Miller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal of 15 March 2021.
2. The application for review of the decision of the Administrative Appeals Tribunal be otherwise dismissed.
3. The parties file written submissions in respect of the costs of this application by 4.00pm on 11 May 2022, limited to five pages. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 In this application both parties, being Mr Joseph Miller (the applicant) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) agree that the decision of the Administrative Appeals Tribunal of 8 June 2021 ought to be quashed by the issue of a writ of certiorari. However, the Minister says that the Tribunal's decision was made without jurisdiction because the applicant's application to it was invalid by reason of its non-compliance with the requirements of s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). He further says that, once the decision is quashed, the matter ought not to be remitted to the Tribunal. Conversely, the applicant says that the Tribunal had jurisdiction but it committed a number of jurisdictional errors in the course of reaching its decision to affirm the decision Minister's delegate (the delegate) under review. He asserts that the Tribunal's decision should be quashed and the matter remitted to the Tribunal for determination according to law. The Minister acknowledges that, if the Tribunal had jurisdiction, its decision on the application was affected by jurisdictional error and it ought to be quashed and, it would follow that the matter would have to be remitted to the Tribunal. There is no reason to doubt the consensus of the parties in this latter respect. It is apparent that the decision contained at least one jurisdictional error consequent upon the manner in which Direction 90 was applied to the circumstances of the application before it. 2 The context in which the issues in this case arise is the Tribunal's review of the delegate's conclusion that the power in s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act), to revoke the cancellation of the applicant's visa which had occurred under s 501(3A) of that Act, had not been enlivened. However, in light of the parties' contentions, the only substantive issue is whether the Tribunal had jurisdiction to hear and determine the application for review. 3 This matter gives rise to a question of some importance because, as appears from the following discussion, there is no existing authority dealing with the consequences of non-compliance with s 29(1) of the AAT Act in its current form.