Gilbert v Minister for Immigration and Citizenship

The Applicant's Submissions 8 The argument which the applicant seeks to make on the appeal centres on s 501F(3) of the Migration Act 1958 (Cth) (the Act) which provides: If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa. 9 The applicant wishes to contend that this section did not have the effect of cancelling his transitional (permanent) visa. Section 501F(3) did not operate by its own force to cancel the transitional (permanent) visa. The section does not provide that if the Minister makes a decision under s 501 to cancel a visa that has been granted to a person then, if that person holds another visa, the other visa is cancelled. Rather, the section operates by deeming the Minister to have made a decision to cancel the other visa. By adopting this mechanism, the section, so it is argued, requires an independent authority in the Act as the basis for the deemed decision made by the Minister. In [6] of the applicant's written submissions in reply the argument is explained thus: By creating the legal fiction of the Minister having made a certain decision, s 501F(3) invites consideration of the Minister's powers to make that decision. Whether a decision of the Minister to cancel a visa is valid and effective depends upon whether the Act authorises the Minister to decide to cancel that visa. If the Minister does not have an available power to cancel a particular sort of visa, then the deemed decision of the Minister to cancel that visa under s 501F(3) simply has no effect. 10 Then it is said that there is no independent authority for the Minister to cancel a transitional (permanent) visa. On the contrary, the applicant argues, in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; [2008] FCAFC 132 (Sales) Gyles and Graham JJ in the Full Court determined that the power to cancel a visa in s 501 did not permit the cancellation of a transitional (permanent) visa. They said: 9 In our opinion, s 501(2) authorises cancellation of a visa that has been granted to a person by the Minister or the delegate of the Minister in the normal way pursuant to the Act or is deemed or taken by express statutory provision to be granted to a person. In particular, it would not authorise cancellation of a visa that is simply "held" by a person. 10 A transitional (permanent) visa may be regarded as held by a person but it cannot be regarded as granted in the normal way as the new regime, providing for the grant of visas, did not apply to such visas. Neither can it be said that such a visa is deemed or taken to be granted by express provision as is the case, for example, with the absorbed person visa. 11 In support of this argument the applicant relies on certain events which followed the judgment in Sales. First, on 1 August 2008, the Department of Immigration and Citizenship (the Department) wrote to the applicant as follows: The Department is obliged to treat the decision to cancel your transitional (permanent) visa … as being legally ineffective … This means that you are now regarded as the holder of a transitional (permanent) visa… Because the legal position regarding your visa status may change in the future, however, you are asked to keep the Department informed of your address. 12 Second, on 19 September 2008 the Migration Legislation (Amendment) Act (No 1) 2008 (Cth) (the Amending Act) commenced. It contained sch 4 item 7 (item 7) in the following terms: (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. 13 Then on 29 September 2008, following the Amending Act, the Department wrote to the applicant as follows: The legal position regarding your visa has changed … On 19 September 2008, legislative amendments came into force, which have the effect of validating the decision to cancel your transitional (permanent) visa. As a consequence, the decision of the Minister to cancel your transitional (permanent) visa under section 501 of the Act on 7 June 2007 stands. 14 The applicant wishes to contend on appeal that the Department treated the validity of the cancelation of the transitional (permanent) visa as dependent on the application of item 7. 15 The applicant further wishes to argue on appeal that the legislature regarded the validating effect of item 7 as necessary for a deemed decision under s 501F(3) because it included reference to the section in the validating provision. 16 Finally, the applicant wishes to argue that s 501F(3) was not the source of the power to cancel a visa because it is not mentioned in s 118 which lists the sources of power available to the Minister to cancel a visa. 17 Then, the applicant wishes to argue that item 7 is invalid as an impermissible interference with the exercise of judicial power under Ch 3 of the Constitution because it purports to direct the courts to treat as valid administrative decisions that were invalid. 18 Such a challenge to the validity of item 7 was initially raised but not pursued in Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569; [2010] FCAFC 2 (Bainbridge). However, Moore and Perram JJ referred to and rejected the argument, albeit by way of obiter, on the ground that item 7 does not direct a court to treat as valid what is invalid, but rather it supplies legislative authority for decisions previously lacking that authority. Buchannan J disagreed. The majority view was accepted by Stone J in Martinez v Minister for Immigration and Citizenship & Anor (2010) 115 ALD 363; [2010] FCA 448 (Martinez) and by Perram J in Truong v Minister for Immigration and Citizenship & Anor [2010] FCA 1188 (Truong). The applicant wishes to argue on appeal that the view expressed by Buchannan J in Bainbridge is correct.