Poudyal v Minister for Immigration
[2005] FMCA 265
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POUDYAL & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 265 |
| MIGRATION – MRT decision – refusal of temporary business entry visa – employer sponsorship expired before decision – Tribunal not bound to remit to allow new sponsorship – no error in refusal of visa. |
| Migration Act 1958 (Cth), ss.65(1), 66, 338(2), 349(2)(c), 347, 348, 348(1), 349, 349(2), 349(2)(c), 349(4), 359, 359(2), 359A, 359C, 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Bramwell v Repatriation Commission (1998) 28 AAR 342 Civil Aviation Safety Authority v Allan (2001) 33 AAR 362 N1112/200A v Minister for Immigration (2000) 32 AAR 76 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 Re Lavery and Registrar, Supreme Court of Queensland (1996) 23 AAR 52 Re Queensland Mines Ltd and Export Development Grants Board (1985) 3 AAR 30 Repatriation Commission v Nation (1995) 57 FCR 25 |
| Applicants: | SUAJ POUDYAL SANU POUDYAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1725 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 25 February 2005 |
| Date of Last Submission: | 8 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr M Newman |
| Solicitors for the Applicants: | Newman & Associates |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicants to pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1725 of 2004
| SUAJ POUDYAL & SANU POUDYAL |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) seeking to set aside a decision of the Migration Review Tribunal given on 30 April 2004. The Tribunal affirmed a decision of the delegate made on 14 June 2002 to refuse to grant Temporary Business Entry (Class UC) visas to the applicants, who are husband and wife. The wife was a secondary applicant relying upon her husband’s eligibility, and I shall refer to him below as “the applicant”.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot grant relief unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error.
I need not explore the concept of “jurisdictional error” in the present case, since counsel for the Minister accepted that if the Tribunal’s reasons are found to disclose one of the defects which I address below, then it would have significantly misconceived its function and powers when performing a review under ss.348 and 349 of the Act, and that the Court would have power to order the issue of writs of certiorari to quash the Tribunal decision and mandamus to compel it to determine the matter according to law. He did, however, submit that I should refuse relief even if an error were made out.
The proceedings before the Tribunal followed previous decision-making by delegates and a previous Tribunal concerning the applicant’s application for a visa. It will be necessary for me to summarise this background which explains how the Tribunal reasoned, and then to address the submissions of the applicant. I shall, however, first explain the legislative background.
The visa criteria
At the hearing, both legal representatives before me accepted that the substantive visa and employer sponsorship criteria which were required to be addressed at all stages in decision-making were to be found in the relevant Migration Regulations 1994 (Cth) in the form applicable as at the time of visa application, which was 23 December 1999. They accepted that I should find them in a consolidation published as at
29 November 1999. After the hearing, counsel for the Minister drew my attention to amendments made by items [33083] to [33085] of the Migration Amendment Regulations 2000 (No.2), S.R.2000 no 62, which were made on 27 April 2000 but applied to applications such as the present which had not been finally determined before 1 July 2000 (see c.4(2)). I shall not describe all the qualifications for receiving a subclass 457 “Business (Long Stay)” visa, but shall set out only those which gave rise to the difficulties encountered by the present applicant. These concerned the following primary criteria found in Sch.2:
457.22Criteria to be satisfied at time of decision
457.221If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
457.223(1) The applicant meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).
…
Sponsorship by Australian businesses: key activities
(4) The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is a key activity; and
(b)that activity is the subject of an approved business nomination by the employer; and
(c)the employer is:
(i)a pre-qualified business sponsor; or
(ii)a standard business sponsor; and
(d)the applicant is nominated in relation to the activity by the employer; and
(e)the applicant demonstrates (if so required by the Minister) that he or she has the skills necessary to perform the activity; and
(f)the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed.
