FEDERAL COURT OF AUSTRALIA

Martinez v Minister for Immigration and Citizenship [2010] FCA 448

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                          This is an appeal from a decision of the Administrative Appeals Tribunal (the tribunal) of 21 September 2009; Martinez v Minister for Immigration and Citizenship [2009] AATA 714.  The application and supporting affidavit in this proceeding were filed on 24 September 2009 and an amended application was filed in Court on 5 November 2009.  The procedural and factual history of the matter is not in dispute.  On 23 November 2009 the appellant filed a statement of agreed facts, upon which I have drawn considerably in setting out the brief background below.

Factual and procedural background

2                          Mr Martinez, a citizen of Columbia, first arrived in Australia on 15 June 1985 pursuant to a permanent entry permit.  Mr Martinez left and returned to Australia on a number of occasions between 1985 and 1996.  These movements were facilitated by the permanent entry permit.  Regulation 4 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) affected the nature of Mr Martinez’s status.  By reason of the operation of this provision, Mr Martinez was taken to hold a transitional (permanent) (Class BF) visa (Visa).  As will be apparent from the discussion below, it is important to note that the process by which Mr Martinez came to hold the Visa did not involve the appellant actually being issued with a visa, or being “granted” a visa, or being deemed to have been granted a visa.

3                          Subsequently, on 10 April 2007, Mr Martinez was issued with a notice of intention to consider the cancellation of his Visa under s 501(2) of the Migration Act 1958 (Cth).  On 10 March 2008, the first respondent purported to cancel the Visa under s 501(2) of the Act.  Mr Martinez subsequently sought review of this decision in the tribunal by way of an application for review filed on 20 March 2008.  At the hearing on 19 June 2008 the tribunal dismissed Mr Martinez’s application for review and affirmed the Minister’s cancellation decision (the tribunal’s first decision). 

4                          Mr Martinez commenced proceedings for review of the tribunal’s first decision in the Federal Court.  On 24 July 2008 he received a letter from the Department of Immigration and Citizenship telling him that the decision of the Full Court of the Federal Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 had rendered the Minister’s cancellation decision ineffective.  In Sales the Full Court held that the Minister’s power to cancel a visa under s 501(2) did not extend to visas that arose by operation of law and which had not been “granted”.  Consequently, the letter stated, he was considered to hold a transitional (permanent) visa and was to be released from detention.  Nevertheless, the letter ominously warned, “because the position regarding your visa status may change in the future, you are asked to keep the Department informed of your address”.  On 26 August 2008, following receipt of the Department’s letter, Mr Martinez filed a notice of discontinuance of the Federal Court proceeding. 

5                          The warning with which the Department’s letter concluded was soon to be borne out.  On 19 September 2008 the Migration Legislation Amendment Act (No. 1) 2008 (Cth) (the Amending Act) came into force.  The relevant provisions of Schedule 4 of the Amending Act are as follows:

5          After section 501H

Insert:

501HA  Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas

If, under the Migration Reform (Transitional Provisions) Regulations, a person:

(a)        held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or

(b)        held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or

(c)        is taken to hold a transitional (permanent) visa;

the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa.

6          Application

(1)        The amendment made by item 2 of this Schedule applies in respect of a person who has been granted:

(a)        a bridging visa (within the meaning of the Migration Act 1958); or

(b)        a criminal justice visa (within the meaning of that Act);

on or after the day on which that item commences.

(2)        The amendment made by item 4 of this Schedule applies in relation to an authorised recipient, whether the notice under subsection 494D(1) of the Migration Act 1958 in relation to the authorised recipient is given before, on or after the day on which that item commences.

(3)        The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences.

7          Validation of pre‑commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas

(1)        To avoid doubt, any decision made or purported to have been made:

(a)        by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or

(b)        by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences;

to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted.

(2)        In subitem (1):

transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations.

transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations.

6                          Ten days after the Amending Act commenced, the Department of Immigration and Citizenship again wrote to Mr Martinez advising him of its view that the Amending Act, Schedule 4, Item 7, had validated the decision of 10 March 2008 to cancel his Visa and that:

“As a consequence, that decision stands and you are liable to be detained under s 189 of the Act and removed from Australia…

7                          On 18 November 2008, Mr Martinez commenced fresh Federal Court proceedings.  On 5 December 2008 Emmett J gave judgment in the fresh proceeding, dismissing it as incompetent; Martinez v Minister of Immigration and Citizenship [2008] FCA 1994.  However, his Honour granted leave for Mr Martinez to withdraw the notice of discontinuance that he had filed on 26 August 2008.  The withdrawal of the notice of discontinuance had the effect of reinstating the first Federal Court proceeding which then progressed to a contested hearing. 

Review of tribunal’s first decision

8                          On 21 May 2009, Rares J made orders quashing the tribunal’s first decision and remitting the matter to the tribunal; Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337.  His Honour held that the Amending Act did not operate retrospectively to cure the jurisdictional error in the tribunal’s first decision.  His Honour held that Item 7 of the Amending Act was directed to decisions of the Minister or a delegate of the Minister and not to decisions of the tribunal.  Consequently, the jurisdictional error in the tribunal’s first decision, namely its failure to recognise jurisdictional error in the delegate’s decision, was not remedied by the Amending Act. 

