Lay Lat v Minister for Immigration - [2005] FMCA 1960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAY LAT v MINISTER FOR IMMIGRATION

[2005] FMCA 1960

MIGRATION – Visa – Subclass 131 investment-linked visa – Class AD Business Skills (Migrant) visa – application for review of delegate’s decision refusing to grant visa – decision not reviewable by the Migration Review Tribunal – decision does not come within the provisions of s.338 of the Migration Act 1958 (Cth) – delegate’s decision not a primary decision as defined in s.476(6) of Migration Act 1958 – natural justice – whether delegate failed to provide particulars – whether no evidence to support delegate’s finding – whether delegate failed to identify what business or investment activities were unacceptable – where s.57 of Migration Act 1958 did not apply to applicant because of the operation of s.57(3) – whether s.51A(1) of the Migration Act 1958 amounts to a clear legislative intent to exclude “offshore applicants” from their entitlement to natural justice at common law – principles of natural justice are not concerned with the merits of a particular case but with the procedure that must be observed in its exercise - operation of s.65 of Migration Act 1958 – decision maker has to be affirmatively satisfied that criteria have been met – the question whether there is any evidence of a particular fact is a question of law – whether a particular inference can be drawn from facts found or agreed is a question of law – in the context of judicial review the making of findings and the drawing of inferences in the absence of evidence is an error of law.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.51A, 57, 65, 338, 357A, 359A, 422B, 424A, 476
Administrative Decisions (Judicial Review) Act 1977 (Cth)

WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 cited.
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 cited.
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221 discussed.
Applicant M17 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 85 ALD 597 cited
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 distinguished.
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 followed.
NBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1132 cited.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 discussed.
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 followed.
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 cited
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 cited
NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 referred to.
Applicant A169 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 cited.
Kioa v West (1985) 159 CLR 550 cited
Annetts v McCann (1990) 170 CLR 596 referred to
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 discussed.
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to.
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624; 80 ALD 435 referred to.
SZBFD v Minister for Immigration [2005] FMCA 139 discussed.
Katisat v Minister for Immigration & Ors [2005] FMCA 652 not followed.
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 discussed.
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 discussed.
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 referred to.
SZBDF v Minister for Immigration [2005] FMCA 926 discussed
Parajuli v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 563 followed.
Shreshta v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 referred to.
Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 followed.

Applicant:

LAY LAT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3679 of 2004

Delivered on:

20 December 2005

Delivered at:

Sydney

Hearing date:

4 November 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Poynder

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Phillips Fox

ORDERS

That an order in the nature of certiorari issue quashing the decision of the delegate of the Respondent Minister made on 18 November 2004 (“the decision”).
That an order in the nature of mandamus issue requiring the Respondent to review according to law the decision made by a delegate of the Respondent Minister on 18 November 2004 refusing to grant a visa to the Applicant.
That the Respondent pay the Applicant’s costs fixed in the sum of $6,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3679 of 2004

LAY LAT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application under s.39B of the Judiciary Act 1903 (Cth) to review a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refusing to grant a visa in the AD Business (Migrant) class made on 18 November 2004.
As counsel for the Respondent submitted, the delegate’s decision does not come within any of the provisions of s.338 of the Migration Act 1958 and therefore was not reviewable by the Migration Review Tribunal. It is not a primary decision as defined in s.476(6) of the Migration Act and so the Court’s jurisdiction is not excluded by s.476(1).

Background

The Applicant is a citizen of Cambodia. He applied for a subclass 131 investment-linked visa on 28 August 2002. Subclass 131 ceased to exist on 1 March 2003 and the relevant provisions in Schedules 1 and 2 of the Migration Regulations 1994 (Cth) have been repealed.
Subclass 131 visas were for investors with a successful business or investment record who made a designated investment in Australia of between $750,000 and $2,000,000.
In his application form, the Applicant indicated that he and his spouse had money, goods and assets to bring to Australia worth $3,500,000, of which $2,000.000 was available for investment. He confirmed that $2,000,000 would be deposited in the designated investment in his Form 1139 Business Skills Profile.
The Applicant indicated that the assets to be used to finance his investment consisted of a cash deposit of $11,914, 742 at the Cambodia Commercial Bank. The Applicant’s migration agent indicated that the source of these funds was the Applicant’s trading activities on the Thai-Cambodia border in the years immediately after the fall of the Khmer Rouge in 1980. This business operated on a cash basis. In 1995 the Applicant reinvested his savings in a business called Hero King Pty Ltd which specialized in the import and resale of cigarettes. Hero King Pty Ltd was the Applicant’s “qualifying business” for the purpose of his visa application.
The Applicant stated that he and his wife had formed a company in Australia called Lat and Ly Pty Ltd to act as a vehicle for business transactions in Australia. The Applicant intended to acquire a Thai restaurant called Tuk Tuk Real Thai in order to gain experience in the Australian market.
On 19 March 2004 a delegate of the Minister, one Neville Maddock, sent a Minute to the Principal Migration Officer at the Australian Embassy in Phnom Penh, saying:
My main concern is in regards to the original source of Mr Lat’s wealth and my inclination, at this stage, is to refuse the application without further examination, on the basis that he cannot evidence that his funds were acquired legally. Before I do so, however, I would be grateful if you would examine the attached document which was included with the application and provide any comment.
I would also be grateful for any local information you may have on Mr Lat and his business, Hero King Ltd…
On 15 June 2004 the Applicant’s migration agent sent an email to the delegate asking about the processing of his client’s application. In response, the delegate stated:
My main concerns with this application relate to the original source of funds to be invested. The Applicant has stated that he has no documentary evidence of this. I have, initially, referred the papers to Cambodia to seek expert advice before proceeding further and I am awaiting a response.
On 12 August 2004, in reply to an email by another delegate, Editha Tauscher, the Principal Migration Officer at the Australian Embassy in Phnom Penh sent Ms Tauscher an email, the relevant parts of which are:
The circumstances stated in the attachments did happen in Cambodia during the early stage, after Khmer Rouge Regime. However, I am not able to determine whether the applicant’s stated history regarding sources of fund/assets was true. Such a history can always be made up by any person to cover the history/source of fund as there is no way to verify against. In other words, such a story could be made up for a “Money Laundering” method.
…
In general though I think Neville’s original inclinations were well-founded – I’m sure this guy now has a genuine business and is very wealthy – but in this country you would never get to the bottom of how his wealth was acquired, and frankly I would say that the likelihood of its being acquired by legal means is extremely remote.
On 13 August 2004 Ms Tauscher wrote to the Applicant’s migration agent requesting comment on certain information:
Your client has stated that the funds have been accumulated from his earlier border business activities and his current business, Hero King Co Ltd. While your client has shown evidence of owning about AUD 13 million as of July 2002, he has claimed that he is unable to provide documentary evidence of the source of the funds due to the nature of his border business dealings. In relation to more recent years (1999 to 2001), your client has provided bank statements showing that there has been a sharp increase of cash funds from 1999 to 2001. However, no explanation or documentary evidence has been provided as to the source of these funds. For example, there has been an increase in cash funds from 2000 to 2001 of over AUD 6 million. The interest rate received for 2000 amounted to only 0.5% and can thus not account for this substantial increase. The profit of the business Hero King Co Ltd amounted to only AUD 38,800 of which only a third could be attributed to your client. The cash assets thus could not have been derived from the business activities of Hero king Co Ltd. The financial statements for Hero King Co Ltd do not mention any director’s fees and the overall salaries for the company amounted to only AUD 18,800. In view of the above, I am not satisfied that the Applicant’s funds have been accumulated from the qualifying business or eligible investment activities of the Applicant and his or her spouse together[1].
[1] See Court Book at page 346.
On 27 September 2004 the Applicant’s migration agent wrote back, providing further information. As to the source of the Applicant’s funds, the agent enclosed:
a)a letter dated 31 August 2004 from Mr Ay Khorn, the former Governor of Koh Kong province from 1983 to 1993 and current Member of Parliament for Koh Kong. That letter confirmed the cash-based nature of the trade in the Thai-Cambodian border until the early 1990s, saying also that he had known the Applicant since the early 1980s and that the estimate of the Applicant’s wealth was reasonable;[2] and
b)further additional information on the nature of the border trade, the profits made by the applicant during this period, and the staffing, supplier and customers of Hero King Co Ltd.[3]
[2] See Court Book at page 428
[3] See Court Book at pages 429-431.
In an accompanying submission the agent, Mr Chris Panasbodi, addressed the difficulty of proving that the funds to be invested had been accumulated from the qualifying business or eligible investment activities[4].
[4] See Court Book at pages 411-412.

The delegate’s decision

On 18 November 2004 a delegate of the Minister, Shernaz Udwadia, refused the application for a visa. The delegate stated that, of the criteria to be satisfied at time of application, the Applicant had not satisfied criterion 131.214. The Applicant had satisfied criterion 131.216 and the other criteria were not assessed. As to the criteria to be satisfied at the time of decision, criteria 131.221 and 131.222 were not satisfied and the others were not assessed.[5]
[5] See Court Book at page 442.
The delegate considered whether the Applicant met clause 131.213(3), which requires that the total net value of the assets owned by the Applicant and/or his spouse in the two fiscal years prior to the application must be 50% m ore than the value of the funds to be deposited in the designated investment. The delegate noted that the Applicant had nominated an investment of $2,000,000, which would have meant that he needed assets worth $3,000,000 as at 31 December 1999. The delegate accepted that the Applicant had assets worth $2,773, 230.00 at that time[6] which was less than the $3,000,000 that was required. Nevertheless, the delegate noted that the Applicant might have qualified by his “limited” English language skills to be able to make a lesser investment of $1,500,000, which would have allowed him to meet clause 131.213(3). The Form 1139 (Business skills profile: Investment-linked) signed by the Applicant indicated that the level of funds to be invested would be reduced according to the Applicant’s age and English language skills. Counsel for the Applicant submitted that a lower amount of $1,500,000 could be accepted if the Applicant possessed “limited” English skills as opposed to no English skills. The delegate stated, however:
The applicant did have at least AUD 2,250,000 in total net assets as at 31 December 1999, however without confirmation of whether he had Limited English and thus could make a lesser Designated Investment of AUD 1,500,000, the case officer could not assess whether he was able to satisfy Migration Regulation 131.213 (3)[7].
[6] See Court Book at page 441.
[7] Ibid.
As to clause 131.214, which requires that neither the Applicant nor his or her spouse have a history of involvement in business or investment activities that are not generally acceptable in Australia, the delegate stated:
…The personal reference from Mr Ay Khorn is the only document submitted by the Applicant to evidence his border business activities in the 1980’s and 1990’s. No documentary evidence of the nature of the Applicant’s border business activities, whether these activities met the definition of a qualifying business or any financial documentation to evidence the business activities has been submitted. Without this information the case officer cannot be satisfied that the Applicant has not operated in a business sector that is outside the generally accepted norms of most people in Australia or that is likely to be offensive to large segments of the Australian community. The case officer is not satisfied therefore that the Applicant meets Migration Regulation 131.214 in that he does not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.[8]
[8] Ibid.
The delegate found that the Applicant did not satisfy Migration Regulation 131.221. In order to satisfy Migration Regulation 131.211, an applicant has to satisfy Migration Regulations 131.211 to 131.215. The delegate found that the Applicant did not satisfy Migration Regulation 131.214.[9]
[9] See Court Book at page 442.
Migration Regulation 131.222(2) requires the Minister to be satisfied that the funds invested are legally owned by the Applicant and have been accumulated from the qualifying business or eligible investment activities of the Applicant. The delegate made these observations and findings:
In relation to the years prior to the making of the application, the Applicant’s bank statements from 1999 to 2001 indicate a significant increase in his cash on deposits. From 31 December 2000 to 2001 for example, the Applicant’s cash on deposits increased from AUD 3,882,563 to AUD 10,647,000. The migration agent in his submission received on 6 October 2004 stated that the applicant’s bank records from 1997 onwards indicate his on-going business transactions that reflect genuine substantial business activity and that had these funds not belonged to the applicant, he would not have been able to deal with them on such a regular basis. The audited financial statements for Hero King Co Ltd from 1999 to 2001 do not evidence profit levels to substantiate such significant increases in the applicant’s cash on deposits, nor do they detail any emoluments earned by shareholders or Directors. Such significant increases in cash on deposits could also not be attributed to interest earned on these funds. Without documentary evidence of the applicant’s border business activities and given that his business activities with Hero King Co Ltd do not substantiate the significant increase in his cash on deposit funds, the case officer is not satisfied that the applicant’s funds have been accumulated from his or he (sic) and his spouse’s qualifying business or eligible investment activities and that he meets Migration Regulation 131.222.

The application and amended application

The application filed his application for review on 17 December 2004. On the day of the hearing the Applicant’s counsel, Mr Poynder, filed in court an Amended Application.
The Amended Application seeks orders in the nature of certiorari and mandamus and a declaration that the decision was made in excess of jurisdiction and is null and void.
The grounds of the application are that the delegate exceeded jurisdiction. The particulars are:
a)In finding that the applicant did not meet clause 131.214 in Schedule 2 of the Migration Regulations the delegate erred in that:
i)She failed to comply with s.57(2) of the Act[10] and failed to provide natural justice to the Applicant because she failed to provide the Applicant with any particulars or an opportunity to respond to information that might suggest that he had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
[10] i.e. the Migration Act 1958.
ii)There was no evidence to support the delegate’s finding that she was not satisfied that the Applicant did not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
iii)She failed to identify what business or investment activities by the Applicant were unacceptable, and what was the nature of his involvement in such activities.
b)In finding that the applicant did not meet clause 131.222(2) in Schedule 2 of the Migration Regulations the delegate erred in that:
i)She misunderstood the requirements of clause 131.222(2)(c) in that she proceeded to an assessment of whether the Applicant’s funds in the designated investment had been accumulated from his qualifying business or eligible investment activities when no investment had then been identified or made.
ii)She failed to provide natural justice to the applicant because she failed to invite him to make a designated investment, thereby denying him the opportunity to satisfy the delegate that he had accumulated the funds in an investment from his qualifying business or eligible investment activities.
iii)There was no evidence to support the delegate’s finding that the funds invested by the Applicant in the designated investment had not been accumulated from his qualifying business or eligible investment activities because at the time of decision no investment had been made by the Applicant and no funds had been identified for the purposes of clause 131.222.
iv)The delegate failed to consider that the funds might have amounted to “eligible investment activities” merely by reason of the Applicant’s ownership of the funds as cash on deposit under clause 131.111(c).
v)The delegate failed to consider that the funds totalling $A2,733,230 acknowledged by the delegate to have been held by the Applicant as at 31 December 1999 might have been accumulated from the “qualifying business activities” of Hero King between 1995 and 1999, or from the Applicant’s border business activities prior to 31 December 1999.

The applicant’s submissions

Counsel for the Applicant submits nowhere during the processing of the Applicant’s visa application was it ever suggested that the visa might be refused on the grounds that the Applicant might have had a history of involvement in business or investment activities that are of nature not generally acceptable in Australia. The Applicant further submits that common law natural justice is not entirely excluded to an offshore visa applicant.
The submission continues that there was no information before the delegate from which she could realistically fail to be satisfied. The delegate’s failure to identify which business or investment activities by the Applicant were unacceptable and the nature of the Applicant’s involvement in those activities:
a)amplifies the submission that there was in fact no evidence capable of supporting the delegate’s failure under clause 131.214; and
b)amounts to a failure to apply the test required by clause 131.214 correctly.
The delegate’s finding that she could not be satisfied that the funds invested in the “designated investment” had been accumulated from the Applicant’s qualifying business or eligible investment activities was essentially a finding that the applicant did not meet clause 131.222(2)(c). The delegate did not consider whether:
a)there was evidence that a designated investment had in fact been made under clause 131.222(1);
b)the funds were legally owned by the Applicant under clause 131.222(a); or
c)the funds were unencumbered under clause 131.222(2) (b).

The respondent’s submissions

Counsel for the Respondent, Mr Kennett, submitted that insofar as Amended Ground (a) (i) relies on s.57 of the Migration Act, it cannot succeed because the operation of that section is excluded by subsection 57(3). A subclass 131 visa can only be grated when the Applicant is outside Australia, and a decision to refuse to grant the visa is not reviewable under Part 5 or Part 7 of the Act.
Insofar as the ground relies on general law principles of procedural fairness, the Respondent submits that the argument is precluded by s.51A of the Act. Section 51A provides that the Subdivision in which it is found (including s.57) is an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals. Section 51A is relevantly identical to ss.357A and 422B, which apply to the Migration Review Tribunal and the Refugee Review Tribunal respectively. Section 57 is the direct equivalent of ss.359A and 424A which apply to the Migration Review Tribunal and the Refugee Review Tribunal respectively.
The Respondent referred to WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57] where French J held that ‘matter’ dealt with by s.424A was “the provision to the Applicant of material, known to the Tribunal, which would be adverse to the Applicant’s application”. The Respondent submitted that Lindgren J referred to that discussion with evident approval in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at 469 [54], and held that the expression ‘the matters it deals with’ in s.357A “was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5” (at 469 [60]).
The Respondent referred to Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221, where Hely J said at 228 [22]:
Section 57 of the Act is also an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have an opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application. Section 57 replaces what would otherwise have been the requirement of the common law hearing rule in this respect. Section 57 did not oblige the Minister to reacquaint the Applicant with the comparative exercise undertaken by the Minister’s delegate as neither s.57(3)(a) or (b) was satisfied, hence s.57(2) had no relevant application.
This decision has been followed in Applicant M17 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 85 ALD 597 at 616 [83] and SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493. SZBDF v MIMIA is an appeal from the Federal Magistrates Court where Branson J at [17] expressly preferred the approach in Wu v MIMIA to the approach taken in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170, in which Gray J declined to follow Wu.
The Respondent submits that the decision in Moradian v MIMIA has been referred to “but apparently not followed”[11] in other decisions and has been referred to in NBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1132 where Conti J observed (obiter) that the dictum of French J in WAID (supra) correctly described the interaction of ss.422B and 424A. SZBDF (supra) is, of course, binding on this Court. The Respondent submits that even if it were not binding, the weight of authority favours the reasoning in Wu and that reasoning should be followed in preference to the reasoning in Moradian v MIMIA.
[11] This is not strictly correct.
Turning to the ‘no evidence’ ground, the Respondent submits that the Tribunal did not need to have ‘evidence’ rebutting the Applicant’s assertions as to business history before it was entitled to disbelieve those assertions.
a)The relevant visa criterion, in conjunction with s.65 of the Migration Act, meant that the delegate had to be satisfied that the Applicant had not engaged in business activities of the kind referred to. Counsel for the Respondent cited the decision in Parajuli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 563 at [17] “The decision maker has to be affirmatively satisfied that criteria have been met”.
b)The delegate expressed herself to be unable to reach that state of satisfaction in the absence of documentary information about the nature of the Applicant’s business activities.[12]
c)The conclusion reached by the delegate was not expressed as a positive finding that the Applicant had engaged in business activities of the kind referred to in clause 131.214, but rather it was a conclusion that the material advanced by the Applicant was not sufficiently credible to satisfy the delegate that he met the relevant criterion.
[12] See Court Book at page 440.
Counsel for the Respondent also submits that there was material before the delegate that was logically capable of sustaining the conclusion under the challenge. This material consisted of the email dated

12 August 2004 from the Principal Migration Officer at the Australian Embassy at Phnom Penh saying (inter alia):
…I am not able to determine whether the Applicant’s stated history regarding source of funds/assets was true. Such a history can always be made up by any person to cover the history/source of fund (sic) as there is no way to verify against (sic). In other words, such a story could be made up for a “money laundering” method.
…
…I’m sure this guy now has a genuine business and is very wealthy – but in this country you would never get to the bottom of how this wealth was acquired, and frankly I would say that the likelihood of its being acquired by legal means is extremely remote.
The third point made by the Respondent in respect of this ground is that it should not be accepted that absence of evidence (let alone inadequacy of evidence) for a factual finding necessarily amounts to jurisdictional error. That is not the result of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, which concerned “error of law” under the Administrative Decisions (Judicial Review) Act 1977, despite what is suggested in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402.
In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20[38], Gummow and Hayne JJ observed that “the critical question” was whether the Tribunal’s conclusions were “irrational, illogical or not based on findings of fact supported by logical grounds”, citing various passages in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. The Respondent submits that what emerges from S20 (supra) is that the scope for judicial review on the basis of inadequate fact finding reflects the position expressed in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120, quoted in S20 at 67. The position is described as the obligation to exercise powers “according to law, and not humour.” (See S20 at 62[9] per Gleeson J; NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 per Allsop J at 286-287).
Inadequacy of material to support a factual conclusion does not constitute jurisdictional error in itself. The inadequacy of the material relied “may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the requisite matters” (see Melbourne Stevedoring (supra)). In other words, the Respondent submits, there is a further question that needs to be addressed: whether the impugned finding evidences a lack of attention to the correct test or issues. (See SFGB v MIMIA (supra at [19]; Applicant A169 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31]). The Respondent submits that in this case the question must be answered in the negative.
In respect of the ground of identifying “unacceptable activities” the Respondent submits that this ground appears to do little more than amplify the previous ground. A failure by a delegate to descend into specifics in the delegate’s reasons is not, in itself, a failure to do anything except write detailed reasons, as counsel rather facetiously submits. It cannot be said to constitute a failure to apply correctly the test embodied in the relevant visa criterion. Depending on the circumstances, an absence of detailed discussion may support the inference that the Tribunal has failed to take into account relevant matters, or somehow misunderstood the test to be applied. In this case, however, the Respondent submits that no such inference arises, given the nature of clause 131.214. In substance, it is submitted, 131.214 requires a visa applicant to have a “clean bill of health”. A decision-maker may properly remain unsatisfied that all is well, without knowing or stating exactly what is thought to be wrong.
Turning to the delegate’s findings on clause 131.222, being Amended Ground (b), the Respondent accepts that, at the time the delegate made her decision, the Applicant had not made any investment for the purposes of clause 131.222. This was in accordance with the practice set out in the relevant departmental manual, under which a visa applicant would be invited to select a designated investment only after a decision maker has reached the view that the applicant otherwise met the criteria for a grant of the visa.
The Respondent submits that one result was that, at the time of the delegate’s decision, the Applicant did not meet clause 131.222(1) and was, therefore, not qualified to be granted the visa.
A further result was that the delegate’s assessment of whether the Applicant’s funds came within clause 131.222(2) could be no more than provisional. The matters to be addressed under that subclause could not be determined finally unless and until the investment required by clause 131.222(1) had been made. That stage was never reached in this case.
The Respondent accepts that the delegate’s conclusions on clause 131.222 should not be regarded as forming part of the delegate’s reasons for refusing to grant the visa. It follows that it is unnecessary to determine whether the grounds pleaded in paragraph (b) of the Amended Application are made out. It would be sufficient for the Applicant if one or more of the grounds in paragraph (a) were made out.

Conclusions

In the light of the Respondent’s concession set out in paragraph 39 above, I find it unnecessary to determine whether the grounds pleaded in Amended Ground (b) have been made out.
The first ground for review is that the delegate failed to comply with s.57 (2) of the Migration Act and failed to provide natural justice to the Applicant because the delegate failed to provide the Applicant with any particulars or an opportunity to respond to information relevant to clause 131.214, that is, that the Applicant had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. As has been set out in paragraph 25 above, s.51A is relevantly identical to ss.357A and 422B. Section 57 is the direct equivalent of ss.359A and 424A, except that subsection 57(3) is different from subsections 359A (3) and 424A (3).
As counsel for the Applicant points out, it is relevant that subsection 57(3) provides:
(3) This section does not apply in relation to an application for a visa unless:
a) the visa can be granted when the Applicant is in the migration zone; and
b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
It is clear that s.51A(1) provides:
This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The Applicant refers to the decision of Mason J in Kioa v West (1985) 159 CLR 550 at 584-585, where his Honour summarized the common law principle of natural justice:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given the opportunity of replying to it. (See also Annetts v McCann (1990) 170 CLR 596 at 598; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238).
During the processing of the application for a visa there were two occasions when the delegate raised issues with the Applicant about the source of his funds:
a)The email to the Applicant’s migration adviser dated 15 June 2004, when the delegate (Mr Neville Maddock) indicated a concern that there was no documentary evidence of the original source of the funds to be invested;[13] and
b)The letter to the Applicant’s adviser dated 13 August 2004[14], where the delegate, in this case, Ms Tauscher, indicated her concerns about:
i)the need for the Applicant to provide documentary evidence to substantiate the value of his net assets as at 31 December 1999;[15]
ii)the need for the Applicant to provide further evidence that his investment funds had been accumulated from his qualifying business or eligible investment activities.
[13] See at Court Book page 341.
[14] See at Court Book pages 345-6.
[15] Counsel for the applicant has pointed out in a footnote to paragraph 30 of his written submission that this requirement in clause 131.213(3) was not ultimately an issue in the delegate’s decision.
It was not suggested to the Applicant at any time during the processing of the application that the visa might be refused on the grounds that the Applicant might have had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. Any information to this effect would have been “relevant information” within the meaning of s.57(1) and the delegate would have been required by s.57(2) to give particulars of that information to the Applicant and invite him to comment, except that in this case s.57 does not apply. Subsection 57(3) expressly excludes a person in the position of the Applicant, because the Applicant must be outside Australia when the visa is granted and a decision to refuse a subclass 131 visa cannot be reviewed under Part 5 or Part 7.
In common law terms, any suggestion that the Applicant might have been involved in unacceptable business and investment activities would be “relevant and significant to the decision to be made.” (See Kioa v West (supra at 629)).
The question arises as to whether s.51A operates so as to exclude the common law rules of natural justice in this case. The common law rules of natural justice can only be excluded by clear words. (See Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (supra at [127]-[128]). Does s.51A (1) amount to a clear legislative intent to exclude “offshore applicants” from their entitlement to natural justice at common law?
This very question was considered by Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (supra). That case concerned an applicant who applied for a subclass 136 skilled independent visa while outside Australia. A delegate of the Minister refused to grant a visa on the basis of information obtained by an officer of the Department of Immigration & Multicultural & Indigenous Affairs.
The Applicant in that case, Mr Moradian, applied to the Federal Court for review of that decision. He contended that he was denied procedural fairness because he was not given an opportunity to address the adverse material on which the decision against him was based. In reply, the Minister contended that there was no obligation on the delegate to accord procedural fairness to an applicant not in the migration zone. The Minister also contended that if there was a common law obligation to accord procedural fairness to the applicant, it had been abolished by s.51A.
Gray J allowed the application, holding that the Minister’s delegate owed the Applicant a duty to afford him procedural fairness. His Honour considered the following authorities: Annetts v McCann (supra); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (supra); WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624; 80 ALD 435; NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and Wu v Minister for Immigration & Multicultural & Indigenous Affairs (supra). After considering those authorities, Gray J then said at [36] and [37]:
In my view, it is necessary to return to the fundamental principle, articulated in Annetts v McCann, above, that the principles of procedural fairness can only be excluded by “plain words of necessary intendment”. In this respect, so far as the present case is concerned, s.51A (1) may be viewed as containing “indirect references, uncertain inferences or equivocal considerations”, which do not disclose an intention on the part of the legislature to exclude the principles of procedural fairness with sufficient certainty.
[37] For these reasons, I accept the submission of counsel for Mr Moradian that the Minister’s delegate owed to Mr Moradian a duty to afford him procedural fairness. It is therefore necessary to determine, in accordance with the usual principles, whether this case involved a denial of procedural fairness.
At paragraph 15 of the Respondent’s Written Submissions, counsel for the Respondent asserts that “Moradian has been referred to, but apparently not followed, in this Court, in the decisions noted by the Applicant.” Those decisions are SZBFD v Minister for Immigration[16] [2005] FMCA 139, a decision of Driver FM, and Katisat v Minister for Immigration & Ors [2005] FMCA 652, one of my decisions, handed down on 10^th May 2005. In SZBFD at [5], Driver FM held that he did not consider himself bound by the decision in Moradian because it was a decision of a single judge of the Federal Court not on appeal from this Court, but he did consider himself bound by the decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (supra).
[16] Not to be confused with the decision of Branson J in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (supra).

In Katisat v Minister for Immigration & Ors at [22] and [[60] I followed both WAJR and SZBFD. In effect, Moradian has been followed in both of those decisions. I note that, since I heard submissions in this matter, an appeal against my decision in Katisat has been allowed. On 23 December 2005 Bennett J found that I had erred in finding that there was a breach of s.357A (1) in the failure of the Migration Review Tribunal to summons a witness to give evidence before it. (See Minister for Immigration & Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [67].
As her Honour said at [66]:
As was pointed out in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [16] principles of natural justice are not concerned with the merits of a particular case but with the procedure that must be observed in its exercise: ‘they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached’ (original emphasis).
Counsel for the Respondent submitted that the decision of Branson J in SZBDF v MIMIA is binding on this court, which is correct. SZBDF is an appeal from a decision of the Federal Magistrates Court, SZBDF v Minister for Immigration [2005] FMCA 926, where Nicholls FM held at [6] that independent country information relied on by the Refugee Review Tribunal was caught by the exception contained in s.424A(3)(a) of the Act and that independent information does not need to be given to the applicant pursuant to s.424A (1). His Honour only touched on s.422B of the Act when considering, and subsequently rejecting, whether the Applicant was arguing some common law breach of procedural fairness, as well as a breach of s.424A, beyond the scope and application of s.422B of the Act.[17]
[17] [2005] FMCA 926 at [10].
The applicant appealed, unsuccessfully. Counsel for the appellant argued, inter alia, that the Federal Magistrate had erred in the construction that he placed on s.424A of the Migration Act. Branson J considered the operation of s.422B with s 424A at [3] to [18] inclusive. After her Honour had considered the decisions of WAJR, Moradian, NAQF and Wu (all supra), she held at [17]-[18]:
In my view the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively.
As s.424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.
True it is that SZBDF is a decision on appeal from the Federal Magistrates Court, but so, too, is WAJR. They are equally binding, if on point.
Of the cases considered by Branson J in SZBDF, only Wu and Moradian deal expressly with s.51A and s.57 (3). Whilst ss.359A and 424A are virtually identical, s 57 is different, in that the exclusion in s 57(3) is quite different to the exclusions in ss 359A (4) and 424A (3). Branson J’s preference for the approach in Wu to the approach in Moradian is, in my view, obiter. In MIMIA v Katisat (supra) noted at [45] that there is a division of opinion in the Federal Court as to the ambit of subsection 357A (1), noting the decisions of WAJR, NAQF , Wu, SZBDF (all supra) and the decision of Edmonds J in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs[18] [2005] FCA 1514. Her Honour stated at [49] that she did not need to reach a conclusion on the ambit of the section.
[18] An appeal from a decision of the Federal Magistrates Court concerning the ambit of s. 422B of the Migration Act.
Common law natural justice is, in my opinion, not entirely excluded to an offshore applicant. By failing to provide the Applicant with any opportunity to respond to a suggestion that he might have been involved in unacceptable business and investment activities, the delegate failed to comply with the common law requirements of natural justice, which amounts to jurisdictional error.
Amended ground (a)(ii) is that there is no evidence to support the delegate’s finding that she could not be satisfied that the Applicant did not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. It is not correct, in my view, to submit, as the Applicant does, that there was simply no information before the delegate from which the delegate could realistically fail to be satisfied. That is not the test.
The Respondent submits that the relevant visa criterion in conjunction with s.65 of the Act meant that the delegate had to be satisfied that the Applicant had not engaged in business activities of the kind referred to. Section 65 relevantly states:
After considering a valid application for a visa, the Minister:
a) if satisfied that:
i) the health criteria for it (if any) have been satisfied; and
ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
b) if not so satisfied, is to refuse to grant the visa.
Clearly, there has to be a positive degree of satisfaction. The Respondent cites the decision of Moore J in Parajuli v Minister for immigration & Multicultural & Indigenous Affairs [2002] FCA 563 in support of his argument. Whilst this is a first instance decision and not binding on this Court, I regard it as persuasive. The court said at [17]:
In the present matter, s.65 of the Act governed whether the Applicant would be granted the visa he sought. The visa would be granted if, relevantly, the Tribunal was satisfied that prescribed criteria had been satisfied. The observations of Gray J[19], concerning the cancellation of a visa, are apt to apply to the grant of a visa. The decision maker has to be affirmatively satisfied that criteria have been met. It is no error for the Tribunal to use language such as ‘on balance’ in describing the assessment made of the material before it directed towards establishing the satisfaction which is a precondition for the exercise of the power to grant a visa.
[19] The decision of Gray J in Shreshta v Minister for Immigration and Multicultural Affairs [2001] FCA 1578 referred to.
The Applicant submits that certain suspicions had been raised by the original delegate, Mr Maddock, in his Minute of 19 March 2004, but almost five months later there was no evidence to support those submissions. Investigations had confirmed that the Applicant was a wealthy businessman who owned a genuine business, and that he had deposited the claimed funds in the bank.
The Respondent submits that there was material before the delegate logically capable of sustaining the conclusion under challenge, being the email form the Principal Migration Officer at the Australian Embassy in Cambodia. In my view, that is not the case.
The words relied on are, to my mind, no more than speculation:
Such a history can always be made up by any person to cover the history/source of fund (sic) as there is no way to verify against (sic). In other words, such a story could be made up for a “Money Laundering” method.
…but in this country you would never get to the bottom of how this wealth was acquired, and frankly I would say that the likelihood of its being acquired by legal means is extremely remote.
Speculation is not evidence. On the other hand, the words used in the same email:
I’m sure this guy now has a genuine business and is very wealthy
appear to me to be some (slight) evidence in support of the Applicant’s case.
In support of the “no evidence” ground, counsel for the Applicant relies on the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (supra at 35) and the discussion by the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (supra), although the Applicant’s claim in SGLB was rejected on the basis that there was ample material to support the finding (at [41], [3] and [121]).
Counsel for the Applicant also relies on the decision of the Full Court decision of SFGB v MIMIA (supra).
The Respondent has argued that Australian Broadcasting Tribunal v Bond (supra) is not authority for the proposition that absence or inadequacy of evidence necessarily amounts to jurisdictional error, “despite what is suggested in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs)[20] The Respondent argues that the decision concerned “error of law” under the Administrative Decisions (Judicial Review) Act 1977.
[20] Respondent’s submission paragraph 20.
I am not persuaded by the Respondent’s argument on this point. It is instructive to consider exactly what Mason CJ did say in ABT v Bond (1990) 94 ALR 11 at 37-38:
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 137-8. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at 137-8; Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9; 29 ALR 577. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of a different conclusion: FCT v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483; 5 ALR 513.
The Full Court decision of SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) dealt with the conclusion by the Refugee Review Tribunal that there was a government in control of the place from which the Applicant came that could or would protect the appellant from persecution for a Convention reason. The Full Court (Mansfield, Selway and Bennett JJ) said at [19]:
This argument, if it were made out, would be sufficient to establish that the Tribunal had made a “jurisdictional error” so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond[21] (1990) 170 CLR 321 at 355-7; 94 ALR 11 at 37-8; 21 ALD 1 at 23-4. If the decision of the tribunal was “Wednesbury” unreasonableness or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62, 67, 76, 90-91; 73 ALD 1 at 4, 8-9, 18, 31-3. (S20).
[21] In the headnote, this decision is incorrectly referred to as Australian Broadcasting Tribunal v Bond, although it is correctly named in the text.
With respect, I am unable to discern from this passage that their Honours have in some way misconstrued the decision in Australian Broadcasting v Bond, as counsel for the Respondent seems to suggest.
The point about SFGB is that the Tribunal made two factual conclusions about the situation in the appellant’s country (Afghanistan) for which there was no evidence. As their Honours said at [25]:
The difficulty with all this is that there is no material that either party could point to that would support the factual conclusions (b) and (c). On the other hand, there is information that is clearly to the contrary.
The situation is rather different in this case, in that the delegate expressed herself not to be satisfied that there was evidence that a certain state of affairs existed rather than purporting to make a factual conclusion. The wording at page 440 of the Court Book, although problematic, states:
No documentary evidence of the nature of the Applicant’s border business activities, whether these activities met the definition of a qualifying business or any financial documentation to evidence the business activities has been submitted. Without this information the case officer cannot be satisfied that the Applicant has not operated in a business sector that is outside the generally accepted norms of most people in Australia or that is likely to be offensive to large segments of the Australian community. The case officer is not satisfied therefore that the Applicant meets Migration Regulation 131.214 in that he does not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.[22]
[22] The last sentence is problematic in that read literally it seems to suggest that it is a requirement that an applicant must have a history of such involvement, although it appears that the delegate is setting out the requirements of 131.214.
The difficulty here for the Applicant is the fact that the delegate is, in effect, requiring him to prove a negative when there is no evidence that the contrary state of affairs exists. As I said at paragraphs 65 and 66 above, there is no evidence that the Applicant has a history of involvement in unacceptable business activities and some evidence that he has a genuine business and is very wealthy.
The obligation on the delegate as set out in s.65 is to be satisfied that the relevant criteria have been met. If there is no evidence either way, then the decision maker will not be satisfied. In this case, there is some evidence in favour of the Applicant’s claim and no evidence to the contrary. As the Full Court said in Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 per Wilcox, French and Finkelstein JJ at [11] and [13]:
It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation…
…
The situation that arose in this case might preferably be described as a failure to take account of relevant material, rather than ‘no evidence’. However, the label does no matter. On any view of the matter, the Tribunal fell into jurisdictional error.
In my view, the situation is the same in this case.
The third amended ground, (a)(iii), is that the delegate failed to identify what business or investment activities by the Applicant were unacceptable, and what was the nature of his involvement in these activities.
Whilst I do not agree with the Applicant’s submission that the delegate’s failure to identify the basis of her finding under clause 131.214 in effect illustrates that there was no evidence capable of supporting the finding, I am satisfied that it does amount to a failure to apply the test required by clause 131.214 correctly. I am not persuaded that the delegate was required to identify what were the impugned activities that formed the basis of the finding.
All in all, I am of the view that jurisdictional error has been made out and I propose to make orders in the nature of certiorari and mandamus.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 10 January 2006