Kim v Minister for Immigration and Citizenship

TRIBUNAL DECISION 13 On 18 August 2006, the Tribunal handed down its decision affirming the delegate's decision to cancel the appellant's visa. The Tribunal considered that it did not have power to make findings on the validity of this cancellation (that is, to find that it was a nullity), but decided that it did have power to engage in merits review and affirm a decision to cancel a visa even if that decision was invalid and the visa had expired at the time of the Tribunal's decision. The Tribunal concluded there was a proper ground on which the visa was cancelled, and that the discretionary reasons against cancellation were not sufficient to alter the decision under review. 14 The Tribunal's reasoning relevant to this appeal is as follows: 'The Tribunal does not accept the submission that it is within the Tribunal's power to find that the cancellation of the visa was a nullity. Although the visa would have expired by the date of this decision even if it had not been cancelled the Tribunal considers that cases of Zubair and Ahmed are authorities for the Tribunal to undertake merits review of the visa cancellation. In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 the principal ground of appeal was that, because the delegate's decision was made without complying with the mandatory procedural requirements of the Migration Act (sections 119-121), it was 'no decision at all'. The Court was asked to declare the delegate's decision was of no effect - in other words, that the applicant's visa was not cancelled. It was argued that the Tribunal had no power to affirm the delegate's decision because there was no valid decision by the delegate to cancel the applicant's visa. The case turned on the issue of whether the Tribunal is able to "cure" defects upon review, or is in fact not able to provide substantial merits review if there is a defect in the primary decision, such as the prerequisites for the exercise of power not having been met. The Court held that s.348 of the Act sets out the Tribunal's obligations to review an "MRT-reviewable decision". Looking at the text of section 338, the Full Federal Court found that an "MRT-reviewable decision" includes a purported decision (that is, a decision made where the decision maker did not follow all of the correct procedural steps, such as the required notification procedures). As expressed in s.349(4) of the Act, the Tribunal cannot make a decision that is not authorised by the Act or the regulations. However, rather than view the compliance by the delegate with the procedural requirements in ss.119 to 121 as a mandatory precursor to a decision by the Tribunal to affirm a cancellation, the Tribunal merely needs to fulfil the procedural requirements specific to itself. The representative seeks to distinguish the present case by arguing that the Notice was not merely invalid but that the decision was a 'nullity'. He does not distinguish between a nullity and the decision to cancel a visa in Zubair's case which it was argued was made after an invalid Notice was given. The representative also argued that the Tribunal did not have the power to cancel a visa that was already expired as the review applicant's visa has done at the time of this decision. Under s 349(2) the Tribunal has the power to affirm a decision which in this case was made on 18 December 2003. At that time the visa was still in force. At the time of this decision the Tribunal is not making a new decision to cancel the visa but to affirm a decision by the delegate.'

THE DECISION BELOW 15 In his Honour's reasons for judgment, Scarlett FM referred to the submissions of the appellant in detail. His Honour noted that the appellant sought judicial review on the basis that the appellant was not given a prescribed notice by the delegate before the decision to cancel his visa was made. His Honour also noted that the appellant accepted that decisions by the Full Court of the Federal Court were binding, and that any submissions that those cases were wrongly decided were therefore made only to preserve the appellant's rights on appeal to this Court. Finally, his Honour held that he was bound to find that the Tribunal had jurisdiction to affirm the decision of the delegate, even where the requisite notice prescribed by law as a condition precedent to the valid exercise of the cancellation power had not been given. 16 As a result of the above and other conclusions, his Honour dismissed the application.

APPELLANT'S SUBMISSIONS 17 The appellant contends that it is not open to the Tribunal to affirm a decision which a Court (in this case, the Federal Magistrates Court by way of the orders of Smith FM) had already implicitly held to be invalid. In addition, it is submitted that the Tribunal misunderstood the effect of its power under s 349(2) of the Act to affirm a decision. Counsel for the appellant says that the Tribunal's decision should be set aside because there was failure to comply with s 359A of the Act. 18 The essence of the appellant's argument is that, where there have been orders of a Court that demonstrate the invalidity of a delegate's decision, and where the Tribunal is a party to those orders, it is not open to the Tribunal to affirm the delegate's decision because to do so would render operative a decision which the Tribunal knows or should know is invalid. In other words, it is said, where a Court implicitly holds that the decision of the delegate was invalid, the only remaining course of action for the Tribunal is to set aside that decision. 19 Finally, it is also said in the alternative that, even if the Tribunal had jurisdiction in this case, then the Tribunal erred in the exercise of that jurisdiction because it proceeded on an erroneous understanding of the nature and extent of its power to affirm.

THE ISSUES 20 This appeal raises the following two questions: (1) whether, given the orders made by Smith FM on 19 April 2006, Scarlett FM erred by finding that the Tribunal had jurisdiction to "affirm" a purported decision made by a delegate of the Minister to cancel the appellant's visa where no notice was given to the appellant as required by s 119 of the Act; and (2) whether, given the orders made by Smith FM on 19 April 2006, Scarlett FM erred by finding that the Tribunal had jurisdiction to "affirm" a purported decision made by a delegate of the Minister to cancel the appellant's visa at a time when the visa had expired so that no visa existed to be cancelled.

