood as a reference to a decision that was authorised to be made under the Migration Act. As the Minister had the authority to make a decision to cancel the respondents’ visas (if satisfied of the relevant matters), the Minister submitted that the Tribunal could exercise all the powers of the Minister in relation to the making of such a decision.

The reasons and orders of the primary judge

16    The primary judge held that the respondents’ submissions were correct and that the Tribunal’s only power on the review was to set aside the officer’s decision to cancel the respondents’ visas.

17    The primary judge said, at [18], that the ordinary meaning of s 415(1) suggested that the Tribunal did not have any power to affirm the decisions, but only to set them aside.

18    The primary judge said at [19] that, critically, s 415(1) only endowed the Tribunal with the powers and discretions conferred on the “person who made the decision” (primary judge’s emphasis). The Minister argued that the “person who made the decision” was the Minister because the decision was made under s 65(1) (semble s 109) of the Migration Act, which referred to the “Minister”.

19    The Minister’s argument was rejected by the primary judge, at [19]–[25], for two reasons: first, the primary judge said it was inconsistent with a plain reading of s 415(1); and, second, the primary judge said it was inconsistent with authority.

20    As to the plain reading of s 415(1), the primary judge referred to Owendale Pty Ltd v Anthony [1967] HCA 20; 117 CLR 539 for the proposition that the person to whom the Minister delegates a power makes a decision in his or her own name “to grant or refuse to grant the visa” (sic). It followed, the primary judge held, that the delegate was the person who made the decision. The primary judge rejected the construction of the provision that the word “person” in the context of s 415(1) meant the person in whom the Migration Act itself reposed the power to grant or refuse the visa, as that construction required the word “person” to be artificially widened well beyond its ordinary meaning. The primary judge said such an expansion served no apparent purpose. Indeed, it appeared to the primary judge to be inconsistent with the scheme that provided for decisions to be made in the first place by the Minister or his or her delegates and then, on review, by the Tribunal.

21    As to authority, the primary judge referred to what Lindgren J said in Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560; 60 ALD 765 at [18] about the powers of the Tribunal on review of a decision made on an invalid application to that decision-maker, as follows:

The Minister relies on s 415(1) … as empowering the RRT, in effect, to grant or refuse to grant the visa. But that subsection endows the RRT only with the powers and discretions conferred by the Act on the original decision-maker, that is, the Delegate.

(Primary judge’s emphasis.)

The primary judge also referred to what a Full Court (Ryan, Sackville and Emmett JJ) said in dismissing an appeal from Lindgren J’s judgment in Kundu, reported as Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486, at [82]:

… The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

Although the primary judge accepted that Kundu dealt with different circumstances, in that even the Minister in that case did not have the power to consider or decide on the application, he said that distinction did not diminish the force of what was said about s 415(1), in particular that the delegate was the relevant person who made the decision.

22    The declarations and orders made by the primary judge on 16 November 2018 in the proceeding brought by the Minister were as follows:

THE COURT DECLARES THAT:

1.    The decisions made on 23 May 2017 to cancel the [respondents’] visas (“purported decisions”) are invalid.

2.    The application made by the [respondents] on 26 May 2017 to the [Tribunal] for review of the purported decisions is a valid application made under s.412 of the Migration Act 1958 (Cth).

3.    The powers of the [Tribunal] on the review of the purported decisions are limited to setting aside the purported decisions.

THE COURT ORDERS THAT:

1.    The [Minister] is to pay two thirds of the [respondents’] costs as agreed or assessed.

23    The Court made substantially the same declarations in the respondents’ proceeding and then ordered as follows:

THE COURT ORDERS THAT:

1.    A writ of mandamus issue directed to the [Tribunal] requiring it to review the purported decisions in accordance with declarations 2 and 3 above.

2.     The [Minister] is to pay two thirds of the [respondents’] costs as agreed or assessed.

The Minister’s appeals

24    In each appeal, the Minister purportedly appeals “from paragraph [9] (to the extent that it deals with limits on the powers of the [Tribunal] on review), and paragraphs [17] to [26] of the judgment of the Federal Circuit Court of Australia … given on 16 November 2018 in” each proceeding. The error here is that an appeal lies from a judgment, in the sense of an order or orders, and not from reasons.

