Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528

Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528

The retrospective deeming provision (item 7 of Schedule 4 to the Migration Legislation Amendment Act (No 1) 2008 (Cth)) did not cure the jurisdictional error of the tribunal, as it was directed only at decisions of the Minister or delegate; nor did it validate the tribunal's decision, which, due to jurisdictional error, was no decision at all. The tribunal ignored relevant and material evidence, resulting in jurisdictional error. The applicant was entitled to have the tribunal's decision quashed.

Parties
Applicant: Alejandro Toro Martinez; First Respondent: Minister for Immigration & Citizenship; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
21 May 2009
Procedural Posture
Judicial Review / Judgment
Outcome
Application allowed; decision of the tribunal quashed and matter remitted.
Legal Topics
Retrospective Legislation, Jurisdictional Error, Deeming Provisions, Visa Cancellation, Procedural Fairness, Relevant Considerations, Judicial Review
Administrative Law Statutory Interpretation Immigration Law Retrospective Legislation Jurisdictional Error Deeming Provisions Visa Cancellation Procedural Fairness +2 more

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Parties

Alejandro Toro Martinez

Applicant

Minister for Immigration & Citizenship

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Judicial Review / Judgment

Legal Issues

  1. 1 Whether retrospective deeming provision in Migration Legislation Amendment Act (No 1) 2008 (Cth) validated tribunal decisions made before commencement
  2. 2 Whether tribunal's decision was invalid due to jurisdictional error for ignoring relevant material
  3. 3 Whether Direction No 21 was a valid exercise of ministerial power under s 499 of the Migration Act

Ratio Decidendi

The retrospective deeming provision (item 7 of Schedule 4 to the Migration Legislation Amendment Act (No 1) 2008 (Cth)) did not cure the jurisdictional error of the tribunal, as it was directed only at decisions of the Minister or delegate; nor did it validate the tribunal's decision, which, due to jurisdictional error, was no decision at all. The tribunal ignored relevant and material evidence, resulting in jurisdictional error. The applicant was entitled to have the tribunal's decision quashed.

Court Disposition

Application allowed; decision of the tribunal quashed and matter remitted.

Orders

  • A writ of certiorari issue to the second respondent to remove into this Court proceeding No 2008/1127 for the purpose of quashing the decision of the second respondent made on 10 June 2008 to affirm the decision under review.
  • A writ of mandamus issue to the second respondent compelling it to hear and determine proceeding No 2008/1127 according to law.