Re Jagroop and Minister for Immigration and Border Protection
[2015] AATA 751
•25 September 2015
Jagroop and Minister for Immigration and Border Protection (Migration) [2015] AATA 751 (25 September 2015)
Division: GENERAL DIVISION
File Number: 2013/0544
Re: AMITESH BALI CHAND JAGROOP
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 25 September 2015
Place Melbourne
The Tribunal decides to:
affirm the decision of a delegate of the respondent dated 23 January 2013 to cancel the applicant’s Class BQ Subclass 139 Skilled designated Area Sponsored visa.
…[sgd] S A Forgie…
Deputy President
CATCHWORDS
IMMIGRATION – whether discretion to cancel visa should be exercised for failure to pass the character test – decision affirmed
PRACTICE AND PROCEDURE – Tribunal’s task on remittal – Ministerial Direction No 55 revoked and replaced with No 65 between time of delegate’s decision and time of hearing on remittal – direction not a legislation instrument – no modification of the operation of the law – concerned with exercise of discretion in administering the law – rights or privileges not accrued – Direction 65 in force at time of review applicable
PRACTICE AND PROCEDURE – application of ss 500(6A) to (6L) of the Migration Act 1958 on remittal – other than s 500(6L) apply on remittal
PRACTICE AND PROCEDURE – requirements of ss 500(6H) and (6J) of the Migration Act 1958
LEGISLATION
Acts Interpretation Act 1901; sections 7, 8
Administrative Appeals Tribunal Act 1975; sections 25, 43, 44
Administrative Decisions (Judicial Review) Act 1977
Compensation (Commonwealth Government Employees) Act 1971
Compensation Employees’ Rehabilitation and Compensation Act 1988
Legislative Instruments Act 2003; sections 5, 15
Migration Act 1958; sections 5, 29, 31, 85, 140GBA(4), 200, 201, 476A, 499, 500, 500(6H), 500(6J), 501
Taxation Administration Act 1953; section 14ZZKCASES
Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118
Commonwealth v Esber [1991] FCA 223; (1991) 29 FCR 324; 101 ALR 35; 13 AAR 550
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430; 106 ALR 577
Jagroop v Minister for Immigration and Citizenship [2013] FCA 1287
Jagroop v Minister for Immigration and Citizenship [2014] FCAFC 123
Jebb v Repatriation Commission (1988) 80 ALR 329; 8 AAR 285
Legal Services Board v Gillespie-Jones [2013] HCA 35; (2013) 249 CLR 493; 300 ALR 430; 87 ALJR 985
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374; 154 ALR 51; 51 ALD 519; 26 AAR 548
Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440Re Coshott and Commissioner of Taxation [2013] AATA 822
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Jagroop and Minister for Immigration and Citizenship [2013] AATA 237
Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682
Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351
Repatriation Commission v Yates (1997) 46 ALD 487
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324
The Queen v Jagroop [2009] VSCA 46
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76OTHER MATERIAL
Direction No 55
Direction no. 65
REASONS FOR DECISION
By letter dated 30 January 2013, an officer of the then Department of Immigration and Citizenship, now the Department of Immigration and Border Protection, (DIBP) advised Mr Jagroop that a delegate of the Minister had cancelled his visa under s 501(2) of the Migration Act 1958 (Migration Act). The delegate gave his reasons for making his decision, which was dated 23 January 2013 and expressed in this way:
“I reasonably suspect that Mr JAGROOP does not pass the character test and Mr JAGROOP has not satisfied me that he passes the character test. I have decided to exercise my discretion under subsection 501(2) of the Act to cancel his visa. I hereby cancel his Class BQ Subclass 139 Skilled designated Area Sponsored visa. …”[1]
[1] Documents lodged under s 500(6F) of the Migration Act (G documents); G3 at 30
Mr Jagroop applied to this Tribunal for review of the delegate’s decision and a differently constituted Tribunal affirmed it on 19 April 2013.[2] He applied to the Federal Court under s 476A of the Migration Act asking it to exercise its jurisdiction by issuing a writ of the sort provided for in s 75(v) of the Commonwealth Constitution.[3] Marshall J dismissed the appeal[4] but the Full Court allowed it and remitted the matter to the Tribunal to be reheard according to law.[5] I have done so and have decided to affirm the delegate’s decision dated 23 January 2013.
[2] Re Jagroop and Minister for Immigration and Citizenship [2013] AATA 237; Senior Member Fice
[3] Migration Act; s 476A(2)
[4] Jagroop v Minister for Immigration and Citizenship [2013] FCA 1287; Marshall J
[5] Jagroop v Minister for Immigration and Citizenship [2014] FCAFC 123; Dowsett, Murphy and White JJ
BACKGROUND
There was no dispute between the parties and I find on the basis of the material in the G documents lodged under s 501G(2) of the Migration Act, I find that Mr Jagroop is a Fijian citizen. He was born on 6 September 1982 and first arrived in Australia on 19 November 1995 when he was 13 years of age.[6] At the time, Mr Jagroop held a tourist visa and he continued to hold it when he left on 28 January 1996.
[6] G documents; G5 at 39
Mr Jagroop subsequently obtained a Skilled – Australian-sponsored (Migrant) (Class BQ) visa, subclass 139 (Skilled – Designated Area-sponsored) (skilled visa). Relying on that visa, he returned to Australia on 2 November 2003 after completing High School in Fiji in 2002. He was then 21 years of age and discontinued his tertiary level engineering studies as a result of his coming to Australia. On six occasions between 28 January 1996 and 19 February 2004,[7] Mr Jagroop returned to Fiji but otherwise remained in Australia until his departure in 2014 when he voluntarily left.[8] Mr Jagroop now lives in Fiji.
[7] G documents; G5 at 36-38
[8] Letter dated 7 January 2014 addressed to the then Minister for Immigration stating that he wished to withdraw the letter submitted by his parents in support of his application for Ministerial intervention and wanted to be removed as soon as possible as he did not want to stay here any longer: Exhibit 3.
