Martinez v Minister for Immigration and Citizenship - [2010] FCA 448 - FCA 2010 case summary — Zoe

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Martinez v Minister for Immigration and Citizenship

[2010] FCA 448

Federal Court of Australia|2010-05-11|Before: Stone J

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Court

Federal Court of Australia

Decision date

2010-05-11

Before

Stone J

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Judgment (34 paragraphs)

[1]

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.

[2]

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

[25]

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.

[28]

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].

[33]

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.

Martinez v Minister for Immigration and Citizenship

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