Ho, Christopher v Minister for Immigration and Multicultural Affairs

[1998] FCA 1326

FEDERAL COURT OF AUSTRALIA

CATCHWORDS

IMMIGRATION — deemed application for transitional (permanent) visa under Migration Reform (Transitional Provisions) Regulations — actual application for Class 806 (Family and Other Close Ties (After Entry) entry permit under Migration (1993) Regulations — whether Immigration Review Tribunal correctly interpreted subreg 2.29(1) of the Migration (1993) Regulations — whether Tribunal’s interpretation, if incorrect, was a material error in the circumstances — whether Minister had power to grant visa based on satisfaction of criteria for grant of permit for which applicant had not applied and in respect of which applicant had not paid required fee — whether Tribunal had power to grant visa which Minister had had no power to grant.

­­­

Stevenson v Commissioner of Taxation (1991) 29 FCR 282

Migration Act1958 (Cth) – subss 341(1­), 349(1)

Migration Reform (Transitional Provisions) Regulations – par 23(2)(b), subreg 23(3)

Migration (1993) Regulations – subreg 2.29(1)

CHRISTOPHER HO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 165 of 1998

KATZ J
SYDNEY
22 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 165 of 1998

BETWEEN:	CHRISTOPHER HO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	22 OCTOBER 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 165 of 1998

BETWEEN:

CHRISTOPHER HO

APPLICANT

AND:

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

22 OCTOBER 1998

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

Section 486 of the Migration Act1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect to “judicially-reviewable decisions”. Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Immigration Review Tribunal (“the Tribunal”) (see par 475(1)(a) of the Act).

In this proceeding, judicial review of such a decision is sought.

The decision concerned is one which was made by the Tribunal on 27 January 1998, consequent upon an application made to it by Mr Ho on 6 September 1996. The Tribunal’s decision affirmed an earlier decision made by the Migration Internal Review Office (“the MIRO”) on 14 August 1996. The decision of the MIRO had in turn affirmed an earlier decision made by a delegate of the Minister for Immigration and Ethnic Affairs (“the delegate”) on 30 January 1996. The delegate’s decision had been one to refuse to grant to Mr Ho a transitional (permanent) visa.

It is as well to mention immediately that Mr Ho had not made application for a transitional (permanent) visa. Instead, on 11 November 1993, he had made application for a Class 806 (Family and Other Close Ties (After Entry)) entry permit (“a category 806 permit”), such permit then being provided for by the Migration (1993) Regulations (“the 1993 Regulations”).

However, the 1993 Regulations were afterwards repealed by reg 40 of the Migration Reform (Transitional Provisions) Regulations (“the Transitional Regulations”), which Regulations commenced on 1 September 1994 (see reg 2 thereof). Paragraph 23(2)(b) of the Transitional Regulations had the effect that Mr Ho’s then-undetermined application for a category 806 permit was taken on 1 September 1994 to be an application for a transitional (permanent) visa. Subregulation 23(3) of the Transitional Regulations further provided that an application for a transitional visa “is to be decided according to the criteria that applied to the entry permit for which application was made”. In consequence, the delegate, the MIRO and the Tribunal, when making their respective decisions to refuse to grant to Mr Ho a transitional (permanent) visa, all did so according to the criteria that had applied to the former category 806 permit for which Mr Ho had made application.

(As will be seen later, the Tribunal, when making its decision, considered also whether Mr Ho satisfied the criteria that had applied to the former Class 805 (Skilled Occupation) entry permit (“the category 805 permit”), nonetheless though Mr Ho had not in fact made application for such a permit.)

Of the grounds of review by this Court of a judicially-reviewable decision (which grounds are primarily set out in subs 476(1) of the Act), only one was ultimately relied on for Mr Ho at the hearing of his application for an order of review, namely, that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law (see par 476(1)(e) of the Act).

In order the better to deal with the argument on Mr Ho’s behalf as to the making by the Tribunal of an error of law of the type just described, I should first refer to certain background matters additional to those already mentioned above.

When, on 11 November 1993, Mr Ho made application for an entry permit, he did so by lodging a completed Departmental form numbered 887. That form was capable of being used for applications for entry permits of a number of different categories and it was incumbent on an applicant for an entry permit to nominate on the form the category or categories of permit for which he or she was making application. Among the listed categories of permit were category 806 permits; there were also nine other categories of permit listed, including category 805 permits.

