Case: Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286
Outcome: applied
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). 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." 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.