Su v Minister for Immigration

[2005] FMCA 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SU & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 107

MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary business (Class UC) visa – interpretation of subclause 3004(c) in Schedule 3 of the Migration Regulations and Migration Series Instructions 374 paragraph 6.5.27 – issue of “factors beyond his control” – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 349
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2 Subcl 457.211(d), Sch 3 Criterion 3004, 3004(c), 3004(d)
Migration Series Instruction 374

Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634
R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 198 ALR 179

Applicants: PIN LIANG SU & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2562 of 2004

Delivered on: 24 February 2005

Delivered at: Sydney

Hearing date: 31 January 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2562 of 2004

PIN LIANG SU & ANOR

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 21 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on

   
   

   7 April 2003 to refuse to grant the applicant a temporary business (Class UC) visa.

Background

1. Mr Pin Liang Su (“the applicant”), a national of the People’s Republic of China, was born on 17 May 1971 and applied with his wife, Xin Qiong Su, and daughter, Wanting Su, for temporary business (Class UC) visas on 19 February 2003.  The delegate refused to grant the visas on 7 April 2003 (Court Book pp.70-76) (“CB”).  The applicant lodged an application for a review with the Tribunal on 16 April 2003 (CB pp.78-83).

2. The applicant entered Australia on a temporary business (Class UC) subclass 457 visa on 28 December 2000.  This visa ceased on 11 December 2002.  On 23 December 2002 the applicant lodged an application for an employer nomination (resident) (Class BW) visa and was granted a bridging visa.  The applicant’s spouse, Ms Xin Qiong Su and daughter, Wanting Su, arrived in Australia on 16 October 2001 on temporary business (Class UC) subclass 457 visas which ceased on 11 December 2002.  The applicant’s spouse was granted a bridging visa as a dependent of the applicant for the application of subclass 856 and subclass 457 visas.  The applicant’s daughter departed Australia on 30 October 2001 and has not returned to Australia since that time.

3. The delegate stated the visas were refused on the basis that the applicant was not a holder of a substantive visa at the time of the application and did not meet Criterion 3004 of Schedule 3 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant was not the holder of a substantive visa at the time of the application because of factors beyond his control. The applicant therefore did not meet the requirements of subclause 457.211(d) (CB p.74). The applicant stated when lodging the application for review that he met the requirements of the relevant Schedule 3 criteria (CB p.82).

4. The decision now under review relates to an application for a temporary business (Class UC) visa made by the applicant on 19 February 2003 based on a nomination for the position of cook (CB pp.4-13). By letter dated 7 March 2003 the respondent noted that the applicant was not the holder of a substantive visa and that he would therefore have to provide a statement addressing the criteria in Schedule 2, Part 457.211(d), namely, whether he was not the holder of a substantive visa because of factors beyond his control and whether there were compelling reasons for the granting of the visa (CB pp.64-65).

5. By letter dated 28 March 2003 the applicant’s former migration agent submitted that the applicant was not the holder of a substantive visa because of “factors beyond the applicant’s control”. The agent submitted that the applicant had “not been familiar with all of the procedures and specific details of the Migration Act” and that he had “misunderstood the period of effect and condition of his visa”. The agent submitted that the applicant had acted expeditiously when he became aware of his unlawful status that he had complied substantially with the conditions of his previous visa and that if he had applied when he had last held a substantive visa he would have been granted the current application for a visa. The agent also noted that the applicant had “every intention to comply with any condition subject to which the visa is granted”, and that his employer was “eagerly awaiting the applicant to fill the position of chef at their restaurant” (CB pp.66-67).

6. On 7 April 2003 the delegate refused the application for subclass 457 visa on the grounds that the expiry of the previous subclass 457 visa was not due to “factors beyond the applicant’s control” as required by Criteria 3004(c) (CB pp.68-76).  On 16 April 2003 the applicant lodged an application for a review of the delegate’s decision with the Tribunal through a new migration agent (CB pp.77-83).  At the Tribunal the application was initially referred to a Case Officer who prepared a “first examination by case officer” on 8 April 2004 (see applicant’s affidavit dated 30 November 2004 Annexure A).  On 15 April 2004 the Tribunal wrote to the new migration agent seeking the applicant’s comments on information that the Tribunal considered would be a reason to affirm the decision to refuse the grant of a visa.  Relevantly to the present application, the Tribunal invited the applicant to comment on information that at the time of the application for a subclass 457 visa he was not the holder of a substantive visa (CB pp.100-101).  By letter to the Tribunal dated 10 May 2004 the migration agent submitted that the applicant was not the holder of a substantive visa at the time of his application “due to confusion on his part about the existing subclass 457 visa held by him expired” (CB pp.102-103).