25    More correctly, from the notices of appeal and from the submissions filed in each appeal on behalf the Minister, it appears that the Minister appeals from the first and third of the declarations made by the primary judge in each proceeding and the writ of mandamus requiring the Tribunal to review the purported cancellation decisions in accordance with those declarations. The Minister seeks orders, in lieu of the orders appealed from, that a writ of mandamus issue requiring the Tribunal to hear and determine the application for review according to law.

26    The Minister’s grounds of appeal in each appeal are as follows:

1.    Ground One: The FCC erred in finding that the only power of the Tribunal on the review was to set aside the decision: see particularly [9]; [18], [26]. The FCC ought instead to have found that the Tribunal had all the powers of the Minister under s 109 of the Migration Act 1958 (Cth) (the Act).

2.    Ground Two: The FCC erred in finding that the phrase “the person who made the decision” in s 415(1) of the Act refers to the actual individual who made the decision: at [21]; [25], rather than, as it ought to have found, to the Minister.

3.    Ground Three: The FCC erred in making declarations in each case that the decisions made on 23 May 2017 to cancel the second and third respondents’ visas were invalid, as those decisions were primary decisions pursuant to s 476(4)(a) of the Act and thus, by s 476(2) of the Act, the FCC did not have jurisdiction to make those declarations.

The parties’ submissions

27    The Minister submitted on the appeals as follows.

28    Contrary to the primary judge’s conclusion, the Minister submitted that once the principle in Brian Lawlor – being that there can be valid merits review of a decision, notwithstanding that the person who purportedly made the decision under review did not have the power to do so – comes into play, the Tribunal exercises all the remedial powers generally available to it (see s 415(2)).

29    The Minister submitted that the only exception was in a limited category of cases, being those where the Tribunal was reviewing a purported decision where no decision could validly have been made by the repository of the power (or a delegate). In SZGME, the Minister submitted, the Full Court thoroughly analysed the body of case law that had considered this issue and identified (and distinguished between) the two different categories of case: see SZGME at [25]-[36].

30    That analysis in SZGME, the Minister submitted, also included extensive discussions of three of the four cases referred to by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 at [39]-[40]: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 139 FCR 344; and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; 143 FCR 314.

31    The Minister submitted that in Kim v Minister for Immigration and Citizenship [2008] FCAFC 73; 167 FCR 578 it had been held that, notwithstanding the relevant invalidity of the primary decision, the Tribunal not only had the power to review the decision, but there was no constraint on its remedial powers in the exercise of that review function. The Minister accepted that none of the cases so far referred to dealt with the question of an invalid delegation of power.

32    The Minister submitted that Secretary, Department of Social Security v Alvaro [1994] FCA 320; 50 FCR 213 made clear that the absence of a valid delegation (to a primary decision-maker) was not a basis for limiting the remedial powers of the Tribunal on review to setting aside the decision. He submitted that it was also entirely consistent with the body of cases referred to above decided under the Migration Act (and see also, explaining Alvaro and distinguishing Li, Sevim v Minister for Immigration and Multicultural Affairs [2001] FCA 1597; 114 FCR 126 at [59]-[61]).

33    The Minister submitted that there was here a clear statutory basis for the exercise of the power by the repository (here, under s 109, the Minister) but some flaw in the process invalidated the decision actually made: in this case, and in Alvaro, an absence of proper delegation; in Zubair, Ahmed, Uddin, a failure to provide proper particulars in a notice of intention to consider cancellation.

34    The Minister submitted that Alvaro was also applied by Rares J in Seymour v Migration Agents Registration Authority [2006] FCA 965; 215 FCR 168. That was also a case where the primary decision-maker had lacked delegation, but his Honour found that the Tribunal could (as it had done) proceed to reach its own decision on the merits (referring to the reasons of Rares J at [18] and [123]-[132], explaining why the Brian Lawlor principle so applied). In a case such as this, the Minister submitted, where there was an absence of delegation in the primary decision-maker but the Minister did have the power to make a decision on the merits under s 109 of the Migration Act, the Tribunal, standing in the Minister’s shoes, for the purposes of ss 414 and 415, could do likewise.

35    Thus the Minister submitted the Tribunal’s powers were not limited merely because the delegate in this case was not properly delegated to make a decision pursuant to s 109. Once the purported decision was determined to be reviewable pursuant to the Brian Lawlor principle, the Tribunal exercised all the powers of the decision-maker – ie, the Minister. In the present case, the Minister submitted, the Tribunal had a duty under s 414(1) to review the purported delegate’s decision on the merits, exercising under s 415(1), for the purposes of the review, the powers and discretions of the Minister.