ISSUE ONE - JURISDICTION 21 The power of the Tribunal to review a "decision" extends not only to the review of a decision which is in fact made lawfully, but also to the review of a decision which is only purported to be made but which is not authorised by law: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495. The expression "decision" is to be given its ordinary meaning, namely, "the action of deciding", which covers a situation where the decision is merely purported to be made but is in fact made without authorisation by law. This proposition is supported by the fact that s 119 of the Act is concerned with the way in which the power under s 116 is to be exercised, and not with the existence of the power itself. This distinction between power and manner of exercise was regarded as important by Deane J in Brian Lawlor 2 ALD at 30-31, and is also referred to in cases mentioned below. 22 In the present case the decision to cancel the visa was an "MRT reviewable decision": see s 338 of the Act. Under s 348, the Tribunal is obliged to review such a decision. 23 It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-250. 24 The distinction between the existence of a power and the manner of its exercise was discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at 323-324: 'Section 119, as we have earlier said, was enlivened at an earlier stage in the decision-making process. It was enlivened when the Minister was considering an act - the cancellation of the visa. By the time the review process was enlivened, that was a matter of history. The visa was cancelled or purportedly cancelled. Parliament has laid out procedures for the fair conduct of the Tribunal's review. Section 119 is unnecessary to repeat. It is to be recalled, in this context, that under s 349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them. The procedures required of the Tribunal are set out in Div 3.4 and 5 of Pt 5. We are assisted to the above conclusion by the recognition that the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions. An application for review to a tribunal is an application for review on the merits. Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal. Thus, far from concluding that the decision in Zubair was clearly wrong, we have come to the same conclusion. That there may be different shades of reasoning involved, no doubt reflecting the different arguments advanced, is not to the point. Zubair should be followed. The Federal Magistrate erred in his consideration of the failure to comply with s 119. That failure did not deprive the Tribunal of statutory authority. The conclusion that all the Tribunal could do was recognise the delegate's lack of power and set aside his decision was erroneous. The effect of the failure to comply with s 119 was not that the Tribunal had no power to cancel the visa. The Tribunal was correct to proceed to deal with the review on the merits.' (Emphasis added.) 25 In our view, the last paragraph quoted above is directly contrary to the principal submission of the appellant in this case. 26 In Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, which was followed and applied by the Full Court in Ahmed 143 FCR 314, the Full Court determined at 352-353 that the delegate's decision to cancel a visa under s 116 of the Act was a "decision" capable of review by the Tribunal, even where the delegate had failed to comply with the mandatory procedural requirements of s 119. 27 Ahmed 143 FCR 314 was in turn followed and applied by the Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1, albeit with the qualification by Wilcox and Branson JJ at 15 that this was an issue on which minds may differ, but that Ahmed 143 FCR 314 should be followed because it was not plainly wrong. Their Honours observed that, if the matter were free from authority, the appellant's submission in that case that the Tribunal was not empowered to affirm the cancellation might have been found to be persuasive. 28 Finally, it is worth noting that, in Yilmaz 100 FCR at 515, Gyles J pointed out that: '… the [Refugee Review Tribunal] is established to conduct a review on the merits. The statutory role of the [Refugee Review Tribunal] is to … make the correct or preferable decision on the materials before it at the time of decision. It is given no jurisdiction to determine its own jurisdiction or to decide any legal question.' The fact that the Tribunal may in some circumstances have to make an administrative determination as to its jurisdiction does not mean that it can make a binding legal decision as to whether it has jurisdiction or not. 29 The above authorities all proceed on the basis that a failure to comply with s 119 of the Act does not deprive the Tribunal of jurisdiction to review the decision of the delegate on the merits. In other words, such a failure to comply does not compel the Tribunal to recognise the delegate's lack of power and therefore set aside his or her decision. 30 Applying these authorities to the circumstances of this case, the fact that Smith FM had made orders prior to the Tribunal's decision as a result of a concession by the Minister that the cancellation decision was invalid does not mean that the Tribunal lacked jurisdiction. In several of the above authorities, the Court discussed the hypothesis that even if a visa cancellation lacks proper authorisation in law due to a failure to comply with s 119 of the Act and was therefore outside jurisdiction, it did not follow that the Tribunal could not exercise the Minister's power in s 116 pursuant to the provisions of s 349(1). This case brings that hypothesis into reality. The fact that the orders of Smith FM determined the existence of the hypothetical premise on which those Full Court decisions were founded does not render the reasoning of those decisions any less applicable to this case. 31 Accordingly, we are of the view that the Tribunal did have jurisdiction in this case to affirm the delegate's cancellation of the appellant's visa and that it did not err in its understanding of the nature and extent of its power to affirm.

