Martinez v Minister for Immigration and Citizenship [2010] FCA 448

FEDERAL COURT OF AUSTRALIA

Martinez v Minister for Immigration and Citizenship [2010] FCA 448 Citation: Martinez v Minister for Immigration & Citizenship [2010] FCA 448

Appeal from: Martinez v Minister for Immigration and Citizenship [2009] AATA 714

Parties: ALEJANDRO TORO MARTINEZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

File number: NSD 1063 of 2009

Judge: STONE J

Date of judgment: 11 May 2010

Catchwords: IMMIGRATION AND CITIZENSHIP – transitional (permanent) visa – visa arising by operation of law – visa neither granted nor deemed to have been granted – decision of delegate of Minister to cancel visa under s 501(2) of Migration Act 1958 (Cth) – delegate's decision upheld by Administrative Appeals Tribunal – application for judicial review - following decision in Sales v Minister for Immigration & Citizenship, Migration Act amended retrospectively validating decisions of Minister and delegates - Court held legislative amendments did not cure jurisdictional error in tribunal decision - matter remitted to AAT for reconsideration – on remittal AAT addressed preliminary question whether tribunal correct in holding that, consequent on the statutory amendments s 501(2) power to cancel visas capable of applying to visa arising by operation of law

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 500(1)(b) Migration Act 1958 (Cth) s 501(2) Migration Legislation Amendment Act (No.1) 2008 (Cth) Sch 4 Migration Reform (Transitional Provisions) Regulations 1994 (Cth) Reg 4

Cases cited: Bainbridge v Minister for Immigration and Citizenship (2010) 113 ALD 70 Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 Sales v Minister for Immigration & Citizenship (2008) 171 FCR 56 Shi v Migration Agents Registration Authority (2008) 235 CLR 286