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MIGRATION – deportation order set aside by Administrative Appeals Tribunal after deportation of holder of Permanent Residence Visa – consideration of operation of s 82(4) Migration Act 1958 which provides visa ceased to be in effect upon deportation – effect of subsequent setting aside of deportation order – whether rights under visa revived – consideration of term ‘ceases to have effect’ in s 82(4)

ADMINISTRATIVE LAW – consideration of s 43(6) of Administration Appeals Tribunal Act 1975 – deportation order under Migration Act 1958 set aside by Administrative Appeals Tribunal after holder of Permanent Residence Visa deported – whether s 43(6) operates to have retrospective effect where initial decision was valid when made and rights or interests may be affected – whether rights of visa holder revived upon setting aside of deportation order

Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285 (11 December 2003)
Last Updated: 12 January 2004

FEDERAL COURT OF AUSTRALIA


Lesi v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 285































BERNARD LESI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS


S 672 OF 2003
S 424 OF 2003




MANSFIELD, SELWAY & BENNETT JJ
11 DECEMBER 2003 (CORRIGENDUM 19 DECEMBER 2003)
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 672 OF 2003


BETWEEN: BERNARD LESI
APPLICANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGE: MANSFIELD, SELWAY & BENNETT JJ
DATE: 11 DECEMBER 2003
PLACE: ADELAIDE


CORRIGENDUM


1. On the Minutes of Order page, in Matter S 672 of 2003, Order 1, delete ‘10 September 2003’ and insert ‘4 September 2003’.




I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Mansfield J, Selway & Bennett.




Associate:



Dated: 19 December 2003



FEDERAL COURT OF AUSTRALIA


Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285


MIGRATION – deportation order set aside by Administrative Appeals Tribunal after deportation of holder of Permanent Residence Visa – consideration of operation of s 82(4) Migration Act 1958 which provides visa ceased to be in effect upon deportation – effect of subsequent setting aside of deportation order – whether rights under visa revived – consideration of term ‘ceases to have effect’ in s 82(4)

ADMINISTRATIVE LAW – consideration of s 43(6) of Administration Appeals Tribunal Act 1975 – deportation order under Migration Act 1958 set aside by Administrative Appeals Tribunal after holder of Permanent Residence Visa deported – whether s 43(6) operates to have retrospective effect where initial decision was valid when made and rights or interests may be affected – whether rights of visa holder revived upon setting aside of deportation order

Migration Act 1958 (Cth) ss 82, 138(1), 200, 201, 253, 501E, 501F, 502
Administrative Decisions (Judicial Review) Act 1977
Administrative Appeals Tribunal Act 1975 (Cth) ss 41, 43
Customs Act 1901 (Cth)
Social Security Act 1947 (Cth)

Lesi v Minister for Immigration & Multicultural Affairs [2000] FCA 1882 referred to
Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1426; (2000) 105 FCR 453 applied
Re Macks; Ex parte Saint (2000) 204 CLR 158 cited
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117 referred to
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 referred to
Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 referred to
Re Adamson v The Tax Agents’ Board (1976) 12 ALR 239 cited
Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 referred to
Re Easton and Repatriation Commission (1987) 6 AAR 558 referred to
Ex parte Walton, In Re Levy (1881) 17 Ch D 746 referred to
Consolidated School District of St Leon Village No 1425 v Roncera (1960) 23 DLR (2d) 32 referred to
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 considered
Collector of Customs v Gaylor Pty Ltd (1994) 35 NSWLR 649 considered
Collector of Customs v Gaylor Pty Ltd (unreported, 13 October 1995, Matter S21/1995) cited
The Commonwealth of Australia v SCI Operations Pty Limited (1998) 192 CLR 285 referred to
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 referred to
Ozcagli v Secretary to Department of Social Security (1986) 68 ALR 651 considered
Kioa v West (1985) 159 CLR 550 cited
Re Association of Architects (Aust.) (1989) 63 ALJR 298 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited




































BERNARD LESI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 672 OF 2003
S 424 OF 2002


MANSFIELD, SELWAY & BENNETT JJ
11 DECEMBER 2003
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 672 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: BERNARD LESI
APPLICANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
BETWEEN: BERNARD LESI
APPELLANT S 424 OF 2002
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: MANSFIELD, SELWAY & BENNETT JJ
DATE OF ORDER: 11 DECEMBER 2003
WHERE MADE: ADELAIDE


IN MATTER S 672 OF 2003 THE COURT ORDERS THAT:

1. Application for extension of time in which to file and serve notice of appeal from the judgment of the Court given on 10 September 2003 is granted.
2. The document entitled ‘Notice of Appeal’ annexed to the affidavit of Jane Louise McGrath sworn on 9 September 2003 do stand as the Notice of Appeal.
3. The appeal be allowed only to the extent that it be declared that the document entitled ‘Certificate’ which was signed by the respondent on 8 February 2000 is not a certificate to which s 502 of the Migration Act 1958 (Cth) applies.

IN MATTER S 424 OF 2002 THE COURT ORDERS THAT:

1. The appeal be allowed and judgment at first instance given on 19 March 2003 be set aside.
2. It be declared that the grant by the respondent to the appellant of a Permanent Resident Visa Subclass 831 on 24 October 1996 remains ‘in force’.
3. The respondent pay the appellant costs of the application at first instance and of the appeal.


Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 672 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: BERNARD LESI
APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


BETWEEN: BERNARD LESI
APPELLANT S 424 OF 2002
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: MANSFIELD, SELWAY & BENNETT JJ
DATE: 11 DECEMBER 2003
PLACE: ADELAIDE


REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a decision of a judge of the Court given on 19 March 2003. The appellant unsuccessfully sought a declaration that the grant by the respondent to the applicant on 24 October 1996 of permission to remain indefinitely in Australia remains in force. For the reasons which appear below we consider that the appeal should be allowed.

2 It is necessary to refer in a little detail to the uncontentious facts to explain how the application arose.

3 The appellant is of Albanian nationality, having been born there on 2 September 1968. In 1994 he formed a relationship with an Australian permanent resident. He arrived in Australia on a Class TO/300 Prospective Marriage Visa on 1 September 1996. On 24 October 1996 he was granted a Permanent Residence Visa Subclass 831.

4 In February 1997, his relationship with his prospective spouse broke down, but he then met his current partner. The appellant and his current partner, an Australian citizen, had a child in May 1998. They were planning a life together.

5 Unfortunately, also during 1998 the appellant was apprehended by police and found to be in the possession of heroin. On 19 October 1998 he pleaded guilty to two counts of possessing heroin for sale. He was sentenced to four years imprisonment commencing on 19 October 1998, with a non-parole period of two years. It appears that he was a model prisoner in all respects during the period of his imprisonment.

6 On 8 February 2000 the respondent decided that the appellant, having regard to his criminal convictions, was liable to deportation under s 201 of the Migration Act 1958 (Cth) (the Act). On the same date, he ordered that the appellant should be deported from Australia under s 200 of the Act. Sections 200 and 201 of the Act provide:

‘200 Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
(i) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.’
7 In the normal course decisions of the respondent under s 200 of the Act are reviewable by application to the Administrative Appeals Tribunal (the Tribunal): s 500(1)(a). This is a full merit review of the relevant decision. However, s 500(1) also provides that review is not available in respect of decisions ‘to which a certificate under section 502 applies’. In fact, on the occasion the respondent signed the deportation order under s 200 of the Act he also signed a document apparently a certificate under s 502(1) of the Act declaring the appellant to be an ‘excluded person’. The consequence was that the appellant then understood that he could not seek review by the Tribunal of the respondent’s decision under s 200.

8 The appellant therefore sought review of the respondent’s decision under s 502 by invoking in this court the provisions of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). This is a more limited review than that available under the AAT Act. It does not include merit review. It was contended that the respondent had erred in law in his understanding and application of s 502 of the Act. There was no claim in that proceeding that the certificate purportedly issued under s 502 of the Act was not in its terms such a certificate. That proceeding of course was not a merits review of the deportation order made under s 200 of the Act. On 4 September 2000 a judge of the Court rejected the contention. His Honour decided there were no grounds upon which the decision to deport the appellant should be set aside: Lesi v Minister for Immigration & Multicultural Affairs [2000] FCA 1882 (Lesi (No 1)). In the meantime the appellant and his current partner had a second child.

9 Subsequent to that decision, the appellant was removed from Australia on 19 October 2000, accompanied by his partner and their two children. They returned to Albania where they took up residence.

10 On 13 October 2000, the Full Court of this Court in Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1426; (2000) 105 FCR 453 (Singh) decided that a purported certificate under s 502 in the same form as that upon which the respondent’s decision under s 502 was made on 8 February 2002 in this matter did not constitute ‘a certificate declaring the person to be an excluded person’ within the meaning of s 502(1) of the Act. Section 502 relevantly provides:

‘(1) If:
(a) the Minister, acting personally, intends to make a decision:

(i) under section 200 because of circumstances specified in s 201; or

(ii) ...

in relation to a person; and
(b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;
the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.
(2) A decision under subsection (1) must be taken by the Minister personally.
(3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.’
11 The certificate concerning the appellant under s 502 was in the following form:

‘CERTIFICATE

I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport BERNARD LESI under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that BERNARD LESI be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958.

Dated this 8th day of February 2000.

[signed]
Philip Ruddock
Minister for Immigration and Multicultural Affairs.’

12 As to that form of certificate, the Full Court (Wilcox, Spender and Emmett JJ) in Singh at [28] p 467 said that it:

‘... consists only of a recital of the decision of the Minister to make the certificate. But there is no certificate the document is incomplete. It fails to contain "a certificate declaring the person to be an excluded person", as required by s 502(1)(b) of the Migration Act.’

