THE CONSTRUCTION POINT
15 The applicant's argument is very simple. The Minister may exercise powers under s 501A(2) only in relation to an "original decision". An original decision, as defined in subs (1), is a decision of a delegate of the Minister or of the Tribunal either to grant a visa "as a result of not exercising the power conferred by subs 501(1) to refuse to grant a visa …" or not to exercise the power under s 501(2) to cancel a visa. Here, the Tribunal did not make a decision of either of those kinds. Plainly it did not decide not to exercise the power to cancel a visa. Nor did it decide to grant a visa. The decision was merely as I have quoted it: to set the delegate's decision aside; to find that the applicant met the requirements of criterion 4001(4); and to remit the matter to the Minister for consideration of the remaining aspects of the application (that is, those criteria as to which the delegate had made no findings).
16 Senior counsel for the Minister submitted that, literally interpreted in that way, s 501A would have no operation in relation to decisions of the Tribunal. When the Tribunal reviews a decision under s 501, the Tribunal will never decide to grant a visa. As in this case, there will always be other criteria to be considered by the Minister or the Minister's delegate. Plainly the provision was intended to operate in relation to decisions of the Tribunal. A construction which gave it no such operation would produce a result which was so capricious or irrational that another construction, if open, should be preferred. Another construction was open which would give the provision its intended operation: the words "makes a decision to grant a visa" might - and should - be read as referring to a decision in favour of the grant of a visa, that is, a decision that would enable a visa to be granted.
17 Counsel for the applicant submitted that to read the provision literally was not to deprive it of operation. The Tribunal might, in a proper case, make a decision to grant a visa, exercising its powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to "exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision" and, having set aside the decision under review, to make a decision in substitution for it (s 43(1)(c)(i)); counsel referred to Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 39, 40).
18 I was referred also to two cases in which a Deputy President of the Tribunal had in terms made decisions to grant visas: Connections 2000 Pty Ltd and Minister for Immigration and Multicultural Affairs [1999] AATA 357 and Ross and Minister for Immigration and Multicultural Affairs [1999] AATA 965. I do not think, however, that those decisions help very much. It is by no means clear that, in either case, the decision as recorded represented the correct result of the Tribunal's findings. In each case it appears that there were other criteria which remained to be considered; and the decision recorded in Connections 2000 was that "the applicant be granted a visa pursuant to s 501 of the Migration Act 1958". As counsel for the Minister pointed out, s 501 does not itself authorise the grant of a visa.
19 It is important to bear in mind what precisely the decision is which the Tribunal is given power to review. Under the previous version of s 500(1)(b), it was a decision of the Minister under s 501. Under the amended version of the section, it is a decision of a delegate of the Minister under s 501. Section 501, in both its present and its previous form, contemplates the refusal to grant a visa (any visa), or a decision to cancel a visa (any visa), on a particular ground or, perhaps more accurately, where particular circumstances exist (circumstances which include the Minister's - or the Minister's delegate's - satisfaction, or lack of it, as to certain matters). Where a decision is made under s 501 to cancel a visa, no difficulty arises as to the identification of the relevant decision. There are no other criteria to be considered. If the relevant circumstances exist, a visa may be cancelled. If the Tribunal, upon review of a decision under s 501 to cancel a visa, decides to set aside the decision, there is no reason to think that it could not properly substitute a decision not to cancel the visa. (It follows, of course, that a literal interpretation does not totally deprive s 501A of operation in relation to decisions of the Tribunal: it has operation in relation to a decision of the Tribunal of the kind referred to in s 501A(1)(d)).
20 A decision to refuse to grant a visa is, however, another matter. A decision of that kind, under s 501, is not a decision to refuse a visa of a particular class having regard to all the criteria applicable to that class of visa, including the "character" criterion. It is, as I have pointed out, a decision to refuse to grant a visa (any visa) on the basis that particular circumstances exist. That, and that alone, is the decision which the Tribunal is empowered to review. The case is, I think, analogous to the authorities which have distinguished Hodgson, rather than to Hodgson itself (see Department of Social Security v Ridley (1992) 40 FCR 43 at 57, 58; Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 522, 523; Tutugri v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 592 at 599). The view that the matter before the Tribunal, and the scope of its authority, are limited by the circumstances enlivening the power to make a decision under s 501 receives support also from the decision of the Full Court in Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 at 110, 111.