7. On 23 June 2004 the Tribunal convened a hearing into the application.  The transcript to the hearing is Annexure B to the applicant’s affidavit sworn on 30 November 2004.  On 21 July 2004 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a visa (CB pp.133-138).

The Tribunal’s findings and reasons

1. The Tribunal’s operative findings are set out at Court Book pp.135-138 as follows:

   a)The Tribunal noted that the applicant had not been the holder of a subclass 457 visa nor any other class of substantive visa at the time he lodged his application on 20 February 2003.

   b)The Tribunal noted that as he was not the holder of a substantive visa the applicant must meet the requirements of clause 457.211(d), including the Criterion 3004 requirement that his failure to hold a substantive visa was due to factors beyond his control.

   c)The Tribunal recited the policy guidelines for Criterion 3004 from Migration Series Instruction 374 (“MSI 374”), paragraphs 6.5.9 – 6.5.10 and 6.5.25 – 6.5.27.

   d)The Tribunal concluded that:

   “… He claimed that he was not aware of all the procedures and specific details of migration law and misunderstood the requirements of his visa. The visa applicant told the Tribunal that he had not understood the requirement to apply for the visa before his previous visa expired and he had not been informed of this requirement by his then representative. However, as set out in paragraph 6.5.27 above, bad or no advice by an applicant’s representative is not on its own grounds for finding that the visa applicant did not have a substantive visa at the time of application because of factors beyond his control. In the absence of other factors, the Tribunal is unable to make such a finding. The visa applicant therefore does not meet the requirements of criterion 3004. Given this and earlier findings, it follows that the visa applicant does not meet clause 457.211 of the Regulations.

   Given the findings made above, the Tribunal has no alternative but to affirm the decisions under review.”   (CB pp.137-138)

Application for review of the Tribunal’s decision

1. On 17 August 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following ground:

   “The grounds of the application are that the Tribunal exceeded jurisdiction in making the decision to affirm the Respondent’s decision to refuse the application for the visa.

   Particulars

   The Tribunal erred in its interpretation of subclause 3004(c) in Schedule 3 of the Migration Regulations in that it considered itself bound to apply the Respondent’s policy set out in paragraph 6.5.27 of Migration Series Instruction 374.”

Legislation and policy guidelines

1. The requirements for a subclass 457 visa are set out in Schedule 2, Part 457 of the Regulations. One of the primary criteria to be met at the time of application is set out in clause 457.211(d) and is relevantly as follows:

   “If the applicant is in Australia:

   …

   (d)the applicant is not the holder of a substantive visa and:

   (i)the last substantive visa held by the applicant was of a kind specified in paragraph (a) or (c); and

   (ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.”  (Emphasis added)

2. Criterion 3004 is in Schedule 3 of the Regulations, “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders”, and relevantly provides:

   “If the applicant:

   (a)ceased to hold a substantive … visa on or after 1 September 1994; …

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

   (d)there are compelling reasons for granting the visa … (Emphasis added)

3. “Substantive visa” is defined in s.5 of the Migration Act 1958 (Cth) (“the Act”) as follows:

   “substantive visa”

   means a visa other than:

   (a)a bridging visa; or

   (b)a criminal justice visa; or

   (c)an enforcement visa.

4. Policy guidelines for the application of Criterion 3004 are contained in MSI 374.  Paragraphs 6.5.7 – 6.5.27 deal with the situation where the applicant has become an illegal entrant or has become a person in Australia without a substantive visa because of factors beyond the applicant’s control.

