Talukder v MIAC & Anor
[2009] FMCA 223
•23 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALUKDER v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 223 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled student resident visas – challenge to the validity of the regulation specifying the criterion which the applicant failed to satisfy – clause 880.224 of Schedule 2 to the Migration Regulations 1994 is valid. |
| Migration Act 1958 (Cth), ss.20, 31, 57, 65, 359A, 504 Migration Amendment Regulations 2005 (No.3) Migration Regulations 1994 |
| Brunswick Corporation v Stewart (1941) 65 CLR 88 Luthra & Ors v Minister for Immigration & Anor [2009] FMCA 170 Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 Minister of Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 |
| Applicant: | SHAMSUDDIN TALUKDER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3112 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 18 March 2009 |
| Date of last submissions: | 14 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Law |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3112 of 2008
| SHAMSUDDIN TALUKDER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This case concerns the validity of clause 880.224 of Schedule 2 to the Migration Regulations 1994 (“the Migration Regulations”). The applicant was unsuccessful before the Migration Review Tribunal (“the Tribunal”) because of his inability to comply with the requirements of the clause. The applicant seeks review of the decision of the Tribunal made on 30 October 2008 affirming a decision of a delegate of the Minister not to grant the applicant and four others (who are members of his family) Skilled (Independent Overseas – Student) Residence visas. Mr Talukder (who is the principal visa applicant) is the only applicant in the proceedings in this Court.
Mr Talukder and the other visa applicants applied to the Minister’s Department for visas on 7 October 2004 (court book “CB” 7ff). One of the Schedule 1 criteria for that visa (sub paragraph 1128CA(3)(k)) stated as follows:
Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
To that end Mr Talukder’s solicitors submitted that he had been employed by Apex Sportswear Limited of Mirpur, Dhaka in 1991, and took on the role of personnel director in 1993. The submission continued that he stayed in that role until June 2000 (CB 3). He claimed in his application form that he first arrived in Australia as a student (CB 38), and his “Additional Personal Particulars” form noted his employment with Apex Sportswear (CB 42), as well as what appear to be impressive academic qualifications obtained in Australia (CB 43). In reply to a request by the Department (CB 118) he supplied, through his solicitors, employment references from Apex Sportswear (CB 112-4).
On the basis of those documents the Australian Institute of Management certified that he met the criteria for recognition as a “senior manager” and that he satisfied the skills requirements for migration (CB 125). Schedule 1128(3)(k) was satisfied.
It later came to light that Mr Talukder had arrived in Australia in 1993 and had applied for a protection visa in 1999 through another migration agent (CB 160-168). In the ensuing s.57 letter, the delegate disclosed Mr Talukder’s statement, made in the course of that protection visa application that he had not worked in Bangladesh (CB 185). This was inconsistent with the claimed employment with Apex Sportswear.
The delegate decided to refuse that application on 26 September 2007. The delegate refused the visa applications on the basis that
Mr Talukder did not satisfy clause 880.224. The delegate found that Mr Talukder did not satisfy that clause because the work references provided with the visa application were false.
The applicants sought review before the Tribunal on 17 October 2007. The Tribunal put to Mr Talukder to comment, pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”) the information relied upon by the delegate to conclude that his work references provided with the visa application were false. Mr Talukder, through his migration agent, in effect, sought the opportunity to respond at a hearing and a hearing was conducted on 30 September 2008. Mr Talukder and his wife attended to give evidence and make submissions. The other family members also attended but did not give evidence.
At the hearing Mr Talukder admitted that he had provided incorrect information with his visa application and said that he did not realise the consequences of doing so. The Tribunal concluded that evidence had become available since the time of the visa application that the information given or used as part of the assessment concerning the validity of the application was false or misleading in a material particular.
The application and evidence
These proceedings began with a show cause application filed on
27 November 2008. Mr Talukder continues to rely upon that application which contains the following single ground:
1. The second respondent (the Tribunal) relied on an irrelevant consideration.
Particulars
(a) The Tribunal found that the applicant did not meet the requirements of clause 880.224 of Schedule 2 of the Migration Regulations, 1994, and
(b) That clause is invalid as being outside the regulation making power conferred by the Migration Act, 1958.
Particulars of invalidity
(i) The clause is manifestly unreasonable, in that it operates to require that a visa be refused if there is any evidence whatsoever of false or misleading information being provided, without discrimination as to the source, plausibility, reliability or strength of such evidence.
(ii) The clause is not capable of being considered reasonably proportionate to the end sought to be achieved.
I have before me as evidence the court book filed on 13 January 2009. That is the only evidence I have before me.
Submissions
Mr Talukder contends that, on its face, sub clause 880.224 applies if there is any evidence of falsity from any source. There is no express requirement that a decision maker be satisfied that the evidence is accurate. As the sub clause is framed, any inquiry into the evidence’s accuracy or otherwise would appear to be irrelevant. Mr Talukder contends that any evidence, no matter how slight, unpersuasive or even false or malicious or even corruptly obtained is sufficient to result in rejection of an application. Thus, a person who is clearly telling the truth would be denied a visa because of something so slight as the unsubstantiated accusation based on concocted “evidence”.
Mr Talukder contends that a regulation that has this effect fails to satisfy the standards of reasonableness in the exercise of the regulation making power required under the general law. He contends that this regulation will inevitably lead to manifest injustice and arbitrariness. He contends that the regulation punishes the innocent with the guilty and so is entirely disproportionate to the statutory intention of the visa application being grounded on accurate information and documentation. Further, Mr Talukder contends that a regulation that results in the compulsory rejection of a visa application, because of untested evidence, whether or not the decision maker is satisfied as to the veracity of that evidence, is outside the scope of the regulation making power conferred by s.504 of the Migration Act. He contends that the regulation in question is inconsistent with the Migration Act, in that it excludes applicants for visas on the basis of suspicion and untested evidence, rather than the satisfaction of the decision maker.
The Minister notes that the form of clause 880.224 changed with effect from 1 July 2005[1] and that the Tribunal correctly applied the version of the clause which applied prior to that date. However, the Minister concedes that the present version of the clause in issue is in substance the same as the earlier version impugned in this case and so both versions of the clause give rise to the same issue. Nevertheless, the Minister points out that the version of Part 880 that applied to
Mr Talukder did not prescribe any criteria to be satisfied at the time of decision, and in particular, did not call for any assessment at that stage of whether material lodged for the purposes of establishing a valid application was true and correct (contrast the current clause 880.214). Clause 880.224 was therefore the only provision of assessment for the veracity of that material in the case of Mr Talukder.
[1] See Schedule 2, item 37 and regulation 4(1) of the Migration Amendment Regulations 2005 (No 3)
The Minister further submits as follows:
The Applicant’s attack on the validity of cl 880.224 depends upon giving the clause a construction which extends its operation to a particular class of case: cases where there is ‘evidence’ that information used by the visa applicant was false or misleading, but that ‘evidence’ is ‘slight, unpersuasive or even false or malicious or corruptly obtained’.[2] Whether the clause does extend to that class of case will be addressed below.
[2] Applicant’s submissions at [8].
His own case, of course, does not fall within that class. The Applicant accepted that he had provided incorrect information; he said that he had not realised the consequences of doing so and hoped that the Tribunal could take into account his academic qualifications.[3] The ‘evidence’ which the Tribunal was satisfied had become available[4] was therefore anything but slight or insubstantial; it was evidence which the visa applicant himself accepted as compelling.
[3] CB 243 [21].
[4] CB 243 [22].
The Applicant’s case therefore succeeds only if:
(a)on its proper construction cl 880.224 extends to cases where the evidence is slight, insubstantial, false etc.;
(b)in its application to such cases the clause is invalid; and
(c)the clause cannot properly be read down so as not to apply to such cases.
The Applicant’s submissions do not appear to suggest that cl 880.224 would be invalid if it applied only to cases where the decision-maker was satisfied that persuasive evidence had become available as to the falsity of the material in question. A criterion which operated in that way would not have the effects which, so the Applicant contends, lead to invalidity.