Hence, in Singh, the applicant was entitled to apply to the Tribunal under s 500 for review of the deportation decision. It is noteworthy that the Full Court there held that the invalidity or non-existence of a s 502 certificate did not have the effect that the order under s 200 was thereby invalidated.

13 In the light of Singh, on 20 February 2001 officers of the respondent forwarded a letter to the appellant in Albania referring to the decision in Singh, and advising the appellant that as a result of that decision, the decision of the respondent under s 200 to deport him may now be reviewable in the Tribunal. He was advised that the person who makes the application must be an Australian citizen or a lawful non-citizen and must also be someone whose interests are affected by the decision.

14 The appellant’s current partner is an Australian citizen. She returned to Australia with the two children for the purposes of pursuing a review of the deportation decision before the Tribunal. An application to the Tribunal was instituted on 5 July 2001 under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). An extension of time to institute the application for review was granted. On 3 April 2002 the Tribunal decided to set aside the decision of the respondent dated 8 February 2000. It substituted a decision that the appellant not be deported from Australia for reasons that were predominantly based upon the effect of the appellant’s deportation to Albania upon the appellant’s partner and daughter. No appeal has been brought by the respondent against the orders of the Tribunal. Of course, in fact, the appellant by then had been deported from Australia on 19 October 2000.

15 The appellant then sought permission to return to Australia under his permanent residence visa. The respondent declined his request. Hence the current proceedings. Initially the application sought to set aside the decision of a delegate of the respondent of 8 October 2002 to refuse to reinstate or re-issue the appellant’s residence visa. On 8 October 2002, the delegate had, in response to correspondence from solicitors for the appellant, expressed the view that the deportation of the appellant from Australia was valid, as the deportation order itself was not affected by the decision in Singh. Singh decided only that a certificate in the terms used in the appellant’s case was not in fact a certificate under s 502, so the right to seek review of the deportation order by the Tribunal was available to the appellant, but the deportation order was in force at the time of his deportation and was not set aside until the Tribunal’s decision on 3 April 2002. The respondent took the view that the appellant’s visa had ceased to have effect when he was deported by reason of s 82(4) of the Act, and that he was not eligible to have the permanent residence visa ‘reinstated’ so he could return to Australia (notwithstanding the Tribunal’s decision) because he could not meet special return criterion 5001.

16 Section 82(4) of the Act provides:

‘A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200’.

Special return criterion 5001 relevantly precludes the grant of a visa to ‘a person who left Australia while the subject of a deportation order’ under s 200 of the Act.

17 It was in the face of that unusual combination of facts that the application to the Court was amended to seek the declaratory order referred to in [1] of these reasons. The contention on behalf of the appellant both at first instance and on this appeal is that the term ‘deportation order’ in s 82 and criterion 5000(1) must be taken to mean a valid deportation order which has not been set aside or is otherwise invalid. As the Tribunal has now set aside the deportation order, it is argued that neither s 82 nor special criterion 5000(1) operates in the way the respondent claims.

THE PROCEDURAL OBSTACLE: THE FURTHER APPLICATION

18 It is implicit in those contentions that the ‘certificate’ issued under s 502 by the respondent in respect of the appellant was in fact of no effect. That is the basis upon which the proceedings before the Tribunal took place. The respondent did not contend that they were incompetent. However, the earlier challenge to the deportation processes, including an attack upon the respondent’s understanding of s 502 of the Act, was unsuccessful. As was raised with counsel for the appellant in the course of hearing the appeal, the consequence may therefore have been that there is a judicial determination rejecting an attack upon the respondent’s decision under s 502, and (notwithstanding Singh) that it therefore operates in its terms: see Re Macks; Ex parte Saint (2000) 204 CLR 158. The consequence would be that the Tribunal did not have power to review the deportation decision or to set it aside. The premise upon which the present proceedings were instituted would fall.

19 To meet that concern, the appellant has now applied under O 52 r 15 of the Federal Court Rules for an extension of time in which to appeal from the decision in Lesi (No 1), and if granted he intends to appeal from that decision. The proposed ground of appeal is that the ‘certificate’ under s 502 of the Act issued on 8 February 2000 was not in fact a certificate in compliance with s 502, and was of no effect. That is the point which was decided in Singh. The application for an extension of time in which to appeal, and, if granted, the appeal, has been referred to the Court as presently constituted for determination.

20 The reasons for the belated nature of the application are apparent. Indeed, it was the conscientious acknowledgment by the respondent through his officers of the apparent consequences of the decision in Singh to the eligibility of the appellant to seek review of the deportation order by the AAT which led to the present appeal. The respondent accepts, in the light of the Full Court decision in Singh, that there was not a valid certificate issued in respect of the appellant under s 502 on 8 February 2000. The respondent has, however, submitted that the extension of time sought should be refused because the appellant has known of the decision in Singh since February 2001. Moreover, it is submitted, the proposed appeal should not be permitted to provide a vehicle to impeach the deportation order. It should be pointed out that the AAT has reviewed the deportation decision, and has set it aside. No objection was taken to its review, despite the matters referred to in [18] above. In our view, in the circumstances, it is appropriate to grant an extension of time to the appellant to appeal from the decision of the Court in Lesi (No 1) limited to challenging the validity of the certificate apparently issued under s 502 by the respondent on 8 February 2000. Although the point was not taken at first instance, the circumstances warrant the appellant being allowed to raise that point on appeal in the interests of justice.