Mr Ho nominated on the form which he completed and lodged only a category 806 permit as the one for which he was making application.

At the time of lodging his completed application form, Mr Ho paid the fee required to be paid in connection with the making of an application for a category 806 permit, namely, $370, and there exists no doubt whatever as to the conformity of Mr Ho’s application in all respects with the requirements for an effective application for a category 806 permit.

Although Mr Ho might, as already mentioned, also or alternatively have nominated on the form which he completed and lodged a category 805 permit, he did not, as also already mentioned, do so. If he had done so, he would have been required to pay in connection with his application a fee, not of $370, but of $835, a difference of $465.

In nominating on the form which he completed and lodged only a category 806 permit as the one for which he was making application, Mr Ho acted on the advice of a migration agent. It is apparent that that migration agent’s advice to Mr Ho to make application for a category 806 permit was erroneous and almost certainly negligent. Indeed, in its statement of findings and reasons, the Tribunal said that it should have been “blindingly obvious” to the migration agent that Mr Ho was incapable of satisfying the criteria for the grant of such a permit. Thus, Mr Ho’s application for a category 806 permit, though perfectly effective from the outset, was always doomed to failure.

(It is appropriate to record here that the relationship between Mr Ho and the migration agent concerned terminated in 1997, after the latter had apparently been suspended by the regulatory authorities for reasons unconnected with his dealings with Mr Ho.)

If, on the other hand, Mr Ho had been advised to nominate on the form which he completed and lodged, as at least one of the categories of permit for which he was making application, a category 805 permit, had taken that advice (as, no doubt, he would have done) and had paid at the time of lodging his application the applicable fee of $835, it appears that there would have been a strong chance that his application for such a permit (or his later deemed application for a transitional (permanent) visa) would be granted either by the delegate or by the MIRO, to say nothing of its chance of being granted by the Tribunal.

I can speak of such a strong chance with considerable confidence, because, as I have already mentioned, the Tribunal, as well as considering whether Mr Ho satisfied the criteria for the grant of the former category 806 permit, also considered whether he satisfied the criteria for the grant of the former category 805 permit.

It is sufficient for present purposes to say that, in the Tribunal’s view, Mr Ho had comfortably satisfied all of the criteria for the grant of the former category 805 permit, both as of 1993, when he made his application for a category 806 permit, and as of 1998, when the Tribunal itself decided the matter.

However, because he had not paid the $465 difference between the fee payable in connection with the making of an application for a category 806 permit and the fee payable in connection with the making of an application for a category 805 permit, the Tribunal, with regret, considered itself obliged to affirm the decision under review. At the same time, the Tribunal considered, for reasons which I will discuss below, that if Mr Ho had, at the time of lodging his application for a category 806 permit, paid $835, rather than $370, the Tribunal would have had the power to set aside the decision under review and substitute for it a decision that Mr Ho be granted a transitional (permanent) visa. Such substituted decision would have been based on Mr Ho’s satisfaction of the criteria for the grant of the former category 805 permit, even though he had not in fact made application for such a permit.

Having now set out what appears to me to be an adequate summary of various background matters, I come to the argument on Mr Ho’s behalf as to the Tribunal’s having incorrectly interpreted the applicable law.

At the time at which Mr Ho made his application, subreg 2.29(1) of the 1993 Regulations provided relevantly that an application for a class 806 permit “also has effect, subject to the payment of the difference (if any) in applicable fees, as an application for an entry permit” (the emphasis is mine) of classes 801, 802, 804, 805 and 814.

A question arises as to the meaning of that provision in the present context. Two possible interpretations are as follows.

First, it may have meant that a person who had in terms made application only for a category 806 permit could, by paying $835 instead of $370, and provided that he or she made that payment at the time of lodging his or her application, ensure that his or her application would be treated as if it were one for a category 805 permit as well (“the first interpretation”).

Secondly, it may have meant that a person who had in terms made application only for a category 806 permit could, by paying a total of $835, whether in one payment at the time of lodging his or her application or by paying $370 at the time of lodging his or her application and an additional $465 at some time after lodging his or her application, ensure that thereafter his or her application would be treated as if it had been one for a category 805 permit as well (“the second interpretation”).

In its statement of findings and reasons, the Tribunal considered the proper interpretation of subreg 2.29(1) (which, being a provision of the 1993 Regulations, was, as already mentioned of the 1993 Regulations generally, repealed as of 1 September 1994).