Mr Jagroop first met Ms Nileshni Singh in Fiji in 2001 when they attended the same school. They married in Fiji on 15 June 2005 but told nobody of their marriage at that time. Ms Singh came to Australia on or about 19 February 2006. Mr Jagroop arranged for her to live in a house occupied by one of his friends and others while he continued to live with his parents. A little later in 2006, she moved to his parents’ house after Mr Jagroop told his parents that she was a friend who needed a place to stay.
On 4 December 2007, Mr Jagroop pleaded guilty in the Supreme Court of Victoria to one count of criminally negligent manslaughter of Ms Singh on 10 June 2006, the day after her 19th birthday. The Coroner found that the cause of her death had been upper airway obstruction in association with head injury.[9] Teague J sentenced him to imprisonment for ten years with a non-parole period of seven years. On appeal to the Court of Appeal, the sentence was reduced to imprisonment for eight years with a non-parole period of five years and six months. Mr Jagroop was released from prison 21 December 2011. Some thirteen months later, a delegate of the Minister decided that he did not pass the character test set out in s 501(6) on the basis that he had a substantial criminal record.[10] Mr Jagroop had a “substantial criminal record” as that term is defined in the Migration Act because he had been sentenced to a term of imprisonment of 12 months or more.[11] The consequence of that decision was that Mr Jagroop’s visa could be cancelled under s 501(2). Cancellation is a discretionary decision and the delegate decided to exercise that discretion to cancel Mr Jagroop’s skilled visa.
[9] Exibit 2 at 117
[10] Migration Act; s 501(6)(a)
[11] Migration Act; s 501(7)(c)
LEGISLATIVE FRAMEWORK
Under the Act, the Minister may grant permission to a non-citizen (known as a visa) to travel to and enter Australia, to remain in Australia or to do both.[12] There are classes of visas.[13] Some are specified in the Act itself[14] and some are prescribed in the Migration Regulations 1994 (Regulations).[15] The Regulations may prescribe criteria that must be met for a visa or visas of a specified class.[16]
[12] Migration Act; ss 5(1) and 29
[13] s 31(1)
[14] ss 32-38
[15] s 31(3)
[16] Migration Act; s 31(3)
The Minister is given power to cancel a visa. Among those powers is that given by s 501(2) of the Migration Act to:
“… cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The “character test” is set out in s 501(6), which, in so far as it is relevant, provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa)…
(ab)…
(b)…
(c)having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)-(v)…
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)-(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)-(e)…”
The term “imprisonment includes any form of punitive detention in a facility or institution” and “sentence includes any form of determination of the punishment for an offence”.[17] Mr Jagroop does not pass the character test for the term of imprisonment imposed on him was longer than 12 months.
[17] s 501(12)
Section 501G of the Migration Act sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister’s decision relates to a person, such as Mr Smith, who is in the migration zone. In broad terms, the “migration zone” includes mainland Australia.[18] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision. I will return to them below.
THE TRIBUNAL’S TASK ON REMITTAL
[18] Migration Act, s 5(1)
General principles relating to the Tribunal’s task in reviewing a decision
Putting aside the fact that I am hearing this matter on remittal from the Federal Court, the general position is that, when an application is made to the Tribunal for review of a decision, the Tribunal is required to conduct a de novo review of that decision. That is to say:
“… The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. …”[19]
To repeat what Bowen CJ and Deane J said in Drake v Minister for Immigration and Ethnic Affairs:
“ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. …”[20]
[19] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 599; 77; 429-430 per Smithers J
[20] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J and see [20] above
The Tribunal’s duty to make the decision again is reflected in the power that it is given under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act):
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review; and
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
Modification of general principles
The general principles may be altered by the terms of the enactment that provides that an application may be made to the Tribunal.[21] It may be altered in a variety of ways. It may, for example, be limited in the nature of the task that it must undertake, the grounds on which it may review the decision and the procedures it must follow.[22] The Migration Act does not limit the scope of the delegate’s decision that the Tribunal may review for an application may be made to it under s 500(1)(b) for review of “decisions of a delegate of the Minister under section 501”.
[21] AAT Act; s 25(6) In Re The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682, I concluded that s 25(6) of the AAT Act does not limit Parliament in the modifications it may make to those provisions set out in that subsection. See also the same conclusion reached by Deputy President Tamberlin in Re Coshott and Commissioner of Taxation [2013] AATA 822 at [18].
[22] An example is to be found in s 14ZZK of the Taxation Administration Act 1953. By imposing a burden on a taxpayer to prove that an assessment is excessive or otherwise incorrect and limiting the grounds on which he or she may do so necessarily means that the Tribunal’s role in reviewing an assessment does not mirror that of the Commissioner in making an assessment under Part IV of the Income Tax Assessment Act 1936.
What the Migration Act does do in certain circumstances, though, is limit the time within which a person affected by the delegate’s decision may apply for review of the decision, the time within which the Tribunal must undertake its review and come to a decision and the time by which evidentiary material must be lodged by an applicant if the Tribunal is to be permitted to have regard to it. The certain circumstances arise when the decision under s 501 relates to a person in the “migration zone”. That is the broad effect of ss 500(6A) to (6L). Of particular significance in the course of this case were ss 500(6H) and (6J) which provide:
“(6H) If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”[23]
(6J)If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under section 501G(2) or subsection (6F) of this section.”
[23] In s 500, a “business day” is a day that is not a Saturday, Sunday, a public holiday in the Australian Capital Territory or a business day in the place concerned: Migration Act; s 500(8).
The practical consequences of the orders of the Court remitting the matter to the Tribunal
A. The Court’s orders
The orders made by the Full Court of the Federal Court in Jagroop v Minister for Immigration and Border Protection are:
“1. The appeal be allowed.
2.The orders of Marshall J of 29 November 2013 be set aside.