Construction of cl 880.224
Assuming for the moment that the operation attributed to cl 880.224 by the Applicant is properly labelled as absurd and/or invalid, ordinary principles of construction require the clause to be construed so as not to have that operation, if such a construction is open.[5] Further, as cases on the modern approach to statutory construction illustrate, it is not necessary to characterise a provision as ambiguous in order to entertain alternative constructions of it.[6]
[5] Legislative Instruments Act 2003, s 13(1); Quarm v Minister for Immigration and Citizenship (2008) 171 FCR 307, 311-312 [17]; Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161, 171 [40]; Airservices Australia v Canadian Airlines (1999) 202 CLR 133, 216-217 [229]-[232], 271-272 [408]-[414]; Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd (1975) 131 CLR 336, 350; Widgee Shire Council v Bonney (1907) 4 CLR 977, 983.
[6] Eg CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384, 408.
Clause 880.224 may be construed, without doing any violence to its language, as requiring the absence of evidence, considered persuasive by the decision-maker that the information referred to was false or misleading. A construction along these lines is the preferable one. Apart from avoiding invalidity, it is supported by at least the following considerations:
(a)Whether there is any evidence of a particular fact is a question of law.[7] Clause 880.224, however, is part of a set of criteria that must be applied for the purpose of s 65 of the Migration Act 1958 by departmental officers and Tribunal members who may not be lawyers. It would be surprising if the clause were intended to require such decision-makers to reach a state of satisfaction about a question of law (and to make the decision-maker’s conclusion on an issue of law reviewable only on grounds that would establish jurisdictional error). In the context of a criterion for application by a lay decision-maker, ‘no evidence’ is readily construed as meaning ‘no persuasive evidence’.
[7] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 323, 355.
(b)Clause 880.224 also requires a conclusion to be reached about the materiality of any falsity that is suggested by the evidence. This adds support to the view that the criterion is directed at evidence which the decision-maker regards as significant, as opposed to anything that might be characterised as evidence.
As noted above, on this construction of cl 880.224 the decision under review was amply justified by the material before the Tribunal.
Validity of cl 880.224
On the construction suggested above, cl 880.224 cannot be labelled as irrational in the relevant sense. The Applicant’s submissions do not appear to contend that the clause is invalid if this is the extent of its operation.
The cases which have identified reasonableness or rationality as a limit on regulation-making powers have also emphasised that strong disapproval of the policy which a regulation seeks to implement is not a sufficient basis for holding it to be invalid. Griffith CJ in Widgee Shire Council v Bonney framed the principle in terms of a by-law that ‘no reasonable man, exercising in good faith the powers conferred by the statute, could under any circumstances pass’.[8] Later and more detailed considerations of the principle have identified the test of validity on the ground of unreasonableness as ‘only a way of stating the conclusion that no real connection with the purposes of the power can be seen’.[9] Thus, ‘the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws’.[10]
It is difficult to imagine circumstances in which a power to prescribe criteria for grant of a visa (ie, the power conferred by s 31(3) of the Migration Act) would be exceeded on this basis. So long as what is prescribed is truly a criterion (ie, a test which if satisfied, and if the other criteria are satisfied, will lead to grant of a visa under s 65), it is hard to see how it could not be ‘within the scope of what Parliament intended’. In granting an unfettered power to create classes of visa and prescribe criteria for their grant, the legislature plainly intended that decisions about what were the appropriate bases for granting or denying visas would be taken in the political realm and not by the courts. It is also relevant to note in this connection that the devising of criteria for the grant of visas to non-citizens does not involve any restriction on pre-existing civil rights or liberties.
For a visa criterion to fail on the ground of capriciousness or irrationality, the flaw in the criterion would have to be such that it failed to operate as a criterion in any true sense: eg, if all potential applicants would necessarily fail (or necessarily pass). Even on the construction put forward by the Applicant, cl 880.224 would not fail in this manner. While a justification for such a criterion is difficult to endorse, it is not impossible to imagine: it might be thought important, for example, that skilled visas not be granted to anybody about whom there was even a suggestion of inappropriate behaviour.