36    The Minister also submitted that s 415(1) should be interpreted in light of s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth). The latter provision provides relevantly as follows:

34AB    Effect of delegation

General

(1)    Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:

(a)     …;

(b)     …;

  (c)    a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

(d)     …; and

(e)     ….

…

On that basis, the Minister submitted, the “person who made the decision” in s 415(1) was a reference to the person who is deemed to have made the decision, ie, the Minister.

37    It was submitted that it followed that ground 2 was also established.

38    As to ground 3, the Minister contended that the primary judge had no power to make the first declaration he made, by which he purported to declare that the decisions made by the delegate were invalid. Section 476(2)(a) of the Migration Act provided that the Federal Circuit Court had no jurisdiction to review a “primary decision” which, by s 476(4)(a), included “a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or s 500 (whether or not it has been reviewed)”. Given the findings made by the primary judge in the first part of the decision – ie, that the decision was reviewable pursuant to the Brian Lawlor principle – the Minister submitted that the decision made by the (purported) delegate was clearly a primary decision reviewable pursuant to Part 7 as the visas being cancelled were protection visas. Thus the Federal Circuit Court had no power to determine that the primary decision – the decision to cancel the visas – was invalid. Rather, those decisions, as the primary judge held, were reviewable by the Tribunal as they were primary decisions for the purposes of s 476(2)(a) of the Migration Act. Accordingly, it was submitted that the primary judge had no power to make the first declaration and thus ground 3 was also established.

39    The respondents submitted as follows.

40    The respondents submitted on the appeals that the Minister did not refer to any authority in support of his contention that the Tribunal may “stand in the shoes of the Minister” because the Migration Act conferred the power of cancellation on the Minister pursuant to s 109, nor suggest how s 415 might be construed to arrive at that conclusion. The respondents submitted that the Minister did not explain how, if he did not act through a delegation properly made, he acted through an agent; that is, how it could be said that the purported decision-maker acted as the Minister’s agent in exercising the power of cancellation under s 109. It was submitted that the Minister’s argument missed a fundamental step: if there was no valid delegation, the only other way that the Tribunal could “stand in the shoes of the Minister” was if the Minister had authorised an agent to exercise the power of cancellation on his behalf.

41    The respondents submitted that the fact s 109 of the Migration Act conferred the power of cancellation on the Minister did not mean that the departmental officer, to whom no valid delegation was made, was authorised to act as the agent of the Minister. It was said that on the Minister’s argument it would follow that any person, irrespective of whether acting as agent or delegate validly authorised, may exercise a power under the Migration Act conferred upon the Minister; taken to a (perhaps perverse) extreme, the implication of the Minister’s argument was that any person in the Department could make a visa cancellation decision pursuant to s 109 of the Migration Act, irrespective of whether they were the authorised delegate or agent of the Minister.

42    The respondents submitted Brian Lawlor was not a case where the person who made the decision to cancel the appellant’s licence was not the subject of a valid delegation or otherwise authorised to act as agent: it was a case of an authorised person doing an unauthorised act. The line of migration cases that followed Brian Lawlor were not presently relevant because they did not involve an unauthorised person purporting to do an otherwise authorised act. Unlike this case, none of those cases had in issue the validity of the delegation, or other authorisation of the decision-maker, or the terms of s 415(1).

43    The respondents submitted the terms of s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) were materially different from those of s 415 of the Migration Act. There was no provision in the Migration Act such as s 25(4) of the AAT Act which gave the Tribunal in protection visa cancellation decisions “power to review any decision in respect of which application is made to it under any enactment”. The power in s 109 (sic) of the Migration Act, the respondents submitted, was limited to review of a decision of the Minister. Section 496 extended the power in s 109 to a person delegated under that section. It followed that the scope of the Tribunal’s powers of review must depend upon the proper construction of s 415 of the Migration Act.

44    The respondents supported the construction of s 415 adopted by the primary judge at [19]-[21]. In response to the Minister’s reliance on s 34AB(1)(c) of the Acts Interpretation Act, the respondents drew attention to s 497(2) of the Migration Act which provides as follows:

497    Delegate not required to perform certain administrative tasks

(1)    If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.

(2)    If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.

(3)    Nothing in subsection (1) or (2) shall be taken to imply that:

(a)    a person on whom a power is conferred by or under this or any other Act; or

(b)    a delegate of such a person;

is required personally to perform all administrative and clerical tasks connected with the exercise of the power.