The tribunal’s second decision

9                          In its decision of 21 September 2009, the tribunal addressed only a preliminary question, namely whether the power to cancel a visa under s 501(2) of the Migration Act is capable of applying to Mr Martinez’s Visa.  The tribunal answered that question in the affirmative.  It held that Item 7 validated the original decision and that the tribunal was bound to recognise that validation (the tribunal’s second decision).

Review of tribunal’s second decision

10                        Mr Martinez now seeks judicial review of the tribunal’s second decision.  His amended application alleges that the tribunal had made a jurisdictional error in holding that Item 7 of Sch 4 of the Amending Act applied to the power to cancel the Visa.  The circumstances relevant to the review of the tribunal’s second decision differ from those relevant to the review of the tribunal’s first decision, only in that the Amending Act was in force at the time of the second decision and not when the first decision was made.

11                        It is not in contention that Mr Martinez obtained his Visa by operation of law.  Nor is it in dispute that the decision in Sales v Minister for Immigration and Citizenship [2008] 171 FCR 56 is binding on this Court.  The only question is whether the Amending Act extends the Minister’s power to cancel visas under s 501(2) of the Migration Act to visas, such as Mr Martinez’s Visa, that were created by operation of law as opposed to being “granted” in respect of cancellations that occurred before the Amending Act came into force.  

12                        The applicant submits that in the proceedings that have now been remitted to the tribunal, it is s 501 as it was before the Amending Act that applies.  Therefore, following Sales, the only conclusion to which the tribunal can come is that the Visa cannot be cancelled under s501(2).   The applicant’s reasoning is that Item 7 does not deem either the Minister or the delegate to have power to cancel a visa arising by operation of law but instead operates on the decision of the Minister or the delegate once made.  That being so it can only validate a decision of the Minister or a delegate of the Minister and cannot validate a decision made by the Tribunal. 

13                        The respondent accepts that the effect of Item 7 of the Amending Act is to validate the cancellation decision made, in this case, by a delegate of the Minister.  The respondent also accepts that the flow-on effect of that validation means that the tribunal’s answer to the preliminary question is correct.  Alternately, the respondent submits that on one view of the tribunal’s power to review, Items 6(3) and 5 of the Amending Act are operative.

14                        To understand the essence of the debate in this case it is necessary to consider the nature of the power exercised by the tribunal in reviewing a decision made under s 501 of the Migration Act.  The source of the tribunal’s power is the Administrative Appeals Tribunal Act 1975 (Cth)(AAT Act); see s 500(1)(b) of the Migration Act.  Section 43(1) of the AAT Act provides:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)          affirming the decision under review;

(b)          varying the decision under review; or

(c)          setting aside the decision under review and;

(i)         making a decision in substitution for the decision so set aside; or

(ii)        remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

15                        In Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326 the Full Court, at [68], said of the tribunal’s power under s 43:

[The tribunal] does not exercise afresh the power conferred by the enactment under which the decision was made.  A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration it does not exercise a power conferred by the enactment under which the primary decision maker has made his or her decision …

16                        The applicant submits that under s 43 the tribunal’s role is not limited to detecting error in the delegate’s decision.  Rather it is required to stand in the shoes of the original decision maker and make a decision on the relevant evidence applying the law applicable at the time the delegate made the original decision.  Accordingly, it is submitted, that as the delegate had no power to make the original decision at the time it was made, the tribunal must find that the delegate’s decision was void.  A failure to do so is a jurisdictional error on the part of the tribunal.  The applicant supports this submission with reference to the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286.  Shi concerned an application to the tribunal for review of a decision of the Migration Agents Registration Authority to cancel the appellant’s registration as a migration agent.  In the High Court one question concerned the nature of the tribunal’s task. As Hayne and Heydon JJ expressed it, at [81]:

Was it … to decide whether, at the time MARA made its decision, the correct or preferable decision was that the appellant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance? Or was it … to decide what was the correct or preferable decision at the time the tribunal made its decision?

17                        Their Honours emphasised, at [92], the primacy of statutes and the importance of not allowing secondary sources to distract from the language of the applicable statute.  The same consideration is manifest in the decision of Kiefel J.  Although, her Honour dissented in relation to an issue in Shi that is not presently relevant, she held in respect of the above question, that as the AAT Act expressly gave the tribunal the power to substitute its own decision for that of the original decision maker, the tribunal was entitled to have regard to evidence of the appellant’s conduct subsequent to the original decision; see [135] and [157].

18                        In answering the question posed, Hayne and Heydon JJ rejected the first of the alternative answers posed at [81] of their reasons, saying that it had “no footing” in the relevant provisions of the Migration Act or the AAT Act.  Their Honours referred, at [99], to the long-established position that the tribunal was entitled to consider material beyond that which was before the decision maker and said:

Once it is accepted that the tribunal is not confined to the record before the primary decision‑maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the tribunal will include information about conduct and events that occurred after the decision under review.  If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision‑maker to act; there is nothing in the AAT Act which would provide such a limitation.