Clearly, questions of proportionality[11] have no application to a power to prescribe criteria. Either the regulation in question erects a criterion or it does not.
If cl 880.224 on its ordinary construction did exceed the regulation-making power then, as explained above, it can readily be given a construction that does not have that effect.
[8] Widgee Shire Council v Bonney (1907) 4 CLR 977, 983.
[9] Clements v Bull (1953) 88 CLR 572, 577; cited in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381, 383.
[10] Austral Fisheries 40 FCR at 384 per Lockhart J.
[11] Applicant’s submissions at [10].
Reasoning
Paragraph 1128CA(3)(k) had to be satisfied in order to establish a valid visa application. Clause 880.224 thereafter bore on the application at the time consideration was given to the grant or refusal of the visa.
Clause 880.224 in the same form as applied to Mr Talukder’s visa application was considered very recently by this Court in Luthra & Ors v Minister for Immigration & Anor [2009] FMCA 170, although the validity of the clause was not in issue in that case. Barnes FM in that case gave consideration to the meaning of the words “evidence”, “given” and “false or misleading in a material particular” in the clause in the following terms[12]:
[12] at [36]-[49]
It was also contended that as the falsity of the applicant's Master of Commerce certificate and claim to have such a degree had been made known to the Department in 2002 there was no evidence that had become available since the time of the visa application (in 2003) under clause 880.224 that was false or misleading in a material particular. It was submitted that the 2008 information from the site visit was only a confirmation of this evidence.
I am not persuaded by the applicants’ contentions. As submitted for the first respondent, the information obtained from the Degree Section Head of the University of Delhi in the 2008 site visit was "evidence" for the purposes of clause 880.224, being information obtained in the form of a document recording the results of the 2008 site visit to the University in relation to the applicant's claims to have a Master's Degree as well as her claims about the roll numbers being missing.
In that respect it is important to note that clause 880.224 of Schedule 2 focuses on information "given" to satisfy the requirements of Item 1128CA(3)(k), which at the relevant time required the visa application to be accompanied by evidence that a relevant assessing authority had assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
The report of the site visit undertaken on 14 March 2008 was evidence that tended to establish to the Tribunal's satisfaction that information given by the applicant to CPA Australia, including her claim to have a Master of Commerce, the copy of the degree and the other documents provided for the purposes of its assessment of her qualifications under Item 1128CA of Schedule 1 (in particular, Item 1128CA(3)(k) as it stood at the relevant time), was false or misleading in a material particular. This information was evidence that had become available since the time of Mrs Luthra’s application for a subclass 880 visa. It has not been established that the Tribunal erred in applying the law to the facts in finding that this information was within clause 880.224 of Schedule 2 to the Migration Regulations.
Hence it is not necessary to determine whether, had there been no evidence other than the Department’s discovery in 2003 of a case note on its computer records indicating that fraudulent educational qualifications had been submitted by the applicant as part of the assessment of her qualifications obtained in connection with the earlier Subclass 136 application, that would have been outside clause 880.224. In my view, even if the applicant was correct in contending that the Department already had the 2002 information so that that evidence (the 2002 letter from the University of Delhi) did not “become available” after the 2003 Subclass 880 visa application, the information the Tribunal obtained from the University of Delhi site report from the Australian consulate in 2008, whether regarded as “verification” or as also providing additional information, was within clause 880.224. It was evidence that became available since the time of visa application that the information the applicant gave to obtain the assessment of her educational qualifications by CPA Australia was false or misleading within clause 880.224. The fact that the Department had received other evidence before the visa application in issue relevant to the falsity of the claimed qualifications does not mean that subsequent evidence that became available to the Department or to the Tribunal that confirmed that the claimed qualifications were false was “outside” clause 880.224. As the Tribunal recognised, clause 880.224 refers to “no evidence” having become available. Corroborative evidence or verification of the falsity of information given by an applicant is “evidence” that becomes available for the purposes of clause 880.224 even if there was also some evidence to that effect “available” to the Department before the time of the visa application.
Such an interpretation is consistent with the purpose apparent in the criteria for a Subclass DD visa that claimed relevant qualifications and skills are both possessed by a visa applicant and assessed as suitable for the nominated skilled occupation in Australia.
