(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa."
29 Subdivision AB of Div 3 is headed "Code of Procedure for dealing fairly, efficiently and quickly with visa applications". It contains a number of provisions dealing with the manner and content of communications between the Minister and an applicant for a visa. It is followed by subdiv AC, which relates to the grant of visas.
30 The first provision in subdiv AC is s 65, which provided at the time that the Tribunal dealt with the applicant's application for review, and presently provides:
"(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3)."
31 Section 66 deals with the way in which decisions are to be notified. Section 67 provides that a visa is to be granted by the Minister causing a record of it to be made. Section 68 deals with when a visa is in effect. The last provision in subdiv AC is s 69. Section 69(1) provides, and has provided at all relevant times:
"Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed."
32 Counsel for the applicant made several submissions to the Court, in an endeavour to persuade the Court that the Tribunal had erred in law in its approach to the issue of condition 8503.
33 First, counsel for the applicant attempted to argue that condition 8503 was not a condition of the kind described in s 41(2)(a) of the Migration Act. The basis of this argument was that the words "despite anything else in this Act" did not appear in condition 8503. It should be noted that, in all other respects, condition 8503 conforms with s 41(2)(a). There is one other minor difference in wording. The words "he or she" in s 41(2)(a) are rendered as "the holder" in condition 8503. This is not a difference of substance. The argument is bound to fail. Section 46(1)(e) of the Migration Act speaks of "a condition described in paragraph 41(2)(a)." It does not speak of a condition in the precise terms of s 41(2)(a). It would be a travesty of the use of language in legislation to hold that condition 8503 was not a condition described in s 41(2)(a). The effect of the condition is exactly as described in the provision. The plain intention in drafting condition 8503, as part of the Migration Regulations, was to reflect s 41(2)(a) on the face of the documents. Condition 8503 is plainly a condition described in s 41(2)(a).
34 The application made on 18 October 1995 for the subclass 820 visa and the subclass 801 visa was therefore not a valid application, by reason of s 46(1)(e) of the Migration Act. The applicant was in the migration zone, the application was not for a protection visa or a bridging visa and, since last entering Australia, the applicant had held (and then still held) a visa subject to a condition described in s 41(2)(a), namely condition 8503. See Vahaakolo v Minister for Immigration & Multicultural Affairs [2000] FCA 661 at [8] - [9].
35 Counsel for the applicant then argued that the Tribunal had made an error in its approach to the issue of waiver of the condition. The Tribunal found that the subclass 820 visa had been granted inadvertently. The argument was that the Tribunal did not consider possibilities other than inadvertence. These possibilities included that the delegate had waived condition 8503, had treated it as being of no effect or had resolved to grant the subclass 820 visa despite the presence of the condition. This argument also cannot succeed. The Tribunal expressly found that there was no evidence to support a conclusion that the condition was waived, either expressly or by implication, or that any question of estoppel arose on the facts. The Tribunal was well placed to make such a finding. It recorded in its reasons for decision that it had regard to the documents in the relevant files of the Department. Counsel for the applicant did not contend that the applicant placed before the Tribunal any evidence that would have supported a finding of waiver. The Tribunal also pointed out that what is now s 41(2A) of the Migration Act came into effect after the decision to grant the subclass 820 visa. I discuss this provision below. It introduced an express power to waive a condition, a matter that the Tribunal described as previously "a matter of policy". In the circumstances, it cannot be said that the Tribunal made an error of a kind justiciable pursuant to s 476 of the Migration Act in making the finding that there had been no waiver. There is nothing in the circumstances of the case to indicate that the Tribunal was required to give any credence to the possibility that the delegate of the Minister who granted the subclass 820 visa might have treated condition 8503 in the applicant's subclass 676 visa as being of no effect. Still less was there any reason for the Tribunal to regard the delegate as having deliberately flouted the requirements of s 47(3) by considering the application for a subclass 820 visa, knowing that a visa already held by the applicant was subject to condition 8503. The presumption of regularity requires that, in the absence of evidence to the contrary, the delegate must be taken to have acted properly, and not unlawfully. It is not possible in this proceeding for the applicant to overturn the Tribunal's finding that the subclass 820 visa was granted without the person who made the decision to grant it having adverted to condition 8503.
36 In the course of the hearing by the Tribunal, the applicant made an oral application to the Tribunal for the waiver of condition 8503. As the Tribunal pointed out, by the time it conducted its hearing, s 41 of the Migration Act had been amended by the addition of a new subs (2A), in the following terms:
"The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3)."
37 The prescribed circumstances for the purposes of s 41(2A) are to be found in reg 2.05(4) of the Migration Regulations, in the following terms:
"For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person's circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing."
38 Any request made by the applicant for waiver was not in writing. The fact that it may have been transcribed, as a result of having been made in the course of the Tribunal hearing, did not cause it to be a request in writing. There was no substantial compliance with the requirement of reg 2.05(4)(c). The request for waiver was therefore not made in prescribed circumstances, for the purposes of s 41(2A). The Tribunal was not obliged to deal with the request. Had it done so, it would have acted without statutory authority. As it showed in its reasons for decision, the Tribunal was well aware of s 41(2A). If it had had before it a request for waiver of condition 8503 that had been made in accordance with the prescribed circumstances, no doubt the Tribunal would have dealt with it. Whether it could have found, on the evidence before it, that compelling and compassionate circumstances had developed since the grant of the subclass 676 visa, within the meaning of reg 2.05(4)(a) is another question. That question does not arise for determination in the present proceeding.
39 Counsel for the applicant then put again the arguments that were put to, and rejected by, the Tribunal. These arguments were to the effect that events subsequent to the making of the application on 18 October 1995 had operated to render condition 8503 of no effect. The argument relied on some of the provisions of s 82 of the Migration Act as to when visas cease to have effect. The relevant provisions are:
"(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.
…
(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.
(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date."
40 It was put that the subclass 676 visa ceased to be in effect when the subclass 820 visa was granted (subs (2)), when the applicant left Australia for a short period in 1999 and returned while on a bridging visa (subs (6)), or when the period for which the subclass 676 visa was granted expired (subs (7)). All of these events occurred after 18 October 1995 but before the Tribunal made its decision in relation to the application for a subclass 801 visa. Counsel for the applicant argued that, the visa having ceased to have effect, so did the conditions to which it was subject, including condition 8503. The Tribunal was therefore free to proceed on the basis that the application was valid.
41 This argument ignores the terms of s 46(1)(e) of the Migration Act. That provision, in the terms in which it then stood, operated on 18 October 1995 to render the joint application that the applicant made for a subclass 820 visa and a subclass 801 visa not a valid application. At that time, the applicant had last entered Australia on 1 August 1995. The visa he held was the subclass 676 visa, which, as I have held, was subject to a condition described in s 41(2)(a). On the assumption that (as the Tribunal found) there had been no waiver of that condition, s 46(1)(e) (as it then stood) operated to make the application other than a valid application. Section 47(1) imposed a duty on the Minister to consider a valid application for a visa. Section 47(3) made it clear that the Minister was not to consider an application that was not a valid application.
42 It would be strange if, in these circumstances, a subsequent event by which the subclass 676 visa, and the condition attached to that visa, ceased to have effect could bring about a situation in which the application that was not a valid application became a valid application. Nonetheless, counsel for the applicant argued that this was possible.