21 The proposed notice of appeal contains three grounds as follows:

‘1. The learned Primary Judge erred in law in holding that the Minister had issued a certificate under s502 of the Migration Act thereby depriving the appellant of an application to the Administrative Appeals Tribunal to review the Minister’s decision on its merits.
2. The learned Primary Judge should have held that the document which the Minister signed on 8 February 2000 which purported to constitute a certificate pursuant to s501(1) of the Migration Act declaring that the appellant was an "excluded person" was not a certificate within the meaning of s502(1) of the Migration Act.
3. The learned Primary Judge should have, as a consequence, set aside the decision of the Minister made on 8 February 2000 that the appellant should be deported under s200 of the Migration Act on the basis that
(i) the Minister’s purported certificate had the effect of denying the appellant procedural fairness and accordingly constituted a jurisdictional error.
(ii) The purported certificate pursuant to s502 is, pursuant to the terms of s502, part of the Minister’s decision to deport.’

22 The appeal itself should be allowed, for the reasons given by the Full Court in Singh in respect of a certificate also purportedly issued under s 502 of the Act which, in all relevant respects, is in identical terms. The way in which the point has arisen, and the appeal allowed, leads to the conclusion that the order as to costs of the learned judge at first instance should stand and there should be no order as to the costs of the application for an extension of time to appeal or on the appeal. It is therefore appropriate to address the principal appeal.

THE REASONS AT FIRST INSTANCE

23 The learned judge at first instance distinguished two circumstances. The first is decisions of the respondent (or of other administrative decision-makers) which are set aside by reason of jurisdictional error, so that the original decision was itself invalid and should be treated, after the review decision, as never having been validly made. His Honour followed the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117, and in particular the observations of Gaudron and Gummow JJ (with whom McHugh J agreed) at [51]:

‘There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.’

24 The second circumstance involves decisions of the respondent (or of other administrative decision-makers) which are set aside not because of error of law, but following a merits review. In such cases, his Honour concluded, the setting aside of the initial administrative decision by the reviewing tribunal does not result in the initial decision not having been validly made. The duty of the Tribunal (and, subject to considering particular legislation, generally the duty of merits review tribunals) is to make its own decision on the material that is placed before it: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 (Drake). The material before the Tribunal need not be, and in the present case was not, the same in all respects as the material before the respondent when he made the decision under s 200. The deportation decision was set aside not because of jurisdictional error or other error of law, but because the Tribunal, on the material before it, concluded a different decision was a preferable one.

25 It is apparent from the Tribunal’s reasons for decision that it had significant regard to material that was not available when the decision was made by the respondent to deport the appellant. That material included the effect upon the appellant’s partner and his two daughters who had been living in Albania to preserve the family unit, and the comparatively limited educational and social opportunities available to them.

26 The learned primary judge then considered the specific terms of s 82(4). He concluded it unambiguously operated adversely to the appellant because there was a deportation order in force when the appellant left Australia. Consequently, the permanent residence visa held by the appellant ceased to have effect by reason of s 82(4) when he left Australia on 19 October 2000. His Honour therefore declined to make the declaration sought. As there was, in the circumstances, no pending application by the appellant for any visa under the Act, it was strictly speaking unnecessary to address the application of special criterion 5001. He said that ‘it would seem to follow’ from the conclusion already reached that the applicant is a person who left Australia while the subject of a deportation order under s 200 of the Act.

THE ARGUMENT ON THE APPEAL

27 The contentions of the appellant on the appeal urged that s 82(4) of the Act did not demonstrate a clear legislative intention to remove the right of permanent residence held by a person who has been deported under a deportation order under s 200 of the Act which has subsequently been set aside by the Tribunal. If that were not the clear legislative intention, it was argued, s 82(4) should be construed so as not to abrogate or curtail the rights of the appellant enjoyed by reason of the permanent residence visa. Those rights were said to include certain rights (in some instances after a qualifying period) under ss 623A, 696B and 739A of the Social Security Act 1991 (Cth), unrestricted work rights, and rights to health benefits under the Medicare system and to undertake educational studies in the same way as Australian citizens. Reference was made to the observations of Gleeson CJ in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2 at [30] where his Honour said:

‘ ... courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.’

28 Alternatively it was argued that the learned primary judge erred in concluding that the deportation decision under s 200 made on 8 February 2000 was validly made. It was said to involve jurisdictional error because the decisions made under ss 201 and 200, and under s 502 were ‘interrelated’ and together formed ‘part of the deportation decision’. Hence, as the purported certificate under s 502 was of no effect (acknowledged by the respondent in the light of Singh), but was presented as having the effect of a certificate under s 502, the appellant was denied procedural fairness in relation to the ‘interrelated decision’ by being deprived of the opportunity at the time of seeking review by the Tribunal of the decision to deport him under s 200 of the Act. A denial of procedural fairness in the making of the decision under s 200 or under s 502 or the ‘interrelated’ decision would, it was argued, constitute jurisdictional error so as to make the decision or decisions a nullity.

