Ground 1
8 Mr Toro Martinez argued that item 7 was intended to deal only with invalid decisions made before 19 September 2008. He contended that despite the introductory words of item 7(1), there was no doubt to avoid. The regime introduced by s 501HA took effect with respect to decisions made after the commencement of item 7. Thus, s 501HA had no application to any decision that had already been made and could not affect the status of the decision made on 10 March 2003. On the other hand, item 7(1)(b) operated on the decision affecting Mr Toro Martinez which had been made by the delegate on 10 March 2008. However, he argued that the tribunal committed a jurisdictional error because in deciding his matter on 19 June 2008 the tribunal did not do the only thing then open to it to do, namely to set the delegate's decision aside as being made without any power to do so. Mr Toro Martinez argued that the construction of item 7 ought to be governed by the principle that where a choice of constructions is open, an Act should be construed so as not to encroach upon common law rights and freedoms.
9 I note that Mr Toro Martinez foreshadowed an argument that he is not affected by the amendments at all, and that the process of cancellation of his visa should start afresh. However, that question was not argued before me and I express no view on it.
10 The Minister, on the other hand, relied upon the words in item 7(1) "… is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa … were a visa that had been granted". He contended that this retrospectively deemed the delegate's decision always to have been valid and that, as a result, the tribunal's decision affirming that decision was unimpeachable. The Minister argued that to affirm the decision under review had the effect of leaving the delegate's decision as the only operative decision. He contended that an affirmation by the tribunal of a decision of a delegate has the effect that the original decision of the delegate continues to operate and the later decision of the tribunal does not operate in substitution: Kim v Minister for Immigration and Citizenship (2008) 167 FCR 578 at 583 [23] per Tamberlin J, with whom Besanko J agreed at 586 [42]; see also Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587F-588B per North J.
11 Do the words in item 7 "… is taken always to have been as valid" have a retrospective operation so as to deny that the tribunal made any jurisdictional error? Mr Toro Martinez filed his notice of discontinuance in this Court on 26 August 2008, more than three weeks before item 7 came into operation as a law of the Commonwealth. Thus, it could not be said that the enactment of item 7 affected these proceedings at the time as pending or current litigation. The evident intention of the 2008 amendment was to validate earlier decisions to cancel visas that had not been "granted" but were nonetheless operative. Those visas were in the category that the judgment in Sales 171 FCR 56 had revealed could not fall within the then statutory powers of cancellation.
12 A court will assume that the legislature intended to act fairly when it construes retrospective legislation to ascertain the extent that the law was intended to operate retrospectively: Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 at 571 [54] per Spigelman CJ. And, there is a general rule that where the legislature alters the rights of persons retrospectively unless the Act clearly so operates, the Court will not construe it to affect rights: cf: Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 at 486C-D per Mason JA: see too NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 at 161-162 [130]-[132] per Spigelman CJ, with whom Hidden and Latham JJ agreed.
13 The Minister also argued that retrospective legislation may affect existing proceedings. That, of course, is correct. But the result is affected by the principle that the legislation will be read down so as not to have such an operation in the absence of clear words of a contrary statutory intention: see Nutricia 253 ALR at 162 [132] per Spigelman CJ.
14 In Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at 442-444 [105]-[113], Black CJ, French and Weinberg JJ discussed the construction of s 501 and applied the principles identified in the following passage in Coco v The Queen (1994) 179 CLR 427 at 437. There Mason CJ, Brennan, Gaudron and McHugh JJ said:
"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at p 12, per Mason CJ)."
15 They said that application of this principle by the Courts would be likely to enhance the Parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights: Coco 179 CLR at 437-438. In Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 at 370-372 Burchett and Lee JJ discussed (in passages approved in Haneef 163 FCR at 443 [108] and [111]) a statutory predecessor of s 501 that provided that an illegal immigrant was liable to deportation if that person had been convicted of offences and been sentenced to imprisonment for at least one year. They said that the section deprived the persons "caught by it of one of their most precious rights, their right of community". Burchett and Lee JJ said that the making of a deportation order was a plain infringement of liberty and was more so if the law authorising it was retroactive. They said (Sciascia 31 FCR at 372):
"Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation."