43 There is authority binding on me that, at least in some circumstances, it is possible for an application that is not initially a valid application to become a valid application. The cases are Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 at [19] - [25] per Spender J and [72] and [93] per Gyles J and Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523 at [59] - [69]. Both cases concerned instances of people seeking protection visas. In each case, the application filed was not a valid application by reason of s 46(1)(b) of the Migration Act, which in turn refers to s 45(2). Section 45(2), as it then stood, provided that the Migration Regulations may prescribe the way for making an application in specified circumstances, an application for a visa of a specified class or an application in specified circumstances for a visa of a specified class. The way for making an application is prescribed for the purposes of s 45 in various provisions of the Migration Regulations. In particular, reg 2.07 provides for the making of an application on the approved form, and requires an applicant to complete an approved form in accordance with any directions on it. In each case, the person applying failed to complete the application form. In the case of Yilmaz, the form indicated "statement to follow". A statement was provided subsequently, containing the information required in the form. In the two cases dealt with by the Full Court in Li, there was a failure to answer certain questions on the approved form. In Mr Li's case, the form contained the words "SEE ATTACHMENT" and "Statement will be forwarded later." In the other case, which concerned a Mr Kundu, some questions were answered with the words "Please see my submission which will be provided on later date", or "Please see my submission." In Yilmaz, the Full Court, by majority, held that the application had been completed by the subsequent supply of the information, so that by the time it was considered by the Minister's delegate, it was a valid application. In each case with which the Full Court dealt in Li, the Full Court held that the application was not validated by the subsequent supply of the information, because the information was not sent to the correct destination in accordance with reg 2.10. In both cases, the incomplete form of application was described as an "inchoate" application. See Yilmaz at [19] per Spender J and Li at [71] (referring to the submission of counsel for the Minister to this effect).
44 It is easy to see an incomplete form of application as an inchoate application, capable of being rendered complete at a later time. Such an application must be contrasted, however, with the application in the present case. There was nothing incomplete or inchoate about the applicant's application made on 18 October 1995, so far as is apparent from the facts found by the Tribunal. The defect in that application was, as the Tribunal found, that it was made at a time when the applicant held the subclass 676 visa, which was subject to condition 8503. Section 46(1)(e) operated to make the application something other than a valid application (the Act does not use the term "invalid application" so I refrain from using it to describe something which is not a valid application). It is difficult to see how an application that is not a valid application by reason of s 46(1)(e) at the date when it is lodged could become a valid application by reason of any subsequent event. The factor operating to prevent the applicant's application from being a valid application was not a deficiency from which the application suffered at the time of its lodgment, but was a past event. It was the fact that, since last entering Australia, the applicant had held the subclass 676 visa and that visa had been subject to condition 8503. It may be doubted whether, given the terms of s 46(1)(e) as it stood at the time, which I have quoted above, even waiver of condition 8503 (if waiver were possible as a matter of law) could have enabled the applicant to make a valid application on 18 October 1995. That question was not argued, however. As I have held, the findings of the Tribunal in relation to the issue of prior waiver are binding. On the basis of those findings, it is clear that the application was not a valid application. Because its lack of validity resulted from a previous state of affairs, the lack of validity could not be cured by subsequent events, even if those subsequent events involved the cessation of that previous state of affairs.
45 Given the findings of fact that it made, therefore, the Tribunal was bound to hold that the application made on 18 October 1995 was not a valid application. The Tribunal did so hold, but only in the context of considering whether the applicant satisfied the criterion that he was the holder of a subclass 820 visa. Since the question whether the Tribunal made an error of law in dealing with that issue was at the forefront of the argument in this case, I should proceed to determine that question. I do so even though, on the view I take, it was unnecessary for the Tribunal to deal with that issue.
46 The Tribunal is not a court of law. It does not exercise any of the judicial power of the Commonwealth. To do so, it would have to be created in accordance with the requirements of Chapter III of the Constitution and its members would have to be appointed with the tenure required by s 72 of the Constitution. By s 398 of the Migration Act, a member of the Tribunal holds office for such period, not exceeding five years, as is specified in the instrument of appointment, but is eligible for reappointment. This provision is entirely incompatible with s 72 of the Constitution.
47 Section 338 of the Migration Act specifies the decisions that the Tribunal is able to review. With two exceptions, every such decision is a decision to refuse to grant a visa. The exceptions are a decision to cancel a visa in certain circumstances, and a decision as to the assessed score of a visa applicant under s 93. No provision is made for review by the Tribunal of a decision to grant a visa. The reasons for this are obvious in the structure of the Migration Act. A decision to grant a visa is made by the Minister. The Minister delegates his or her powers pursuant to s 496 of the Migration Act, but most provisions dealing with visas provide in terms that the decision is that of the Minister. Where the decision is a decision to grant a visa, the Minister would have no standing to seek a review of his or her own decision and no interest in doing so. The Tribunal therefore does not have the capacity to review the correctness of a decision to grant a visa.