The respondents submitted that the effect of this provision was that the delegate was to be regarded as having personally taken the cancellation decision, and was therefore “the person who made the decision” within the meaning of s 415(1). It constituted, it was submitted, a contrary intention to the application of s 34AB(1)(c) of the Acts Interpretation Act.

45    The respondents submitted that the Minister’s reference to Alvaro omitted a significant part of the Full Court’s decision. In Alvaro, like Brian Lawlor, the power of the Tribunal to review was statutorily defined, and the criteria for review set out in s 25 of the AAT Act. Relevantly, the then section provided that: “(1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment… (4) The Tribunal has the power to review any decision in respect of which application is made to it under any enactment”. Additionally, in Alvaro, s 1283(1) of the Social Security Act also applied and relevantly provided that “the decision made by the SSAT is to be taken to be: (a) where the SSAT affirms a decision – the decision as affirmed”. The scope of the jurisdiction of the Tribunal depended upon the interpretation of those provisions. Unlike in s 25 of the AAT Act, “decision” in s 1283(1) of the Social Security Act was not qualified by the words “made in the exercise of powers conferred by that enactment”. So even on a literal reading, there was no reason why “decision” should be so narrowly construed: see at 219.

46    The respondents submitted that Seymour also concerned a decision-maker who lacked delegation. However, the respondents submitted, Seymour could also be distinguished from the present case. In Seymour, the appellant had been struck off as a solicitor for professional misconduct and a court order restrained him from acting as a solicitor. The appellant breached that order and was imprisoned for contempt. When he applied for repeat registration as a migration agent, he did not disclose his conviction to the Migration Agents Registration Authority (MARA). At the time that the MARA originally notified the appellant of its refusal to reregister him, no-one was aware that there had been no formal delegation to the professional standard subcommittee of the MARA to make that decision. The appellant immediately applied to the Tribunal to review the decision. The appellant’s challenge was also to the validity of the MARA decision. The Tribunal found that the subcommittee had not been given a delegation in writing and therefore its decision was invalid. The Tribunal noted that following Brian Lawlor and Zubair, it had jurisdiction to review the impugned decision and in doing so could exercise all the powers and discretions of the MARA. Like the MARA, the Tribunal decided that the appellant was not a fit and proper person to be registered as a migration agent. On appeal to the Court under the AAT Act, the appellant argued that because the original decision was invalid, the Tribunal had either no jurisdiction to embark upon a review, or that if the Court were to uphold the appeal, it ought to remit the matter directly to the original decision-maker rather than to the Tribunal.

47    The respondents submitted that Rares J in Seymour dismissed the appeal for two reasons:

a.    at [130], after referring to Brian Lawlor, Zubair and Ahmed, Rares J concluded that “the intention of Parliament in enacting the Administrative Appeals Tribunal Act 1975 (Cth) was to enable the Administrative Appeals Tribunal to review decisions which were affected by jurisdictional error as well as ones where there was some, even unknown, defect in the decision-maker's capacity to make the decision in question”; and

b.    at [132], that by applying in the Tribunal for a review of the MARA’s decision to refuse his registration as a migration agent, the appellant had elected to treat the original decision of the authority as valid even though, at the time, there had been no formal delegation to it. Having proceeded with the full review, the appellant lost any right he had to challenge the original decision.

48    Unlike in Seymour, the respondents submitted, the focus in the present case was on the provisions of the Migration Act, not on those of the AAT Act. In this case, once the respondents became aware that there had been no proper delegation to the purported decision-maker, they elected not to continue with the Tribunal review and instead challenged the Tribunal’s powers of review in the Federal Circuit Court.

49    The respondents submitted that it was to be noted that in Seymour s 43(1) of the AAT Act also applied. However, in that case, Rares J focused on the construction of s 25(1) of the AAT Act by reference to the authority of Brian Lawlor, without any engagement with the terms of s 43(1). His Honour noted at [125] that in Brian Lawlor: “[b]oth Bowen CJ and Smithers J pointed out that a construction of s 25 of the AAT Act which required the decision the subject of an application before the tribunal for review to be legally valid and effective would create practical problems and inconvenience.” His Honour then referred to Ahmed to conclude that “it is clear that, unless a statute provides otherwise, the tribunal can review a decision which was not authorised by law or by statute” (respondents’ emphasis). In this case, the respondents submitted, s 415 of the Migration Act did provide otherwise by the phrase “the person who made the decision”, and Kundu and Li supported construing it by its ordinary meaning.