29 Counsel for the appellant recognised that in Singh, the Full Court per Wilcox J at [34] with whom Spender J agreed and Emmett J at [74] said that the fact that no valid certificate under s 502 had been issued did not affect the validity of the decision to deport under s 200. He submitted that conclusion was reached without the matter being the subject of submissions, and that it was erroneous.

CONSIDERATION

30 The fact that the deportation order made on 8 February 2000 under s 200 of the Act was set aside by the Tribunal under s 43 of the AAT Act does not mean that the initial decision is invalid. Section 43(1) provides:

‘(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;
(b) varying the decision under review; or
(b) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.’

31 Where the Tribunal sets aside an administrative decision, and substitutes a different decision, it is an exercise of its powers under s 43. The exercise of those powers does not involve any exercise of the judicial power of the Commonwealth: see Drake; Re Adamson v The Tax Agents’ Board (1976) 12 ALR 239. The powers of the Tribunal involve it standing in the shoes of the initial decision-maker, and making the administrative decision which the Tribunal considers to be the appropriate one in the circumstances, and upon the material before the Tribunal. Its task is to make the ‘correct or preferable’ decision. In Drake, Bowen CJ and Deane J said at 419:

‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’

32 In Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 Merkel J, with whom Beaumont and Sundberg JJ agreed, said at 106:

‘When reviewing an administrative decision under s 43(1) the AAT stands in the place, and is empowered to exercise all of the relevant powers and discretions, of the decision-maker in respect of the decision under review. The AAT hears the matter de novo in the light of the evidence placed before it.’

The material before the Tribunal may be, and very often is, different from that before the primary decision maker: see also Re Easton and Repatriation Commission (1987) 6 AAR 558 at 562 per Davies J. As pointed out in [24] above, such was the case in this instance.

33 It would follow that, at the time the appellant was deported on 19 October 2000, there was in force a valid deportation order under s 200. At the time, it would also follow, the operation of s 82(4) of the Act was to cause the appellant’s permanent visa then to cease to be in effect because he left Australia because of a deportation order made under s 200.

34 Indeed, even if a timely application under s 500 of the Act had been made to the Tribunal to review the deportation decision (as the respondent now acknowledges was an avenue available to the appellant), the deportation decision would nevertheless remain in force.

35 This is because s 41(1) of the AAT Act provides that, subject to the making of an application to the Tribunal for review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. Section 41(2) then empowers the Tribunal to stay the operation or implementation of a decision under review to the Tribunal ‘for the purpose of securing the effectiveness of the hearing and determination of the application’.

36 The operation of s 82(4) of the Act at the time of the deportation of the appellant would therefore, according to its terms, have operated to cause the appellant’s permanent visa to ‘cease to be in effect’ when he left Australia on 19 October 2000 because of the deportation order under s 200 of the Act.

37 What then is the consequence of the Tribunal on 3 April 2002 having set aside the deportation decision made on 8 February 2000? It also substituted a decision that the appellant not be deported from Australia.

38 The effect of the order of the Tribunal setting aside the deportation order is that there is no deportation order. It is necessary to determine when its order becomes operational. As to that, ss 43(5A), (5B) and (6) of the AAT Act provide:

‘(5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

...

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’

39 The decision of the Tribunal setting aside the deportation order came into operation forthwith upon it being made on 3 April 2002. The Tribunal did not specify a later date for the coming into operation of its decision. However, s 43(6) apparently provides that, upon the coming into operation of the decision, its decision has effect, and is deemed to have had effect, on and from the day on which the initial deportation decision has or had effect, i.e. from 8 February 2000. There are obvious difficulties in simply reading s 43(6) of the AAT Act in its terms. It would be surprising if the Parliament intended that decisions of the Tribunal should have retrospective effect in circumstances where the initial decision was valid when made where to do so might prejudice vested rights or the interests of third parties. In Pearce, Administrative Appeals Tribunal, Lexis Nexis Butterworths (2003) at 153 [9.29] the learned author foreshadowed the present issue arising. He said in discussing s 43(6) of the AAT Act:

‘A problem could arise with the application of s 43(6) if a decision appealed from had been put into effect and was subsequently set aside by the AAT.’

It would be surprising if the Parliament intended the Tribunal to exercise what would then clearly be legislative, rather than executive power.

40 Section 43(6) deems ‘for all purposes’ that the Tribunal decision be the decision of the primary administrative decision-maker, and that it is deemed to have effect from the time of the initial decision. In Ex parte Walton, In Re Levy (1881) 17 Ch D 746 at 746, James LJ said:

‘When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.’