19                        Their Honours found no such limitation in either the AAT Act or the Migration Act and concluded therefore that the tribunal’s task was to decide on the correct or preferable decision at the time the tribunal made its decision.  Kirby J, with whom Crennan J agreed, came to the same conclusion.  The High Court held that the tribunal was entitled to have regard to post-decision evidence as to the appellant’s conduct. 

20                        The present proceeding concerns post-decision amendments to the law,  nevertheless, the issue is also one of statutory construction.  The question is whether, on the proper construction of the relevant statutes, the tribunal’s second decision, to the effect that the power to cancel a visa pursuant to s 501(2) of the Migration Act, by virtue of the Amending Act capable of applying to Mr Martinez’s Visa, is the correct or preferable decision.  

21                        In its written submissions the applicant submitted that the respondent sees the tribunal’s role as involving only the detection of error and thus “relegates the review process … to a mere appeal strictu sensu” and therefore is inconsistent with the High Court’s acceptance in Shi of a broader scope for the tribunal’s powers.  In the applicant’s submission the respondent’s position may be summarised as follows:

(a)        the Amending Act validated the delegate’s decision to cancel the Visa; 

(b)        the Tribunal has power under s 43 … to affirm a decision under review; and

(c)        the Tribunal can therefore affirm a decision that is and is always taken to have been valid, because of the effect of the Amending Act.

22                        The applicant’s submission assumes that in every case the tribunal must substitute its own decision for that of the Minister or delegate.  Two things may be said of this submission.  First, it oversimplifies the respondent’s submission by alleging its focus to be on the validation of the decision rather than, as is the case, the power of the Minister of delegate.  Secondly, it takes no account of the following comments of Hayne and Heydon JJ at [100], which immediately follow the comment quoted at [18] above:

The AAT Act provides for the review of decisions by a body, the tribunal, that is given all of the powers and discretions that are conferred on the original decision‑maker.  As Brennan J rightly pointed out in an early decision of the tribunal⁴, not all of the powers that the tribunal may exercise draw upon the grant of powers and discretions to the primary decision‑maker:

"A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment:  the original powers are not drawn upon by the Tribunal's order.  Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh:  they are not exercised by the Tribunal.  Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."

⁴Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175‑176.

23                        Brennan J’s comment quoted by Hayne and Heydon JJ is particularly apposite here where the only issue is whether the decision of the Minister’s delegate was within power.  As the respondent submitted the focus must be upon the powers of the delegate who made the decision.  In particular the question is whether the delegate’s powers were affected by the Amending Act.  This follows from the nature of the preliminary question put to the tribunal; it does not imply the narrow view of the tribunal’s powers suggested by the applicant.

24                        The opening words of Item 7 appear to invite the reader to interpret it as clarifying the immediately preceding provisions, (that is Items 5 and 6) however this is not the case.  Items 5 and 6 address the cancellation of visas occurring after the commencement of the Amending Act whereas Item 7 is directed to cancellations occurring before its commencement. 

25                        In Bainbridge v Minister for Immigration and Citizenship (2010) 113 ALD 70, Buchanan J (dissenting) held, at [77], that Item 7 involved an invalid interference with the exercise of judicial power in that it “directs the opposite outcome from the conclusion in Sales, notwithstanding no other alteration in the matters which would arise for consideration by a court.”   With great respect, I would read Item 7 differently. 

26                        Item 7’s validation of the decisions to which it refers applies only to one aspect of such decisions.  A decision’s validity is confirmed only to the extent that it would have been valid if the visa in question “had been granted”.  This does not extend to any other cause of invalidity such as jurisdictional error going to any other aspect of the exercise of the cancellation power.  I do not understand this to be an interference with judicial power.  Rather, it applies to a point antecedent to judicial decision by assimilating transitional (permanent) visas and transitional (temporary) visas with visas that had been granted.  In doing so it extends the power of the Minister or a delegate under s 501 to cancel a visa.  The validation of the decision is a consequence of this extension of power.

27                        The view I have expressed is consistent with those expressed in Bainbridge by Moore and Perram JJ.  Their Honours, in obiter dicta, commented at [23] that Item 7 only extended “to cure invalidity arising from the fact of the visa’s non-issue”.  Furthermore, although their Honours accepted that it was possible to read Item 7 as leaving the Migration Act unaltered prior to the commencement of the Amending Act, they observed, at [25]:

Another reading of Item 7 is not that it directs a court to treat the invalid as valid but, rather, that it supplies legislative authority for decisions previously lacking such authority.  We see no particular textual obstacles to that reading. 

28                        In my opinion the direction is clear.  The Amending Act creates a fiction whereby the delegate is retrospectively deemed to have the same power to cancel a visa that has arisen by operation of law as a visa that was obtained pursuant to a grant.  That being so the power to cancel a visa pursuant to s 501(2) of the Migration Act is, by virtue of the Amending Act, capable of applying to Mr Martinez’s Visa.It is therefore not necessary to consider the respondent’s alternative submission that Item 5 of the Amending Act applies.

29                        For the above reasons the application must be dismissed with costs.

Associate:

Dated:         11 May 2010