50    As to ground 3, the respondents accepted for the purposes of the present appeal that the purported decision of the delegate was a “primary decision”. However, they submitted that the primary judge’s declarations in respect of the purported decision should not be disturbed because it would be futile to do so. Ground 3 merely sought to impugn one of the declarations made by the primary judge (Declaration 1). It did not bear upon Declarations 2 and 3. Even if Declaration 1 were not made, the respondents submitted that this would not bear upon the Court’s ability to make Declaration 3 in circumstances where the invalidity of the purported decision was not in issue in the proceedings at first instance. That is because the powers of the Tribunal were limited to setting aside the purported decision. The respondents submitted that the Minister had never contended that the purported decision was a valid exercise of power by the officer.

51    The respondents submitted that if the Court were to reject grounds 1 and 2 and uphold ground 3, the matter would be remitted to the Tribunal which would proceed, consistent with Declaration 3, to remit the matter to the Department. They submitted that there would be no utility in setting aside Declaration 1 in circumstances where the invalidity of the purported decision has not been contested by the Department. Any success by the appellant on Ground 3 would hence be futile. Futility was material to whether a ground of appeal should be upheld and consequential relief granted: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145; Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; 159 FCR 181 at [47]. Therefore, the respondents submitted that ground 3 should be dismissed. In the alternative, if ground 3 were to be upheld, the respondents submitted that no relief should be afforded in respect of this ground.

Consideration

52    The starting point is s 411 as that provision identifies the decisions which are reviewable.

53    Section 411 relevantly provides:

411    Definition of Part 7-reviewable decision

    (1)    Subject to subsection (2), the following decisions are Part 7-reviewable decisions:

    …

     (c)    a decision to refuse to grant a protection visa, other than a decision that was made relying on:

       (i)    subsection 5H(2), or 36(1B) or (1C); or

       (iii)    paragraph 36(2C)(a) or (b);

     (d)    a decision to cancel a protection visa, other than a decision that was made because of:

        (i)    subsection 5H(2) or 36(1C); or

    (ii)    an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

       (iii)    paragraph 36(2C)(a) or (b).

(2)    The following decisions are not Part 7-reviewable decisions:

   (aa)    any decision to cancel a protection visa that is made personally by the Minister;

   (a)    decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;

   (b)    decisions in relation to which the Minister has issued a conclusive certificate under subsection (3);

(c)    fast track decisions.

        …

54    By s 414, which we have set out at [2] above, and leaving aside a decision where the Minister has issued a conclusive certificate under s 411(3), if a valid application is made under s 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision. (Our emphasis.)

55    It is now common ground that the Tribunal may review a decision which was in fact made, even though invalid, that is, a decision that was purportedly made. As the plurality said in Plaintiff M174/2016 at [39]:

The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: “[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”.

56    Here the person who purported to make the decision did so without power because, unknown to her, she was not a delegate of the Minister.

57    The issue is no longer whether the Tribunal had “jurisdiction” to review the decision since the primary judge applied Brian Lawlor and found that the Tribunal did have that jurisdiction, contrary to the then submissions of the present respondents. The decision was a reviewable decision even though only a purported decision. As we have said, the respondents no longer challenge that conclusion. The present issue is a narrower one which is the powers available to the Tribunal for the purposes of its review of a Part 7-reviewable decision.

58    It is not apparent to us why Parliament would have intended that, for the purposes of the Tribunal’s jurisdiction to review, jurisdiction should extend to an invalid decision but, for the purpose of the Tribunal’s powers on review of such an invalid decision, those powers should be limited in respect of one species of invalidity, absence of authority.

59    The primary judge accepted that the invalid decision, despite an absence of delegation to the individual who made the decision, was a Part 7-reviewable decision, but rejected the submission that for the purposes of the review of that purported decision the Tribunal could exercise the powers and discretions conferred (or assumed to have been conferred) by the Migration Act on the purported decision-maker. This was because that person had no powers and discretions because of the absence of delegation. So, on that reasoning, the Tribunal had jurisdiction to entertain the application but did not have the relevant statutory powers and discretions that would have been available to the purported decision-maker had she been properly authorised.