16 The cancellation of a non-citizen's visa will have a profound effect on the rights of the visa holder. He or she will lose the freedom which the visa confers to remain in Australia and to exercise and enjoy the benefit of the liberties, freedoms and rights which persons present in this country ordinarily enjoy. Moreover, s 501 can apply to persons who have served sentences of imprisonment eligible to be released unconditionally or on parole. One immediate consequence of the decision to cancel the visa was that Mr Toro Martinez remained in immigration detention when he would otherwise have been entitled to be at liberty (albeit in respect of the unserved portion of his sentences of imprisonment) on parole.
17 Item 7 in the 2008 amendment is capable of operating in a manner that infringes the liberty of persons whose visas had been purportedly cancelled under decisions of the Minister or a delegate that were invalid for reasons given in Sales 171 FCR 56. The item is intended to restore the legal force of those decisions.
18 The Minister argued that because item 7 has the effect of validating the delegate's decision retrospectively, the necessary consequence is that the tribunal's decision is also validated. That followed, he contended, because the tribunal's affirmation of the delegate's decision never operated (unlike the case prior to the 2008 amendment) on a valid decision of the delegate to cancel Mr Toro Martinez's visa even though it was not a visa that had been granted. In effect, the Minister argued that the words in item 7 "… is as valid, and is taken always to have been as valid, as it would have been" not only validated the delegate's decision that had previously been invalid, but changed the status in law of the tribunal's decision.
19 Mr Toro Martinez argued that item 7 expressly referred to two classes of decision, first, those by the Minster made under identified sections of the Act (item 7(1)(a)) and secondly, by a delegate of the Minister made under only s 501 (item 7(1)(b)). He pointed out that in the 2008 amendment there was no reference to decisions made by the tribunal. He argued that if the Minister wished now to cancel a visa that previously had not been cancelled validly, he could do so under the new s 501HA. But, the Minister wished to have the legislation construed so as to make valid a decision of the tribunal which, at the time it was given, was not a decision at all because of its jurisdictional error in affirming a decision that could not have been made under s 501 (Plaintiff S157 211 CLR at 506 [76]). Mr Toro Martinez argued that for this result to ensue clear words of necessary intendment were required, and the Parliament had not used them. He argued that all item 7(1) did was to restore validity to the delegate's decision. But, he contended, this did not affect the legal status of the tribunal's invalid decision. He argued that regardless of whether the decision of the delegate was valid or invalid, in reviewing that decision the tribunal was exercising an independent function under s 43 of the Administrative Appeals Tribunal Act.
20 A long line of authority in this Court has held that the tribunal has jurisdiction to review a purported decision, even where it is clear that the decision of the original decision-maker was affected by a jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338 at 342-344 per Bowen CJ, 370 per Smithers J; Zubair v Minister for Immigration (2004) 139 FCR 344 at 352-354 [28]-[32] per Finn, Mansfield and Gyles JJ. The tribunal has power to cure a defect in the delegate's decision once the tribunal's jurisdiction has been invoked by an application for review: Zubair 139 FCR at 354. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J.
21 In reviewing an administrative decision the tribunal has to give the decision it considers to be the correct or preferable decision. That function must be performed independently of any instruction, advice or wish of the executive government, including in cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to affirming or recommending the reconsideration of the decisions of a Minister: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 17-18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ, approving Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 at 163 per Brennan J as President of the Tribunal. The decision of the tribunal in the particular circumstances of each case must be arrived at according to its opinion as to the merits of that case.
22 However, as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 346 [68] the source of the tribunal's power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act. They said:
"It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision … Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 587 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa."
