Minister’s Cancellation Power Not Properly Delegated
The cancellation of visas seems increasingly to be becoming a “cottage industry” for the Department of Home Affairs.
When one reads through the decisions of the AAT and the federal courts, it is striking how many of those cases involve cancellations either on character grounds, or on the basis that the applicant has provided incorrect information in her/his visa application.
So for Registered Migration Agents and migration lawyers who are acting for visa applicants and visa holders, there is a clear dilemma: what are the most effective ways to contest or challenge such cancellations?
One possible strategy is suggested by a case that was recently decided by Judge Smith of the Federal Circuit Court, Minister for Home Affairs v Administrative Appeals Tribunal & Ors (2018) FCCA 3229 (16 November 2018).
This case arose from the “purported” cancellation of protection visas that had been granted to two citizens of Pakistan.
The applicants sought these protection visas on the grounds that they would be subject to persecution in Pakistan by reason of their interreligious marriage. Although their applications had been refused in the first instance by the Department, the Tribunal ultimately determined that the applicants did satisfy the criteria for the grant of protection visas. Following remittal of their cases to the Department, the visas were granted.
However, some years after the visas were first granted, an officer of the Department made a “purported” decision to cancel the visas on the asserted basis that the applicants had provided incorrect information in support of their applications.
What occurred was that after the applicants sought review in the Tribunal, they were notified by the Tribunal that the Departmental officer who had made the “purported” decision to cancel the visas had not actually been delegated authority by the Minister to exercise such authority.
The questions for the Federal Circuit Court arising out of these circumstances were then two-fold:
1) Did the Tribunal have authority to conduct a review of a cancellation decision made without proper delegation; and
2) If the Tribunal did have review authority, what were its powers on review? Primarily, could it affirm a decision made by an officer of the Department acting without proper delegation to cancel a visa?
Judge Smith answered these two questions as follows:
1) Under the authority of the landmark decision of the Fill Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) FCA 21, as interpreted by the High Court in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) HCA 16, the Tribunal does in fact have authority to review a decision of the Department that is made “without power”, for example by an officer of the Department who does no t have proper delegation to make that decision. The reason is that a decision made without power, and that is therefore legally ineffective, is nonetheless a “decision in fact” that has the potential to impact negatively upon the rights of the person(s) affected by the decision, and “exclusion from review of decisions made without power would remove from review decisions most in need of review” and would be contrary to principles of good government and the sound oversight of the actions of administrative agencies.
2) Even though the Tribunal does have authority to review a cancellation decision made by a delegate who does not have authority to make the decision, the Tribunal can do no more than to set aside the decision. The Tribunal does not have power to affirm a cancellation decision made by a person who has not received proper delegation.
The reason is that under section 415(1) of the Migration Act, the Tribunal on review can only exercise the power enjoyed by the person who originally made the decision.
So, in instances where a cancellation decision has been made by a Department employee who has not received a proper delegation of authority from the Minister to make the decision, the Tribunal can only set the decision aside.
It has no power to affirm the cancellation decision.
The key takeaway from this case is that whenever a cancellation decision is made, it is essential to do whatever discovery is necessary to determine whether the Department officer in fact had been given an effective delegation to exercise the cancellation power.
If the information that is obtained through this discovery process reveals that the cancellation power was not effectively delegated, then the underlying cancellation decision is clearly vulnerable to challenge and to being set aside through an application for merits review to the AAT.