60    It is difficult to discern a purpose for the construction adopted by the primary judge. The result does not sit well with the approach in Brian Lawlor. We accept that Brian Lawlor concerned the issue of whether or not a purported decision could be the subject of review by the Tribunal, rather than the present question of the powers and discretions of the Tribunal once it had been accepted that it did have the power to review the purported decision, but the decision of the primary judge seems to us to accept the larger premise but reject the smaller.

61    As a matter of principle, it seems unlikely that Parliament would have intended the reintroduction, at the level of the Tribunal’s powers rather than its jurisdiction, of different classes of invalidity. Such a construction would have the effect, to adapt what was said in Plaintiff M174/2016 at [39] and reproduced at [55] above, that “technicality would be [re]introduced at the outset”, which as there explained would frustrate the evident legislative purpose of conferring review jurisdiction on the Tribunal.

62    It is also not clear what, on the reasoning of the primary judge, is the source of the power in the Tribunal to set aside the decision: see Declaration 3 made by the primary judge on 16 November 2018. That is not a power “conferred by this Act on the person who made the decision” within s 415(1), but would appear to be found in s 415(2)(d). However that same subsection also confers power on the Tribunal to affirm or vary the decision.

63    By s 414(1), the Tribunal must review the decision which includes, as is the case here, a purported decision. There can be no legislative purpose in then not giving the Tribunal the power to do anything in consequence of its review. The Tribunal’s procedural powers in conducting the review are considerable: see, eg, ss 427 and 428. It cannot have been intended by Parliament that after all that the Tribunal would have no decision-making or remedial powers on the review if it transpires, as it has in this case, that there was an irregularity in the instrument of delegation to the primary decision-maker.

64    We see no reason to construe “the person who made the decision” to mean only the identified individual who made the decision so as to limit the Tribunal’s powers and discretions to those which the purported decision-maker had in law. We do not accept the respondents’ submission that the powers conferred on the Tribunal by s 415(1) are parasitic on the powers of the actual decision-maker, that is, on the identity of the actual decision-maker.

65    In our opinion, in the present case the words in s 415(1) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective.

66    If necessary to go further to deal with the proposition that this construction would permit the Tribunal to exercise powers and discretions where a “decision” was made by a busybody, we would note the following. First, this issue only arises once the Tribunal has jurisdiction in relation to the purported decision which, in the present case, would require the purported decision to meet the definition of a Part 7-reviewable decision and for a valid application for review to be made. Second, as in Brian Lawlor at FLR 343-344, ALR 315 per Bowen CJ, “in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act.” Third, the issue arises in the context of “carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: see Plaintiff M174/2016 at [39]. Here, the decision-maker who made the purported decision was a person holding or occupying a particular office or position who was engaged in such tasks. In another case, where the decision-maker did not hold such a position or engage in such tasks, the issue would arise whether the decision purportedly made bore a sufficient relationship to the Migration Act to engage the relevant jurisdictional provisions.

67    The apparent consequence of the primary judge’s reasoning is that the Tribunal had jurisdiction in respect of the decision but no power to do anything under s 415(1) or s 415(2). Such a construction cannot have been intended. This odd consequence – to have jurisdiction (as accepted by the primary judge) but no power – is avoided by construing s 415(1) as referring to the person who made the decision and the powers and discretions that person would have had if the purported decision had been legally effective.

68    Our construction is consistent with the legislative history of s 415(1). It appears that the language presently under consideration was first added to the Migration Act by the Migration Reform Act 1992 (Cth). That Act inserted into the Migration Act s 115D(1), which stated that “[t]he review officer may, for the purposes of the review of an internally-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.” Similarly, ss 119(1) and 166BC(1) were added to the effect that the then Immigration Review Tribunal and Refugee Review Tribunal “may, for the purposes of the review of an [IRT or RRT]-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.”

69    The explanatory memorandum for the Migration Reform Bill 1992, circulated by the authority of the relevant Minister, said, at [282], [298] and [357] that each of ss 115D(1), 119(1) and 166BC(1) enabled the review officer or the IRT or the RRT, respectively, “to provide determinative merits review.”

70    The Migration Reform Act also enacted ss 150K and 166HJ, which altered the operation of s 43 of the AAT Act so that it applied in relation to an IRT-reviewable decision or an RRT-reviewable decision, respectively, as if subsection (1) were omitted and the following subsections were substituted:

(1)    The Tribunal may, for the purposes of the review of an [IRT or RRT]-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act 1958 on the person who made the decision.

