Dhanoa v Minister for Immigration & Anor
[2009] FMCA 383
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DHANOA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 383 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled student visa – Tribunal varying findings by the delegate in relation to the application of the points test but affirming the delegate’s decision because the applicant had not made an investment into a designated security and so had not obtained a qualifying score for the visa – applicant unable to make such an investment at the time as no designated securities existed – failure by the Tribunal to enquire of the Department whether it was possible for the applicant to make the required investment – jurisdictional error established – observations on the Tribunal’s power of remittal. |
| Administrative Appeals Tribunal Act 1975 (Cth), s.43 Migration Act 1958 (Cth), ss.65, 92, 93, 94, 95. 96, 349, 359A Migration Regulations 1994 (Cth) |
| Balineni v Minister for Immigration [2008] FMCA 888 Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 Haider [2007] MRTA 701 Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 Luu v Renevier (1989) 91 ALR 39 Patel v Minister for Immigration [2009] FCA 392 Perera v Minister for Immigration [2008] FMCA 1526 Poudyal v Minister for Immigration [2005] FMCA 265 Prasad v Minister for Immigration [1985] FCA 47; (1985) 6 FCR 155 Shi v Migration Agents Registration Authority [2008] HCA 31 Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 SZIAI v Minister for Immigration [2008] FCA 1372 Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 |
| Applicant: | KANWALJIT SINGH DHANOA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3263 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 24 April 2009 |
| Date of Last Submission: | 15 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 27 November 2008.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3263 of 2008
| KANWALJIT SINGH DHANOA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 27 November 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa. The following statement of background facts is derived from the applicant’s written submissions filed on 9 April 2009 and the Minister’s written submissions filed on 7 April 2009.
The applicant applied for a Class DD permanent visa to remain in Australia on 3 November 2006. A record of the application is at court book (CB) 1-18. The applicant’s score on the applicable points test appears at CB 9-10. The applicant assessed his score initially at 115, including 20 points for English language ability. He then made a statement to the effect that he was willing to invest at least $100,000.00 in an approved Australian Government investment for a term of at least 12 months. The pass mark for the test was 120 points.
Under the applicable points test (Migration Regulations 1994 (Cth) (“the Migration Regulations”) Schedule 6A as in force at all relevant times), the applicant would be eligible for a further five “bonus” points if, by the time of decision on his application, he had “deposited at least AUD100,000 in a designated security for a term of not less than 12 months” (Schedule 6A item 6A81(a)).
When the application was considered by a delegate of the Minister on 6 November 2007, the applicant was awarded 15 rather than 20 points for English language (CB 39). This meant that his score without bonus points was only 110. The delegate concluded: “The applicant intended to claim 5 bonus points for capital investment option however he did not meet the 115 point requirement to initiate a request for capital investment” [emphasis added].
The applicant applied for review in the Tribunal on 4 December 2007 (CB 41-48). He later provided evidence to the Tribunal of an IELTS English language test result that was sufficient for the award of 20 points under item 6A31 (CB 58-59). The Tribunal held a hearing by video-link on 22 September 2008 (CB 73-74), and on 26 September 2008 wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”) (CB 76-78).
The Tribunal accepted that the applicant was entitled to 20 points for English language ability (CB 88). However, on the basis that the applicant had not made a deposit of $100,000 in a designated security, it affirmed the decision to refuse the applicant’s visa application (CB 90).
The only subclass of the visa class at the time of application for the visa was Subclass 880 (Skilled - Independent Overseas Student) (CB 84 [6]). The Tribunal found that the applicant did not satisfy clause 880.222 as he did not have the “qualifying score” under the points test at the time of the Tribunal’s decision (CB 91 [40-43]). The Tribunal explains why it awarded 115 points to the applicant, which was less than the “pass mark” of 120 points. Accordingly the visa was refused: see s.65(1)(b) of the Migration Act.
The application
The application contains the following grounds:
1. The Tribunal’s decision was affected by jurisdictional error in that it failed to take into account a relevant consideration that it was bound to take into account.
Particulars
The Tribunal failed to consider that it had the option of remitting the matter to the Minister under Migration Act s.349(2)(c) and reg 5.15(1)(b) with a direction that the applicant must be taken to have satisfied the criterion in relation to language skills.