In effect, the Tribunal gave to the repealed subregulation the first interpretation, saying,

“While this [viz, subreg 2.29(1)] does not specify when the difference in applicable fees should be paid, it is reasonable to conclude that the difference should be paid at the time of the application, since the Act itself at subsection 34(1) requires this.

The Tribunal finds that the difference in applicable fees had not been paid, in this case, at the time of Mr Ho’s application, nor indeed at the time of this decision, and that Mr Ho therefore fails to meet the requirements of 805.821 and hence cannot meet the requirements for the grant of a Class 805 (Skilled Occupation) entry permit.”

It was argued on Mr Ho’s behalf at the hearing of the present proceeding that the passage just quoted from the Tribunal’s statement of findings and reasons demonstrated an incorrect interpretation by it of the repealed subreg 2.29(1). According to Mr Ho’s counsel, it was the second interpretation of the repealed subregulation which was the correct one.

That meant, so the argument continued, that, contrary to the Tribunal’s view, it would have been open to Mr Ho to pay to the Department an additional $465 while his application for review was before the Tribunal, in which case the Tribunal could (and, no doubt, would) have decided to grant to Mr Ho a transitional (permanent) visa based on his satisfaction of the criteria applicable to the grant of the former category 805 permit, even though it was unable to do so based on the criteria applicable to the grant of the former category 806 permit.

It was further argued that, if the Tribunal had correctly interpreted the repealed subreg 2.29(1), then there is every chance that the Tribunal would have urged Mr Ho, while his application for review remained before it, to pay the additional $465 to the Department and he would have complied; at least, it cannot be said with the required degree of confidence (so the argument went) that the Tribunal would not have so urged him or that he would not have complied with such urging. That showed that the Tribunal’s incorrect interpretation of the repealed subreg 2.29(1) was not an immaterial error in the circumstances of the review before it and this Court should accordingly set aside the Tribunal’s decision and remit to it for reconsideration in accordance with law Mr Ho’s application to it for review of the decision of the MIRO.

For the Minister, on the other hand, it was argued that the Tribunal’s interpretation of the repealed subreg 2.29(1) had not been incorrect and, alternatively, that its incorrect interpretation of the repealed subregulation had not been a material error in the circumstances.

I have reached the view that it is unnecessary for me to resolve the dispute as to whether or not the Tribunal’s interpretation of the repealed subreg 2.29(1) was incorrect, because, even if it was incorrect, the Tribunal’s incorrect interpretation of the repealed subregulation was not a material error in the circumstances. It was not a material error in the circumstances because even if the repealed subregulation, at the time when Mr Ho lodged his application for a category 806 permit, did allow for the making of what I may call a subsequent “top-up” payment, it did not have that effect while Mr Ho’s application for review of the decision of the MIRO was before the Tribunal between 6 September 1996 and 27 January 1998.

It is convenient that I begin to explain the conclusion which I have just expressed by hypothesising first that Mr Ho’s application to the Minister had been determined by the Minister between 11 November 1993, the date of Mr Ho’s application, and 1 September 1994, the date on which the 1993 Regulations, including subreg 2.29(1), were repealed.

If Mr Ho’s application had been determined by the Minister during that time, then subreg 2.29(1), regardless of whether it permitted subsequent “top-up” payments, could not then have operated to deem Mr Ho’s application for a category 806 permit to be one also for a category 805 permit, Mr Ho not having paid the $465 without which that particular deeming contemplated by the subregulation could not occur.

Furthermore, it would not have been open to the Minister to grant to Mr Ho a category 805 permit for which no application had actually been made by him and for which no application was deemed to have been made by him by virtue of subreg 2.29(1), because of his non-payment of the additional $465 required.

The prohibition on the Minister’s granting to Mr Ho a permit for which he had made no application and for which he was not deemed to have made application because of his failure to pay the additional $465 required flowed from the combined operation of certain provisions of the Act and the 1993 Regulations, all of which provisions were in force throughout the relevant period, namely, subs 34(1), par 34(2)(b) and subs 34(4) of the Act and subreg 2.28(1) of the 1993 Regulations.

Subsection 34(1) and par 34(2)(b) of the Act provided that the Minister should not in any circumstances grant an entry permit unless a person made an application for an entry permit of a particular class in accordance with the regulations and any fee payable in respect of the application was paid, while subreg 2.28(1) of the 1993 Regulations provided relevantly that an application for an entry permit was in accordance with the regulations if the relevant fee had been paid. Additionally, subs 34(4) of the Act provided that, where it appeared to the Minister that the applicant was not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister should refuse to grant such an entry permit.