23 Here, the decision of the tribunal was affected by jurisdictional error at the time it was made on 19 June 2008. In my opinion the decision of the tribunal was no decision at all. The Tribunal had not made a decision in accordance with s 43 of the Administrative Appeals Tribunal Act, because the only correct and preferable decision to which it could have arrived on 19 June 2008 was to set aside the decision to cancel the visa as not having been a decision made in accordance with s 501. The visa had never been grated to Mr Toro Martinez and was therefore outside the reach of s 501(2): Sales 171 FCR 56.
24 The 2008 amendment did not deal in item 7 with a purported decision of the tribunal. The language of item 7 addressed two of the three possible categories of decision to which Sales 171 FCR 56 applied, namely a decision by, first, the minister under identified sections of the Act and, secondly, the delegate under s 501 alone. That raises the question whether the words "… is as valid, as it would have been if the transitional (permenant) visa … were a visa that had been granted" operate to change the nature of the tribunal's decision because they transformed the earlier invalid decision of the delegate into a valid decision.
25 Although there is no evidence as to the number of potentially affected decisions, it is safe to infer that a considerable number of visas in the affected category had been cancelled over the previous years. Challenges to the cancellation of those visas, like Mr Toro Martinez's, would have been made to, first, the tribunal and then to this Court and the High Court. The consequence of giving item 7 a narrow construction is that persons who left Australia either voluntarily or involuntarily, based on failed challenges to the purported cancellation of their visas could now assert rights of re-entry and residence on the ground that the tribunal's decisions to affirm the cancellations were affected by the above jurisdictional error. It is unlikely that the Parliament intended that consequence. That may be why it chose the opening words of the chapeau to item 7(1):
"To avoid doubt, any decision made or purported to have been made."
26 The doubt referred to was, clearly enough, whether those two classes of decision were valid. The language of the Parliament does not suggest that it sought to create a distinction between those who had accepted a decision by the Minister or a delegate to cancel their visas without challenge and those who had applied unsuccessfully to the tribunal or the Courts to set aside the decision to cancel. Such a distinction would create, not avoid, doubt. The anomalous result would ensure that a person who had taken proceedings to reverse the cancellation but failed would be in a better position than someone who had accepted the decision in the first place. It would certainly give a new and unattractive twist to the aphorism that "it is better to have tried and failed than never to have tried at all".
27 The Parliament evidenced an intention that any decision within items 7(1)(a) or (b) would provide lawful authority for acts done on the faith of it, including keeping a person in immigration detention or removing him or her from Australia. It did this by using the legislative device of taking the original decision of the Minister or delegate (as referred to in item 7(1)(a) or (b)) as always to have been as valid as it would have been had the relevant visa in fact been granted, as item 7(1) provides.
28 McHugh J observed in Re Macks; Ex parte Saint (2000) 204 CLR 158 at 203 [115] that the use of the phrase "as if" always introduces a fiction or a hypothetical contrast, deeming something to be what it is not. The use of phrases such as "is taken to be" and "as if" in legislative provisions like item 7 is "…a convenient device for reducing the verbiage of an enactment": R v Hughes (2000) 202 CLR 535 at 551 [24]. But, as Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ added (Hughes 202 CLR at 551 [24]):
"Perhaps, paradoxically, it is to be expected that this very lack of verbiage will give rise to various textual awkwardness."
29 Deeming provisions that do create fictions must be carefully construed. The purpose for which the legislature introduced the fiction must be identified by the Court: Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J; see too Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641 at 655 per Gibbs J. The curative effect of legislative provisions using the statutory fictions created by phrases such as those used in item 7 will usually operate only on the source of invalidity identified in the enactment: cf: Yougarla v Western Australia (2001) 207 CLR 344 at 368 [60] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
30 If the tribunal had arrived at the conclusion, subsequently established by the decision in Sales 171 FCR 56, that it had no power to cancel the visa under s 501, it would have set aside the decision of the delegate (see: s 43 (1)(c) of the Administrative Appeals Tribunal Act). Had the tribunal done that, item 7 would not have had any effect on the tribunal's decision because the delegate's decision would no longer be operative. As Hayne and Heydon JJ identifiedin Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 314-315 [96]-[98], the tribunal's task here was to decide on the material before it whether to exercise the Minister's power under s 501(2) (if it existed).