See also per Schultz JA (delivering the judgment of the Manitoba Court of Appeal) in Consolidated School District of St Leon Village No 1425 v Roncera (1960) 23 DLR (2d) 32 at 36.

41 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 addressed the terms of s 553(2)(b) of the Companies (New South Wales) Code, which prescribed for the purposes of s 553 when a company shall be deemed to be unable to pay its debts. Section 553(2)(b) said that a company ‘shall be deemed to be unable to pay its debts if, and only if, ...’ certain events had occurred. The Court of Appeal Gleeson CJ with whom Cripps JA agreed (Kirby P dissenting) held that s 553(2)(b) provided the only means by which such proof could be given. Gleeson CJ at 207 pointed out that consideration of such an issue involved two different questions: one the meaning of the word ‘deemed’; the other as to the statutory purpose for which, in a given case, that word is used. His Honour continued at 207-208:

‘It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word "deemed", as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist: see, eg, Muller v Dalgety & Co (1909) 9 CLR 693 at 696 per Griffith CJ.

There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved.’

42 There is authority which would support a reading of s 43(6) of the AAT Act in accordance with its terms so as to give it a retrospective effect so as to make unlawful that which was lawful when it was done. In Collector of Customs v Gaylor Pty Ltd (1994) 35 NSWLR 649 (Gaylor), the Court of Appeal of New South Wales had to consider the operation of s 167 and s 273GA of the Customs Act 1901 (Cth) (Customs Act). Section 167 provided that the owner of goods who disputes liability for duty must pay the duty under protest, but may then bring an action for the recovery of the duty paid under protest. Section 167(4) precluded any action for recovery of duty until the duty had been paid under protest, and required the action to have been brought within a prescribed time limit. Subsequently, the Customs Act was amended to provide by s 273GA the alternative remedy to an action under s 167 for recovery of duty, namely an application to the Tribunal for review of the determination of the Collector of Customs. The Court principally determined that where the owner of goods had chosen to challenge the Collector’s decision before the Tribunal, and the Tribunal has varied the Collector’s decision so that the duty paid under protest includes an amount which had been overpaid, the owner of the goods was entitled to commence separate proceedings against the Collector of Customs for recovery of the duty overpaid notwithstanding s 167(4) of the Act. On that topic, the decision was the subject of an application for special leave to appeal to the High Court. On 13 October 1995, the High Court (Brennan CJ, Gaudron and McHugh JJ) refused special leave to appeal on the ground that the decision of the Court of Appeal was not attended with sufficient doubt to warrant a grant of special leave to appeal: Collector of Customs v Gaylor Pty Ltd (unreported, 13 October 1995, Matter S21/1995).

43 One issue which arose in the proceedings in the Court of Appeal was whether the successful applicant before the Tribunal was entitled to recover interest on the overpayment, and if so from what date. In a straightforward application of s 43(6) of the AAT Act, Clark JA (who generally agreed with Cole JA) said that the proper duty is deemed to be the amount determined by the Tribunal, and the proper duty is that to be payable from the date on which the decision under review came into effect. His Honour said at 654:

‘The same reasons would lead me to reject the alternative argument that the amount paid as duty was deemed to be the proper duty payable in respect of the goods under s 167 until a contrary determination under s 273GA had been made and that therefore no interest should be ordered in respect of the period prior to the latter determination.’

44 Handley JA, who also agreed with the reasons for decision of Clark and Cole JJA, having regard to s 273GA and s 43(6) of the AAT Act, added at 655:

‘Accordingly the demand by the Collector for payment of the additional duty is retrospectively exposed as unlawful and the payment to obtain release of the goods is recoverable in an action for money had and received or in modern terms, restitution.’

45 Cole JA, with respect to the argument as to when interest might run from the repayable amount, found that it was repayable from the time of payment, rather than from the time of the Tribunal’s decision, for two reasons. The first concerned the proper construction of s 167(2) of the Customs Act. His Honour then dealt with the second reason in the following terms at 662:

‘Secondly, s 43(6) of the Administrative Appeals Tribunal Act makes clear that the Tribunal’s decision speaks from the date of the initial wrongful determination. The "proper duty", once determined by the Tribunal, was always the proper duty. The consequence is that the Collector demanded and received more duty than the legislature had made exigible. The owner had been deprived of that wrongly levied duty for the period from payment under protest and shall be compensated by an award of interest from that date.’

46 There are other cases to the contrary. For example, the facts and the legislative scheme in Gaylor may be contrasted with the nature of the recovery action for overpaid duty where the duty payable was adjusted by the making of a Commercial Tariff Concession Order (CTCO) under reg 126(f) of the Customs Regulations, where s 269N of the Customs Act deemed the making of the CTCO to have had effect at an earlier point in time: see The Commonwealth of Australia v SCI Operations Pty Limited (1998) 192 CLR 285. The High Court held that, despite s 269N of the Customs Act, the overpaid duty was repayable only from the date of the CTCO and interest on the overpaid duty could not be recovered in respect of the period prior to the CTCO. See e.g. per Brennan CJ at 295. Kirby J at 324 said that the outcome in that case was a consequence of the statutory scheme excluding an entitlement to interest; he specifically drew the comparison with circumstances such as those which applied in Gaylor where there had been a dispute as to the amount or rate of duty payable and it had later authoritatively been determined the duty, previously demanded and paid, was wrongly assessed.