48 The Tribunal, however, reached the conclusion that the decision to grant the subclass 820 visa was a nullity, because the application on which the decision was based was not a valid application. In reaching this conclusion, the Tribunal relied on Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435. That was another case in which a person seeking a protection visa had failed to answer all the questions in the form, stating "I will be forwarding a statutory declaration detailing my claims for refugee status soon in response to questions 36-40." In that case, the statutory declaration was not forwarded at all. A delegate of the Minister made a decision refusing to grant a protection visa. No application for review by the Refugee Review Tribunal was made. The Minister refused to exercise his discretion to allow a further application to be made, pursuant to s 48B of the Migration Act. An application was made to the High Court of Australia for relief under s 75(v) of the Constitution and the case was remitted to the Federal Court of Australia. Merkel J and Finkelstein J both held that the decision of the delegate of the Minister was not a valid decision. The third member of the Court, Emmett J, held that the issue of the validity of the decision of the delegate could not arise in the proceeding as it was constituted, so his Honour did not decide it.
49 Merkel J stated and applied the test for determining validity enunciated by the High Court of Australia in Hunter Resources Ltd v Melville (1988) 164 CLR 234 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 - 391. That test is to ask whether it was a purpose of particular legislation that an act done in breach of the provision should be invalid. His Honour referred to s 65 of the Migration Act, noting that it provided for the power of the Minister to grant or to refuse to grant a visa to be exercised only after the Minister has considered a "valid application" for a visa. At [48], his Honour expressed the view that s 65, together with s 47(2) (it appears that his Honour intended to refer to s 47(3), which states that the Minister is not to consider an application that is not a valid application), afforded strong support for the view that the legislature intended that a decision made on an application that was not a valid application was an invalid decision. At [49], his Honour expressed the view that s 69 did not, of itself, operate to validate a decision purportedly made under s 65 on an invalid application. Because making a decision on an application which was not a valid application was a non-compliance with s 65, and s 65 is found in subdiv AC of div 3 of Pt 2 of the Migration Act, in his Honour's view it could not be said that there had been a non-compliance with subdiv AA or AB, so s 69 did not purport to validate the decision. Section 65 revealed a clear intention that the Minister was not to have the power to grant or to refuse to grant a visa on an invalid application. At [52] - [53], Merkel J said:
"The language of the relevant provisions and the scope and object of the Act lead me to conclude that it was the purpose of the legislature that a decision to grant or refuse to grant a visa applied for on an invalid application is a decision which was made without power and is invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. For example, in addition to decisions whose validity is preserved, at least for the purpose of review, by s 69(1), it is plain that judicially-reviewable decisions, for the purposes of Pt 8, include decisions made without authority under the Act or without jurisdiction: see s 476(1)(b) and (c). Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act.
A further example relates to the grant of a visa which occurs when a record of it is made: see s 67. The visa "has effect" after it is granted (s 68) but can be cancelled in the circumstances provided for, inter alia, in subdiv C of Div 3, Pt 2 of the Act. One such circumstance is that the visa should not have been granted because the grant was in contravention of the Act: s 116(1)(f). Thus, a visa granted pursuant to an invalid decision is intended to have effect as a visa until cancelled in accordance with the Act."
50 His Honour went on to consider whether s 48A, which prohibits the making of a further application for a protection visa after the grant of the visa has been refused, unless the Minister gives a notice pursuant to s 48B, permitted such further application. His Honour concluded that s 48A did not preclude the respondent from making a further application for a protection visa because the decision to refuse to grant him a protection visa was, for the purposes of s 48A, not a valid or operative decision to refuse to grant a protection visa.