In any event, the evidence that become available as a result of the 2008 site visit was not simply verification of the 2002 information provided to the Department. The Tribunal asked the principal migration officer at the Australian Consulate in Mumbai to assist by arranging a visit to the University of Delhi to inspect the rolls and verify whether or not the roll numbers were missing, as had been claimed to the Tribunal during the Tribunal hearing. The further investigations conducted in India were as a result of the issue raised by the visa applicant and her adviser disputing the authenticity of the 2002 letter from the University and the claims by the applicant's spouse about missing rolls. Those investigations resulted in new evidence, in particular in relation to "the missing roll numbers”. There was evidence as a result of the site visit that such numbers were not missing, as the register only recorded details of roll numbers for candidates who had passed their exams
The applicant also submitted that this information was not false or misleading in a material particular. It was contended that current assessment guidelines in relation to qualifications awarded by the University of Delhi indicated that a Bachelor's Degree was comparable to an Australian Bachelor’s Degree and that hence that information about a Master's Degree was not in fact material to the assessment of skills by CPA Australia.
In support of this argument the applicant tendered and sought to rely on material from an Australian Government website accessed on 25 September 2008 in relation to the comparable value of qualifications awarded by higher education authorities in India assessed at face value.
The parties agreed that the approach taken by the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 was applicable in relation to the concept "in a material particular". The Tribunal followed this approach. In that case what was in issue was the fact that in a visitor visa application form and an incoming passenger card, Mr Dela Cruz had stated that his marital status was "now married" when in fact he was not and had never been married. Section 20 of the Migration Act as it stood at the relevant time, had the effect that a person who made a statement or provided information in a visa application or passenger card that was "false or misleading in a material particular" was an illegal entrant.
The trial judge had held that the question of marital status was not material in relation either to the granting of a visitor visa or of a temporary entry permit. On appeal the Full Court made the statement set out by the Tribunal in its reasons for decision that:
The term "material" requires no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential.
Section 20(1) [of the Migration Act] does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular … a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made…
Importantly their Honours continued in Dela Cruz at 352 that:
In the context of s.20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made … A statement will be relevant to that purpose if it may -- not only if it must or if it will -- be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.
The Full Court found that the statement about marital status conveyed a false or misleading impression of the person or of his or her circumstances and was false or misleading in a material particular. It rejected the view of the trial judge that the statement was not false or misleading in a material particular because marital status was not material to the decisions to grant a visitor visa and temporary entry permit. Their Honours stated at 353:
The question is not whether the statement in the application for a visa played any part in the decision made at the terminal to grant an entry permit, which it did not, for it was not before the officer. Nor is the question whether that officer was concerned about the marital status of Mr Dela Cruz, who had arrived with a visitor's visa. The issue is whether the statements, both of which were made in formal documents required to be lodged by persons seeking to enter Australia, were false or misleading in a material particular. That must be a matter for objective assessment. (Emphasis added).
Hence their Honours rejected an argument that it was necessary to consider whether the immigration officer turned his mind to the statement about marital status or whether, if he did, he thought it necessary to seek further information from or about the applicant. Critically the Full Court stated at 354:
The issue is simply whether marital status was a relevant fact -- which it was as it concerned a significant aspect of Mr Dela Cruz's personal circumstances and was inquired of both in the application form for the visa and in the incoming passenger card -- and whether the statements as to marital status were false and misleading -- which in this case they were.
I see no reason to depart from her Honour’s interpretation of the clause. The clause requires an objective assessment by the decision maker as to whether any “evidence” had become “available” since the time of the visa application that information given or used in order to establish a valid application was false or misleading in a material particular, that is that the information was false or misleading in a particular of substance bearing on the purpose for which the information was provided. I see no particular significance, in terms of the validity of the clause that it calls for an objective, rather than a subjective assessment. The question is whether the clause is manifestly unreasonable or disproportionate to the end sought to be achieved.