This was said, at [322] and [405] of the explanatory memorandum, to have the effect that the Administrative Appeals Tribunal had the same powers as the IRT or the RRT had before the referral.

71    So far, we have approached the question as one of principle. The Minister submitted that there were only two relevant cases involving delegation. The respondents appeared to accept this although did not agree that the two cases relied on by the Minister, which we next consider, were relevant or supported the Minister’s construction of s 415(1).

72    In terms of authority, Alvaro primarily concerned the Tribunal’s jurisdiction, which is no longer the issue in the present appeals: see, in particular, at 218-219 per von Doussa J, for the Full Court. Justice von Doussa said that the right of review by the Tribunal of a decision of the Social Security Appeals Tribunal (SSAT) given by s 1283(1) arose where an administrative decision made in purported exercise of powers conferred by the Social Security Act had, as a matter of fact, been reviewed by the SSAT. That right existed whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective.

73    At 220, von Doussa J said that the purpose of the review provided for by the Social Security Act was to allow the reviewing authority to correct an error and substitute a new decision where error was detected. Relevant to the present case, the SSAT by s 1253(3) was empowered for the purpose of reviewing a decision (in that case the original decision as affirmed by a Review Officer) to exercise all the powers and discretions that were conferred by the Social Security Act on the Secretary. (Our emphasis.)

74    Because of that language, we do not see the case as being of present assistance. We do however note that in considering the Tribunal’s jurisdiction the Full Court did not distinguish between different types of invalidity and, at 220, said that it did not matter whether the grounds of complaint made about the preceding decision was merely that it was wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice. In our opinion, the present appeals concern decisions made by someone without authority.

75    Sevim v Minister for Immigration and Multicultural Affairs at [59] in our view takes the matter no further.

76    In Seymour v Migration Agents Registration Authority the issue was again one of the Tribunal’s jurisdiction. The most to be extracted from the judgment, relevant to the present case, is that, consistently with the conclusion of the primary judge in the present case, the Tribunal had jurisdiction to review the decision made even though the decision-maker had no formal delegation to make the decision: at [130]. No separate argument appears to have been directed to the question of the Tribunal’s powers and the reasons in Seymour do not address such an argument. As such, it is not of present assistance.

77    Kim does not seem to us to concern the present issue. The case does not deal with the powers of the Tribunal, nor is it a case where the primary decision-maker did not hold a valid delegation to exercise the power in question.

78    For completeness we add that nothing would seem to turn for present purposes on the question of a delegate exercising a power in his or her name rather than in the name of the delegator: compare Owendale Pty Ltd v Anthony, an authority relied on by the primary judge. The construction we prefer does not involve any distinction in result between, on the one hand, whether a person is a delegate and, on the other hand, whether a person is an authorised officer in the line of authorities associated with Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.

79    We should however note the Minister’s reliance in this Court on s 34AB of the Acts Interpretation Act. We were told that the primary judge was not referred to that provision. In our opinion, at least where there is a valid delegation, a power when exercised by the delegate shall, for the purposes of the Migration Act, be deemed to have been exercised by, here, the Minister. Contrary to the submissions on behalf of the respondents, there is no contrary intention in s 497, although it is implicit in that section that a delegate exercises the power personally. That was the position at common law which, in our opinion, is affected by s 34AB(1)(c). This conclusion suggests that the reasoning of the primary judge, with reference to Owendale, that a delegate exercises power in his or her own name, may not fully answer the question raised by s 415(1). In our view, by virtue of s 34AB of the Acts Interpretation Act, it is the delegate who in fact makes a decision but the power is deemed to have been exercised by the Minister. However, that does not necessarily mean that the Minister is the person who made the decision, within the meaning of s 415(1), if that provision is to be construed consistently with the reasoning in Brian Lawlor. In light of our earlier conclusions, it is not necessary to reach a concluded view on this issue.

80    If we are wrong on our construction of s 415(1), we would nevertheless allow the appeal on an alternative basis, which is that s 415(2) supplies the powers the primary judge held the Tribunal lacked in respect of the primary decision. Section 415(2) is not expressly limited to the exercise of the powers and discretions conferred by the Migration Act “on the person who made the decision.” As we have noted, the primary judge found that the Tribunal had power only to set aside the purported decisions, which is one of the powers in s 415(2), but that the Tribunal’s powers did not extend to affirming the decision, which is in another paragraph of s 415(2). The primary judge does not seem to have dealt with this argument, perhaps because it was not put to him. In our opinion, even on the approach of the primary judge, the Tribunal has the power under s 415(2) to affirm the decision under review.