51 The reasoning of Finkelstein J was slightly different. His Honour held that, as the application was not a valid application for a visa, the Minister was not entitled to consider it. If there were no application for a visa, one could not be refused. A decision to refuse to grant a visa could only be made after a valid application for a visa has been considered, by virtue of s 65. Although the delegate decided to refuse to grant the visa, that was not a proper characterisation of what the delegate did. The delegate made no decision at all. His act was devoid of legal content. Section 69 did not affect his Honour's conclusion, because it only applied in the case of a decision to grant or to refuse to grant a visa and there was no such decision, and because s 69 could only apply where there had been a non-compliance with the provisions of subdiv AA or subdiv AB in relation to a valid visa application and not a purported or invalid application.
52 If the only relevant authority at the time when the Tribunal made its decision in the present case had been Minister for Immigration & Multicultural Affairs v A, the Tribunal could only have found that the decision to grant the subclass 820 visa was a nullity if it had followed the reasoning of Finkelstein J. On the express reasoning of Merkel J, in the passage I have quoted above, the decision would be regarded as valid, notwithstanding that the application was not a valid application. The Tribunal did not appear to recognise that this was so. It treated the decision as authority for the proposition that the decision of the delegate of the Minister to grant the subclass 820 visa was of no effect.
53 As it turns out, the reasoning in Minister for Immigration & Multicultural Affairs v A had been the subject of further pronouncement by a Full Court in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495, to which the Tribunal did not refer. At [3], Spender J expressed his agreement with Gyles J as to the operation of s 69 of the Migration Act. At [46] - [48], Marshall J expressed his agreement with the reasoning of Finkelstein J in Minister for Immigration & Multicultural Affairs v A. His Honour also stated that Merkel J had expressed a similar view in Minister for Immigration & Multicultural Affairs v A. Gyles J held that the Refugee Review Tribunal had jurisdiction to review the decision of the delegate of the Minister in Yilmaz, notwithstanding the invalidity of the application for a protection visa. At [77], his Honour described Minister for Immigration & Multicultural Affairs v A as "a difficult case from which to extract a ratio decidendi." At [81], Gyles J said:
"Section 69(1) relates to non-compliance by the Minister with, inter alia, subdiv AA not rendering the decision invalid. When that subdivision is analysed, the only section which imposes a mandatory obligation upon the Minister is s 47, which is set out above. All of the other provisions are permissive, and non-compliance could not lead to invalidity. It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister's mistake? If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister's own hands at the time. It might be assumed that a grant would not have been made without a proper basis in fact, leaving aside formal invalidity of the application. The same principle should apply to refusal of the application if the deemed validity ensures a right to review on the merits. Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant."
54 After quoting s 65, his Honour said at [83] - [84]:
"It seems to me that the words "after considering a valid application for a visa" in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements (apart from the existence of the application) which must be met before a visa can be granted.
The opinion of Merkel J to the contrary in Minister for Immigration and Multicultural Affairs v A at 446 [49]-[51]; 604 [49]-[51] is based upon a view as to the construction of s 65 which I cannot share. In the same case, Finkelstein J dealt with the point on a different basis, at 460-461 [122]; 618-619 [122]. In my respectful opinion the first basis disclosed is inconsistent with the authorities I shall examine shortly on the alternate basis for jurisdiction in the RRT. The second basis disclosed does not grapple with the fact that s 47 is the only provision binding the Minister in subdiv AA. It is not clear to me what operation either of their Honours would give to s 69 in relation to a failure to comply with subdiv AA."
55 His Honour went on to hold that, in accordance with authorities such as Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, a purported exercise of a decision-making power gave rise to a right of review, even if the exercise was in relation to an invalid application. His Honour held that s 69 of the Migration Act is intended to have the same effect as the principle applied in those cases.