2. Alternatively, the Tribunal misunderstood the relevant law, or failed to point out to the applicant that he was acting under a misunderstanding of the law, in respect of whether it was necessary to obtain a request from the Department of Immigration before being able to lodge a deposit in a designated security.
Ground 2 was not pressed.
I also invited submissions from the parties on the question of whether the Tribunal was bound to make further inquiries of the Minister’s Department concerning the possibility of the applicant making an approved deposit, in accordance with the principles set out in SZIAI v Minister for Immigration [2008] FCA 1372 at [11]-[26]. I note that that decision is subject to appeal in the High Court.
I received as evidence the court book filed on 30 January 2009 and the affidavit of Mr Jones (solicitor for the applicant) filed on 10 December 2008.
Submissions
The applicant claims that the Tribunal fell into jurisdictional error because it did not consider all of the options available to it on the facts before it. The applicant notes that the range of powers available to the Tribunal included the power to remit the case for reconsideration by the delegate in accordance with such directions or recommendations of the Tribunal as are permitted by the Migration Regulations[1].
[1] s.349(2) of the Migration Act
The applicant further submits:
To qualify for points under item 6A81, an applicant must make a deposit in a “designated security”, as defined in reg 2.26C. All such securities must be issued by an Australian State or Territory government authority. From approximately December 2007 until February 2009, no State or Territory government authority was prepared to issue such securities. Applications that were reliant on such securities were being held in abeyance by the Department of Immigration while it sought to make new arrangements.
The Tribunal relied on the decision of Riley FM in Perera v MIAC [2008] FMCA 1526. However, in that case the issue was whether the Tribunal had turned its mind to the genuineness or sincerity of an applicant’s belated offer to lodge a security, at a time when it was still possible to do so. The Court commented in passing that the points could only be awarded once the money had actually been deposited, which was not the issue before it. However, the Tribunal in this case has interpreted that to mean that if the security has not actually been lodged it has no other course of action open to it than to refuse the application. If Riley FM had thought that, there would have been no need for the thorough consideration given by her to the issue of “adequate consideration” (at [13]-[30]).
The Tribunal in this case did not give adequate consideration, or indeed any consideration, to the option of exercising its power under s.349(2)(c) to remit the case to the Minister with a direction that the Applicant satisfied the English language requirement for 20 points, thus reaching the threshold of 115 points which the delegate had stated was necessary “to initiate a request for capital investment”.
By contrast, a differently constituted Tribunal in Re Haider [2007] MRTA 701 [considered] an almost identical fact situation and remitted the matter to the Minister.
The Tribunal failed to even consider that option, even though it noted that the Applicant had made such a request (CB 86, para 20). In the light of this, the Tribunal’s reasoning at para 36 (CB 90) can only be understood if the Tribunal believed that it could not remit unless it found that the Applicant had already made the deposit. It did not weigh up all of the options open to it, but decided that it had no other option than to affirm the decision under review.
If the Tribunal had properly considered all of the powers available to it in this case, the Applicant may have eventually had the opportunity of making the required deposit when the Department resolved the issue with the States in February this year.
The Minister submits that the Tribunal had no power to remit the matter to the delegate in accordance with a direction because, at the time of the Tribunal decision, the applicant had not satisfied a specified criterion for the visa as required by Migration Regulation 4.15(1)(b). The Minister relies upon the decision of Smith FM in Poudyal v Minister for Immigration [2005] FMCA 265. The Minister further submits that even if the Tribunal had the power to remit the matter to the delegate (which is not conceded) the Tribunal was not bound to do so and the Tribunal was entitled to find, as it did, that the applicant did not achieve a qualifying score under the points test[2].
[2] see Perera v Minister for Immigration [2008] FMCA 1526
The following additional submissions were received in relation to the decision of the Federal Court in SZIAI:
The Applicant submits that it was unreasonable of the Tribunal in this case not to make further inquiries of the Department of Immigration and Citizenship on the following issues in the case:
(a)whether there existed, at the time of the Tribunal's consideration, any practical options for a visa applicant in the Applicant's position to make the required capital investment; and
(b)what procedures, if any, did the Department have in place for dealing with applications still before it in which the only outstanding issue relating to the points test was the making of the required capital investment.