Sponsorship by Australian businesses: non-key activities
(5) The applicant meets the requirements of this subclause if:
(a)the activity in which the applicant proposes to be employed in Australia by a person (in this subclause called the employer) is not a key activity; and
(b)that activity is the subject of an approved business nomination by the employer; and
(c)the employer is:
(i)a pre-qualified business sponsor; or
(ii)a standard business sponsor; and
(d)the applicant is nominated in relation to the activity by the employer; and
(e)where the application is made for a stay in Australia for more than 12 months, the applicant demonstrates that he or she has the skills necessary to perform the activity; and
(ea)where the application is made for a stay in Australia for 12 months or less, the applicant demonstrates (if so required by the Minister) that he or she has the skills necessary to perform the activity; and
(eb) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and
(f)where the employer is a standard business sponsor, the Minister is satisfied that the position to be filled by the applicant has not been created only for the purposes of securing the entry of the applicant to Australia.
In their statements of reasons, both the present delegate and the Tribunal have overlooked the amendment in S.R.2000 No 62 which replaced par.457.223(4)(e). I do not consider that this was a material error in relation to the present case, since at all times that paragraph raised a test of whether the visa applicant “has the skills necessary to perform the activity”. However, it is necessary to set out the previous version which was recited by the Tribunal in its reasons, since, as I shall discuss below, this explains a reference it makes to “the criterion in clause 457.223(4)(e)(i)” in its significant conclusion. The previous version provided:
(e)where:
(i)the employer is a standard business sponsor; and
(ii)the application is made for a stay in Australia of more than 12 months;
the applicant demonstrates (if so required by the Minister) that the applicant has the skills necessary to perform the activity.
Of significance to the present case, are the criteria in each of subcl.(4) and (5) that the proposed employment activity be “the subject of an approved business nomination by the employer” (par.(4)(b) and 5(b)); that the employer is either “a pre-qualified business sponsor” or “a standard business sponsor” (par.(4)(c) and 5(c)); and that the applicant should have “the skills necessary to perform the activity” (par.(4)(e) and 5(e) and (ea)). I shall refer below to these criteria as “the employment approval criterion”, “the employer approval criterion”, and the “skills criterion”.
The legal representatives for both parties accepted that an applicant would need to satisfy all of these criteria as at the date when a decision was made on his application by either a delegate or the Tribunal, but that he would not need to have satisfied it at the date of application to the delegate or Tribunal. Thus, as the history recounted below will illustrate, an applicant could obtain the necessary employment and employer sponsorship approvals or the necessary skills at any time while his visa application remained undecided before a delegate or Tribunal.
By reason of definitional provisions in Sch.2 cl.457.111 and reg.1.20B. the obtaining of “an approved business nomination” so as to satisfy what I have called the employment approval criterion is governed by regs 1.20G and 1.20H. Under these provisions, an employer nominates the proposed employment activity for a visa applicant on a form 1068. The Minister then “by instrument in writing” approves the nomination of the activity. Sub-regs 1.20H(5)(a) and (d) provide that “the nomination of an activity ceases to have effect” – relevant to the present case – either “at the end of the period of 12 months commencing on the day on which the nomination of the activity is approved” or “when the (employer) approval ceases to have effect” if that happens first.
There are separate provisions governing approval of the employer as “a pre-qualified business sponsor” or as a “standard business sponsor” so as to satisfy what I have called the employer approval criterion for the visa. Application for this is made under reg.1.20C on a form 1067, and approval is given by instrument issued under reg.1.20D. Under reg.1.20D(5) the employer approval of a person as a pre-qualified business sponsor ceases to have effect 24 months after approval or upon an earlier revocation. Approval as a standard business sponsor ceases to have effect under reg.1.20D(6) no later than 12 months after approval.
As the above indicates, there are different criteria addressed in relation to each of the employment activity approvals and the employer approvals, but during the periods in which they concurrently have effect the two instruments of approval will provide the “sponsorship” qualifications required for a visa applicant to satisfy the relevant sponsorship criteria in Sch.2 item 457.22(4), and (5) extracted above. Often in the decision-making documents in evidence before me, references are made to employer sponsorship requirements ambiguously as to what type of instrument of approval is being referred to, and as to which particular criteria in item 457.22(4) and (5) are being addressed. This is understandable given the complexity of the legislation, but in the present case it leads to some difficulties understanding the reasoning of the present Tribunal.