56 In the present case, if not bound to follow the majority in Yilmaz, the Tribunal was at the very least obliged to choose between the conflicting decisions of Full Courts in Minister for Immigration & Multicultural Affairs v A and Yilmaz. In my view, the reasoning of Gyles J, with the support of Spender J, in Yilmaz is to be preferred to either the reasoning of Merkel J or the reasoning of Finkelstein J in Minister for Immigration & Multicultural Affairs v A. This is particularly apparent in the context of the present case. Both Minister for Immigration & Multicultural Affairs v A and Yilmaz were concerned with decisions to refuse to grant protection visas. Section 69 is not limited to decisions refusing to grant visas. It relates also to a decision to grant a visa. It is plain that the legislative intention behind s 69 is that, if a decision has been made to grant a visa, such a decision is to be treated as valid, notwithstanding that there was a non-compliance with s 47 because the Minister considered an application which was not a valid application. It is unthinkable that the legislature could have intended that such a decision could be treated at any time as a nullity. The consequence would be that a person who had been granted a visa entitling him or her to remain in Australia, upon an application that was not a valid application, would be liable to be expelled at any time, without any action being taken to cancel the supposed visa in accordance with s 116 of the Migration Act. While s 69 does not validate a decision purportedly made under s 65 for all purposes and in all circumstances, it is clearly designed to validate such a decision when the only invalidity that attends it is the fact that the Minister did not consider a valid application, because of the operation of s 46.
57 In the present case, the Tribunal was therefore obliged to hold that the applicant was the holder of a subclass 820 visa. The Tribunal could not review the decision to grant that visa, because it had no jurisdiction to do so. Even if, not being a court, the Tribunal had power to determine whether the decision to grant the subclass 820 visa was a nullity, it was, in my view, bound by s 69 to treat it as a valid decision. This conclusion does not resolve the matter. As I have said, the Tribunal was dealing with the very same application as had been dealt with by the delegate who had granted the subclass 820 visa. That application was not a valid application. Although the Tribunal could not reach the conclusion that it was not a valid application in order to impugn the grant of the subclass 820 visa, the question arises whether the Tribunal could look at the validity of the application in the context of its own consideration of the decision to refuse to grant a subclass 801 visa, and whether it was bound to do so. On the view that I take, s 69 of the Migration Act has the result that the Tribunal was properly seised of the matter before it. That is to say, the decision of the delegate of the Minister to refuse to grant a subclass 801 visa was a decision that the Tribunal could review, even though the application on which that decision was based was not a valid application. The question therefore arises whether the Tribunal, in performing its review function, was limited to reviewing the merits of the decision, or whether it could examine the application, for the purpose of determining whether it was valid.
58 Section 349(1) of the Migration Act provides that the Tribunal may, for the purposes of the review of a decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision. This provision may be thought to supply the answer to the issue of the breadth of the Tribunal's powers. If the original decision-maker (the delegate of the Minister) could look at the application for the purpose of determining whether it was valid, the Tribunal would have that power. The difficulty is that the Tribunal's power is limited by the phrase "for the purposes of the review of an MRT-reviewable decision". If such a review is limited to an examination of the merits, ie to the question whether on the material disclosed to the Tribunal the correct or preferable decision is to grant, or to refuse to grant, a visa, then the Tribunal possesses only the powers of the original decision-maker with respect to that subject. To determine the issue, it is therefore necessary to go to the authorities.
59 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 involved an appeal on a question of law from the Administrative Appeals Tribunal ("the AAT"). A decision had been made by an officer of the Department of Social Security, reviewed by a review officer, and further reviewed by the Social Security Appeals Tribunal ("the SSAT"). An application for review of the decision of the SSAT was made to the AAT. Instead of determining the matter on the merits, the AAT determined it on the basis that the officer who made the original decision did not have authority to do so. There was therefore no valid decision for the AAT to review. The Full Court held that the AAT was in error in so deciding and that a right of review by the AAT of a decision of the SSAT existed where an administrative decision had been made in the purported exercise of the powers conferred by the relevant legislation. The right existed whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. At 220, von Doussa J (with whom the other two members of the Court agreed) said:
"The SSAT in performing its function concentrated on the merits of the proposed recovery from the respondent including the merits of the contention that the debt should be waived, and did not consider the question of Mr Rodda's authority. In the manner in which the review was conducted before the SSAT, his authority was not raised as an issue. Had it been, and if the SSAT had concluded that the decision made on 31 July 1991 was made in excess of the authority of the decision-maker, the SSAT had power to substitute its own decision in place of an earlier ineffective decision. Likewise the AAT would have jurisdiction and power to substitute its own decision if it concluded that an earlier decision-maker in the process of decision-making and review had acted in excess of authority: Secretary, Department of Social Security v Hodgson [(1992) 37 FCR 32] at 39 - 40".