Counsel for the applicant also took the opportunity to make the following further submission on the meaning of “criterion”:
The word "criterion" is not defined in the Act or Regulations. The normal English meaning found in the Macquarie Dictionary is: "a standard of judgment or criticism; an establish rule or principle for testing anything". The Oxford English Dictionary includes as one of the meanings for the word: "A test, principle, rule, canon, or standard, by which anything is judged or estimated."
Subsection 31(3) stipulates that the regulations may "prescribe criteria for a visa or visas of a specified class".
Reg 2.03 states that, for the purposes of subs 31(3), the prescribed criteria for a visa of a particular class are set out in a relevant Part of Schedule 2.
The expression "set out" does not define the term "criteria". It merely specifies a location in the legislation where those criteria which are prescribed for the purposes of subs 31(3) are brought together.
Part 880 of Schedule 2 sets out the prescribed criteria for the grant of a Class DD visa, as applied for by the Applicant in this case.
Cl 880.222 requires that the applicant "has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act".
Relevantly, s 93 of the Act requires the Minister to "make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant".
Reg 2.26A(2)(b) stipulates that an applicant under subclass 880 may be assessed for points under Parts 1, 2, 3, 4, 5, 6, 7, 8 and 10 of Schedule 6A. Each of these Parts would come within the normal English meaning of the word "criterion".
By referring to the Subdivision that contains the points test, cl 880.222 effectively sets out each of the criteria that make up the points test (or at least those relevant to that Part) as prescribed criteria for the grant of the visa.
Reg 4.15(1)(b) permits the Tribunal to direct that the applicant for a visa must be taken to have satisfied a "specified criterion" for the visa. The term "prescribed criterion" is not used. It is left up to the Tribunal to "specify" the criterion that the applicant must be taken to have satisfied.
To give this power such a narrow scope as that contended for by the Respondent would defeat the purpose of the power granted by the legislation, which is clearly to enable the Tribunal to determine whether it would be appropriate in the case before it to remit the application to the Department for the reason that further processing would, in the Tribunal's view, be likely to result in the grant of the visa, without imposing on the Tribunal the burden of further administrative tasks that the Department is best suited to carrying out.
The Applicant's interpretation of the regulation is supported by s 15AA of the Acts Interpretation Act 1901 and the approach favoured by the High Court in the following passage from CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (footnotes omitted):
[…] the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
Even if the respondent's interpretation is correct, it was still open to the Tribunal to remit the matter to the Department with a direction that another "prescribed criterion", such as the one in 880.232 requiring the applicant to hold a valid passport, had been met. No finding was made on this criterion by the delegate, and the Tribunal could readily have ascertained whether or not it was satisfied. The Tribunal did not consider this option.
In supplementary submissions filed on 15 May 2009 the Minister responds to those submissions. Relevantly, the Minister submits that:
a)SZIAI was wrongly decided;
b)there is no evidentiary foundation for the additional enquiry said to have been required;
c)the only relevant issue for the Tribunal was whether the required deposit had been made;
d)there was, in any event, no unreasonable failure by the Tribunal to enquire; and
e)this case is distinguishable from Balineni v Minister for Immigration [2008] FMCA 888 where Scarlett FM found that the Tribunal erred by misinterpreting item 6A81 as requiring evidence of available funds.
In relation to the meaning of the word “criterion” the Minister submits:
The other matter raised by the Applicant concerns the meaning of “specified criterion” in reg 4.15(1)(c). The Applicant suggested in argument that “criterion” here must have a different meaning to elsewhere in the Act so as to encompass the Tribunal’s conclusion that the Applicant was to be awarded points for language skills. As the First Respondent pointed out in argument, the relevant criterion relating to the points the Applicant is awarded for his language skills (or anything else) is cl 880.222, which the Tribunal found the Applicant did not satisfy: CB 91 [43]. Accordingly no power to remit arose under s 349(2)(c).
The term “criterion” in reg 4.15(1)(c) cannot bear a different meaning to the “criteria for a visa or visas of a specialised class” in s 31(3), or “the other criteria for it [a visa] prescribed by this Act” in s 65(1)(a)(ii). For the purposes of s 31(3) the prescribed criteria for a particular class of visa are as set out in a relevant Part of Schedule 2 to the Regulations: reg 2.03. It must follow that the relevant criteria for the purposes of reg 4.15(1)(c) are those appearing in the particular visa subclass of Schedule 2, in this case subclass 880.
