When Can A Delegate Re-Visit An Adverse Decision

A delegate can re-visit an adverse decision but only in cases where there has been jurisdictional error. It is not an easy thing to do but if there has been an obvious error of law or a serious error in process such that the decision is flawed in a legal sense then there are times when a delegate will set aside a decision made by him or her.  However one has to act swiftly and it must be done before an application is lodged to the AAT. Once an application is lodged in the AAT, Immigration takes the view that the decision is then in the hands of the tribunal and the delegate will not interfere. Hence there is only a short window of opportunity in which to act to have a delegate overturn a decision.

The basis for making an application to have a delegate overturn an adverse decision is contained in the seminal High Court decision of Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) where Gaudron, McHugh, Gummow, Kirby and Hayne JJ concluded (at paragraph 76) :

This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.

Very broadly speaking the type of things which would amount to jurisdictional error would be misinterpreting the law (ie the Migration Act and/or the regulations), setting a time limit but then not adhering to the time limit, deciding a matter without giving the applicant forewarning of that adverse matter, deciding a matter without proper evidence etc etc.

Of course what is often quoted in reply to all of the above is s 67(4) of the Migration Act which states :

(4) The Minister has no power to vary or revoke the decision after the day and time the record is made.

What s 67(4) does is to revive the doctrine of functus officio and overcomes s 33(3) of the Acts Interpretation Act which states :

(3)  Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

But s 67(4) overcomes s 33(3) of the Acts Interpretation Act. This is pointed out because s 67(4) was made by the Migration Amendment Act 2014, decisions of the Federal Court prior to 2014 referred to the power under s 33(3) of the Acts Interpretation Act to revoke decisions to refuse a visa.

But s 67(4) does not overcome what said is S157, if the decision by the delegate is legally flawed then it is “regarded, in law, as no decision at all”!