The decision-making history
By letter dated 23 December 1999, Naosams Migration Services submitted applications “for sponsor, nomination and visa application” on forms 1066, 1067, and 1068. The visa application was made by the applicant, and invoked the entitlement to a Subclass 457 visa given under item 457.22(4) and (5), on the assumption that the employment and employer applications would be approved. These showed the proposed employer as Warmark Pty Ltd t/a McDonalds – Cremorne. It applied for approval as “a standard business sponsor” in relation to this applicant only, and sought approval for his employment activity as “maintenance supervisor”. There is no need for me to describe the supporting documentation which was also submitted.
A file note dated 6 December 2000, states that McDonalds Cremorne had changed ownership and that, although the applicant was still working there, the new owner did not want to sponsor him. The applicant’s agent claimed that Warmark still wanted to sponsor the applicant but for a different position, and was told to submit further information by 15 December. It would seem that this was not done, and on 20 December 2000 a delegate decided to refuse Warmark’s application for approval as a business sponsor on the ground that, in the absence of information as to its current trading position, the delegate was not satisfied that the applicant was able to comply with the undertakings in accordance with form 1067, as required under reg.1.20D(2)(f). At the same time, the delegate refused the applicant’s visa application on the grounds, inter alia, that he could not meet the criteria in item 457.223(4) and (5) because he “has not been nominated by an employer who is an approved business sponsor for an activity”.
The applicant sought review by the Tribunal on 11 January 2001. He sought to establish a new sponsorship arrangement with a different employer. On 12 September 2001 his agent tendered evidence of a standard business sponsorship approval obtained by Sincom Pty Ltd (a copy of this approval is not in the material before the court, but is referred to at CB 72-3 at [15] and [23]). At a hearing on 15 November 2001, the applicant tendered an employment nomination approval given on 29 October 2001 (CB 67-8). This gave approval for the employment of the applicant in the activity of “baker”.
Although the employment nomination approval notes a period of proposed employment for 4 years, it states that the approval “has effect until the earliest of the following: 12 months from the date of this letter; when the visa is granted to the nominated employee; or when the … standard business sponsorship ceases to have effect.” As I have noted, the employer sponsorship approval is not in evidence before me. However, the employment nomination approval recites that the employer sponsorship approval would cease to have effect on 24 August 2002, and this date is consistent with the maximum duration of such an approval (see reg.1.20D(6)(b)). I therefore conclude that this also became the cessation date for the applicant’s employment nomination approval. If I am wrong, it ran for its maximum 12 months and expired on 29 October 2002. The letter to the applicant’s agent expressly drew the attention of the applicant and his agent to the significance of this limited effect, stating:
Please note that a subclass 457 visa application should be lodged well before the expiry of the business sponsorship approval and the expiry of the business nomination approval in order for a decision to be made before they expire.”
The Tribunal concluded, in the light of these two approvals:
[24] As the visa applicant’s new business sponsor has been approved as a standard business sponsor the visa applicant meets the criterion in subclauses 457.223(4)(c) and 457.223(5)(c). Further, as DIMA has approved the nomination of the visa applicant in relation to an activity the visa applicant satisfies the criterion in subclause 457.223(4)(d) and 457.223(5)(d).
…
[27] In light of the Tribunal’s findings the appropriate course is for the Tribunal to remit this review to DIMA for consideration of the remaining criteria.
The Tribunal’s formal decision is dated 15 November 2001 and exercises its power of remitter under s.349(2)(c). It said that the Tribunal “remits the application made by the visa application for a Temporary Business Entry (Class UC) visa to the Department of Immigration and Multicultural, for reconsideration with a direction that the visa applicant meets the following criteria for a subclass 457 visa: clause 457.223(4)(c); clause 457.223(4)(d); clause 457.223(5)(c); clause 457.223(5)(d);” The Tribunal also decided that the applicant’s wife met the secondary criterion in cl.457.321 as a dependant named in the nomination approval.