The Applicant’s Further Submissions para 14 claim that Parts of Schedule 6A to the Regulations would bear the ordinary English meaning of “criterion”. Presumably he also seeks to assert that any of those Parts are a “criterion” within reg 4.15(1)(c). However this is an impossible argument, which requires giving “criterion” in reg 4.15(1)(c) a different meaning to that elsewhere in the Act and Regulations. If the Applicant were correct, “criterion” in reg 4.15(1)(c) would include matters different to those mentioned in s 65 (because they would not be criteria “for” a visa but would encompass matters that would not necessarily lead to the grant or refusal of a visa, such as the points for language skills that the Applicant relies on here), and not in Schedule 2 of the Regulations as required by reg 2.03. This construction is not open. “Criterion” must bear a consistent meaning throughout the Act and Regulations.
The final point made by the Applicant is that the Tribunal did not consider the “option” of remitting the matter with a direction that the Applicant satisfied another criterion such as cl 880.232 (valid passport). No finding was made by the Tribunal that the Applicant satisfied this criterion, and even if it had been the relevance of a remittal with such a direction is not identified by the Applicant, and still less how the Tribunal’s failure to “consider this option” could constitute a jurisdictional error as defined in MIMA v Yusuf (2001) 206 CLR 323 at [82].
Consideration
Section 349 of the Migration Act sets out the powers of the Tribunal. Relevantly:
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
The Tribunal found that the applicant had achieved a score of 115 on the points test and was aware that if he had made an approved deposit he could achieve the additional five points needed in order to qualify for the visa sought. The applicant requested the Tribunal to remit the matter to the delegate on the basis of the Tribunal’s factual finding concerning his English language ability and on the basis that he would lodge $100,000 in a designated security when invited by the Department to do so (see [20] of the Tribunal decision, CB 86). The Tribunal, however, proceeded on the basis that the applicant needed to have deposited $100,000 in a designated security at the time of decision rather than merely express a willingness to do so. At [36] of its decision (CB 90) the Tribunal stated:
There is no evidence before the Tribunal that the applicant has deposited at least $100,000 in a designated security for a term of not less than 12 months. The Tribunal noted that on the visa application form the applicant indicated that he is willing to deposit at least $100,000 in a designated security for a term of not less than 12 months. The applicant has also advised the Tribunal orally and in writing that he was not invited by the Department to make the deposit, as he had not achieved a mark of 115 but as he has now achieved this mark, he is prepared to make the deposit. However, the Tribunal is of the view that item 6A81(a) requires an applicant to have deposited $100,000 in a designated security for a term of not less than 12 months and a statement indicating a willingness to deposit or evidence of funds available is not sufficient. This is consistent with the recent decision (12 November 2008) of Perera v MIAC & Anor [2008] FMCA 1526, which confirms that an intention to lodge the $100,000 security is not sufficient to satisfy item 6A81 – it must actually have been lodged.
The Tribunal went on to find that the applicant did not meet the requirements of item 6A81 of Schedule 6A of the Migration Regulations and therefore was entitled to no points for part 8 of Schedule 6A in relation to bonus points for an approved deposit.
A different approach was taken by the Tribunal in the case of Haider [2007] MRTA 701. In that case, a differently constituted Tribunal stated:
If the visa applicant is able to deposit at least $100,000 in a designated security for a term of not less than 12 months, then he will be entitled to 5 bonus points for this factor in accordance with paragraph 6A81(a). The Tribunal is aware that to enable this to occur, the visa applicant will require certification from the Department. As such the Tribunal considers that in these circumstances it is appropriate to remit the matter to the Department noting that the visa applicant has provided evidence that he is willing and able to deposit at least $100,000 in a designated security for a term of not less than 12 months and it would be appropriate for the Department to request that such a security be deposited.
The Minister submits that the Tribunal erred in Haider because there is no power to remit in such circumstances. However, the Minister concedes that, at the time of the Tribunal decision, there was no approved deposit regime in place so, as a practical matter, it would have been impossible for the applicant to deposit $100,000 in a designated security. The purpose of a remittal to the Department would have been to enable the application to join a queue of other like applications which awaited the identification of new designated securities into which the required deposits could be made. I understand that designated securities are now available for such deposits.