It seems that the Full Court was deciding that, once the SSAT was properly seised of a decision to review, the scope of its review included the question of the authority of the original decision-maker to make the decision made.
60 In Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523, as I have said, the Full Court was dealing with two cases in which applications for protection visas had been made that were not valid applications because of s 46(1)(b) of the Migration Act. The substance of the Full Court's decision was to hold that the invalidity was not cured by the subsequent supply of material, because the material had not been supplied in accordance with the Migration Regulations. The Court was looking at the question whether the Refugee Review Tribunal had power to deal with the reviews before it of the decisions, made on the invalid applications, to refuse protection visas. In deciding that the Refugee Review Tribunal could not consider the later material, the Full Court at [82] said:
"Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application."
61 Section 415(4) of the Migration Act provides that the Refugee Review Tribunal must not, by varying a decision or setting aside a decision and substituting a new decision, purport to make a decision that is not authorised by the Migration Act or the Migration Regulations. The equivalent provision relating to the Tribunal is s 349(4), which is in identical terms to s 415(4). It seems to follow from this provision that the Tribunal had no power to make a decision on an application that was not a valid application, even though it had power to review a decision of the delegate of the Minister purportedly made on the same application.
62 Viewed either from the approach of Alvaro, or from the approach of Li, it appears that the Tribunal had power to determine whether the application made on 18 October 1995 was valid. On the approach in Alvaro, part of the review of the merits of a decision involved the determination whether it was a legally ineffective decision. On the approach in Li, the Tribunal had no power to make a decision beyond the power of the original decision-maker. On the latter approach, the Tribunal was bound to look at the validity of the application, in order to satisfy itself that it had power to conduct the review on the merits.
63 I am therefore of the view that the Tribunal in the present case was bound to determine whether the application made on 18 October 1995 was valid, for the purpose of determining whether the decision of the delegate of the Minister to refuse the subclass 801 visa was legally effective. The Tribunal did not do this. Instead, it determined that it was not satisfied that the applicant fulfilled the criterion that he be the holder of a subclass 820 visa, on the basis that the decision to grant the subclass 820 visa was a nullity, because the application on which the decision was made was not a valid application.
64 Ordinarily, if an error of this kind were made, the appropriate order would be an order pursuant to s 481(1) of the Migration Act, setting aside the decision of the Tribunal, and an order under s 481(1)(b), referring the matter to which the decision relates to the person who made the decision for further consideration. A direction to consider the validity of the original application might be appropriate. In the present case, however, such an order would be pointless. The Tribunal has made the necessary findings of fact. The challenge to those findings before me has failed. In those circumstances, the Tribunal was bound to affirm the decision it was reviewing, albeit that it was determining the matter on a different basis.
65 I am aware that the Tribunal did not make a decision to affirm the decision it was reviewing. It set aside the decision of the delegate of the Minister and substituted a new decision refusing the grant of a visa. In doing this, the Tribunal appears to have failed to understand that it was reviewing a decision, and not the reasons for a decision. If the Tribunal found that the original decision was the correct or preferable one, albeit for different reasons from those relied on by the original decision-maker, the Tribunal's duty was to affirm the decision. Strictly speaking, it might be said that the Court should set aside the Tribunal's decision, and refer the matter back to the Tribunal member who made the decision, with a direction to affirm the decision of the delegate of the Minister. Given that the Tribunal's decision to refuse the grant of the subclass 801 visa is to the same effect as the delegate's decision, no purpose would be served by going through such a process. It is preferable simply to affirm the Tribunal's decision.
66 That conclusion is sufficient to dispose of the application for judicial review. Because the Tribunal's application of the test for a valid marriage was also challenged before the Court and was argued, it is appropriate that I should deal with that issue as well.