47 Ultimately, the proper interpretation of s 43(6) of the AAT Act must be a question of determining the intention of the legislature. On the one hand, there are obviously strong reasons of principle why the legislature would not intend to visit upon the appellant the consequence of losing his entitlement to remain permanently in Australia based upon the implementation of a deportation order which, now, has been set aside. Nor could it readily be taken to intend that, by reason of the implementation of a deportation order which has been set aside, the appellant is now ineligible to be granted a visa by reason of his deportation. On the other hand it cannot have been intended to render invalid or unlawful a deportation order that was validly and lawfully made and implemented prior to it being set aside primarily for reasons that arose post-implementation. Where the language of an enactment admits of two constructions, the courts will act upon the view that an obvious injustice would not have been intended unless it is clearly manifest in or from the words of the enactment. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 at 169-170 Mason and Wilson JJ said:

‘The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
...
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.’

See also the cases referred to in Pearce and Geddes, Statutory Interpretation in Australia, 5ed (2001) Butterworths at 47-48 [2.33].

48 In this matter, the initial decision has been put into effect. It is not argued on behalf of the appellant that s 43(6) of the AAT Act should deem the Tribunal’s decision to have effect so that the deportation decision itself should be taken not to have occurred or that the deportation of the appellant was itself unauthorised.

49 It seems to us that the approach of the parties to this issue is correct. Whatever s 43(6) of the AAT Act may mean, it does not have the effect of rendering the deportation of the appellant invalid or unlawful.

50 Given the approach that the parties have taken it may be unnecessary for this Court to resolve the difficult questions as to the meaning and effect of s 43(6) of the AAT Act, other than to confirm the approach of the primary Judge that the deportation of the appellant was, and remains, valid and lawful. This is because, in this case, there is a preliminary issue as to the meaning and operation of s 82(4) of the Migration Act in these circumstances.

51 The respondent contends that, because the appellant has in fact been lawfully deported, s 82(4) applies in its terms even though the deportation order has later been set aside, so that the respondent acting lawfully has deported the appellant and on 19 October 2000 at the time of his deportation the permanent visa which he then held ceased to be in effect. Having ceased to be in effect, it is argued that it cannot be revived.

52 However, in determining how s 82(4) should apply in the present circumstances, the direction that the visa "ceases to be in effect" has significance. The expression "ceases to be in effect" has been used in contrast with the concept of cancellation of visas under the Act. The Act contains extensive references to the cancellation of visas: ss 97-115 deal with the cancellation of visas granted on the basis of incorrect information; sections 116-133 deal with the cancellation of visas on the grounds specified in s 116, and the procedures which must be followed to do so; sections 134-137 deal with the cancellation of business visas; sections 137J-137P deal with cancellation of student visas; sections 137Q-137T deal with cancellation of regional sponsored employment visas. That is not an exhaustive list. A visa may be cancelled because the respondent reasonably suspects that the holder does not pass the character test: s 500, and that person is then disentitled from applying for another visa except in limited circumstances: Section 501E, and other visas except in the case of a protection visa are also taken to have been cancelled: s 501F. The cancellation of a visa is effected by the respondent causing a record of the cancellation to be made: s 138(1).

53 It is apparent that the Act has carefully addressed when and how a visa may be cancelled, and the consequences of its cancellation. The fact of a visa ceasing to be in effect in certain circumstances is something which the Act has dealt with differently. The expressions ‘cease to be in effect’ or ‘be in effect’ are not defined in the Act. They should be taken to have their ordinary English meaning. There is no indication in the Act that they have some different or more refined meaning. Consequently, we consider the expression ‘cease to be in effect’ simply means cease to be operative to provide the entitlements which the visa would otherwise provide. The visa itself is not to be taken to have been cancelled under s 82(4) simply because the provision does not say so.

54 The present position may therefore, at first sight, appear a little curious. There was on 8 February 2000 a valid deportation order made. The appellant accepts that. He was validly deported on 19 October 2000 under that order. The validity of his deportation stands unchallenged, notwithstanding that the deportation order has been set aside by the Tribunal on 3 April 2002. The validity of the deportation effected under the deportation order stands, notwithstanding that s 43(6) of the AAT Act provides that the Tribunal’s order setting aside the decision to make the deportation order takes effect at the time of the original decision.

55 We do not think it does violence to the language of s 82(4) of the Act to conclude in the particular circumstances that the appellant’s visa, which ceased to be in effect when he left Australia on 19 October 2000, resumed its effectiveness once the deportation order was set aside. Section 82(4) can operate in its terms to have caused the appellant’s permanent residence visa to have ceased to have been in effect upon his deportation but, because the deportation order has been set aside and upon it being set aside, its operation is spent and the permanent residence visa reserves its effectiveness. The entitlements of the appellant under the permanent residence visa revived upon the making of the Tribunal’s decision.