This Court in Perera correctly found that an intention to deposit funds was insufficient and that the Migration Regulations required an applicant to have actually deposited $100,000 at the time of decision. This, however, begs the question of whether the Tribunal erred in making its decision at a time when it was impossible for the applicant to make the required deposit. I accept from this Court’s decision in Poudyal that, if the Tribunal had the power to remit the case to the delegate as the applicant requested, it was not bound to do so. The question is whether the Tribunal had the power and, if so, whether it erred in not giving consideration to its discretion to exercise the power or in not making further enquiries that may have caused the Tribunal to exercise that power or to defer making a decision until the applicant had the opportunity to make the required deposit.
Migration Regulation 4.15 sets out the Tribunal’s power to give directions. Paragraph 4.15(1)(b) provides that a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa. That paragraph is expressed to be subject to subregulation (4) which is not presently relevant.
The Minister submits that in the present case the Tribunal could not remit the case to the delegate because the relevant visa criterion was that the applicant achieved a qualifying score[3] when assessed under subdivision B of Division 3 of Part 2 of the Migration Act[4]. For practical purposes, this means that the applicant would not qualify for the class of visa he sought unless he achieved a qualifying score of 120 points. As the applicant was found to have achieved a score of only 115 points at the time of the Tribunal decision, it was (so the Minister submits) not open to the Tribunal to give a direction to the delegate that the applicant be taken to have satisfied the specified criterion for the visa.
[3] see clause 880.222 of part 880 to Schedule 2 of the Migration Regulations
[4] ss.92-96
I reject the Minister’s contention that the Tribunal had no power to remit the case to the delegate in the circumstances. I accept that regulation 4.15(1)(b) sets out the permissible directions that may be made by the Tribunal. I also accept that s.349(2)(c) limits the directions or recommendations that may be made on remittal by the Tribunal to those permitted by the Migration Regulations but I do not read that paragraph as necessarily preventing the Tribunal from remitting a case to the Department without a direction or recommendation.
Surprisingly, I have found little authority setting out the extent of the Tribunal’s power of remitter. Federal Magistrate Smith discussed the power in Poudyal at [44]-[48]. At [48] his Honour considered that prescribed directions and recommendations “may” be attached to a remitter. That is consistent with the High Court’s interpretation of an analogous power conferred upon the Administrative Appeals Tribunal by s.43 of the Administrative Appeals Tribunal Act 1975 (Cth). In Shi v Migration Agents Registration Authority [2008] HCA 31 at [39] his Honour Kirby J said:
Purpose of s.43 of the AAT Act: Thirdly, a conclusion that, ordinarily, the Tribunal might have regard to new, fresh, additional or different evidence in reaching its own decision is reinforced by the apparent purpose of s.43 of the AAT Act. Under that section, when the Tribunal decides to set the decision under review aside, it must consider whether to remit the decision to the Tribunal for reconsideration (with or without directions or recommendations) or whether to make a fresh decision "in substitution for the decision so set aside”.[5]
[5] AAT Act, s 43(1)(c)(i).
In my view, the power of the Migration Review Tribunal (and the Refugee Review Tribunal) is more confined than that of the Administrative Appeals Tribunal (“the AAT”). In my view, the Tribunal under the Migration Act, like the AAT may remit a case to the Minister’s Department with or without directions or recommendations but, if it chooses to attach directions or recommendations to the remitter, it is confined to those directions or recommendations as are permitted by the Regulations. In other words s.349(2)(c) limits the directions or recommendations that may be made on remittal, but not the power of remittal itself. If that were not the case then, in the absence of prescribed permitted directions or recommendations under the Regulations, there would be no power of remittal at all. That, in my view, would be an absurd result which would not reflect Parliament’s intention. That intention, apparent on the face of s.349(2)(c), is to fetter the power to make directions or recommendations, rather than to leave that power unfettered, as is the case with the AAT.