(I have already mentioned above the repeal of the 1993 Regulations on 1 September 1994. I should now mention that s 34 of the Act, as discussed above, was also repealed on that date: see the Migration Reform Act1992 (Cth), s 11, the commencement date of which section was provided for by the Migration Reform Act, subs 2(3), that subsection having been amended by the Migration Legislation Amendment Act 1993 (Cth), s 5.)

The situation if Mr Ho’s application had been determined by the Minister before the repeal on 1 September 1994 of s 34 of the Act and subregs 2.28(1) and 2.29(1) of the 1993 Regulations being as I have described it above, I am unable to see how Mr Ho’s position was improved when, on that date, his application was converted by force of par 23(2)(b) of the Transitional Regulations into a deemed application for a transitional (permanent) visa, which deemed application was, according to subreg 23(3) of the Transitional Regulations, “to be decided according to the criteria that applied to the entry permit for which application was made”. Certainly, nothing was pointed to on Mr Ho’s behalf as having had such an improving effect.

In fact, the effect of the Transitional Regulations may have been to worsen Mr Ho’s position, because, assuming the second interpretation of the repealed subreg 2.29(1) to be the correct one, the ability conferred by it to expand one’s undetermined application for a category 806 permit into an application for a category 805 permit as well, by subsequently paying an additional $465, may have been brought to an end on 1 September 1994, when subreg 2.29(1) was repealed and subreg 23(3) of the Transitional Regulations, in particular, began to operate.

However, I need not decide whether, on 1 September 1994, Mr Ho’s position was worsened in that way. All that I am concerned with is the fact that that position had not been improved. Accordingly, when the delegate actually decided Mr Ho’s application on 30 January 1996, the Minister had no more power to grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria for the grant of the former category 805 permit than the Minister would have had between 11 November 1993 and 1 September 1994, Mr Ho at no stage having paid the $465 difference between the fee applicable in connection with applications for the former category 805 permit and the fee applicable in connection with applications for the former category 806 permit.

(I should perhaps add here that I did not understand counsel for Mr Ho to contest during the hearing of the proceeding the proposition that, Mr Ho not having paid the additional $465 required as of 30 January 1996, the Minister then had no power to grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria for the grant of the former category 805 permit. In  fact, counsel would not have argued that the additional $465 could be paid while the matter was before the Tribunal unless he impliedly conceded that it was necessary for that sum to be paid before the relevant decision-maker could grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria for the grant of the former category 805 permit.)

The fact that the Minister had had no power, when Mr Ho’s application was decided, to grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria for the grant of the former category 805 permit had important consequences for the scope of the review of the delegate’s decision to refuse, by reason of Mr Ho’s failure to satisfy the criteria for the grant of the former category 806 permit, to grant to him a transitional (permanent) visa.

The powers of both the MIRO and the Tribunal when conducting a review are materially identical; each “may, for the purposes of the review …, exercise all the powers and discretions that are conferred by this Act on the person who made the decision [under review] ”: see subss 341(1) and 349(1) respectively of the Act.

The provisions from which I have just quoted were obviously modelled on subs 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) and their effect was that, because the Minister had had no power, when Mr Ho’s application was decided, to grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria for the grant of the former category 805 permit, neither the MIRO, on review of the delegate’s decision, nor the Tribunal, on review of the MIRO’s decision, had such power.

The view which I have just expressed about the scope of the MIRO’s and Tribunal’s powers on review is supported by the approach to subs 43(1) of the Administrative Appeals Tribunal Act taken by Jenkinson J in Stevenson v Commissioner of Taxation (1991) 29 FCR 282.

In that case, after a taxpayer had made to the Taxation Commissioner a full and true disclosure of all the material facts necessary for his assessment, the Commissioner assessed him for tax. The tax assessed became due and payable shortly thereafter. Subsection 170(3) of the Income Tax Assessment Act1936 (Cth) provided that, in those circumstances,

“… no amendment of the assessment increasing the liability of the taxpayer in any particular shall be made except to correct an error in calculation or a mistake of fact; and no such amendment shall be made after the expiration of 3 years from the date upon which the tax became due and payable under that assessment.”