81    We do not accept the submission on behalf of the respondents that ss 415(2)(a) and 415(2)(b) are constrained by s 415(1) but that s 415(2)(d) is not so constrained. In our opinion, that construction finds no foothold in the statutory language. The powers in ss 415(1) and 415(2) would seem to be distinct, because a primary decision-maker does not have the power to affirm his or her decision. Put another way, none of the powers conferred on the Tribunal by s 415(2) are powers and discretions conferred by the Migration Act on the person who made the decision: they are powers on review. The relevance and independent operation of provisions equivalent to s 415(1) is primarily in relation to other powers: see for example Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244; 148 FCR 427 especially at [29]–[30]. However, the fact that the powers conferred by s 415(2) are not limited by s 415(1) does not mean they are unlimited. As s 415(4), set out at [3] above, confirms, the power to vary or substitute a decision under s 415(2) does not extend to making a decision that is not authorised by the Migration Act or Migration Regulations 1994 (Cth).

82    Neither of the bases we have given for allowing the appeal is contradicted by what was said in Kundu or Li, relied on by the primary judge: see [21] above. The present issue did not arise in those cases, which concerned circumstances where no valid application for a visa had been made.

83    Ground 3 raises a different issue. It seems to be common ground between the parties that s 476 of the Migration Act has the effect that the Federal Circuit Court has no jurisdiction to review a “primary decision” and that the decision of the purported delegate was a primary decision. The point is a technical one but it follows that if the Federal Circuit Court had no jurisdiction to review the primary decisions then, although convenient, it did not have jurisdiction to declare that the primary decisions were invalid. We do not accept the respondents’ submission that there is no utility in the circumstances in setting aside Declaration 1. To the contrary, the record should not contain an order which the Federal Circuit Court had no jurisdiction to make.

84    Finally, we refer to an issue raised by the Court with the parties. This issue was the relevance, if any, of s 33AB of the Acts Interpretation Act.

85    That section provides:

Validity of things done under appointments under Acts:

Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because:

  (a)    …; or

(b)    for any appointment—there was a defect or irregularity in connection with the appointment; or

  (c)    …; or

  (d)    ….

86    The respondents submitted that there was a distinction between an appointment and a delegation and that the requirements for the operation of the de facto officer doctrine at common law were imported into s 33AB but had not been met. The Minister in his short supplementary submissions filed, by leave, after the hearing of the appeals did not rely on the provision. The Minister noted that the Acts Interpretation Act appeared to draw a distinction between an “appointment” and a “delegation”. The Minister also noted the view expressed in Pearce D, Interpretation Acts in Australia (LexisNexis Butterworths, 2018) at [7.66] where the learned author said that it was doubtful whether s 33AB applied to a delegation. For clarity, the Minister also confirmed that he had not contended and did not contend that the purported decision-maker was a de facto officer for the purposes of that doctrine.

87    It is unnecessary for us to decide the point, and we do no more than note it.

Conclusion and orders

88    We would uphold, in part, ground 1 of the Minister’s grounds of appeal. We agree that the primary judge erred in finding that the only power of the Tribunal on the review was to set aside the decision but we do not find it necessary to decide whether the Tribunal should have found that it had all the powers of the Minister under s 109 of the Migration Act 1958 (Cth). Similarly, ground 2 is unnecessary to answer and it tends to obscure an issue which does not presently arise but may arise in a different case. In relation to both ground 1 and ground 2, for example, the issue may arise where there is a valid delegation of powers more limited than the Minister’s powers: see Chatib v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 92 at [28] per Selway J. We would uphold ground 3. The appeal should be allowed and the matters remitted to the Tribunal for consideration according to law.

89    With regard to costs, we are not inclined to set aside the costs orders below or to order that the respondents pay the Minister’s costs in this Court. That is because these were in the nature of test cases, there being, on present evidence, approximately 50 other cases awaiting the outcome of these cases. Further, it was the Minister’s error, or that of someone in his Department, that meant that the delegate’s decision was unauthorised and which in turn led to the proceedings in the Tribunal, the Federal Circuit Court and now this Court. The Minister did not ultimately press his claim that the respondents should pay his costs of the appeal and of the proceedings below.

Associate:

Dated:    28 May 2019