Case: Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 ; (2008) 171 FCR 56
Outcome: cited
as a result of the subsequent decision of the Full Court of this Court in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 ; (2008) 171 FCR 56 , it is common ground that Mr Toro Martinez's visa was in a class of visa that was not then capable of cancellation under s 501(2). This was because the visa did not meet the description in s 501(2) of a visa "... that has been granted to a person". The Full Court held that the legislative scheme providing for the conversion of Mr Toro Martinez's permanent entry permit into a transitional (permanent) visa did not involve any grant of that visa to him. If a person was the holder of a permanent entry permit immediately before 1 September 1994 then reg (4)(1) of the Migration Reform (Transitional Provisions) Regulations 1994 provided that "... that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia". The source of Mr Toro Martinez's visa was his permanent entry permit which was continued in effect as a visa by force of reg 4. Accordingly, it is common ground that the decision of the delegate of the Minister made on 10 March 2008 to cancel Mr Toro Martinez's visa under s 501(2) was invalid since the Minister had no power to cancel a visa that had not, in fact, been granted. The consequence of the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 was that the only correct and preferable decision which the tribunal could have made at the time it acted was to set aside the decision under review, because there was no power to make it in the first place. Mr Toro Martinez applied promptly to this Court to review the decision of the tribunal. Before any hearing of the application to the Court, the Minister accepted that the decision in Sales [2008] FCAFC 132 ; 171 FCR 56 applied equally to Mr Toro Martinez, because the original decision to cancel his visa had no force or effect. The Department of Immigration and Citizenship wrote to Mr Toro Martinez and informed him of this outcome. The letter warned him that the legislative position may change. He was released from immigration detention. Consequently, on 26 August 2008 Mr Toro Martinez filed a notice of discontinuance of his application in the Court. Next, the Parliament enacted the Migration Legislation Amendment Act (No 1) 2008 which inserted s 501HA into the Act. The purpose of that provision was to reverse Sales [2008] FCAFC 132 ; 171 FCR 56 as it applied to decisions taken after the day on which the amendment commenced, being 19 September 2008 (see Schedule 4, items 5 and 6(iii)). In item 7 of Schedule 4 of the 2008 amendment the Parliament provided that any decision to cancel a transitional permanent visa made or purporting to have been made by the Minister or a delegate before 19 September 2008 was deemed to be valid. Mr Toro Martinez was then returned to immigration detention and filed a fresh application challenging the tribunal's decision. On 5 December 2008 Emmett J dismissed that application as incompetent ( Martinez v Minister for Immigration and Citizenship (No 2) [2008] FCA 1995) but his Honour granted leave to Mr Toro Martinez to withdraw his notice of discontinuance in these proceedings since the Minister did not oppose this course. His Honour also made directions in these proceedings: Martinez v Minister for Immigration and Citizenship [2008] FCA 1994. What the 2008 amendment meant in the context of a person in Mr Toro Martinez's position is the principal ground of the present amended application. It is necessary to set out the relevant items of the Schedule in the 2008 amendment in order to understand the argument: " 5 After section 501H Insert: 501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas If, under the Migration Reform (Transitional Provisions) Regulations, a person: (a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or (b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or (c) is taken to hold a transitional (permanent) visa; the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa. 6 Application (1) The amendment made by item 2 of this Schedule applies in respect of a person who has been granted: (a) a bridging visa (within the meaning of the Migration Act 1958 ); or (b) a criminal justice visa (within the meaning of that Act); on or after the day on which that item commences. (2) The amendment made by item 4 of this Schedule applies in relation to an authorised recipient, whether the notice under subsection 494D(1) of the Migration Act 1958 in relation to the authorised recipient is given before, on or after the day on which that item commences. (3) The amendment made by item 5 of this Schedule applies in respect of a decision to cancel a visa that is made under the Migration Act 1958 on or after the day on which that item commences. Validation of pre-commencement decisions in relation to transitional (permanent) visas and transitional (temporary) visas (1) To avoid doubt, any decision made or purported to have been made: (a) by the Minister under section 501, 501A, 501B, 501C or 501F of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; or (b) by a delegate of the Minister under section 501 of the Migration Act 1958 (as in force at any time on or after 1 September 1994 and before the day on which this item commences) before the day on which item 5 of this Schedule commences; to cancel a transitional (permanent) visa or a transitional (temporary) visa is as valid, and is taken always to have been as valid, as it would have been if the transitional (permanent) visa or transitional (temporary) visa were a visa that had been granted. (2) In subitem (1): transitional (permanent) visa means a transitional (permanent) visa referred to in the Migration Reform (Transitional Provisions) Regulations. transitional (temporary) visa means a transitional (temporary) visa referred to in the Migration Reform (Transitional Provisions) Regulations." GROUNDS OF REVIEW Mr Toro Martinez argued that the decision of the tribunal involved a jurisdictional error and therefore was to be regarded as no decision at all ( Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ) on the following bases: (1) The only correct or preferable decision at which it could have arrived was that the decision should be set aside because the visa had not been granted or taken to be granted for the purposes of s 501 having regard to the law later laid down in Sales [2008] FCAFC 132 ; 171 FCR 56. (2) The tribunal ignored relevant considerations by failing to have regard to: (a) the impact on Mr Toro Martinez's daughter as revealed in her interview with the Department in June 2001, and her letter to the Department in July 2007 because it referred only to a letter she had written on 15 April 2008 in concluding that she would suffer some emotional hardship from his removal; and (b) the conclusion of the Department's International Obligations and Humanitarian Concerns Assessment that, because of the poor overall security situation in Columbia, it would be unreasonable to expect Mr Toro Martinez's fianc&eacute;e or his daughter to leave the relative safety of Australian society and accompany him to Columbia. (3) The tribunal reached a conclusion not open on the evidence before it, namely that Mr Toro Martinez would face no serious danger of personal harm by returning to Columbia because, first, the International Obligations and Humanitarian Concerns Assessment had identified that other States were choosing not to return persons involuntarily to Columbia and, secondly, there were multiple human rights violations there. (4) Direction No 21 made by the Minister under s 499 of the Act was invalid because it went beyond the giving of directions or interfered with the unfettered discretion of a decision-maker under s 501(2). (5) The tribunal applied Direction No 21 by obeying its requirements to give prominence or weight to matters as primary considerations and thus failed to have regard to all of the relevant circumstances, according them appropriate weight as it saw fit. (6) The tribunal failed to accord procedural fairness because it did not give Mr Toro Martinez any opportunity, let alone a reasonable opportunity, to inspect documents to which it proposed to have regard in reaching its decision in contravention of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) or alternatively its common law obligation to accord him procedural fairness. Ground 1 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 [2008] FCAFC 132 ; 171 FCR 56 had revealed could not fall within the then statutory powers of cancellation. 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 [2008] FCAFC 132 ; 171 FCR 56. The item is intended to restore the legal force of those decisions. 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. 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 [2008] FCAFC 132 ; 171 FCR 56. 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 [2008] FCAFC 132 ; 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. 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." 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". If the tribunal had arrived at the conclusion, subsequently established by the decision in Sales [2008] FCAFC 132 ; 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 identified in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (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). 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 [2008] FCAFC 132 ; 171 FCR 56 , was no decision at all, being infected by jurisdictional error.