Less than three years after the tax assessed became due and payable, the Commissioner amended the assessment he had earlier made. The taxpayer objected to the amended assessment, upon which objection the Commissioner decided. However, by the time the Commissioner made his decision, more than three years had elapsed from the date when tax had become due and payable pursuant to the original assessment. The Commissioner decided not to allow the objection in full and the taxpayer then requested that the Commissioner’s objection decision be referred to the Administrative Appeals Tribunal.

The Tribunal reached the conclusion on the reference that a greater amount of tax should have been assessed than had been assessed by the Commissioner in the amended assessment, but it nonetheless affirmed the decision under review.

Jenkinson J explained the Tribunal’s conduct in this way (at 294-95),

“When the respondent [Commissioner] made his decision on the objection against the amended assessment … more than three years had elapsed from the date on which the tax first assessed … became due and payable. For that reason the Tribunal, conceiving itself to have only such a power to increase the liability of the taxpayer as the respondent had at the time he made his decision, affirmed the respondent’s decision.”

Jenkinson J considered that the Tribunal had been correct to conduct itself as it had. He said (at 300),

“… s 170(3) operated to deny to the Commissioner, at the time he made his decision on the objection, the power he would have had if the prescribed period of three years had not elapsed of increasing the liability of the applicant on his consideration of the objection. That power not having been available to the Commissioner, s 43(1) of the Administrative Appeals Tribunal Act did not confer it on the Tribunal, in my opinion…. [W]hether the power is available to the Tribunal will in my opinion depend on whether it was available to the Commissioner when he made the decision which is the subject of the reference.”

In the same way that the Administrative Appeals Tribunal was unable in Stevenson’s Case to exercise a power which the Commissioner, in the particular factual circumstances in which he then found himself, would have been unable to exercise at the time at which he made his decision, the MIRO and, subsequently, the Tribunal were unable in the present case to exercise a power which the delegate, in the particular factual circumstances in which he then found himself, would have been unable to exercise at the time at which he made his decision, namely, to grant to Mr Ho a transitional (permanent) visa by reason of his satisfaction of the criteria applicable to the grant of the former category 805 permit.

In all the circumstances, therefore, it is necessary that I dismiss Mr Ho’s application, with costs.

However, I cannot conclude these reasons without emphasising how unpleasant a task it is for me in the circumstances to be obliged to dismiss Mr Ho’s application.

Following are some of the findings of fact the Tribunal made about Mr Ho in its statement of findings and reasons: he was “impressive” and “highly regarded by his employer … and work colleagues”; his achievements were “remarkable”; he had “an exceptional record of achievement in his occupation or profession at the time of his application”; “he would have been then, as now, an asset to the Australian community”; at the time of his application, “he would have had no difficulty in obtaining employment in Australia”; he was “a person of impeccable character who has worked diligently for his employer for many years; who has earned the trust and respect of his colleagues and superiors in a major Australian resources company and who has helped them achieve savings in the order of $20 million at a crucial time in the history of the company”; and he had “outstanding personal attributes”.

In spite of all of the above, Mr Ho now finds himself in his present position by reason, effectively, of the incompetence of the migration agent who “assisted” him to make his application for an entry permit in 1993. By the time Mr Ho was freed of that migration agent’s “assistance”, that migration agent had, on my view of the correct interpretation of the applicable law, fatally injured Mr Ho’s chances of obtaining that for which, according to the Tribunal, he was eminently suited, but which he was precluded from obtaining merely by reason of his not having paid an additional $465 to the Department at an appropriate time.

During the course of the hearing of the present proceeding, I inquired whether Mr Ho had requested the exercise of the power conferred on the Minister by subs 351(1) of the Act to substitute for the decision of the Tribunal under s 349 another decision, being a decision that was more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. I was told that such a request had been made, but that the Minister would not consider it until Mr Ho’s present challenge to the legality of the decision of the Tribunal had been concluded.

On the assumption that, as a result of my decision herein, that request is now to be considered by the Minister, is for the grant of a transitional (permanent) visa by reason of Mr Ho’s satisfaction of the criteria applicable to the grant of the former category 805 permit and is capable of being granted, I cannot forbear from saying that I find it difficult to conceive of a more meritorious request and hope that the Minister will consider it appropriate to grant it.

I certify that this and the preceding sixteen pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz

Associate:

Date:               22 October 1998

Counsel for the Applicant:	Mr S Gageler
Solicitor for the Applicant:	Justin Rickard & Associates
Counsel for the Respondent:	Mr P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 October 1998
Date of Judgment:	15 October 1998