Secondly, it is, in my view, erroneous to conclude in relation to the points test that the Tribunal could only give a direction that an applicant met the criterion for the visa by achieving the minimum required score. In the present case (and I assume in many other cases) the points test is made up of a number of component parts which cumulatively establish the minimum qualifying score. In my view, it was open to the Tribunal in Haider to remit the case to the delegate with a direction that the applicant met specified component parts of the points test for the purposes of clause 880.222. The Tribunal in that case also recommended that the Department invite the applicant to deposit $100,000 in a designated security for a term of not less than 12 months. The Tribunal noted that if the amount were deposited, the visa applicant would then be eligible for the award of five points in accordance with item 6A81(a) of Schedule 6A. The Tribunal was there providing guidance to the Department as to the means in which the applicant could achieve the remaining points he required in order to achieve the minimum qualifying score. While I accept that, in a strict sense, the relevant visa criterion is the sum of the component parts of the points test, in my view, the Tribunal is not required to disregard those component parts in considering whether to remit a case to the Department (with or without a direction or recommendation) in accordance with factual findings made by the Tribunal in relation to those component parts.
I do not regard that approach as inconsistent with either the Migration Act or the Migration Regulations. It is a sensible and practical approach providing the Tribunal with flexibility in order to achieve the most appropriate outcome for applicants and in accordance with any perceived public interest. The reasons why a flexible and practical approach is required are clear from the decision in this Court in Balineni v Minister for Immigration [2008] FMCA 888 at [55]-[73]. The circumstances here are relevantly the same although the Tribunal here did not fall into the same error identified by Scarlett FM in Balineni. Because the delegate did not find the applicant to have achieved a score of 115 points, the Department had not invited the applicant to make a capital investment (which would have provided the additional five bonus points). Paragraph 75.5 of the Policy and Procedures Manual states that the visa application form tells applicants not to deposit the required money until asked to do so by the Department because such a deposit represents a significant financial step. It was only when the Tribunal had reviewed the applicant’s qualifying score and found that he had achieved a score of 115 points that the procedure for being invited to make a deposit and making a deposit was enlivened. Further, it was impossible for the applicant to make the deposit (if he had been requested) because there was, at the time of the Tribunal decision, no designated security in which the applicant could have deposited his money.
I accept, however, that the Tribunal did not err in failing to consider whether the applicant may have met other visa criteria such as a valid passport (clause 880.232). I do not see how such consideration could have affected the outcome.
The other factors concerning the procedure for making a deposit and the impossibility of making one at the relevant time, and the treatment of other applicants in the same position as this applicant, may well have had a bearing on the outcome of the case before the Tribunal if the Tribunal had chosen to make an enquiry of the Department. If the Tribunal had made an enquiry it might have considered it appropriate to remit the case to the delegate (with or without a direction or recommendation but presumably following a similar approach taken by the Tribunal in Haider) or, alternatively, the Tribunal might have considered it appropriate to defer making a decision until the applicant had the opportunity to make the deposit required in order to obtain the additional bonus points. I reject the contention that there is no evidentiary foundation for this aspect of the applicant’s contentions. To the extent that the factual basis is not covered by the Minister’s concession, these are matters of public record, from the decision of the Tribunal in Haider and otherwise.
The outcome in this case turns upon the failure of the Tribunal to enquire of the Minister’s Department what the situation was concerning the making of deposits into designated securities. If the Tribunal had made that enquiry it would presumably have been told that there were at that time no designated securities into which a deposit could be made and that the Department was holding applications such as Mr Dhanoa’s (which otherwise met the components of the points test) while the Commonwealth attempted to sort out the situation with the States. In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare. At [25]-[26] his Honour said:
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
In my view, and consistently with the decision of the Federal Court in SZIAI, it was unreasonable in the exceptional circumstances of this case for the Tribunal not to make a further enquiry. I am bound by that decision. Information was readily available to the Tribunal that no designated security was available at the relevant time into which the applicant could make the required deposit. That information was centrally relevant to the decision and was of immediate relevance to both the timing of the decision and the appropriate power to be exercised by the Tribunal in the circumstances.
It is unnecessary to decide whether the Tribunal also erred in failing to direct its mind to its discretion to remit, or to delay a decision. The error arose because the Tribunal failed to make an enquiry that would have properly informed its exercise of discretion, had the Tribunal directed its mind to it. It is safe to assume, however, that where the discretion exists, it must be exercised judicially: see for example Patel v Minister for Immigration [2009] FCA 392.
I find, that by failing to make that enquiry of the Department, the Tribunal fell into jurisdictional error. The applicant should received relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 June 2009
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