I reject the applicant’s contention that the clause compels the rejection of a visa application if any evidence whatsoever becomes available of false or misleading information having been provided. The evidence must point to information having been false or misleading in a “material particular”. That goes to both the strength of the evidence and its relevance. An intellectual process is required from the decision maker as to whether the evidence available points to the information having been false or misleading in a material particular.
The word “evidence” is undefined in the Migration Regulations. The third edition of the Macquarie Dictionary offers seven alternative meanings:
a)ground for belief; that which tends to prove or disprove something; proof;
b)something that makes evident; an indication or sign;
c)law – the data, in the form of testimony of witnesses, or documents or other objects… identified by witnesses, offered to the Court or jury in proof of the facts at issue;
d)to make evident or clear; show clearly; manifest;
e)to support by evidence;
f)in a situation to be readily seen, plainly visible, conspicuous; and
g)law (of an accomplice in a crime) to become a witness for the prosecution against the others involved.
The last specialised definition may be discarded. Also, in my view, the drafter of the clause did not intend to impose on decision makers under the Migration Act the strictures of proof applicable in a court by using the word “evidence”. In my view, the drafter intended that the word “evidence” should carry its ordinary or natural meaning in general parlance. In my view also, the word “evidence” was chosen deliberately as the word “information” is used elsewhere in the clause. The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.
This proposition may be tested by reference to a hypothetical situation. If, for example, a decision maker was confronted by a “dob in letter” the decision maker could not simply accept that letter as sufficient for the purposes of the clause. The decision maker would have to be satisfied that the allegation in the letter pointed to information having been given in support of the visa application that it was false or misleading in a material particular and that the allegation constituted evidence – in other words, that the allegation was probative of what it asserted. A decision maker could not blindly accept information as evidence of the truthfulness of the assertions contained in it. On its face, an allegation is simply evidence that an allegation has been made. In order to satisfy himself or herself that the information was evidence for the purposes of the clause, a decision maker must consider the strength and credibility of the information that has become available. It is only then that the decision maker could accept the information as evidence; that is, information probative of the fact that other information given or used as part of the assessment referred to in paragraph 1128CA(3)(k) of Schedule 1 is false or misleading in a material particular.
In the present case, that assessment was simple to make for both the delegate and the Tribunal. The principal applicant himself admitted that he had given false information in support of his visa application. In another case, as in Luthra, the issue may be more difficult and require more detailed consideration. It may safely be assumed that a visa applicant will have the opportunity to comment on the adverse information and that a decision maker would have to engage in an active intellectual process in resolving the question of whether the criterion in clause 880.224 has been met or not. Further, any perceived jurisdictional error in that process could be tested in this Court on review.
It follows that, while I accept the principle advanced by Mr Talukder that a regulation may be invalid if it fails to satisfy standards of reasonableness in the exercise of the regulation making power required under the general law[13], I do not accept that this clause in the regulations fails that test of reasonableness.
[13] see Brunswick Corporation v Stewart (1941) 65 CLR 88 at 94, 97 and 99; Minister of Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 at 382, 383 and 401 and D Pearce and S Argument, Delegated Legislation in Australia (3rd ed), 2005 (paragraphs [21.2]-[21.3]
Neither do I accept that this clause is beyond the regulation making power conferred by s.504 of the Migration Act. That section confers a general power to make regulations not inconsistent with the Migration Act. Section 31 further empowers the Executive to make regulations prescribing visa criteria. That power is also a general one and extends to the drafting of criteria which may operate to produce an unfair or arbitrary result (for example, by prescribing a very small number of visas available in a particular class or, hypothetically, a number of zero). In any event, the operation of the criterion in this clause, properly understood, is not arbitrary or necessarily unfair. It is not inconsistent with the Migration Act. An applicant will have the opportunity to test the proposition whether adverse information constitutes evidence of false or misleading information having been given in support of a visa application either by responding to an invitation to comment or by attending a hearing (or both). A decision maker who fails to engage in an active intellectual process in determining whether adverse information available is probative of a visa application having been supported by false or misleading information would fall into jurisdictional error. Relief in the form of the constitutional writs of mandamus, certiorari and prohibition would be available in such a case.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 April 2009
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