ISSUE TWO - EXPIRY 32 In relation to the question whether the Tribunal can affirm a cancellation by the Minister of a visa which has expired, the appellant pointed to various references in the Act to the duration of visas which were to the general effect that the cessation of a visa means that it ceases to operate as a Ministerial permission to perform the acts authorised by the visa. In particular, the appellant referred to s 29 of the Act, which defines a visa as a permission to enter and remain in Australia. Section 77 provides that "a non-citizen holds a visa at all times during the visa period", and ss 82(1) and 82(7) provide that visas cease to have effect when they are cancelled or when the visa period expires. 33 The appellant says that the Tribunal cannot make a fresh decision to affirm a visa after its expiry because, since the cancellation is a nullity, there is nothing to affirm. The respondents submit on the other hand that affirmation by the Tribunal of a purported cancellation will operate to leave the cancellation decision in force as from the date of the delegate's decision, and that subsequent expiry of the visa after cancellation will not affect the fact that the visa has been cancelled. The respondents' argument is consistent with the proposition that an affirmation is different from a new decision because the affirmed decision operates from its original date of decision, whereas a new decision by the Tribunal operates prospectively in the absence of the exercise of any power to back-date the decision. 34 In our view, in this case the affirmation of the cancellation decision by the Tribunal left in place the original decision of the delegate to cancel the visa so that, at the time of its expiry, the visa had been lawfully cancelled. 35 Accordingly, the appellant's submissions on this point must be rejected.

CONCLUSION 36 This appeal should be dismissed. The appellant should pay the costs of the first respondent. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 9 May 2008 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2046 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT GYLES J: 37 The relevant circumstances are set out in the judgment of Tamberlin J. The appellant was not satisfied with the decision cancelling his visa and exercised his right to have that decision reviewed on the merits by the Migration Review Tribunal (the Tribunal). He continued to pursue that avenue to a second Tribunal hearing, notwithstanding that the failure of the Minister to comply with s 119 of the Migration Act 1958 (Cth) was known. The objective, of course, was to obtain a favourable decision on the merits from the Tribunal and have the visa cancellation set aside. After failure on the merits, the appellant seeks to avoid the consequences of that failure by relying upon the invalidity of the original decision. 38 That approach is inconsistent with a long line of Full Court authority, commencing (for relevant purposes) with Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and including Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1. (Also see Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [220].) In addition to putting a formal submission that that line of authority should not be followed, counsel for the appellant seeks to sidestep it by two ingenious arguments. The first is that confirmation by the Tribunal of the original decision does not amount to a new decision by the Tribunal but leaves the old decision standing. The Tribunal confirmation in that sense does not cure any invalidity of that original decision. The second is that, by the time of the Tribunal decision, the visa would have expired by effluxion of time and an expired visa cannot be cancelled. It had been conceded before the Federal Magistrates Court that those arguments were precluded by the line of Full Court authority to which I have referred (AB322 [42], AB324 [51], AB326 [59]). 39 In my opinion, the first ground is misconceived as a basis for attacking the decision of the Tribunal, even if it be correct as an abstract proposition. The sole function of the Tribunal is to provide a review on the merits of the relevant decision, not to decide collateral questions of the lawfulness or validity of the decision being reviewed. The Tribunal did what it was asked to do by the appellant. It reviewed the decision on the merits and affirmed it on the merits. The argument gains no greater force because of what was said to have taken place in the Federal Magistrates Court on the challenge to the decision of the first Tribunal. There was no determination that the delegate's decision was invalid and no declaration was made to that effect. If it had, at the suit of the present appellant, then he would have been confronted with a very real difficulty in pursuing review of a decision which had been declared to be invalid on his application. The appellant would also have had formidable difficulties in persuading a court to make a declaration of invalidity of the original decision in separate proceedings in circumstances where that party had already, unsuccessfully, invoked review on the merits. 40 In my opinion, the second ground also fails in the circumstances of this case. The appellant pursued his claim for merits relief, notwithstanding the expiry of the period of the visa. It does not lie in his mouth to complain if the Tribunal exercised its jurisdiction as asked. The fact that the decision was unfavourable does not change the situation. In any event, it is clear enough that the proceeding was not moot, as the continued existence of the unfavourable decision has consequences for the appellant. Hence his pursuit of this appeal. Whatever the result of the appeal on the merits in the Tribunal, there would be an impact upon the original decision. If the appeal were successful, the original decision would be set aside and the Tribunal would substitute its decision. If the appeal were unsuccessful, then the original decision would be affirmed. Whether that affirmation simply leaves the original decision as such, or whether it amounts to a Tribunal decision, is of no consequence for the purposes of this argument. 41 I join in dismissing the appeal with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles.

Associate: Dated: 9 May 2008 IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2046 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT BESANKO J: 42 I agree with the orders proposed by Tamberlin J and with his Honour's reasons.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Counsel for the Appellant: Mr S Lloyd and Ms N McGarrity

Solicitor for the Appellant: Christopher Levingston & Associates

Solicitor for the Respondent: Australian Government Solicitor