Mr Newman, for the applicants, did not contend that the direction given by the Tribunal had the effect of extending the date when the two approvals would cease effect, nor that it gave rise to an estoppel which would prevent a subsequent decision-maker from concluding that the criteria identified by the Tribunal were not satisfied if a decision were made after 24 August 2002 (or 29 October 2002). In my opinion this was a correct concession. I cannot read the legislation as conferring on the Tribunal powers to waive or alter the effect of the visa and sponsorship criteria, nor, in particular, to override the effects of regs.20D(6)(b) and 1.20H(5)(d).
Section 349(2)(c) of the Migration Act (see below) limits the directions which may be made by the Tribunal in a remitter to those “permitted by the regulations”. Reg 4.15(1)(b) says that “a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit”. However, in my opinion, the Tribunal’s present direction must be understood in the light of the nature of its powers of review and the circumstances at the time that it was given (c.f. Repatriation Commission v Nation (1995) 57 FCR 25 at 33-4). So read, it required the delegate (or, on review, a subsequent Tribunal) to recognise that the two approvals which were identified by the Tribunal satisfied the relevant visa criteria, but only for so long as they had legal effect. I do not consider that the directions should be read as purporting to direct that the applicant satisfied sponsorship requirements for all times into the future. If it were read this way, then the direction would have been ultra vires due to inconsistency with the substantive visa criteria (note s.349(4) of the Migration Act and c.f. Civil Aviation Safety Authority v Allan (2001) 33 AAR 362).
Following the remitter, a Departmental assessor on 23 November 2001 called for more information from the applicant’s agent, including evidence of the applicant’s relevant skills and experience, and clarification of the proposed length of his stay in Australia. Although some material was sent by the agent, he was informed by letter dated 28 December 2001 that it was insufficient, and that the applicant’s trade skills would need to be assessed.
On 14 June 2002 a delegate decided to refuse the visa application. His statement of reasons states that he “first assessed the applicant against the subclauses 457.223(4)(e)(ii) and 457.223(5)(e) & (ea))”. As I have indicated, these required the applicant to “demonstrate (if so required by the Minister) that the applicant has the skills necessary to perform” the approved activity of “Baker with the ASCO Code 4512-11”. The delegate found that these criteria were not satisfied, and did not need to address the other criteria in reg.457.223(4) and (5). He said:
To this date the applicant has not provided this information [requested in December 2001] and has made no indication whether he has initiated the assessment of his skills. I am therefore not satisfied that the applicant has the skills necessary to perform the nominated activity.
With the assistance of his same migration agent, the applicant lodged an application for review by the Tribunal on 8 July 2002. The agent said: “a submission addressing all issues in relation to this will be sent to you in due course.” No submission or evidence to support eligibility was provided by the applicant to the Tribunal before the date when his sponsorship approvals lapsed at the end of 2002. However, the Tribunal did not seem to have addressed this point at that time.
Over one year later, on 5 and 7 August 2003 the Tribunal appears to have sought to bring the matter to a resolution, by requesting under s.359(2) additional information showing the applicant’s skill level, and inviting him to a hearing on 8 September 2003. The applicant attended and, according to the Tribunal’s later statement of reasons, he told it that he had not obtained a favourable assessment by Trades Recognition Australia (TRA), but hoped to complete a Bakery course in November. He requested the Tribunal to delay its decision. There is nothing in the material before me to indicate whether or not the expiry of the sponsorship approvals was referred to at the hearing.
Subsequent to the hearing, the Tribunal sent to the applicant a section 359 request for a “current formal skills assessment” by TRA. His agent on 16 October 2003 requested more time to obtain this, and on 22 December 2003 forwarded a skills assessment by the Department of Employment and Workplace Relations stating that the applicant’s “qualification and/or experience meets the requirements for migration purposes as a Tradesperson and Related Workers NEC [4512-11]”. He also forwarded TAFE document showing that the applicant had now completed his bakers’ course and was eligible to receive his Certificate III in Food Processing (Retail Baking – Bread) with a credit grade.
This seems to have prompted the Tribunal to address the other criteria under cl.457.223(4) and (5), and in particular to return to a consideration of the sponsorship requirements.
On 30 December 2003 a letter was sent to the applicant and his agent, requesting under s.359 that he provide “evidence of a current business sponsorship” within 28 days. No response was received.
On 19 February 2004, the Tribunal was told by the agent that he would contact the applicant to check whether the applicant “has a sponsor or a sponsorship application before DIMIA” and would “call back today.” There is no evidence that he did call back.
On 27 February 2004, the Tribunal sent to the applicant and to his agent a letter under s.359A inviting the applicant to comment in writing on the information that “The Department of Immigration and Multicultural and Indigenous Affairs systems disclose that you do not have a valid business sponsor and nomination.” He was told that this was relevant to the review because “without there being an approved business sponsor, the visa criteria cannot be met.” He was told that, if the Tribunal did not receive any comments within the 28 day period allowed, the Tribunal might under s.359C “make a decision on the review without taking any further action to obtain your comment.”
No response was received, and the letter sent to the applicant’s home address was returned to the Tribunal. On 18 March 2004, the applicant’s agent was telephoned by the Tribunal. According to a file note, the agent “confirmed that the (applicant) collected a copy of the letter from (the agent’s) office, and that the (applicant) knows that he needs to have a sponsorship application lodged with DIMIA. (The agent) asked me to when the response to the letter is due and
I informed him that the response is due 8th April 2004.”The Tribunal handed down a decision on 30 April 2004, in which it “affirms the decision under review, finding that the visa applicants are not entitled to the grant of Temporary Business Entry (Class UC) visas.” In its statement of reasons, the Tribunal in substance recites the history of the matter which I have recounted above. The statement of reasons then concludes:
The visa applicant has not produced evidence of an approved business sponsorship at time of decision.
As the primary visa applicant does not have an approved business sponsorship he does not meet the criterion in clause 457.223(4)(e)(i). He, therefore, cannot meet an essential criterion for a Subclass 457 visa and the Tribunal must affirm the decision.
In a post-hearing submission, Mr Newman for the applicant contended that the Tribunal “in fact made no finding on the issue of the currency of the sponsorship”. I reject this contention, since I consider that the Tribunal’s conclusion must be read as making, and being based upon, a finding that the employer approval criterion was not satisfied as at the date of its decision and on the evidence before it.
Counsel for the Minister contended that the Tribunal’s reference to cl.457.223(4)(e)(i), in the context of the history set out above, showed that it thought that the applicant had failed to establish that his “employer is a standard business sponsor” as referred to in that sub-paragraph (i.e. in the form quoted by the Tribunal – see [6] above). He submitted that it might have been more legally correct for the Tribunal to have said that the applicant did not meet the employer approval criterion in cl.457.223(4)(c) and (5)(c), but that it is clear that the Tribunal intended to make this finding, and that any misstatement was immaterial. I accept this submission.
The grounds for review
The amended application relied upon by the applicants claims that the Tribunal “erred in law and failed to exercise its jurisdiction by:
1. Raising, as an afterthought as it were, an issue previously dealt with by the Respondent;
2. The Tribunal was charged with the duty to review the delegate’s decision of 14 June 2002 but failed to do so and in lieu thereof dealt reviewed an application previously approved by the Tribunal differently constituted.
I found this pleading difficult to understand, and Mr Newman’s written and oral submissions did not significantly clarify his arguments. However, as a result of my discussion with him and with counsel for the Minister, I understood him to be contending:
i)The Tribunal was bound to address and make a finding on whether the applicant satisfied the skills criterion in cl.457.223(4)(e) and 457.223(5)(e) and (ea), and failed to do this.
ii)Alternatively, if it did make a favourable finding on that criterion, it was bound to remit the visa application to the Minister for further consideration, thereby allowing the applicant to present further evidence of a current sponsorship.
iii)The Tribunal had no power to address the sponsorship criteria and to refuse the visa application on the ground that they were not satisfied.
iv)Alternatively, if the Tribunal had the power to refuse the visa application on sponsorship grounds, it also had a discretion not to address the sponsorship criteria and to remit the visa application for further consideration. It failed to appreciate that it had this discretion and to consider whether it should be exercised.
Mr Newman did not contend that the Tribunal’s decision was vitiated by any procedural flaw concerning its raising of the sponsorship issue. No argument based on a failure of procedural fairness or breach of equivalent statutory protections was pressed in argument before me. Indeed, on the evidence which I have summarised above, it is clear that the applicant was clearly notified that the Tribunal might refuse a visa under the sponsorship criteria, and was given ample opportunity to show the Tribunal whether he was able, or would, or even might, be able in the future, to meet the sponsorship requirements.
Nor did I understand Mr Newman to maintain a contention that a finding by the Tribunal that at the time of its decision the applicant did not meet sponsorship criteria was irrational or anomalous. Again, on the material before me, it appears to have been the only conclusion which was open to it. To the extent that Mr Newman’s pleading and written submissions imply criticisms of the fairness or rationality of the proceedings of the Tribunal, I reject those implications.
I reject the contention that the Tribunal’s consideration in its review of the delegate’s decision was confined to addressing the skills criterion in cl.457.223(4)(e) and 457.223(5)(e). No authority was cited to me by Mr Newman for this proposition, and in my opinion it is contrary to the provisions of the Migration Act and the scheme of merits review it establishes.
The power of decision which was exercised by the delegate was conferred on the Minister by s.65(1). This requires the Minister to consider a valid application for a visa and to decide if she is satisfied, inter alia, that “the other criteria for it prescribed by this Act or the regulations have been satisfied”. The Minister, “if not so satisfied, is to refuse to grant the visa.” The primary decision-making power is therefore one to grant or refuse a visa (c.f. 66(1). It raises a duty to address all criteria of eligibility for a visa before granting a visa, and to refuse the visa if not satisfied as to any one of them. In my opinion, s.66 does not raise a duty to address all criteria before refusing a visa, and such a construction would place absurdly unnecessary obligations on a decision-maker.
The right to have a decision reviewed by the Tribunal is expressed in s.347 to relate to “an MRT-reviewable decision”, which is relevantly defined in s.338(2) as “a decision … to refuse to grant a non-citizen a visa”. When an application is brought “for review of an MRT-reviewable decision, the Tribunal must review the decision” (s.348(1)). Clearly, in my opinion, this jurisdiction and duty encompasses all elements in the decision-making power I have described above. An applicant cannot seek a review limited to a component of a decision to refuse a visa, and the Tribunal’s duty of review encompasses all elements of the statutory power whether addressed by the delegate or not.
The intention to establish a system of de-novo re-exercise of the primary decision-making power is then confirmed by s.349(1): “The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.” And by s.349(4): “the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”
If these provisions did not make the situation clear, their derivation from similar provisions of the Administrative Appeals Tribunal Act is apparent. I consider that the applicant’s contentions are contrary to well established jurisprudence in relation to that Tribunal and similar tribunals, which holds that such a tribunal may address issues arising under the statutory power exercised by the primary decision-maker even where they were not addressed by that person, and that it may re-visit and reach different conclusions on issues which were addressed in the course of previous attempts to exercise the power (c.f. Re Queensland Mines Ltd and Export Development Grants Board (1985) 3 AAR 30 at 35; and Bramwell v Repatriation Commission (1998) 28 AAR 342 at 350).
Mr Newman’s contention that the Tribunal’s jurisdiction required it to set aside the delegate’s conclusion in relation to the skills criterion, and then to remit the further consideration of the visa application must be rejected for the same reasons. It misconceives the effect of the primary power of decision under s.65, the effect of conferring the same power on the Tribunal, and the Tribunal’s duty to review de-novo the correct or preferable exercise of that power. Since the primary power empowered the Minister to refuse the visa application if satisfied that any one criterion was not satisfied, the Tribunal had that power also. Once it reached a decision that it should affirm the refusal of a visa on the basis of inability to satisfy the sponsorship criterion, it was under no duty to address and reach a conclusion on the other criteria.
There may be more substance in the contention that the Tribunal erred by failing to consider its discretion to remit the visa application rather than to affirm the decision. However, for the following reasons, I am not satisfied that the Tribunal made a jurisdictional error of this nature.
The discretion is expressly conferred in s.349(2) which provides:
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
In relation to par.(c), regulation 4.15 permits a remitter in relation to all visa applications made after 1989, and provides that “a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.”
Counsel for the Minister contended in a post-hearing submission that this power would not have been available to the Tribunal because “it could not have given any such permissible direction.” However, on one reading of the Tribunal’s reasons it did arrive at a conclusion that the applicant had, at last, satisfied the skills criterion. Certainly, it seems to have received evidence on which such a conclusion was open to it, and this may, indeed, have been the only conclusion open to it. If so, the Tribunal would have had power to remit the matter for reconsideration with a direction that the applicant should be taken to have satisfied the criteria in cl.457.223(4)(e) or (5)(e) or (ea). This would then have allowed the applicant time to obtain fresh sponsorship approvals and to present them to yet another delegate.
Mr Newman pointed out that the first Tribunal had exercised this remitter power, and submitted that the current Tribunal ought to have considered this course and followed its predecessor so as to allow the applicant a further opportunity to obtain a current employer sponsorship. However, he cited no authority which has examined how this discretion should be exercised by the Migration Review Tribunal. I allowed him and counsel for the Minister time to make further written submissions on the point.
Surprisingly, neither they nor I found authority on the point, although there are some cases which considered differently framed powers of remitter by the AAT (e.g. Re Lavery and Registrar, Supreme Court of Queensland (1996) 23 AAR 52; N1112/200A v Minister for Immigration (2000) 32 AAR 76; Civil Aviation Safety Authority v Allan (supra) and cases cited therein). These cases suggest that in the normal structure of Commonwealth merits review it is the expectation of the legislature that a Tribunal exercising all the powers of decision vested in the primary decision-maker will fully exercise the relevant power and try to bring finality to the particular administrative process involved. On this basis, the power of remitter is a supplementary power designed to be used when a Tribunal considers it appropriate and administratively efficient in the circumstances to allow the primary administrator, rather than itself, to complete that process. In relation to the present power in s.349(2)(c), this would seem to be illustrated in the prescribed “directions and recommendations” which may be attached to a remitter. I doubt whether anything more can be said generally about the power.
In my opinion it would be too onerous an interpretation of s.349(2) to require a tribunal in the position of the present Tribunal always to explain in its substantive decision why it has chosen to affirm the refusal of a visa rather than to allow the visa application to be kept alive in a remitter. The present Tribunal showed that it was aware of its discretion when it explained at the start of its reasons:
3. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by a directions(sic) that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
In view of this discussion, I am not prepared to draw an inference that the Tribunal overlooked its discretion to remit when deciding at [20] that “the Tribunal must affirm the decision”. Rather, I consider that this statement should be understood in the light of the Tribunal’s preceding narrative of the history of its attempts to obtain the applicant’s responses to its concerns as to current sponsorship. These showed the Tribunal making reasonable efforts to allow the applicant to answer. In the absence of any response, I consider that the Tribunal concluded that it should bring the application to an end by affirming the refusal of visa on the ground which it had squarely put to the applicant. This appears to be an obvious outcome in circumstances where the applicant had not sought any further opportunity – whether before the Tribunal or by a remitter – to establish a current sponsorship.
I am not satisfied that the Tribunal’s decision to proceed in this way was attended by any misconception or misapplication of its powers under s.349(2) amounting to jurisdictional error.
For the above reasons I dismiss the application. There is no need for me to consider whether I would have refused relief if jurisdictional error had been made out.
I can see no reason why costs should not follow the event, but shall reserve liberty to both parties to seek further or alternative costs orders.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 16 March 2005
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