31 In the contrasting position, that has actually occurred, the tribunal decided that the correct and preferable decision was the one arrived at by the delegate. It would be an odd result if item 7 operated to validate the latter decision but had no effect on the former. The natural and ordinary meaning of item 7 is that it validates certain decisions of the Minister and his delegates. If it cannot, and in its terms does not, undo other decisions, such as those of the tribunal, I am of opinion that item 7 should not be read to validate other decisions to which it is not expressly directed. However as Brennan J said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176 in a passage approved by Hayne and Heydon JJ in Shi 235 CLR 315 [100].
"A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and this is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."
32 That being so, although the Minister's delegate's decision has been validated by item 7, the tribunal is yet to perform its function of review of that decision in accordance with law. By applying to the tribunal before the 2008 amendment came into force, a person who then invoked a challenge to the Minister's or delegate's decision under s 501(2) elected to treat that decision as valid, though erroneous, and to have the tribunal exercise the power, in preference to challenging the decision in judicial review proceedings: Twist 136 CLR at 116 per Mason J. And the tribunal could have "cured" the defect in the delegate's decision by setting it aside: cf Zubair 139 FCR at 354. But the decision of the tribunal in respect of Mr Toro Martinez was given in respect of a different legal and factual scenario from that considered by the delegate and, because of Sales 171 FCR 56, was no decision at all, being infected by jurisdictional error.
33 The Minister argued that item 7 requires the Court to treat the delegate's decision as having always been valid so that, he contended, it is not possible now to hold that the tribunal committed a jurisdictional error. I do not consider that this is a correct process of construction of item 7. The 2008 amendment did not affect the tribunal's decision or give itany validity.
34 Even though the delegate's original decision to cancel Mr Toro Martinez's visa was left intact, the tribunal decided that this was the correct and preferable decision on the material before it. That is, the function which the tribunal performed was a review on the merits of the delegate's decision using all of the material available up to the time that the tribunal made its decision: Shi 235 CLR at 298-299 [34]-[38] per Kirby J, 314-316 [96]-[101] per Hayne and Heydon JJ, 324-325 [134], 326 [137], 327-328 [140]-[144] per Kiefel J, with whom Crennan J agreed on this issue at 319 [117]. As Kiefel J observed, s 43(1) of the Administrative Appeals Tribunal Act gives the tribunal powers in s 43(1)(a) to (c) for the purpose of reviewing a decision. She said that the purpose of the powers was "… to permit the Tribunal to consider for itself what the decision should be": Shi 235 CLR at 326 [137]. It is in that task that the tribunal committed a jurisdictional error and thus failed to complete its review in accordance with law.
35 The Minister also sought to draw an analogy with stamp duty legislation that prohibited the admission into evidence of an unstamped instrument but gave the instrument, once duly stamped, its full force and effect, relying on Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 383 per Dixon J. I reject this argument. First, stamp duty legislation, ordinarily, does not affect liberty of individuals or fundamental human rights. Secondly, that legislation suspends, conditionally, the operation of an existing instrument only when it is sought to be put into evidence. I do not consider that generalised references to stamp duty legislation assist in construing item 7.
36 The Parliament enacted the 2008 amendments knowing that both the tribunal and the Courts would have made decisions affecting visas purportedly cancelled by one of the two classes of decision for which item 7 provided. Yet, the 2008 amendments did not address curing any error made by the tribunal in arriving at its decision. Nor did the 2008 amendments validate any decision of the tribunal. The liberty of an individual is at stake. The Parliament did not express, in unambiguous and clear language, its intention to remove the accrued right of persons in the position of Mr Toro Martinez to treat the decision of the tribunal as no decision at all. I am of opinion that the tribunal's decision should be quashed and a writ of mandamus issued to command it to perform its function of review according to law.