Applicant’s submissions

1. Mr N Poynder of Counsel, appearing for the applicant, filed written submissions prior to hearing which contained the following contentions:

   a)Criterion 3004 provides a discretion to the Minister (and the Tribunal – see s.349 of the Act) to determine that the criterion has been met where the Minister is satisfied that the requirements of paragraphs (c), (d) and (e) are met. It was submitted that the discretion was unconfined beyond the wording of the provision and, as can be seen in MSI 374, there were a variety of possible factual situations which might lead to the exercise of that discretion in the case of paragraph (c), “factors beyond control”.

   b)It was submitted that in the present case the Tribunal based its consideration on the situation contemplated by paragraphs 6.5.25 – 6.5.27 in MSI 374, namely the situation:

   “… where applicants advise that their agent or lawyer was responsible for them not making their application prior to their substantive visa ceasing, for example because the agent failed to submit the application in time”   (6.2.25)

   It was submitted that this in itself was inappropriate since the present case was entirely different.  This was no agency situation as contemplated by the provision, that is, where the representative acting with authority of the applicant as principal, had done something which was then taken to be binding on the applicant:  see Halsbury’s Laws of Australia, “Meaning of agency”, at [15.5].  Counsel submitted that the applicant had claimed he was unaware of his unlawful status because his representative had not advised him of the date of expiration of his visa.  It was submitted that this situation was much closer to other situations contemplated in MSI 374, (paragraphs 6.5.13 – 6.5.15 where the visa holder was unaware that they were a person in Australia without a substantive visa or paragraphs 6.5.16 – 6.5.22 where the visa holder misunderstood the period of effect of the visa).  Counsel submitted that if MSI 374 had been properly applied by the Tribunal it should have considered the circumstances of this application on a “case by case basis”, rather than dismissing it as paragraph 6.5.27 suggested would be an appropriate where the representative of the applicant, acting in an agency situation, had not acted in his best interests.

   c)It was submitted that the Tribunal’s error was compounded because, having identified the incorrect part of the policy guidelines as applying to the case before it, the Tribunal then erroneously treated those guidelines as binding.  Counsel submitted that it was apparent from the wording of the Tribunal’s findings (CB p.137) that it did not consider it had any discretion other than to reject the claim that the applicant’s visa had expired due to circumstances beyond his control.  The Tribunal expressed the view that, in the absence of other factors, “the Tribunal is unable to make” a finding of circumstances beyond control (CB p.137 [21]) and again it concluded “Given the findings made above, the Tribunal has no alternative but to affirm the decisions under review” (CB p.137 [22]).

   d)Counsel submitted that the Tribunal did, in fact, have alternatives to consider and it should have taken into account all of the circumstances relating to the applicant’s situation.  It was submitted that the Tribunal should have explored when the applicant first retained his former representative and exactly what he had been advised.  It was further contended that the Tribunal should also have considered and explored the “compelling reasons” as required by Criterion 3004(d), which included the difficult recent birth of his son rather than being bound by MSI 374 to find that reliance on “bad or no advice” was insufficient to amount to circumstances beyond control.

   e)It was submitted that a decision-maker should not inflexibly apply policy which is inconsistent with the relevant statute:  ReDrake and Minister for Immigration(No 2) (“Drake”) per Brennan J at 640-641; R v Secretary of State for the Home Department; Ex parte Venables (“Venables”) per Lord Browne-Wilkinson at 496-497; Neat Domestic Trading Pty Ltd v AWB Ltd (“Neat Domestic Trading”) per Gleeson CJ at [17] and [24] and Kirby J at [138] and [150].  In the present case, it was submitted, the Tribunal’s error was to inflexibly apply a policy that an applicant who sought to rely upon bad or no advice from their representative could not succeed in establishing that they did not hold a substantive visa due to factors beyond his or her control.  Counsel submitted that not only was this inappropriate policy in the circumstances of this case, but it was applied in such a way as to deprive the Tribunal of the flexibility to consider other relevant circumstances.

Respondent’s submissions

1. Mr G Kennett of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:

   a)Counsel submitted that the substance of the applicant’s identified ground of review appeared to be that the Tribunal applied the test set out in MSI 374 in lieu of the terms of Criterion 3004.  It was submitted that it may be accepted that the Tribunal would fall into error if it proceeded in that way however, on a proper reading of the Tribunal’s reasons, it could not be concluded that the Tribunal did reason that way.

   b)It was submitted that paragraph 6.5.27 of MSI 374 addressed a particular situation as can be seen from the paragraphs which precede it (CB p.137 [20]):

   ·Paragraph 6.5.25 refers to circumstances where an applicant says that his or her agent was responsible for an application not being made, namely where the agent fails to lodge the application in time.

   ·Paragraph 6.5.26 sets out a general principle of agency law that the acts of the agent are taken to be those of the principal.

   ·It is in that context (i.e. the acts of the agent, which the law regards as the acts of the principal) that paragraph 6.5.27 speaks of a failure by the agent to look after the applicant’s interests.

   c)It was submitted that paragraph 6.5.27, relating to agency relationship, does not address the situation where the applicant himself or herself does (or fails to do) something.  Counsel submitted that this was not surprising since, if an applicant decided not to lodge an application before the expiry of his or her existing visa, for whatever reason, it was unlikely that the failure to do could be said to be “because of factors beyond the applicant’s control” in any ordinary sense.

   d)Counsel submitted that the Tribunal’s proposition that “bad or no advice by an applicant’s representative is not on its own grounds for finding that the visa applicant did not have a substantive visa at the time of application because of factors beyond his control” was not one which flowed from the application of paragraph 6.5.27.  Rather, it was submitted, that the Tribunal expressed a conclusion, similar to that found in paragraph 6.5.27, in a somewhat different situation and was a conclusion which flowed directly from the terms of Criterion 3004(c).  Counsel contended that the Tribunal referred to paragraph 6.5.27 as a point of comparison but had not applied that paragraph in lieu of the statute.

   e)It was submitted that even if the Tribunal did reason in the manner suggested by the applicant, the Minister would submit that the error could not have affected the outcome of the review and should not be regarding as going to jurisdiction.  It was submitted that the conclusion that “bad or no advice” would not in itself bring an applicant within Criterion 3004(c) was manifestly correct.  Counsel contended that the fact that an applicant acted on bad advice, or did not receive any advice, does not in itself have any bearing on whether the failure to lodge an application in time was “because of factors beyond the applicant’s control” and with no such “factors” having been identified, there was no scope for the Tribunal to reach the state of satisfaction referred to in Criterion 3004(c).

   f)Counsel submitted that, alternatively, the considerations referred to in (e) above, provided a reason why relief should be refused on discretionary grounds.  It was submitted that the only reason the applicant gave for his failure to lodge an application before his previous visa expired was that he was not aware of the need to do so and was not alerted to the requirement by his adviser (Transcript pp.6-11) and when asked whether there were any other reasons the applicant had answered that there was not (Transcript p.11).  In light of those answers, it was submitted, that a reconsideration of the matter by the Tribunal would lead to the same conclusion as the decision under review.

Reasons

1. The relevant section of the Act that confers on the Minister the power to grant a visa is s.65 and that provision does not contain a discretion.

   Section 65 – Decision to grant or refuse to grant visa

   (1)After considering a valid application for a visa, the Minister:

   (a)     if satisfied that:

   (i)     …

   (ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii)   …

   (iv)    …

   is to grant the visa; or

   (b)     if not so satisfied, is to refuse to grant the visa.

1. In s.65(1)(a)(ii) it is clearly indicated that when this assessment is being undertaken any other criteria that controls this process is set out in either the Act or the Regulations and that criteria must be satisfied. The relevant criteria to be used in the determination of a subclass 457 visa are set out in paragraph 11 above. The relevant criteria for this matter are contained in Schedule 3 of the Regulations Criterion 3004(c) and (d) set out a further test on which the Minister must be satisfied in order to grant the visa, as follows:

   Schedule 3 – Criterion 3004

   …

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

   (d)there are compelling reasons for granting the visa; …

2. There is no dispute that the applicant did not hold a substantive visa as defined in the Act and was the holder of a bridging visa at the time of the new application for a subclass 457 visa. The previous subclass 457 visa had expired and the applicant reverted automatically to a bridging visa whilst awaiting the outcome of his new visa application. To satisfy the statutory requirement set out in the Act and the Regulations, it was necessary for the applicant to demonstrate that he did not hold a substantive visa at the time of the application for the new visa because of factors beyond his control. In the Tribunal’s analysis of the Migration Series Instructions, and in particular MSI 374 at paragraph 6.5.27 (the effect of which will be considered below), the Tribunal noted:

   “However, as is set out in paragraph 6.5.27 above, bad or no advice by the applicant’s representative is not on its own grounds for finding that the visa applicant did not have a substantive visa at the time of application because of factors beyond his control.”  (CB p.137 [21])

3. This led to the Tribunal’s finding:

   “In the absence of other factors, the Tribunal is unable to make such a finding. The visa applicant therefore does not meet the requirements of criterion 3004. Given this and earlier findings, it follows that the visa applicant does not meet clause 457.211 of the Regulations.”   (CB p.137 [21])

4. I accept that this is the correct application of the statutory test that is required by the Minister to determine whether a visa is to be issued.  This raises the issue as to the status of the Migration Series Instructions.  I am of the view that what is being carried out here is not an exercise of a discretion in a true sense but rather an assessment of the circumstances to see whether a decision maker is satisfied that those circumstances meet a particular test.  There is a statutory test which needs to be applied.  The decision maker has to decide whether particular cases come within that test or not, and at most, these Migration Series Instructions can give the decision maker guidance as to perhaps what was intended by the law making authority, in the case of Regulations, and assist in bringing some consistency to the assessment that various decision makers make. The Migration Series Instructions are not documents with a statutory status and therefore not binding.  The Migration Series Instructions are a documents that provide guidance to the decision maker.

5. The respondent Counsel made the submission that there was no discretion being exercised here at all and I accept that submission. Section 65 of the Act requires a visa to be granted if the decision maker is satisfied that the criteria are met and requires a visa to be refused if the decision maker is not satisfied that the criteria are met. Criterion 3004 refers to the Minister being satisfied as to a particular matter. What follows from that is that if the decision maker, here the Tribunal, does not accept that the circumstances of a particular kind are met then it must refuse the visa. That consideration is what lies behind the language that the Tribunal adopted in paragraph [21]:

   “In the absence of other factors, the Tribunal is unable to make such a finding.”   (CB p.137)

6. The Tribunal is indicating that it has achieved a state of belief that the failure to make an application was because of circumstances beyond the applicant’s control.  It is not a matter of what is the preferred course or the desired course but rather it is the factual circumstances which the Tribunal member has been able to accept were or were not present.  The Tribunal continues:

   “The visa applicant therefore does not meet the requirements of criterion 3004. Given this and earlier findings, it follows that the visa applicant does not meet clause 457.211 of the Regulations.”

7. I accept the contention that there was no error in the Tribunal proceeding in that way.  The statutory test has been applied in the correct way and is not open to the exercise of discretion.

8. When applying the test of criterion 3004 to determine whether the failure to obtain the substantive visa was because of “factors beyond the applicant’s control”, the decision maker needs to satisfy the test under criterion 3004(c) before proceeding to determine criterion 3004(d).  These items are cumulative and one only comes to the question of compelling reasons, logically, if one has satisfied criterion 3004(c) and the question that criterion 3004(c) poses is what factor or factors is this applicant’s failure to get a visa to be attributed.

9. The transcript of the oral hearing attended by the applicant on 23 June 2004 demonstrates that the Tribunal member adopted the appropriate sequence of tests set out in criterion 3004.  The applicant was asked why he had not applied for a further visa until, in effect, it was too late, and the following sequence of questions and answers were heard:

   “Q.040 (Member)   So, you’re saying that your previous Representative, really, didn’t explain, to you, what was required?

   A. (Interpreter)      Yes.

   Q.041 (Member)    Were there any other reasons?  For example, are you aware whether, for example, the Department gave you the wrong information?

   A. (Interpreter)      No, there isn’t!.”   (Transcript p.11)

10. Clearly the applicant maintained throughout the interview that he was simply unaware of the requirements and agreed with the Tribunal’s suggestion that his former adviser had not cured his lack of awareness and when invited to specify other circumstances or reasons said there were none.  The failure to satisfy the test in criterion 3004(c) and (d) results in the applicant failing to meet the exemption provided by criterion 3004.

11. This then brings the analysis to the key item in the pleadings.  The applicant and the respondent have made detailed submissions on the question of whether the Tribunal when it determined its decision in respect of criterion 3004(c), did or did not apply paragraph 6.5.27.  Paragraphs 6.5.25 to 6.5.27 discuss the effect of the law of agency and where the law of agency would normally attribute the agent’s failings to the principal.  However, this was not what the applicant claimed happened in this case, nor what the Tribunal accepted had happened.  Paragraph 6.5.27 does not apply as it has no application in the case where what is being asserted is not a failure by the agent to carry out some task.  That it is obliged to do.  The only failure on the part of the agent may have been to discuss the issues or give advice to the principal but the agent was not carrying out a task on behalf of the principal.

12. Essentially, the previous agent did not tell the applicant about the renewal requirements.  In order words, the applicant was in a state of ignorance or misunderstanding, which, for whatever reason, was not cured by the previous agent.  This is an assertion of inaction.  It is not an assertion of misleading or wrong advice.  It is an assertion of the absence of advice.  This focuses the enquiry on what was in the applicant’s mind.  In the transcripted interview the applicant does not say he asked for advice and was not provided with the answers.  Nor does he say that he asked for advice and was given the wrong advice.  In effect, it comes back to the applicant being in a state of ignorance and continuing to be in that state until it was too late.  It does not give any basis on which one could reach the view that his state of ignorance was attributed to factors external to him.  Consequently, paragraph 6.5.27 of MSI 374 does not apply.  In paragraph 21 of the Tribunal’s decision, it states:

    “However, as is set out in paragraph 6.5.27 above, bad or no advice by the applicant’s representative is not on its own grounds for finding that the visa applicant did not have a substantive visa at the time of the application because of factors beyond his control.  In the absence of other factors, the Tribunal is unable to make such a finding.  The visa applicant therefore does not meet the requirements of criterion 3004.”

13. This analysis is consistent with what the applicant told the Tribunal during the oral hearing (see transcript pp.10-11, Q.35-40).  Although the Tribunal reproduces the contents of MSI 374 and, in particular, paragraph 6.5.27 that provision was not ultimately applied in this case and the reasons for this are explained.  I am satisfied that the Tribunal has reached the conclusion that flows directly from the terms of paragraph (c) of criterion 3004.  The Tribunal has referred to the operation of paragraph 6.5.27 of MSI 374 as a point of comparison but has not applied that paragraph in lieu of the statute.

14. Counsel for the applicant contends that a decision maker should not inflexibly apply policy which is inconsistent with the relevant statute:  Drake per Brennan J; Venables per Lord Browne-Wilkinson, Neat Domestic Trading per Gleeson CJ at [17] and [24] and Kirby J at [138] and [150].  In Neat Domestic Trading, Gleeson CJ states:

    In putting its case in that way, the appellant was invoking s.5(2)(f) and s6(2)(f) of the Judicial Review Act.  The language of those provisions reflects established principles of administrative law expressed, for example, by Lord Browne-Wilkinson in R v Secretary of State for the Home Department; Ex parte Venables:

    “When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time.  In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future ...  By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.  It would be unlawful.

    These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases ...  But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.”

15. Before discretion could be applied by the decision maker, it would be necessary to identify the factors that were influential in the applicant failing to undertake the renewal process before the expiry of the substantive visa.  As already canvassed above, there was no other reason that the applicant wished to submit or have considered as the reason for his failure to complete the re-application within the designated time frame.  The Tribunal member specifically asked the applicant the following question.

    Q.041 (Member)    Were there any other reasons?  For example, are you aware whether, for example, the Department gave you the wrong information?

    A. (Interpreter)      No, there isn’t!.”   (Transcript p.11)

16. Counsel for the applicant contended that the Tribunal could have taken into account the fact of the difficult birth of the applicant’s son about this time.  Further, it was submitted, the official representative or agent of the applicant neglected to inform him of the need to undertake the renewal process prior to the expiry of the earlier substantive visa.  As demonstrated above, when the applicant was invited to provide the Tribunal member with any other reason for the failure to undertake the re-application process, the applicant indicated that he did not.  Before the Tribunal member could embark on an examination of whether discretion would apply in this circumstance, it would have to be demonstrated that the reason for the failure to undertake the re-application was due to other issues.  The applicant clearly stated to the Tribunal member that there were no other factors.

Conclusion

1. I am satisfied that the correct statutory test has been applied by the Tribunal and the conclusions drawn from that application do not demonstrate jurisdictional error.  Consequently, the application for review filed on 17 August 2004 should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  24 February 2005