3.In their place there be an order that the decision of the Administrative Appeals Tribunal of 19 April 2013 be quashed and the matter be remitted to the Tribunal for hearing and determination according to law by another Tribunal member.
4.The first respondent pay the appellant’s costs of the appeal and of the proceedings before Marshall J.”[24]
[24] [2014] FCAFC 123; Dowsett, Murphy and White JJ
In setting aside the Tribunal’s decision, the Full Court has used its powers in ss 44(4) and (5) of the AAT Act. Those sections provide:
“(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.”
The Full Court has chosen to remit the “matter” and not the “case”. Section 44(5) refers to remittal of the “case”, rather than the “matter”. The change in language is of no consequence as explained by Beaumont J, with whom Black CJ and Jenkinson J agreed, in Repatriation Commission v Nation[25] in similar circumstances:
“ Although the Court’s order referred to the ‘matter’ rather than the ‘case’, it appears that an order of the kind provided by s 44(5) was intended. As a matter of power, s 44(4) would, in any event, have authorised an order in the terms of the order made.”[26]
Other than to order that the matter be remitted to be heard and determined according to law, the Full Court did not place any express limitations upon the Tribunal’s task on remittal. The limits implicit in the requirement that the matter be heard “according to law” are those imposed by the relevant statutory framework and the general law.
[25] [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351
[26] [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351 at [39]; 33; 359
B.General principles regarding the effect of the Court’s orders
By quashing the decision made by the previous Tribunal, the Federal Court has determined that the decision is to be treated as having been set aside and so never been made. That means that it cannot be taken to have affirmed the decision made by the delegate of the Minister on 23 January 2013. It is as if the decision has never been reviewed and, as a consequence, the delegate’s decision remains the operative decision. That decision remains subject to review for the order does not affect the application lodged for its review. The Tribunal’s power to review the decision in respect of which the application has been made is unaffected.
The rationale for this outcome was explained by the Full Court in Morales v Minister for Immigration and Multicultural Affairs[27] when it said:
“The order setting aside the AAT decision meant that there was no operative AAT decision and that a determination had to be made by the AAT. The remittal order required ‘the matter’ to be dealt with in accordance with law. The reference to ‘law’ is of course a reference to the judgment of his Honour together with the relevant statutory and common law.”[28]
[27] [1998] FCA 334; (1998) 82 FCR 374; 154 ALR 51; 51 ALD 519; 26 AAR 548; Black CJ, Burchett and Tamberlin JJ
[28] [1998] FCA 334; (1998) 82 FCR 374; 154 ALR 51; 51 ALD 519; 26 AAR 548 at 387; 63; 532; 561
The judgment of Gray J in Blackman v Commissioner of Taxation[29] expands upon this reasoning and sets out some of the principles that underpin it:
“… The Tribunal stands in the place of the original decision maker, to make the ‘correct or preferable decision’ on the material before the Tribunal. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. The Tribunal has the responsibility of ascertaining the facts necessary for the making of the decision. By s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned Senior Member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon the case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts.”[30]
[29] [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118; Sweeney, Keely and Gray JJ
[30] [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [13]; 455-456; 124 per Gray J, with whom Keely J agreed on this aspect.
The authorities also establish that:
(1)the Tribunal must determine the scope of its powers on a remittal by reference to the order made by the remitting Court:[31]
(a)where the order is ambiguous or vague, it is permissible to have regard to extrinsic material including the reasons for judgment;[32]
(2)the Tribunal is bound by the law as determined by the remitting Court;[33] and
(3)unless the terms of the Federal Court’s remittal require otherwise, the Tribunal is not bound by the findings of fact or concessions made by the Tribunal which heard the application on an earlier occasion:[34]
(a)the Tribunal may choose to adopt findings of fact made by an earlier Tribunal or as stated by the Federal Court if to do so is not contrary to its fact finding duty;[35] and
(b)consistent with its duty to find facts, the Tribunal may accept facts as agreed between the parties or conceded by one or other of them.
[31] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [14]; 456; 124 per Gray J.
[32] Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351 at [41] 33-34; 359 per Beaumont J with whom Black CJ and Jenkinson J agreed and Repatriation Commission v Yates (1997) 46 ALD 487 at 490 per Moore J.
[33] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [10]; 452; 121 per Sweeney J
[34] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [14]; 455-456; 124 per Gray J
[35] Fletcher v Commissioner of Taxation (No 2) (1990) 23 FCR 134; Lockhart, Wilcox and Lee JJ at 135 as explained by Gray J in Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [18]; 456-457; 125.
The authorities do not appear to have considered the issues that are at the heart of the two preliminary questions that I must consider. The first arises because, between the first hearing and now, the Minister has revoked and replaced the directions he made under s 499 of the Migration Act. The second concerns the application of the procedures that are set out in ss 500(6A) to (6L) of the Migration Act. They apply when a decision made under s 501 relates to a person in the migration zone but Mr Jagroop has since voluntarily left Australia and returned to Fiji. I will consider each of these questions in the following passages of these reasons.
PRELIMINARY QUESTION: Ministerial Direction No. 55 or 65?
If a person fails the character test, s 501 does not require the Minister to cancel that person’s visa or to refuse his or her application for a visa. It confers a power on the Minister to do so but it is a discretionary power that is subject to limits. The Minister will necessarily delegate power and may give directions to those who exercise that delegated power as well as to those such as the Tribunal who review the exercise of that power. Even though Parliament has not specified any boundaries within which that power must be exercised, it is not a discretionary power without boundaries. Putting aside s 499 for the moment, those boundaries are to be found in the statute itself. Mason J explained this in his judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[36] (Peko-Wallsend):
“… where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”[37]
[36] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ
[37] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
Once the factors falling within those boundaries have been identified, a decision must be made as to the weight to be given to each of them and relative to each other. Mason J addressed what is essentially a balancing exercise:
“… [I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation …, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. … [A] court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”[38]
[38] [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 41-42; 309-310
As far back as 1979, Brennan J observed in Re Drake and Minister for Immigration and Ethnic Affairs(No 2)[39] (Drake) that:
“ There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 …). … ”[40]
[39] [1979] AATA 179; (1979) 2 ALD 634
[40] [1979] AATA 179; (1979) 2 ALD 634 at 639 -640
Section 499 of the Migration Act has been drafted with these principles in mind. Section 499(1) provides that:
“The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.”
Section 499(1A) provides an example of a direction that could be made:
“For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.”
Section 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with regulations made under it.[41] Section 499(2A) provides that:
“A person or body must comply with a direction under subsection (1).”
[41] Migration Act; s 499(2)
Over the years, several directions have been given by various Ministers under s 499. When the Tribunal first reviewed the delegate’s decision, Direction No. 55 was current. It had been made on 25 July 2012 and had commenced operation on 1 September 2012. Direction No. 41, which had been in effect since 3 June 2009 was revoked as a consequence. On 23 December 2012, Direction No. 55 was itself revoked when Direction No. 65, which was dated 22 December 2012, came into effect.
The submissions
On behalf of Mr Jagroop, Ms Kapitaniak submitted that I should have regard to Direction No. 55 despite its having been revoked over two years ago. In summary, the basis of her submission was threefold. The first was founded on procedural fairness. In choosing not to lodge any further material in accordance with directions dated 5 March 2015, the Minister did not give Mr Jagroop any notice that he intended to rely on anything other than what was contained in his Statement of Facts and Contentions lodged on 4 April 2013. The second basis was that it is innately unfair to rely on Direction No. 65 when Direction No. 55 is more beneficial and it is the direction applicable when the delegate made his decision. Ms Kapitaniak based her third argument on Mr Jagroop’s having an accrued right to have the decision made in light of Direction No. 55. She framed her submission in terms of the Direction’s being a legislative instrument and relied on s 7 of the Acts Interpretation Act 1901 (AI Act).
On behalf of the Minister, the essence of Mr Knowles’ submission was that the Tribunal must apply the law and any policy in existence at the time it makes its decision.[42] The directions made by the Minister under s 499 do not bestow rights or privileges upon visa holders or visa applicants. Rather, they provide guidance to decision-makers. Whether or not the Directions are legislative instruments, principles of accrued rights can have no application.[43]
Consideration of the submissions
[42] Commonwealth v Esber [1991] FCA 223; (1991) 29 FCR 324; 101 ALR 35; 13 AAR 550; Davies and Hill JJ; Lee J dissenting; at 325-328; 36-38; 551-553 per Davies J and 338-339; 51; 565-566 per Hill J. See also Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324 at [40] per Emerton J
[43] Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76 at [22]-[33]; 123-126; 64-68; 86-88 per Mortimer J
The principles
The issues in this case bring together the principles considered by the High Court in Esber v The Commonwealth[44] (Esber) and in Shi v Migration Agents Registration Authority[45] (Shi). The former is concerned with issues relating to accrued rights and the latter to the evidentiary material that the Tribunal may take into account in reviewing a decision. Both were decided against a background of earlier authorities that had considered both issues.
[44] [1992] HCA 20; (1992) 174 CLR 430; 106 ALR 577; Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting
[45] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ
A.Shi v Migration Agents Registration Authority
For the reasons I gave in Re Lobo and Department of Immigration and Citizenship,[46] I am of the view that since the High Court decided Shi, the task of the Tribunal in reviewing a decision is this:
[46] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
“(1) the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
(2)the Tribunal will address the same issues or questions as those addressed by the original decision-maker;[47]
(3)unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;
(4)the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(5)the task of the Tribunal:
(a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b)is not to decide whether the decision under review is itself the correct or preferable decision.”[48]
[48] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304 at [39]; 653-654;319-320
B.Esber v The Commonwealth
In Esber, the High Court focused on the nature and extent of any rights that arise in relation to the review of a decision. The resolution of that case revolved around the applicability of redemption provisions in the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) after they had been repealed by the Compensation Employees’ Rehabilitation and Compensation Act 1988 (1988 Act). The majority considered first the transitional provisions of the 1988 Act and concluded that those provisions ensured that Mr Esber’s entitlement to redemption was to be determined in accordance with the 1971 Act.
Although the majority acknowledged that this was sufficient to decide the case, the majority went on to consider section 8 of the AI Act and whether or not Mr Esber had an accrued right under the 1971 Act. At the time, s 8 of the AI Act[49] provided, in part that:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)…
(b)…
(c)affect any right privilege obligation acquired accrued or incurred under any Act so repealed;
(d)…
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
…”
[49] Section 8 was repealed by the Acts Interpretation Amendment Act 2011; s 2 and Schedule 1, Item 13. The substance has been retained in ss 7(2)(c) and (e).
The delegate of the Commissioner for Commonwealth Employees’ Compensation had disallowed Mr Esber’s claim for redemption because he was not satisfied that certain requirements had been met. At the time of the repeal of the 1971 Act, Mr Esber’s application to the Tribunal was out of time and the extension had not yet been granted. The majority said that he had, “... at the time of the repeal of the 1971 Act, a right to have his application to the tribunal determined pursuant to Part V of the 1971 Act.” The majority went on to say:
“... at the least, the applicant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision …[Drake v Minister for Immigration (1979) 24 ALR 577 at 589]. In Drake, Bowen CJ and Deane J said of the Tribunal …[at 589]:
‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed [i.e. a right to redemption of weekly payments within the meaning of section 8 of the Acts Interpretation Act 1901], he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act …[(1988) 14 NSWLR 685 at 694]:
‘The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.’
Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’ …. Nor was it a mere matter of procedure …; it was a substantive right … Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘although that right might fairly be called inchoate or contingent’ … This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”[50]
[50] (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373; 15 AAR 249; at 440-441; 583; 377; 255
C. Reconciliation of the principles in Shi and Esber
Since Shi was decided, a case such as Esber would be considered at an expanded step (3) of the principles established by Shi. Where a decision has been made under repealed legislation, that would mean that regard would be had to whether rights had accrued under that legislation and any transitional provisions that may apply. Where repeal is not an issue, regard would need to be had to the terms of the legislation itself to check whether it requires the decision to be reviewed by reference to a particular time. Only when that is done is it appropriate to consider the nature of the evidence that may be taken into account.[51]
Application of principles
[51] See the HBF case at FN 47 above
A.The Minister’s Directions: an administrative or legislative instrument?
The first issue to consider is whether the Minister’s Directions under s 499 of the Migration Act are legislative instruments? If they are, it will be relevant to have regard to s 7 of the AI Act for it regulates the effect of repeal or amendment. It does so because s 7 of the AI Act applies to a legislative instrument by virtue of s 13(1) of the Legislative Instruments Act 2003 (LI Act). Of particular relevance is s 13(1)(a) which provides:
“If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:
(a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; …”
Section 7(1) of the AI Act provides that the repeal of an Act, or part of it, does not revive any Act or part that was repealed by the Act or part now being repealed. The effect of repeal on the previous operation of the Act repealed is the subject of s 7(2). In so far as it is relevant in this case, that subsection provides:
“If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or part of an Act, then the repeal or amendment does not:
(a)-(b)…
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act;
(d)-(e)…
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the affected Act or part had not been repealed or amended.”
I note that Directions No. 5 and 21 made by a previous Minister on 15 November 1997 and 23 August 2001 respectively have been registered on the Federal Register of Legislative Instruments (Federal Register) maintained under Part 4 of the LI Act. Both Directions 5 and 21 are concerned with visa refusal and cancellation under s 501 of the Migration Act. Given their registration numbers, it would appear that they were placed on it in 2006[52] when only Direction No. 21 was in operation. They were registered after Part 4 of the LI Act came into operation on 1 January 2005.[53] Subsequent directions issued by the Minister under s 499 on 3 June 2009 (Direction No. 41), 25 July 2012 (Direction No. 55) and 22 December 2014 (Direction No. 65) have not been registered. The only other Direction that has been made under s 499 and that is currently registered as a legislative instrument is Direction No. 9 of 1998 relating to Australia’s criminal deportation policy under s 200 of the Migration Act. That was made on 21 December 1998 and again appears to have been registered in 2006.[54] An example of the exercise of that power appears in the Determination entitled “Granting of parent and other family visas in 2014/2015 financial year”.[55]
[52] F2006B11684 and F2006B11706 respectively
[53] Sections 3 to 62, including ss 20-36 in Part 4 relating to the Federal Register of Legislative Instruments, commenced operation on 1 January 2005: LI Act; s 2(1); Item 2.
[54] F2006B11685
[55] Federal Register of Legislative Instruments F2014
As Mortimer J said in Williams v Minister for Immigration and Border Protection[56] (Williams) the fact that a ministerial direction is not registered
“… does not necessarily mean the Direction is not legislative in character.
An executive decision whether or not to register a direction is not capable of changing the character of the direction itself, whether by reason of the definition of ‘legislative instrument’ in the LIA, or by application of general law principles.
Its character is drawn from the nature and content of the power which is exercised under s 499. …”[57]
[56] [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76
[57] [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76 at [28]-[30]; 124-125; 65; 87
Despite that, it is interesting to note that not one of the Minister’s Directions made under s 499 after the LI Act came into operation has been registered under it. That is to be contrasted with other determinations that have been registered. Although every instrument that is registered is taken, by virtue of that registration to be a legislative instrument,[58] those determinations can be divided into two groups. In one group come those made under a power given to him or her to make it by legislative instrument e.g. s 140GBA(4) and the determination made on 18 November 2013 regarding the Specified period in which Labour Market Testing must be undertaken.[59] In the other group are those made under a power that does not specify that it must be exercised by making a legislative instrument. An example is found in s 85 which provides that the Minister may, by notice in the Gazette, determine the maximum number of visas of a specified class that may be granted in any one year.[60]
[58] LI Act; s 5(3)
[59] Federal Register of Legislative Instruments F2013L01953
[60] See, for example, the Minister’s determination dated 26 June 2014 entitled “Granting of parent and other family visas in 2014/2015 financial year”.
Putting aside registration, an instrument is a legislative instrument if it meets the requirements of s 5(1) of the LI Act. Those requirements are that it is an instrument in writing that has been made in the exercise of power delegated by Parliament and is of a legislative character. Section 5(2) is relevant in determining whether a written instrument is of a legislative character. It provides that:
“Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:
(a)it determines the law or alters the content of the law, rather than applying the law in a particular case; and
(b)it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.”
A determination of the sort made under s 85 of the Migration Act does determine the law in that it limits the application of the law so that a visa may only be granted to those who meet the quota restrictions. Qualification under the Migration Act and Regulations is insufficient. That is a qualification to the law as it would otherwise apply. That same is true of those determinations that the Migration Act specifies must be made by legislative instrument.
The Directions made under s 499 are, however, in a different category. The power that Parliament has given to the Minister under s 499 is not to modify what would otherwise be the operation of the law. Section 499(2) specifically provides that the Minister does not have power to give directions that would be inconsistent with the Migration Act or regulations made under it. If directions made under s 499 were characterised as a modification or variation of what was provided for by Parliament in the legislation, be it the Act or Regulations, that would be contrary to s 499(2).
It is clear from the power given to the Minister under s 499 that it is a power to give guidelines as to the way in which the discretion inherent in s 501 is to be exercised. That is so even if, consistent with the example given in s 499(1A), those guidelines were to require a person to exercise power under s 501 rather than under s 200 when both powers were available. A direction of that sort does not determine or alter the content of the operation of the Migration Act or of the Regulations. Rather, it would be concerned with the application of the law in a particular case. The same is true of the guidelines found in Directions 55 and 65. From that point of view, I do not consider that either Direction 55 or 65 is a legislative instrument within the meaning of the LI Act.
I have also looked at those Directions having regard to their content and to the discussion of Direction 55 in Williams. Certainly, they are prescriptive in some aspects in the sense that they require certain considerations to be taken into account and, in effect, ascribe the “weight” to be given to those considerations and to others. In Williams, Mortimer J outlined arguments that had not been made before her regarding the legality of Direction 55. The argument that it constituted an unlawful fetter on the s 501 discretion or was otherwise invalid had not been raised and nor had the argument that it was contrary to s 499(2).[61] Even if those arguments were raised and were found to be correct, I do not think that they alter the characterisation of Direction 55 or 65. It is clear from s 499(2) that the Minister is not given power to make directions inconsistent with the Migration Act or regulations. If they were found to be an attempt to determine or alter the content of that law, as they must do if they are to be taken to be of a legislative character within the meaning of s 5(2) of the LI Act, they would be inconsistent with the Migration Act or regulations and invalid. If invalid, they could not be legislative instruments.
[61] [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76 at [42]-[43]; 127; 67-68; 89-90
The result would be the same if the argument were put that Directions 55 and 65 are legislative instruments by reference to the common law.[62] In Queensland Medical Laboratory v Blewett[63] (QML), Gummow J considered whether a Ministerial determination was of an administrative or legislative character. If the former, it could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) but, if the latter, it could not. His Honour recognised that:
“Nevertheless, the primary characteristic of the activities of administrators in relation to enactments of the legislature is to maintain and execute those laws, as is indicated by the terms of s. 61 of the Constitution itself. As a result of the holding in Victorian Stevedoring and General Contracting Co. Pty. Ltd. v Dignan [1931] HCA 34; (1931) 46 CLR 73, and the accepted constitutional doctrine flowing from that case, the Constitution does not forbid the statutory authorization of the Executive to make laws: see Zines, The High Court And The Constitution, 2nd Ed., pp 146-153. In doing so, the Executive is not exercising the power contained in s. 61 of the Constitution. The prerogative power to make law without statutory mandate is limited (Davis v The Commonwealth, High Court of Australia, 6 December 1988, unrep., p 32 of the print, per Brennan J.). Rather, the federal legislative powers of the Parliament (found principally in Chapter I of the Constitution) authorise the Parliament to repose in the Executive an authority of an essentially legislative character, at least where the exercise of the authority is subject to a measure of Parliamentary control. …”[64]
[62] Section 5(2) expressly states that it does not limit the generality of s 5(1) and so of the meaning of the expression “legislative instrument”.
[63] [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440
[64] [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440 at [43]; 634; 456
Gummow J sought to identify a criterion that would mark the legislative from the administrative or the judicial. He said:
“… In Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 at 82, Latham C.J. said: ‘The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular case.’ See also Arnold v Hunt [1943] HCA 23; (1943) 67 CLR 429.
However, to accept that proposition is not necessarily to accept the further proposition that to qualify as a law, a norm must formulate a rule of general application. The concept of law as a general command was a feature of Austinian positivism: see Morison, John Austin, pp 65, 67, 77; Stone, Legal Systems and Lawyers Reasonings, p 77. But, as Professor Raz has pointed out (in The Concept of a Legal System, 1980, pp 220-221), ‘individual norms’ which apply only to the action of a single person on a single occasion may still be classed as laws, and this is so although the operation of such laws must necessarily be upon particular cases.”[65]
[65] [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440 at [46]; 634-635; 456
The result was that Gummow J found it:
“… difficult to see how a sufficient distinction between legislative and administrative acts is that between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases …”[66]
while not wishing to deny:
“… the proposition that to take the step which has the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty, is to act legislatively. …”[67]
[66] [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440 at [47]; 635; 457
[67] [1988] FCA 423; (1988) 84 ALR 615; 16 ALD 440 at [48]; 635; 457
It was the latter proposition that was of central importance in QML and decisive of it. In this case, the proper characterisation of Directions 55 and 65 is that of their being of an administrative character. It is of general application and, while it is clearly intended to ensure that the discretion conferred by s 501 is exercised within quite defined constraints, it does not seek to change the rights, duties, powers or privileges given under the Migration Act or the Regulations made under it.
In view of my conclusion, Direction 55 does not create any rights or privileges. Therefore, s 15 of the LI Act does not apply.
B.The Minister’s Directions: the right of review
Mr Esber applied for compensation under the 1971 Act and for review of the resulting decision a number of years after its repeal. His right to apply for that review was preserved, the High Court said in Esber, despite its repeal. His right was preserved by s 8 of the AI Act. The relevant provisions of the Migration Act have not been repealed. Like Mr Esber, Mr Jagroop had the right to apply for review of the decision that has been made affecting his affairs. Unlike Mr Esber, he did exercise his right within time and his application and the consequent review of the delegate’s decision, remittal by the Federal Court and this hearing have become part of the continuum of decision-making described by Davies J in Jebb v Repatriation Commission[68] (Jebb).
[68] (1988) 80 ALR 329; 8 AAR 285
Kirby J adopted that passage in Shi saying of Jebb:
“… In that case, Davies J found that the Tribunal had fallen into error in considering the applicant’s entitlement to certain benefits exclusively by reference to the state of evidence at a particular time in the past. In the relevant statutory context, there was no warrant for doing so. His Honour said:[[69]]
… [T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal’s function as part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal’s decision. That function was enunciated in Re Tiknaz and Director-General of Social Services.[[70]] The approach there taken has since been generally adopted. In the repatriation jurisdiction, it was applied after Banovich[[71]] in Re Easton and Repatriation Commission,[[72]] where … the [T]ribunal … said:[[73]]
‘ The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the [AAT Act so implies].’”[74]
There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the ‘decision’ in question may sometimes, exceptionally, confine the tribunal’s attention to the state of the evidence as at a particular time.[[75]]”[76]
[69] (1988) 80 ALR 329; 8 AAR 285 at 333-334; 289-290
[70] (1981) 4 ALN N44
[71] Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113
[72] (1987) 12 ALD 777; 6 AAR 558
[73] “Easton at AAR 561 referring to Lucas v Repatriation Commission (1986) 69 ALR 415. See also Fletcher v FCT (1988) 19 FCR 442 at 453; 84 ALR 295 at 306-7; 16 ALD 280 at 283.”
[74] (1988) 80 ALR 329; 8 AAR 285 at 333; 289
[75] “See also reasons of Hayne and Heydon JJ at [99].”
[76] (1988) 80 ALR 329; 8 AAR 285 at 333; 289 approved in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 82 ALJR 1147; 103 ALD 467 at [45]-[46]; 301; 400-401; 1156; 477-478
In the case I must consider, the continuum is as I have described. There is nothing in the scheme of s 501 that suggests that I am limited to the evidence at the time that the delegate made the decision under review. As limiting as they are, the provisions of ss 500(6A) to (6L) do not suggest that is the case. They contemplate that a person affected by the decision under s 501 may lead further evidence provided the time constraints are observed. That would accord with sound policy considerations for a person’s circumstances may change from the time the initial decision is made until it is finally reviewed. Those changes may be relevant in a consideration of the exercise of the discretion.
What it is to say is that circumstances may change in ways that reflect on the exercise of the discretion and, in the case of the character test, perhaps provide additional grounds on which a person may not satisfy it. Section 501, under which the decision to refuse a visa or to cancel it is made, is written in terms that accommodate changes in circumstances for it is written in the present tense. In the case of a cancellation, s 501(2) provides:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
It is not framed in terms of the Minister’s reasonable suspicion or of the person’s not having satisfied the Minister that he or she does not pass the character test at a particular time in the past. The reference is to the Minister’s reasonably suspecting, and the person’s not satisfying the Minister, that he or she does not pass the character test.
In enacting the Migration Act, Parliament has not chosen to modify the application of s 43(6) of the AAT Act. Were I to set aside the delegate’s decision and substitute a decision that Mr Jagroop’s visa not be cancelled, the effect of s 43(6) would be to deem my decision to be that of the delegate and so of the Minister. Unless I were to order otherwise, it would have effect from the day on which the delegate’s decision had effect. To use the words of Kiefel J in Shi “… This does not suggest the date of the authority’s decision to be critical for this purpose. …”.[77]
[77] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147 at [150]; 330; 425; 382; 502; 1174 Kiefel J was in dissent but not on this point.
Mr Jagroop’s parents, grandfather and uncles are part of the Australian community. They are victims of Mr Jagroop’s behaviour at a broader level. I have referred to the impact upon his parents above. They continue to be loving supportive parents but have been left in poorer circumstances than they would have expected before the night of 10 June 2006. Mr Rajesh Chand continues to provide financial assistance to Mr Jagroop and is affected as a consequence. Although I did not hear any oral evidence from Mr Jagroop’s grandfather, I accept that he would be saddened by one of his grandson’s not being close to him. He lives with Mr Jagroop’s parents but I am unable to make any findings whether his financial situation would be affected by Mr Jagroop’s not contributing to the family finances. It may be that he receives a Centrelink pension but he may not. I cannot take the matter any further.
Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in cl 10.5 that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
Although he spent almost eleven years in Australia either living in the community or in custody or detention, he has spent two thirds of his life in Fiji. It is the land of his birth and was his place of residence until he was 21 years of age. He has lived there for the last eighteen months or so. There is no evidence to suggest that customs and language in Fiji have changed during his time in Australia so that he is now unfamiliar with them. Mr Jagroop has said that he has had difficulty in finding employment. Implicit in the summary of what he told Mr Watson-Munro at [111] above is the suggestion that his involvement in Ms Singh’s death is being held against him and work is being denied him. Whether that is so, is not a matter on which I can make a finding. I do not have any evidence of the attempts he has made to find work or of the sort of work he has sought and of the reasons for his being refused work. Whether work is available is also a subject that was not addressed in evidence.
Mr Jagroop’s evidence and that of his mother is to the effect that he has been shunned by the family members who remain in Fiji. I do not have any corroborating evidence to that effect but accept that it is so. Mr Jagroop referred to his life being difficult in that he has to keep moving from place to place so that Ms Singh’s family does not know his whereabouts. He is concerned about his late wife’s brother whom he understands to be violent. His parents, he said, had been told by one of his friends that he would be killed if he returned to Fiji. His mother, Mrs Renuka Chander, made no mention of that but she did say that she had received two telephone calls from Ms Singh’s mother who told her that, were her son to return to Fiji, he would be killed.[145] The threat was made in the second call that Ms Singh’s mother made to her. It was made some months after 10 June 2006 when Ms Singh died. The first was made a couple of days after her death. Mrs Renuka Chander said that she and her family had not contacted Ms Singh’s family as they did not know them.[146] Mr Vishnu Prasad wrote a letter dated 5 December 2012 stating that he had been told that Mr Jagroop had “… been receiving life threatening calls from Fiji.”[147] Mr Mr Jagroop has said that Ms Singh’s cousin and her sister approached his friend to ask where he was but no mention was made of any other attempts to find him or of specific threats that had been made against him in the eighteen months or so that he has been in Fiji.
[145] Transcript at 67
[146] Transcript at 67
[147] G documents; G11 at 107
While I find that there have been threats on Mr Jagroop’s life, I find that the specific threat made by Ms Singh’s mother was made some nine years ago. Despite that threat, Mr Jagroop asked to be removed from Australia and returned to Fiji in January 2014.[148] The evidence of other threats are more vague as is their currency but I am satisfied that Mr Jagroop is concerned that they are real and current.
[148] See FN 8 above
Mr Watson-Munro diagnosed Mr Jagroop as suffering from Anxiety Disorder and features of a Depressive illness according to DSM-5 criteria. I do not accept his evidence. Accepting that it is possible to make a clinical examination over the telephone, his examination of Mr Jagroop was cursory. A ten minute interview was all that he had with Mr Jagroop before he came to his diagnosis. Even if I do accept that Mr Jagroop is suffering from a depressive illness, I do not have evidence on the health care available in Fiji and am not satisfied on the evidence I have that adequate health care is not available to him in that country.
Conclusion
When Mr Jagroop left Australia at the beginning of 2014, he was yet to make a contribution to the Australian community. Certainly, he had done some work here and had made some financial contribution towards his family but his actions to that time had been about himself and what he wanted. He wanted Ms Singh to be with him in Australia and he deceived his parents and used their names to support her application for a visa. He deceived the DIBP and the police. He pulled Ms Singh from the footpath to a place where she would not be seen. Again, his actions were about protecting his interests. His actions continue to be about himself and what he wants. He wants to return to Australia so he can study to gain a qualification. His reason for that is to repay his parents for the assistance that they have given him and offer them financial assistance in the future.
What his actions do not show is any deep understanding of the impact of his actions upon others. He expresses his remorse to Dr Cunningham and Mr Watson-Munro but, apart from one phone call to speak to his late wife’s sister, has not approached her parents to express his remorse since his return to Fiji. His reason is that he is scared that Ms Singh’s family will seek to do him harm and yet none has sought him out in the eighteen months since his return. That is so even though Ms Singh’s cousin apparently asked a friend as to his whereabouts.
The power given to the Minister under s 501 of the Migration Act is to protect the Australian community from behaviour that is unacceptable to it. Beginning with his violent behaviour, I have already found that Mr Jagroop had displayed violence to his late wife when she was living at his friend’s house. He had been seen standing with his foot on her head while she lay on the floor. She had applied for an intervention order and had enquired about seeking refuge. This meant that the events that occurred on the night of 10 June 2006 were not isolated. There had been at least one previous occasion on which violence had occurred. The behaviour was unacceptable and any risk, even a low risk as found by Dr Cunningham and Mr Watson-Munro, of his repeating it is equally unacceptable.
I do not accept that the risk of his making false statements to the authorities is low. Dr Cunningham and Mr Watson-Munro did not address that issue. It is not a case of one lone lie but a case of a series of lies. They began with Mr Jagroop’s deceiving his parents about his marriage and using their name to forge documents and deceive DIBP. He presented Ms Singh to his parents as a friend in need of a place to stay rather than as his wife. That was all about getting what he wanted just as his actions after Ms Singh fell to the ground were all about protecting himself. The first attempt occurred when he pulled her away from the footpath and out of sight. The second was when he lied to his mother and to the police. I am not satisfied that there is anything in his subsequent behaviour that suggests that he would not obfuscate and make false statements if that would advance what he saw as his interests. Certainly, he has received good references from family friends and those for whom he has worked for relatively short periods. Being a good worker and honest with stock and money when employed in small business does not persuade me that he would not lie and obfuscate with authorities. I find that his focus is on his own situation and not on others in the community or on the needs of the community to function.
Apart from his parents and grandfather, Mr Jagroop has few ongoing links with people in Australia. That is not to say that they are any greater in Fiji or that his prospects of finding steady employment are necessarily good. It may be that he finds life in Fiji much harder than he would have done were he living in Australia. I find, however, that factors concerning his well-being are outweighed by the risk that he will again attempt to deceive and obfuscate in a community in which he had only recently arrived and to which he had yet to make any contribution.
For these reasons, I affirm the decision made by a delegate of the Minister on 23 January 2013 to cancel Mr Jagroop’s Class BQ Subclass 139 Skilled designated Area Sponsored visa.
I certify that the one hundred and forty nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………[sgd]........................................................
Associate
Dates of Hearing 9 and 10 April 2015 and 1 May 2015
Date of Decision 25 September 2015
Counsel for the Applicant Ms Aggy Kapitaniak
Solicitor for the Applicant Mr Vernon da Gama
Vernon da Gama & Associates, Barristers & Solicitors
Counsel for the Respondent Mr Richard Knowles
Solicitor for the Respondent Mr Nick Swan, Mr Oliver Young
Sparke Helmore
Cases setting out these principles included: McDonald v Director General of Social Security [1984] FCA 57; 1 FCR 354 (Woodward, Northrop and Jenkinson JJ) (McDonald); Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255 (Davies J) (Freeman), Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member) (Tiknaz), Jebb v Repatriation Commission (1987) (1988) 80 ALR 329; 8 AAR 285 (Davies J) (Jebb), Re Easton and Repatriation Commission (1987) 12 ALD 777 (Davies J) (Easton) and Re McGourty and Repatriation Commission (1988) 9 AAR 87 (Davies J) (McGourty). See also The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566 (Wilcox, Burchett and French JJ) (HBF case) which illustrated the way in which evidence of matters happening after a relevant period might relate to that period.
With specific reference to re-examination, I would add that regard needs to be had to the nature of re-examination for, when that is done, it is apparent that it is not undertaken as part of an applicant’s case (so that its presentation is split) but as a consequence of the Minister’s cross-examination. As the Victorian Court of Appeal said:“48 The basic rule is that re-examination is confined to matters arising out of cross-examination. It is not, however, confined to the clearing up of ambiguities that have arisen in the course of cross-examination, but extends to answers given in cross-examination which, if left unexplained, may not constitute the whole truth or would leave the tribunal of fact with a distorted or incomplete account, to the disadvantage of the side which called the witness. …” R v AJS [2005] VSCA 288; (2005) 12 VR 563 at [48]; 575-576 (citation omitted) per Maxwell P, Nettle JA and Redlich AJA (reversed on appeal by AJS v R [2007] HCA 27; (2007) 235 ALR 633 but not on this point.)
This analysis is drawn from practice and procedure in the courts but it is no less applicable in an administrative tribunal whose task of fact finding is no different from that of the courts and in a setting where, as recognised in Uelese, Parliament has defined its powers using language drawn from that practice and procedure.
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