Federal Court (Full Court): If a case officer has received no delegation of authority to cancel a visa under s 109 of the Migration Act 1958 but does so anyway, does the Tribunal have jurisdiction to review that cancellation? If so, is the Tribunal's power limited to setting aside the original decision?
Summary and discussion
The Respondents' visas were cancelled under s 109 of the Migration Act 1958 by a case officer who had not been delegated authority under s 496 to do so. Before the Respondents became aware of the lack of delegation, they applied to the AAT for merits review of the case officer's decisions. After the review applications were lodged, the Department notified the Tribunal of the lack of delegation.
As a result, the Respondents applied to the Federal Circuit Court (FCC) for declarations that 'the cancellation decisions were invalid and that the Tribunal did not have any jurisdiction to review those decisions'. The Tribunal held its decision in abeyance, pending the outcome of the FCC application.
The FCC held that the AAT did have jurisdiction to review the cancellation decision, but that the only power it could exercise was to set aside those decisions. The Minister appealed the FCC's decision to the Federal Court and the Full Court (FCAFC) heard the matter.
The Minister's grounds of appeal were as follows:
1. Ground One: The FCC erred in finding that the only power of the Tribunal on the review was to set aside the decision... The FCC ought instead to have found that the Tribunal had all the powers of the Minister under s 109 of the Migration Act 1958 (Cth) (the Act).
2. Ground Two: The FCC erred in finding that the phrase “the person who made the decision” in s 415(1) of the Act refers to the actual individual who made the decision: at [21]; [25], rather than, as it ought to have found, to the Minister.
3. Ground Three: The FCC erred in making declarations in each case that the decisions made on 23 May 2017 to cancel the second and third respondents’ visas were invalid, as those decisions were primary decisions pursuant to s 476(4)(a) of the Act and thus, by s 476(2) of the Act, the FCC did not have jurisdiction to make those declarations.
This case deals with s 415, which gives the AAT power to review decisions concerning protection visas, which begs the question: Does this FCAFC decision apply to the review of non-protection visa decisions?
It seems it does as s 349, which gives the AAT power to review decisions concerning non-protection visas, mirrors s 415. In other words, this FCAFC decision is likely to apply to Part 5-reviewable decisions.
Subsection 415(1) provided (and continues to provide) as follows (emphasis added):
(1) The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
In essence, the questions to the FCAFC were as follows:
- If a case officer has received no delegation of authority under s 496 to cancel a visa under s 109 but cancels a visa under that provision anyway, does the Tribunal have jurisdiction to review that cancellation?
- If the Tribunal does have jurisdiction, are the powers of the Tribunal limited to setting aside the cancellation decision?
The FCAFC answered those questions as follows...