Federal Court. In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415" of the Migration Act 1958 (Cth), with the result that the Minister had the power under s 417 to substitute for the decision of the Tribunal?
The Applicant made an out-of-time application to the AAT for review of a decision to refuse to grant him a protection visa.
The AAT found that it did not have jurisdiction to conduct the review.
The Applicant then sought that the Minister personally substitute for a decision of the Tribunal a more favourable decision under s 417 of the Migration Act 1958 (Cth).
The second respondent (a delegate of the Minister) wrote to the Applicant as follows:
The Minister has no power to intervene in this matter
The Minister’s power under section 417 is only available if the Tribunal has made a decision under section 415 of the Act.
The Tribunal has not made a decision concerning your case as the application for review was lodged outside the period allowed for lawful lodgement, and was not accepted by the Tribunal. There is no capacity to waive the statutory time limits.
The Applicant then filed a judicial review application seeking, inter alia:
4. An order quashing the purported decision of the second respondent and/or declaring that it exceeded the executive power of the Commonwealth;
5. A declaration that the First Respondent has power under s 417(1) of the Migration Act 1958 to substitute a more favourable decision for that of the Administrative Appeals Tribunal made on 2 March 2021 finding that it lacked jurisdiction;
Section 415 provided:
415 Tribunal powers on review of Part 7-reviewable decisions
(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.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Section 417 provided:
417 Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3) The power under subsection (1) may only be exercised by the Minister personally.
...
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: While the Tribunal did not move beyond the step of determining whether it had jurisdiction or not, is it "still the case that the application itself was “an application for review of a Part 7-reviewable decision” within the meaning of s 412"?
Question 2: Is SAAK [2004] FCA 104 at [24] obiter dictum, to the extent that it said that "the respondent may exercise the power [under s 417] even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act"?
Question 3: Is obiter dictum defined as a principle that was not "the principle upon which the case was decided"?
Question 4: Was the word “may” in s 415(2) permissive, with the result that "s 415(2) is not an exhaustive list of the powers of the Tribunal on an application for review of a Part 7-reviewable decision, but it is a list of the matters which the Tribunal can do in the light of the matters included in s 415(1)"?
Question 5: Did the discretion in s 415(2) include a duty to consider whether or not it should do any one of the things set out in it?
Question 6: In rejecting the application for review as being out of time, was the Tribunal exercising its implied power to determine its own jurisdiction, rather than exercising a power or discretion conferred by the Migration Act 1958 (Cth)?
Question 7: Can it be said that "everything which is incidental to the main purpose of a power is contained within the power itself"?
Question 8: In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415", with the result that the Minister had the power under s 417 to substitute substitute for the decision of the Tribunal?
The FCA answered those questions as follows: