Minister for Immigration and Multicultural Affairs v Lay Lat
[2006] FCAFC 61
•12 May 2006
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
MIGRATION – application for Business Skills Migrant visa – failure to satisfy Regulation 131.214 - procedural fairness - opportunity to respond to critical issue on which decision likely to turn – right to comment upon adverse material from third party – whether critical issue obvious to applicant - whether issue apparent from nature or terms of statute - whether applicant knew Regulation 131.214 in issue
MIGRATION – procedural fairness - whether common law procedural fairness excluded by s 51A of Migration Act 1958 (Cth) – exhaustive statement of natural justice hearing rule - proper construction of ss 51A, 357A and 422B
MIGRATION - finding by delegate that criterion in Regulation 131.214 was not satisfied – whether evidence required in order to make finding that not satisfied – effect of s 65 of Migration Act 1958 (Cth).
Migration Act 1958 (Cth) – ss 51A, 57, 65, 357A, 422B
Migration Regulations 1994 (Cth) – reg 131Applicant M17 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 85 ALD 597
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 referred to
Katisat v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1908 referred to
Kioa v West (1985) 159 CLR 550 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 referred to
NAMW v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 140 FCA 572 referred to
NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 referred to
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 referred to
SBTC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 260 referred to
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 referred to
SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 referred to
SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 referred to
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 affirmed
WAID v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 220 referred to
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 referred to
Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 referred toMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v LAY LAT
NSD140 of 2006HEEREY, CONTI AND JACOBSON JJ
12 MAY 2006SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 140 of 2006
On appeal from the Federal Magistrates Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
APPELLANTAND:
LAY LAT
RESPONDENTJUDGES:
HEEREY, CONTI AND JACOBSON JJ
DATE OF ORDER:
12 MAY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the Federal Magistrate made on 20 December 2005 be set aside.
3.The respondent to the appeal pay the costs of the appeal and the costs of the proceeding before the Federal Magistrate.
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
NSD 140 of 2006
On appeal from the Federal Magistrates Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANTAND:
LAY LAT
RESPONDENT
JUDGE:
HEEREY, CONTI AND JACOBSON JJ
DATE:
12 MAY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This is an appeal by the Minister from a judgment and orders of a Federal Magistrate, given on 20 December 2005, issuing constitutional writs having the effect of quashing a decision of a delegate of the Minister. The delegate made a decision on 18 November 2004 refusing to grant the respondent to the appeal (“the respondent”) a Business Skills Migrant visa under sub-class 131 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The delegate was not satisfied that the respondent had satisfied Regulation 131.214 which was one of the stipulated criteria for the visa. Regulation 131.214 requires that the visa applicant not have a history of involvement in business or investment activities that are of a nature not generally acceptable in Australia.
Two issues arise on the appeal. The first is whether the learned Federal Magistrate was correct in finding that the respondent was denied common law procedural fairness upon the basis that it was not put to him by the decision-maker that the visa might be refused on this ground. If so, a sub-issue arises as to whether any common law obligation of procedural fairness was excluded by s 51A of the Migration Act 1958 (Cth) (“the Act”) and s 57(3) of the Act, the visa being one which could only be granted if the visa applicant was outside Australia at the time.
The determination of the first issue turns upon an examination of certain correspondence, including in particular, correspondence between the case officer who was then handling the application and the respondent’s migration agent.
The Minister contends that although the respondent’s attention may not have been specifically drawn to Regulation 131.214, this issue was obvious to the respondent, both from a consideration of the correspondence and the terms of the Regulations under which the visa was sought; see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 (“Alphaone”) at 591-592.
The second issue is whether the learned Federal Magistrate was correct in finding that there was “no evidence” to support a finding that the criterion in Regulation 131.214 had not been satisfied.
The Minister contends that his Honour in effect reversed the statutory requirement of s 65 of the Act under which findings of fact are not necessarily required to support a state of non-satisfaction. Counsel for the Minister pointed to authorities which state that s 65 requires a refusal if the decision-maker is not affirmatively satisfied that the criteria have been satisfied; see eg Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”).
Background
The respondent is a citizen of Cambodia. On 23 August 2002 he applied for an AD Business Skills (Migrant) Visa, described by the delegate as a sub-class 131 (Investment Linked) application. There appears to have been little or no relevant correspondence about the application until March 2004 when the case officer then allocated to the application, Mr Neville Maddock, referred it to the Australian Embassy in Phnom Penh (“the Embassy”) for comment.
The respondent claimed in support of his application to be a person of considerable wealth. He claimed to have assets equivalent to about AUD$12m in a Cambodian bank account. His bank statements indicated that the amount of his cash on deposit had increased by well over AUD$6m between late 2000 and 2001. He stated that the substantial funds in the bank account had been accumulated from business activities conducted on the border of Cambodia and Thailand.
Mr Maddock was concerned as to the source of the respondent’s wealth. On 19 March 2004 he wrote to the Principal Migration Officer of the Embassy. The letter included the following:-
“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.”
It appears that attached to Mr Maddock’s letter were certain responses to questions from the Respondent, explaining how he had accumulated his considerable wealth. The answer was said to be found in the political history of Cambodia and the huge profits to be made in border trade across the Thai/Cambodian border. No further detail was given. It was said that most Cambodians accumulated their assets in the form of cash deposited in banks.
In late April 2004 there was email correspondence between the respondent’s migration agent, Mr Panasbodi, and Mr Maddock about the delay in processing the application. Mr Maddock said he expected to be in touch regarding the case within the next few weeks.
On 15 June 2004, Mr Panasbodi sent a follow-up email to Mr Maddock. The email elicited the following response from Mr Maddock to Mr Panasbodi:-
“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 waiting for a response.”
By August 2004, Mr Maddock had been replaced as case officer. That position was then occupied by Ms Editha Tauscher. On 12 August 2004, the First Secretary for Immigration at the Embassy wrote to Ms Tauscher in response to Mr Maddock’s letter of 19 March 2004.
The email of 12 August 2004 from the First Secretary to Ms Tauscher included the following:-
“The circumstances stated in the attachments did happen in Cambodia during early stage, after Khmer Rouge Regime. However, 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 funds as there is no way to verify against. In other words, such a story could be made up for a ‘Money Laundering’ method.
The applicant was granted visitor visa for several times and the casenotes indicate that he was satisfied by the case officers as a wealthy guy who owns big/multi million businesses. The bank had also confirmed the sum of money deposited by him.
…
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 Mr Panasbodi. The letter dealt at some length with the requirements of Regulation 131.213(3) which deals with the proportion that an applicant’s net assets must bear to the amount of his or her designated investment in Australia.
However, the letter went on to address Regulation 131.222 which provides that the Minister must be satisfied that the applicant’s funds were legally owned and accumulated from the qualifying business. The case officer stated that she was not satisfied that the respondent met the requirements of this Regulation.
We will set out the salient portions of the letter of 13 August 2004 as follows:-
“Furthermore, Migration Regulation 131.222 states that the Minister must be satisfied, based on the evidence provided by the applicant, that the funds invested were legally owned by the applicant, or the applicant and his or her spouse together, and unencumbered, and accumulated from the qualifying business or eligible investment activities of the applicant or the applicant and his or her spouse together.
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 Here 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 or the applicant and his or her spouse together. I am thus not satisfied that your client meets Regulation 131.222.
Your client is hereby given the opportunity to comment on the above issues, provide further documentation, or to withdraw his application.” [emphasis in original]
There was further correspondence between Mr Panasbodi and Ms Tauscher after the letter of 13 August 2004. The correspondence included a letter from Mr Panasbodi of 16 September 2004 enclosing, inter alia, various documents which were described in the letter as “verifying” the respondent’s sources of funds from the 1980s to the opening of bank accounts in 1997, and “providing details of his accumulation of funds” in that period.
On 27 September 2004, Mr Panasbodi again wrote to Ms Tauscher enclosing “the remaining outstanding documents” in relation to the application. The documents included a submission “outlining details that the applicant had met the criteria of Investment Linked Visa-Subclass 131”. Also enclosed was a letter from a Cambodian member of parliament, Mr Ay Khorn, which was said to verify the respondent’s source of funds and his accumulation of assets.
Mr Panasbodi stated in the letter that the key issue in determining the application was whether the respondent’s funds had been accumulated from the qualifying business or eligible investment activities.
The letter noted that the respondent had provided financial statements, bank statements, property valuations and other documents as requested. Mr Panasbodi then said:-
“… there is one remaining sticking issue: How to prove that he legally owns the funds and the funds are accumulated from the qualifying business since 1980’s when there wasn’t any official records or audited documents because such system did not exist in Cambodia at the time?”
The letter of 27 September 2004 went on to answer this question by referring to the credibility of the respondent as a successful businessman. Mr Panasbodi requested that before a decision was made, the respondent be interviewed and his sources of funds be verified by the Department of Immigration and Multicultural and Indigenous Affairs. He then said:-
“The applicant states that at all time he is a legitimate businessman who has conducted a legitimate business and accumulated funds from legitimate business activities over the last 20 years. He has not conducted illegal activities as border trading was an acceptable form of business activity and is current.”
The submission enclosed with the letter stated, inter alia, that the “testimony” from Mr Ay Khorn confirmed the respondent’s credibility and that he conducted “his border trade” from the early 1980s. Mr Ay Khorn’s statement was also said to provide the reason why there were no accounting records or other official documentation.
The submission continued by stating that the respondent was “a genuine businessperson” who had conducted “legitimate business” over the past 20 years.
Mr Ay Khorn’s statement was dated 31 August 2004. It referred to the crippling of the Cambodian economy at the time of the Khmer Rouge’s fall from power. It said that these “handicaps” were overcome by bringing in merchandise through the border trade, in exchange for gold, and “petty tax” payments were made to local authorities. It said that, therefore, records and accounts were not kept.
The statement continued as follows:-
“These activities had continued until early 90’s, there was then that foreign investors began to pour into the country when the Paris Peace Accord was signed in October 1991. Taxation system was slowly in place and accounting records were required. However, until today the way of doing business here is still mainly cash-base.
Therefore, I would like to confirm that I have known Mr Lat Lay since the early 80’s. The volume of border trade could be estimated in monetary term of about $500 000 per year as profit earned by Mr Lat. Therefore, after all those years of doing business at the border from the early 80’s until 90’s, I would consider that Mr Lat could approximately accumulate his wealth to no less than $US 5 000 000 to $US6 000 000. This figure is reasonably estimated due to the comparison of other people cases in similar situation.”
On 26 October 2004 Ms Shernaz Udwadia (“the delegate”) sent an email to Mr Panasbodi informing him that she had taken over the processing of the application.
The Relevant Statutory Provisions
Section 51A(1) of the Act is contained within Subdivision AB of Part 2 of Division 3 which deals with the grant of visas to non-citizens. Subdivision AB is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications.”
Section 51A(1) states:-
“(1) 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.”
Section 57 of the Act provides:-
“(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(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.”
Section 65 of the Act provides relevantly:-
“(1) 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.”Regulation 1.03 of the Regulations defines “qualifying business” to mean an enterprise which:-
“(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b)is not operated primarily or substantially for the purpose of speculative or passive investment.”
The following provisions of Regulation 131 are relevant:-
“131.111 In this Part:
designated investment means an investment in a security specified by the Minister under regulation 5.19A for the purposes of this Part;
eligible investment in relation to a person means:
(a)an ownership interest in a business; or
(b)a loan to a business; or
(c)cash on deposit; or
(d)stocks and bonds; or
(e)real estate; or
(f)gold or silver bullion;
that is owned by the person for the purposes of producing a return by way of income or capital gain and is not held for personal use.”
131.21Criteria to be satisfied at time of application
131.211The Minister is satisfied that the applicant has demonstrated a high level of management skill in relation to the eligible investment or qualifying business activity.
131.212The applicant has demonstrated overall a successful record of eligible investment or qualifying business activity.
131.213(1) The applicant has had a total of at least 3 years experience of direct involvement in managing 1 or more qualifying businesses or eligible investments.
(2) Throughout at least 1 of the 5 fiscal years immediately preceding the making of the application:
(a)the applicant maintained direct involvement in managing a qualifying business in which:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
had an ownership interest of at least 10% of the total value of the business; or
(b)the applicant maintained direct involvement in managing eligible investments of:
(i) the applicant; or
(ii) the applicant and his or her spouse together;
the total net value of which was at least AUD 1,000,000.
(3)The total net value of the assets owned by:
(a)the applicant; or
(b)the applicant and his or her spouse together;
throughout the 2 fiscal years immediately preceding the making of the application was at least 50% more than the value of the funds to be deposited in the designated investment in the name of the applicant, or in the names of the applicant and members of his or her family unit, as the case requires.
131.214 Neither the applicant nor his or her spouse (if any) has a history of involvement in business or investment activities that are of a nature that is generally acceptable in Australia.
131.215 The applicant genuinely has a realistic commitment, after entry to Australia as the holder of a Subclass 131 visa, to continue to maintain a business or investment activity in Australia after the designated investment made by the applicant, or the applicant and members of his or her family unit, has matured.
…
131.22Criteria to be satisfied at time of decision
131.221 The applicant continues to satisfy the criteria in clauses 131.211 to 131.215.
131.222(1) The applicant provides evidence that he or she has made a designated investment of an amount of AUD750,000, AUD1,000,000, AUD1,500,000 or AUD2,000,000.
(2)The Minister is satisfied, based on the evidence provided by the applicant, that the funds invested were:
(a)legally owned by:
(i) the applicant; or
(ii) the applicant and his or her spouse together; and
(b)unencumbered; and
(c)accumulated from the qualifying business or eligible investment activities of:
(i) the applicant; or
(ii) the applicant and his or her spouse together.
…
131.4Circumstances Applicable to Grant
131.411 The applicant must be outside Australia when the visa is granted.”
The Delegate’s Decision
The Delegate referred in her reasons to the history of the application including the correspondence between her predecessor case officers and the Embassy as well as the correspondence with Mr Panasbodi.
The delegate was not satisfied that the respondent had met Regulations 131.214, 131.221 and 131.222.
The delegate’s reasons for not reaching the necessary state of satisfaction with respect to Regulation 131.214 are to be found in the following passage:-
“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.”
The delegate went on to refer to the fact that the respondent’s bank statements indicated a significant increase in cash on deposit, in particular in the period from late 2000 to 2001 by over AUD$6.5m.
The delegate referred to Mr Panasbodi’s submission that the bank records reflected the respondent’s genuine substantial business activity. However, the delegate noted that the respondent’s 30% interest in a company known as Hero King Co Limited did not evidence profit levels to substantiate such large increases in the cash deposits.
The delegate said that without documentary evidence of the respondent’s border business activities and, given that his interest in Hero King Co Limited did not explain the increase in the size of the deposits, she could not be satisfied that the funds had been accumulated from a qualifying business or eligible activities, within the meaning of Regulation 131.222.
The Federal Magistrate’s Decision
The Federal Magistrate found at [47] that it was not suggested to the respondent in the course of processing his visa application that the visa might be refused on the ground that he may have a history of involvement in unacceptable business activities. His Honour considered, at [48], that this was in contravention of the well known statement of the common law natural justice hearing rule stated in Kioa v West (1985) 159 CLR 550 (“Kioa”).
His Honour then observed at [49] that the question arose as to whether s 51A of the Act excluded the operation of the common law rule.
His Honour then went on to refer to numerous authorities of the Court which have considered the question of the effect of s 51A and corresponding provisions elsewhere in the Act; namely ss 357A and 422B. He came to the view at [60] that common law natural justice was “not entirely excluded to an offshore applicant”.
The learned Federal Magistrate then turned to the “no evidence” ground. He described as speculation the contents of the email from the Embassy dated 12 August 2004 which raised the spectre of illegal activities; see [66] – [67].
The Federal Magistrate observed that the delegate expressed herself not to be satisfied that there was evidence of compliance with Regulation 131.214. He considered that this required the respondent to prove a negative and that s 65 of the Act obliged the delegate to be satisfied that the criterion had been met; see [75] – [77].
Procedural Fairness
It is a fundamental principle of public law that a person affected by an administrative decision is entitled to have brought to his or her attention the critical issue or factor on which the decision is likely to turn so as to have an opportunity to deal with it; Kioa at 587.
This entitlement extends to the right to comment upon adverse material from third parties which is put before the decision-maker; see Alphaone at 591-592 (per Northrop, Miles and French JJ). Their Honours continued by stating that this right:-
“also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
This passage from the Full Court’s decision in Alphaone was referred to with apparent approval by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [22].
In the present case the respondent was advised and represented by a migration agent. It must have been apparent to the agent that the decision-maker had to be satisfied that the provisions of Regulation 131.214 had been met. That is to say, that the respondent did not have a history of involvement in business activities of a nature not generally acceptable in Australia.
Moreover, it must have been obvious to the respondent, through his agent, that a critical issue upon which the decision would be likely to turn was that the respondent had not provided an explanation of the source of his very substantial cash funds. This was brought to his attention in Mr Maddock’s email of 15 June 2004 and Ms Tauscher’s email of 13 August 2004.
Although Ms Tauscher’s email referred to Regulation 131.222 rather than Regulation 131.214, she said in plain terms that no explanation had been provided for the source of his very substantial funds.
Ms Tauscher drew attention to the fact that the respondent had claimed he was unable to provide documentary evidence due to the nature of his border transactions. She also pointed to the absence of explanation or documentary evidence of the source of the sharp increase in funds on deposit in recent years.
When the email of 13 August 2004 is read either on its own, or in particular in light of the statutory requirements of Regulation 131.214, it must have been obvious to the respondent, through his migration agent, that a critical issue to the outcome of the application was the decision-maker’s concern that the funds may have been acquired from illegal activities.
That the respondent saw this as an obvious issue appears most clearly in the passage from Mr Panasbodi’s letter of 27 September 2004 set out at [23] above. The passage records the respondent’s instructions that he had accumulated his assets from legitimate business activities. The description “legitimate” is used three times.
There can be no doubt that he used the word “legitimate” to refer to the legality of the operations. The letter stated in unequivocal terms that the respondent had not conducted illegal activities in his border trading.
It follows that the obligation of procedural fairness stated in Kioa was not enlivened in relation to the issue of satisfaction of the requirements of Regulation 131.214. This issue was apparent from the terms of the applicable Regulation and the emails from Mr Maddock and Ms Tauscher to Mr Panasbodi.
The suggestion that the precise terms of Regulation 131.214 might have escaped the respondent because it was only one paragraph of a number of sub-Regulations which had to be satisfied must be rejected. The terms of the emails from Mr Maddock of 15 June 2004 and, in particular Ms Tauscher’s email of 13 August 2004 were sufficient to bring home to the migration agent the case officer’s concerns about the possibility that the funds had been acquired by means of illegal business activities.
That possibility clearly flagged as an obvious matter that an issue of unacceptable business activities arose, under Regulation 131.214. The respondent’s instructions conveyed in the letter of 27 September 2004 revealed his knowledge that this question was in issue.
There are other indications of the respondent’s appreciation that this was in issue. They included the description of the respondent in the submission forwarded under cover of the letter of 27 September 2004 as “a genuine businessperson” who had conducted “legitimate business”.
The effect of Section 51A
The question of the proper construction of s 51A and the corresponding provisions of ss 357A and 422B has been the subject of a number of judgments of single judges of the Court.
The authorities in which the ambit of these provisions has been considered are: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [22] – [31] (Heerey J); NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50] – [87] (Lindgren J); Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21] – [23] (Hely J); Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [23] – [37] (Gray J); WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [47] – [59] (French J); Applicant M17 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 85 ALD 597 at [83] (Ryan J); SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [1] – [18] (Branson J); WAID v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 220 at [57] (French J); SBTC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 260 at [19] (Finn J); SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [27] – [29] (Edmonds J); Katisat v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1908 at [45] – [49] (Bennett J).
Reference has also be made to this question, by way of obiter remarks, in a full court authority; see NAMW v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 140 FCA 572 at [139] (Merkel and Hely JJ).
We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred.
It is true that the words “in relation to the matters it deals with” might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC, obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (“Miah”).
Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words “exhaustively state” are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
Counsel for the respondent submitted that the words “in relation to the matters it deals with” mean that the decision-maker must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
We reject this submission. As was said in VXDC at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that “the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive.”
The “no evidence” issue
We do not agree with the Federal Magistrate that the delegate’s obligation under s 65 was to be satisfied that the criteria stated in Regulation 131.214 had been met.
In VSAF, Black CJ, Sundberg and Bennett JJ pointed out at [16] - [17] that s 65 of the Act, and the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275, make it clear that the section requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction.
Their Honours went on to say that there are many cases which show that findings of fact are not necessarily required to support a state of non-satisfaction. For example, in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] a Full Court said that s 65 of the Act requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
It is true that the criteria in Regulation 131.214 are stated in the negative. But that does not alter the fundamental principle stated above. The delegate was obliged to refuse the visa in light of her failure to be affirmatively satisfied that the respondent did not have a history of involvement in unacceptable business activities.
It could not be suggested that the delegate’s conclusion was in itself irrational or capricious. The accumulation of a very large amount of cash from activities unidentified beyond the vague description “border trading” pointed strongly to a conclusion of non-satisfaction of the relevant criterion.
Procedural fairness did not require the delegate to identify what business or investment activities were unacceptable, nor the nature of the respondent’s involvement in such activities. In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
Orders
It follows we would allow the appeal. The orders we will make are as follows:-
1. The appeal be allowed.
2. The orders of the Federal Magistrate made on 20 December 2005 be set aside.
3.The respondent to the appeal pay the costs of the appeal and the costs of the proceeding before the Federal Magistrate.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Conti and Jacobson. Associate:
Dated: 12 May 2006
Counsel for the Appellant: Mr G Johnson Solicitor for the Appellant: Phillips Fox Counsel for the Respondent: Mr Poynder Date of Hearing: 1 May 2006 Date of Judgment: 12 May 2006
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