56 The other provision of the Act upon which counsel for the respondent placed weight was s 500(6). It provides:

‘(6) Where an application has been made to the Tribunal for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by:

(a) the Tribunal; or
(b) a presidential member under section 41 of the Administrative Appeals Tribunal Act 1975; or
(c) the Federal Court of Australia or a Judge of that Court under section 44A of that Act; or
(d) the Federal Magistrates Court or a Federal Magistrate under section 44A of that Act.’
57 Upon analysis, s 500(6) is a small contra-indication to s 82(4) having the effect for which the respondent contends. It preserves the effectiveness of a deportation order under s 200, despite any order of the Tribunal (presumably under s 41(2) of the AAT Act for a stay), but only for the purposes of s 253. Section 253 contains the power of officers of the respondent to place a person in respect of whom a deportation order is extant in immigration detention pending deportation. It therefore reflects a legislative intent related to that particular circumstance. That s 500(6) is so limited tends to indicate that the legislature considered whether, but did not provide that, a deportation order might be implemented notwithstanding a review application to the Tribunal. It would seem the legislature, especially having regard to s 43(6), considered that the respondent would defer implementing a deportation decision under review until the Tribunal’s decision or the Tribunal would stay the deportation decision under s 41(2) of the AAT Act pending its decision.

58 Finally, reference should be made to an authority which might be seen to apply to the opposite effect. Section 103(1)(f) of the Social Security Act 1947 (Cth) provided that a family allowance "ceases to be payable" unless the Director-General is satisfied that the child became a student on attaining the age of 16 years. In Ozcagli v Secretary to Department of Social Security (1986) 68 ALR 651 it was held that the entitlement to the benefit was not merely suspended upon the child attaining 16 years of age, but stopped until the Director-General became satisfied of the qualifying fact. In that case, the child had become a student at age 16, but for two years nothing had been put before the Director-General to establish that. The entitlement was recognised upon presentation of his status as a student, but not for the two year hiatus period. The decision turned upon the particular terms of the Social Security Act, including the use of the word ‘unless’ and the reference elsewhere in the Social Security Act to the suspension of entitlements. Hence, in the context of that legislation, the legislative intention was discerned to be different from that which emerges in using the expression ‘ceases to be payable’ from the expression ‘ceases to be in effect’ in s 82(4) of the Act.

59 For those reasons, the appeal should be allowed and a declaration should be made that the grant by the respondent to the appellant of a Permanent Residence Visa Subclass 831 on 24 October 1996 remains in force. In that circumstance, it is unnecessary to determine whether Special Return Criterion 5001 would preclude the appellant from being granted a further visa under the Act.

60 It is unnecessary also to address the alternative argument of the appellant. There are, however, significant obstacles to it succeeding. They are reflected in the conclusion of the Full Court in Singh discussed at [28] above, a conclusion with which we respectfully agree. In their terms, ss 200 and 502 are separate decisions. A deportation decision under s 200 may be made without a decision under s 502. There is some uncertainty in the language of s 502, when a decision is to be made under it, as to its relationship to the deportation decision. It is set out in [10] above. Despite the words "as part of the decision" in the concluding part of subs (1), both subs (2) and (3) refer to a decision that a person is to be declared an excluded person in the national interest. Deportation decisions under s 200 do not themselves need to be exposed to Parliamentary scrutiny under the Act.

61 In any event there is no suggestion that in the process of the making of the deportation decision, or the decision under s 502 (or even if there is one composite decision) that the appellant was not accorded procedural fairness. He does not contend that he was not given a reasonable opportunity to present his evidence or his arguments. The complaint is that he did not understand, following the making of the decisions (or the composite decision), that there was no valid certificate issued under s 502 and so he misapprehended the nature of his review rights under the Act or under the AAT Act. Such a misapprehension on the part of the appellant does not demonstrate a failure by the respondent to afford the appellant procedural fairness in the making of the decisions (or of the composite decision). The failure by the respondent to perfect the decision he intended to make under s 502 reflected in the inadequate form of the certificate would have made no difference to the result of the decision to deport the appellant. See generally Kioa v West (1985) 159 CLR 550 per Mason J at 582; Re Association of Architects (Aust.) (1989) 63 ALJR 298 per Gaudron J at 305; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

62 We would allow the appeal and make the declaratory order referred to in [59] above. The respondent should pay the appellant the costs of the appeal and at first instance.





I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Selway & Bennett.



Associate:

Dated: 10 December 2003



Counsel for the Applicant: Mr A Collett



Solicitor for the Applicant: McDonald Steed



Counsel for the Respondent: Mr K Tredrea



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 18 August 2003



Date for Final Written Submissions: 4 November 2003



Date of Judgment: 11 December 2003
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