Case: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
Outcome: applied
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 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 .