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

FEDERAL COURT OF AUSTRALIA

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

STATUTORY INTERPRETATION –– ADMINISTRATIVE LAW –– retrospective legislation –– deeming provision –– intended to reverse effect of judicial decision that statutory power to cancel a visa could not be exercised in respect of particular class of visa –– deeming provision validated decisions by the Minister and a delegate of the Minister –– deeming provision silent about validity of decision made before retrospective legislation enacted by Administrative Appeals Tribunal to affirm decision of delegate to cancel visa –– whether tribunal's decision continued to be invalid after retrospective legislation commenced because of its earlier jurisdictional error –– whether validation of delegate's previously invalid decision also validated previously invalid decision of tribunal STATUTES –– principles of construction –– retrospective legislation –– deeming provisions –– principle that legislature is taken not to intend to interfere with fundamental or accrued rights unless express language is used –– principle of interpretation when construing retrospective legislation that the Parliament intended to act fairly –– deeming provision designed to overcome the effect of a superior court decision –– deeming provision created a statutory fiction –– importance of identifying the legislative purpose of the deeming provision –– whether deeming provision is capable of removing jurisdictional error where no express words used ADMINISTRATIVE LAW –– decision-maker ignoring relevant material –– jurisdictional error Held: Judgment for the applicant (1) The deeming provision did not purport to correct the jurisdictional error of the tribunal and was incapable of validating the decision of the tribunal –– the statutory amendment referred only to a decision of the Minister or his delegate, and was silent in respect of the tribunal's decisions –– the deeming provision operated retrospectively and affected fundamental and accrued rights –– a construction that infringes the applicant's rights should only be adopted where express language is used –– because of its jurisdictional error tribunal's decision was no decision at all –– the deeming provision did not validate a decision of the tribunal or cure jurisdictional error in original decision of tribunal (2) The tribunal committed a jurisdictional error by ignoring relevant material –– the tribunal rejected the applicant's evidence as uncorroborated allegations but ignored materially corroborating evidence before it WORDS AND PHRASES – "taken to have always been" Acts Interpretation Act 1901 (Cth) s 15AD Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 43 Commonwealth Constitution ss 61, 64 Migration Legislation Amendment Act (No 1) 2008 (Cth) Schedule 4 Migration Reform (Transitional Provisions) Regulations 1994 (Cth) r 4 Migration Act 1958 (Cth) ss 499, 501, 501HA Aksu v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 65 ALD 667 distinguished Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 applied Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 discussed Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 followed Bawn Pty Ltd v Metropolitan Meat Industries Board (1970) 72 SR (NSW) 466 cited Becker v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 58 cited Coco v The Queen (1994) 179 CLR 427 applied Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338 cited Craig v South Australia (1995) 184 CLR 163 applied Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 cited Enfield City v Development Assessment Commission (2000) 199 CLR 135 applied Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 cited Kim v Minister for Immigration and Citizenship (2008) 167 FCR 578 cited Lesuma v Minister for Immigration and Citizenship (2007) 99 ALD 514 followed Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 discussed Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 followed Minister for Immigration and Ethnic Affairs v Sciascia (1981) 31 FCR 364 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Minister for Immigration v Yusuf (2001) 206 CLR 323 discussed Muller v Dalgety & Co Ltd (1909) 9 CLR 693 cited Norbis v Norbis (1986) 161 CLR 513 discussed NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133 cited Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 followed Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 applied R v Hughes (2000) 202 CLR 535 cited Re Brian Lawlor Automotive and Collector of Customs (NSW) (1978) 1 ALD 167 followed Re Macks; Ex parte Saint (2000) 204 CLR 158 discussed Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641 cited Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 cited Scorgie v Minister for Immigration and Citizenship [2007] 47 AAR 314 cited Scorgie v Minister for Immigration and Citizenship [2008] FCAFC 101 applied Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 distinguished Shi v Migration Agents Registration Authority (2008) 235 CLR 286 applied SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 discussed SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 applied SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 cited SZDTZ v Minister for Immigration and Citizenship (2007) FCA 1824 cited SZFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 cited Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 followed Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 applied Twist v Randwick Municipal Council (1976) 136 CLR 106 followed WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 followed/discussed Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 followed Yougarla v Western Australia (2001) 207 CLR 344 compared Zubair v Minister for Immigration (2004) 139 FCR 344 followed ALEJANDRO TORO MARTINEZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL