Vata v Minister for Immigration
[2015] FCCA 1735
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VATA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1735 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – cancellation of Class BW (Employer Nomination Scheme) Subclass 856 visa – non-compliance with s.101 of Migration Act 1958 (Cth) – Applicant’s use of aliases – failure to comply with reg.2.41(c) of the Migration Regulations 1994 (Cth) considered – s.360 of the Migration Act 1958 (Cth) – denial of procedural fairness – jurisdictional error – application allowed – declaration made – writs issued – remitted to the Migration Review Tribunal. |
| Legislation: Limitation Act 2005 (WA), s.41 Migration Act 1958 (Cth), ss.101, 109, 109(1), 109(1)(a), 109(1)(b), 109(1)(c), 360, 425 Migration Regulations 1994 (Cth), regs.2.41, 2.41(c), sch.2: cls.457.223(7)(a)(i), 856.223, 856.223(1), 856.227 |
| Barr v Farrell [2013] WASCA 211 Lee v Minister for Immigration and Citizenship[2007] FCAFC 62 |
| Applicant: | JANI VATA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 876 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Knowles |
| Solicitors for the Applicant: | Visa Law Pty Ltd |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
DECLARATION
The decision of the Second Respondent dated 7 April 2014 was not made according to law.
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent dated 7 April 2014.
A writ of mandamus issue remitting the matter to the Second Respondent to consider and determine according to law the application made to it by the Applicant on 4 July 2013 for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicant costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 876 of 2014
| JANI VATA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant first filed an Application in this Court on 9 May 2014. He now proceeds on an Amended Application filed on 11 March 2015. The Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 7 April 2014 which affirmed a decision made on 3 July 2013 of a Delegate of the First Respondent (‘the Delegate’) to cancel the Applicant’s permanent Employer Nomination Scheme (Subclass 856) visa (‘the visa’). The orders sought by the Applicant are that the decision of the Tribunal be quashed; that a writ of mandamus issue, directed to the Tribunal, requiring it to determine the Applicant’s application according to law; and an order that the First Respondent pay the Applicant’s costs of the proceedings.
The First Respondent seeks dismissal of the application and costs on the grounds that the decision under review is not affected by jurisdictional error.
There is in evidence before the Court, the documents in the Court Book filed on 16 October 2014, and the Supplementary Court Book filed on 11 March 2015, and an Affidavit filed and affirmed by the Applicant on 11 March 2015. There are also written submissions filed by both the Applicant (dated 11 March 2015) and First Respondent (dated 20 March 2015), and a list of authorities from both the Applicant and First Respondent.
The grounds as set out in the Amended Application are as follows:-
“1. The Tribunal erred in law by misconstruing or misapplying reg. 2.41(c) of the Migration Regulations 1994 (Cth) (‘the Regulations’) and thereby failing to have regard to the likely effect of the correct information on a decision to grant the applicant a visa.
Particulars
a. The Tribunal was required to review the decision made by the delegate of the Minister for Immigration and Border Protection (‘the Minister’) to cancel the applicant’s permanent visa pursuant to s 109 of the Act and, in particular, to consider:
i. whether the notice of intention to consider cancellation issued by the Minister complied with the terms of s 107 of the Act;
ii. if so, whether the applicant had provided incorrect answers within the meaning of s 101 of the Act in his visa application; and
iii. if so, whether the visa should be cancelled under s 109, having regard to the circumstances prescribed in reg 2.41 of the Regulations.
b. The Tribunal found at paragraph [70] of its reasons that the notice of intention to consider cancellation complied with the statutory requirements, and at paragraph [72] that there had been non-compliance with s 101 of the Act. It further found at paragraph [105] that ‘[t]he correct information was not merely the applicant’s true name but his true identity including his history of entering Australia with false papers, his use of aliases and his having been removed from Australia’.
c. In determining whether the applicant’s visa should be cancelled, the Tribunal was required to have regard to inter alia ‘the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information’: reg 2.41(c).
d. The Tribunal found that the correct information would likely have resulted in refusal of the applicant’s application for an Employer Nomination (Residence) (Class BW) visa, subclass 856 (Employer Nomination Scheme) (an ‘employer nomination visa’) for the following three reasons:
i. If the correct information was known, ‘the visa under the name Nikolaos Liakos would not have been granted’ (paragraph [108]);
ii. This visa would have been refused on the basis that the applicant did not satisfy cl. 856.223 of Schedule 2 to the Regulations and cl 4001 of Schedule 4 (‘PIC 4001’), as he would have been unable to satisfy the character test on the basis of his ‘past and present general conduct’ (paragraph [111]); and
iii. The applicant ‘would have been found not to satisfy cl. 856.227 ... [because] he did not have a valid passport in his true name. He had only a false passport’ (paragraph [110]).
e. The Tribunal misconstrued reg 2.41(c) by asking itself whether ‘the visa’ in the false name would have been granted to the applicant rather than whether he would have been granted ‘a visa’ by reason of his ability to meet all of the relevant visa criteria.
f. For one or both of the following reasons, the Tribunal erred in its application of reg 2.41(c) in relation to the question of the likely effect of the correct information on the applicant’s ability to satisfy cl 856.223 (1) of Schedule 2 to the Regulations and PIC 4001:
i. In addressing whether the applicant would have passed the character test, the Tribunal assessed the ‘possible effect’ rather than the ‘ likely effect’ of the information;
ii. The Tribunal was obliged, but failed, to consider how the discretion to grant or refuse a visa was likely to have been exercised if a finding had been made that the applicant did not satisfy the character test.
g. For one or more of the following reasons, the Tribunal erred in its application of reg 2.41( c) in relation to the question of the likely effect of the correct information on the applicant’s ability to satisfy cl 856.227 of Schedule 2 to the Regulations:
i. The existence or non-existence of a passport in the name Jani VATA was not relevant ‘information’;
ii. In making a finding in respect of cl 856.227(a), the Tribunal ignored relevant material and/or made a finding on the basis of no evidence and/or took into account an irrelevant consideration;
iii. The Tribunal was obliged, but failed, to consider the likely effect of the correct information on the applicant’s ability to satisfy cl 856.227(b).
2. The Tribunal failed to accord procedural fairness to the applicant, and/or failed to comply with ss 348, 359A and/or 360 of the Act.
a. The decision by the delegate of the Minister to cancel the applicant's employer nomination visa did not refer to the existence or non-existence of a valid passport in the applicant’s correct name at the time of the decision to grant that visa. Nor did the delegate’s cancellation decision refer to cl 856.227 of Schedule 2 or the likely effect of the correct information, within the meaning of reg 2.41 (c), on the applicant’s ability to satisfy cl 856.227.
b. The Tribunal did not, either in its correspondence with the applicant or at any time during the hearing conducted by it, indicate that the non-existence of a valid passport or the question of whether the applicant would have satisfied cl856.227 was an issue arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [47].
c. The applicant in fact held a valid passport in the name Jani Vata on the date when he was granted the employer nomination visa, being 23 February 2009, and would have been able to provide the Tribunal with this document had the Tribunal made him aware of the significance of the issue.
d. Further, or alternatively, in failing to ask the applicant if he had a valid passport at the relevant time, the Tribunal failed to make ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25].”
Background
The Applicant is a citizen of Albania. In his application for review by the Tribunal, he lists the following aliases: Marjan Vata, Jani Petro, George Zakakis, Mario Zefis and Nikolaos Liakos.
At the commencement of its Statement of Decision and Reasons dated 7 April 2014 (‘the Decision Record’), the Tribunal noted the Delegate had cancelled the Applicant’s visa on the basis that the Applicant had not complied with s.101 of Migration Act 1958 (Cth) (‘the Act’) in that he had not completed the visa application form in such a way that all questions on it were answered, and no incorrect answers were given or provided. Cancellation of the visa was under the s.109(1) of the Act discretionary power. The Tribunal determined the issue for it was whether that ground for cancellation was made out, and if so, whether the visa should be cancelled.
Before the Tribunal the Applicant was represented by his migration agent, a solicitor. The hearing of 17 January 2014 was conducted with the assistance of an interpreter in the Albanian and English languages. The Applicant’s wife gave evidence, as did other witnesses for the Applicant.
The relevant visa under consideration was a permanent Class BW (Employer Nomination Scheme) Subclass 856 visa. The Applicant lodged an application for this visa on 14 March 2008. The Applicant failed to complete the visa application so that all questions were answered; he did not respond to a question about other names by which he had been known, and falsely stated that he had never been removed or deported from a country, including Australia, as well as falsely declaring that the information supplied in the application was complete, correct and up-to-date in every particular. The visa application was made in a false name. The visa was granted to the Applicant on 23 February 2009 with an expiry date of 23 February 2014. It was initially granted in the name of Nikolaos Liakos rather than the Applicant’s correct name Jani Vata. The Applicant’s actual birth name was Marjan Vata, but he had legally changed his name to Jani Vata in 1996. In January 2012, the Department of Immigration and Citizenship (as it then was) (‘the Department’) approved a request to have its records amended to reflect that the person known as Nicholaos Liakos (born in Greece in 1973) is Jani Vata (born in Albania in 1969).
On 15 January 2013, the Department gave the Applicant Notice of Intention to Consider Cancellation of his visa. The Applicant responded to that notice on 1 March 2013. That response included a Submission dated 28 February 2013, and documents including a Statutory Declaration made by the Applicant on 28 February 2013. The relevant contents of that Statutory Declaration as to the Applicant’s history are set out in the Decision Record of the Tribunal at paragraph 14, and set out also in paragraph 6 of the Applicant’s Submissions. I adopt that latter paragraph here:-
“6.1 In 1990, the applicant moved to Greece from Albania and adopted a Greek-sounding name, Jani Petro, in order to avoid perceived discrimination against Albanians. He obtained an Albanian passport in this name.
6.2 In 1998 he married a Greek woman and applied for a partner visa in the name Jani Petro, and first came to Australia on a provisional partner visa in October of that year.
6.3 By April 1999, the relationship had broken down and the permanent partner visa was refused within several months of this time.
6.4 The applicant then applied for a protection visa, which was refused, after which he escaped from immigration detention in Melbourne and moved to Sydney.
6.5 In 2000 he was discovered by immigration officials and removed to Albania.
6.6 He feared for his safety in Albania, and obtained a Greek passport in the name Georgios Zakakis, which he used to travel to Australia.
6.7 Following his re-entry into Australia, he began to use the name Mario Zefis, finding work as a painter and decorator without difficulty.
6.8 Towards the end of 2000 he met Vjollce Marashi, whom he married September 2001.
6.9 In November 2002 the couple’s first child was born, two weeks after which the applicant was again removed from Australia.
6.10 In 2004 the applicant returned to Australia, after being separated from his wife and son for two years, using a Greek passport in the name Nikolaos LIAKOS.
6.11 In February 2005 he applied for a subclass 457 visa in the name Nikolaos LIAKOS, sponsored by ‘Derbas Painting’.
6.12 In 2006 he returned to Albania in order to see his dying mother, using a different false passport in order to travel from and return to Australia.
6.13 In February 2009 the applicant was granted permanent residence in the name Nikolaos LIAKOS, after which he bought a house and established his own business as a painter and decorator. He and his wife had two more children, both of whom are Australian citizens.” [1]
[1] Applicant’s Written Submissions filed on 11 March 2015.
The Applicant further submitted that his son was aged 10 years (at that time) and could apply for Australian citizenship. The Applicant himself had a kidney disorder and had only one kidney. His health, he claimed, would deteriorate in Albania and his absence from his son’s life would be terrible. The relocation of his family, if that was to occur, would be a devastating dislocation for his son.
The Tribunal, in its Decision Record, when considering the Applicant’s claims and evidence, set out the following:-
“68. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
69. The exercise of the cancellation power under s. 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s. 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
70. In the present matter, the Tribunal is satisfied from the terms of the notice of intention to consider cancellation that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
71. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101.
72. The Tribunal has examined copies of the forms referred to in the notice. The applicant has acknowledged his non-compliance. On that basis the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the notice.
Should the visa be cancelled?
73. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
• the correct information
• the content of the genuine document (if any)
• the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document
• the circumstances in which the non-compliance occurred
• the present circumstances of the visa holder
• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
• any other instances of non-compliance by the visa holder known to the Minister
• the time that has elapsed since the non-compliance
• any breaches of the law since the non-compliance and the seriousness of those breaches
• any contribution made by the holder to the community.
74. All these factors must be considered but they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: see MIAC v Khadgi (2010) 190 FCR 248 and MIEA v Baker [(1997) 73 FCR 187 at p 194. Further, the weight to be given to any one factor or group of factors is a matter for the decision-maker and will vary from case to case: MIAC v Khadgi. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters - where relevant - such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.”
The Tribunal found at paragraph 105 of its Decision Record that, for the purposes of reg.2.41 of the Migration Regulations 1994 (Cth) (‘the Regulations’):-
“The correct information was not merely the applicant’s true name but his true identity including his history of entering Australia with false papers, his use of aliases and his having been removed from Australia.”
The Tribunal further found inter alia that the correct information was likely to have resulted in refusal of the Applicant’s application for the visa for any one of the following three reasons:-
a)at paragraph 108 of its Decision Record it found that if the correct information was known, “the visa under the name Nikolaos Liakos would not have been granted”;
b)at paragraph 111 of its Decision Record it found that the visa would have been refused on the basis that the Applicant’s “past and present general conduct” would have made him unable to satisfy the “character test” in Public Interest Criterion 4001 (‘PIC 4001’) as required by cl.856.223 in sch.2 of the Regulations; and
c)at paragraph 110 of its Decision Record it found that the Applicant “would have been found not to satisfy cl.856.227 ... [because] he did not have a valid passport in his true name. He had only a false passport”.
The Tribunal stated, under the heading “Summary” and at paragraph 137 of its Decision Record, that:-
“The Tribunal restates that it sees its task is a grave and difficult one. The applicant has laid foundations in Australia for a fulfilling family and community life here. When the Tribunal considers all relevant matters, especially Australia’s international obligations in relation to the applicant’s children, the Tribunal can identify a number of factors that weigh heavily in favour of not cancelling the applicant’s visa. The Tribunal has regard to the severity of the consequences of cancellation, especially for the applicant’s children who have no responsibility for his deceptions. The consequences of cancellation would ultimately be the result of knowingly dishonest actions on the part of the applicant. And the presence in Australia of the applicant’s wife and children is the result of the applicant’s wife’s deceptions that she has acknowledged. Of course the focus of the Tribunal’s consideration of non-compliance must be and is the applicant’s own non-compliance and not what his wife may have done. The seriousness of the applicant’s non-compliance (considering also his other instances of non-compliance and his subsequent serious breaches of the law) overwhelms those factors that weigh - very substantially as they do – in favour of not cancelling the visa.”
The Tribunal therefore considered that the visa should be cancelled.
Legislation
Section 109 of the Act is as follows:-
“(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.”
Pursuant to the above section, the First Respondent has a discretionary power to cancel the Applicant’s visa but only after certain preconditions have been met. If those preconditions are not met, the First Respondent’s discretionary power is not enlivened. In respect of sub-paragraph 1(a) above, the Applicant concedes there was non-compliance by him with s.101 of the Act in respect of his completion of the visa application. Thus, s.109(1)(a) of the Act is satisfied. Further no challenge is made by the Applicant to the First Respondent’s consideration as required in s.109(1)(b) of the Act. The Applicant argues in these proceedings that the First Respondent’s failure to comply with s.109(1)(c) of the Act provides reason sufficient to quash the Tribunal’s decision. The “prescribed circumstances” therein are those contained in reg.2.41 of the Regulations.
Regulation 2.41 of the Regulations is as follows:-
“For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.”
I note, as referred to by the Tribunal (see paragraph 11 of these Reasons), these are not exhaustive considerations.
While the weight likely to be given to any particular circumstance was a matter for the Tribunal to determine, the Applicant argued that a precondition to the exercise of the power under s.109 of the Act was that regard be had to the circumstances prescribed in reg.2.41 of the Regulations, which included in reg.2.41(c) “the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document”.[2] Failure to have regard to this, or any other requisite circumstance the Applicant argued, would necessarily result in an improper exercise of the power in s.109 of the Act and, in turn, jurisdictional error. There needed to be, if it was argued, an enlivenment of that power and exercise of that power, followed by enlivenment of the discretion and exercise of that discretion. This was the Applicant’s principle argument.
[2] See, for example Batra v Minister for Immigration and Citizenship[2013] FCA 274 at [33] and [67] to [72].
Consideration
It is not for this Court to engage in merits review. The Applicant’s conduct is irrelevant to this Court’s consideration of the Application before it. What is relevant is that which assists the Court in determining whether or not the Tribunal made any jurisdictional error in respect of the jurisdictional preconditions to the exercise of power. This is because the Applicant argued not about the exercise of discretion, but rather the jurisdictional precondition that preceded the discretion being enlivened. The Applicant argued that the matters set out in reg.2.41 of the Regulations are mandatory considerations for the purposes of whether or not there was jurisdiction. If they are not considered by the decision-maker, then the decision-maker cannot exercise the cancellation power. If they are considered, but in such a way that misconceives their context, the Applicant further argued, then that also will result in jurisdictional error in a constructive failure to exercise jurisdiction.
The Applicant referred the Court to the decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 wherein Gummow J said at [127]:-
“However, none of these matters needs further be explored in the present case. This is because the attack upon the decision of the Tribunal is not directed to the exercise of a discretionary power. Rather, this is a case where the legislature has made “some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend” [R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125.]. The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists [R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 214.]. The fact or event may turn upon the limits of constitutional power but no question of “constitutional facts” arises in the present case. I have identified earlier in these reasons two jurisdictional factors. Further attention to the second of them is required.”
And later at [130] to [133] inclusive:-
“[130] The “jurisdictional fact”, upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase “jurisdictional fact” is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) 26 CLR 385 at 403.], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. S65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were “satisfied” that the prosecutor answered the description in s36(2).
[131] A determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s75(v) of the Constitution. This is established by a long line of authority in this Court which proceeds upon the footing that s75 is a constitutional grant of jurisdiction to the Court [See R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 428, 438-439; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 179, 204-205, 220-222, 231-232, 241-242; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-654; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631-633.].
[132] In Attorney-General (NSW) v Quin, Brennan J observed [(1990) 170 CLR 1 at 35-36.]:
“The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. ... [T]he duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [1 Cranch 137 at 177 (1803) [5 US 87 at 111].]:
‘It is, emphatically, the province and duty of the judicial department to say what the law is.’
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
[133] In R v Connell; Ex parte The Hetton Bellbird Collieries Ltd, Latham CJ said [(1944) 69 CLR 407 at 430.]:
“[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.”
The Chief Justice added [(1944) 69 CLR 407 at 432.]:
“It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”
Where the use of the indefinite article has been considered in the context of migration legislation, it has been found to import the concepts of plurality and generality as distinct from those of singularity and specificity implied by the definite article. In Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 1696, the Federal Court was required to consider cl.457.223(7)(a)(i) of sch.2 to the Regulations, which required the Minister for Immigration and Multicultural Affairs (as he then was) to be satisfied that the applicant proposed to develop a business activity that he or she would conduct as “a principal”. Heerey J found that:-
“It is noteworthy that 7(a)(i) uses the indefinite article. An applicant must conduct a business activity as a principal, not as the principal. Plainly this visa is not to be restricted to persons who are sole proprietors of businesses.”[3]
Similarly, in Nassif v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 481 at [34], Branson J considered whether a “business” referred to a single business entity or to an enterprise that might be conducted by multiple entities:-
[3] Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 1696 at [10].
“The inference to be drawn from the use in the definition of ‘qualifying business’ of the word ‘enterprise’ is strengthened by the use in the s134(10) definition of ‘ownership interes’' of the indefinite article in respect of the words 'company' and ‘partnership’ (see [6] above). It seems plainly to be intended that an ‘ownership interest’ in relation to a business can derive from, for example, a shareholding in a company that carries on the business together with another entity. Were it not so intended, para(a) of the s134(10) definition would presumably read:
'a shareholder in the company that carried on the business.’”
The role of the indefinite article in importing the concept of generality was made particularly clear in the recent Western Australian Court of Appeal case of Barr v Farrell [2013] WASCA 211 which turned on the interpretation of s.41 of the Limitation Act 2005 (WA). That Act allowed a court to extend time to commence an action by a person under 18 years of age. Section 41(3) of that Act prevented an extension of time “unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action”. Murphy JA (Pullin JA concurring in a separate judgment) found that:-
“the use of the indefinite article before the word “guardian” appears to be of some substantive significance to the structure of the sentence in s 41(3). The term “a guardian” does not, in its grammatical and ordinary sense, convey the meaning of “the” actual guardian of the plaintiff at the time. The reference to “a” guardian in the context of an inquiry into unreasonableness appears to be designed to emphasise the objective nature of the inquiry. It appears unlikely to me that the reference to “a” guardian within the context of the sentence as a whole is really a drafting technique addressing the situation where there are two actual guardians of the plaintiff, and is intended to mean, in effect, “the” actual guardian of the plaintiff, or if more than one, either of them.”[4]
[4] Barr v Farrell [2013] WASCA 211 at [63].
It was submitted by the Applicant that the weight of relevant authority supports the view that what reg.2.41(c) of the Regulations really asks, is whether the correct information would have disclosed the Applicant’s likely inability to satisfy the criteria for the relevant visa subclass, and therefore prevented the grant of “a visa” to him. To adopt the words of Branson J, were it not so intended, reg.2.41(c) of the Regulations would presumably read: “the likely effect on a decision to grant the visa … of the correct information ...”.
The Tribunal’s task was to look at the likely effect on “a decision to grant a visa”. Regulation 2.41(c) of the Regulations was to be considered with a high degree of generality. The Tribunal therefore failed to ask itself the correct question. It was not required to consider the likely effect on “the decision” to grant “the visa”. The Tribunal relied heavily on the observation that the visa in the incorrect name of “Nikolaos Liakos” would not have been granted to “Jani Vata” had the First Respondent been aware that the Applicant’s true name was “Jani Vata”. In doing so, the Applicant argued, the Tribunal adopted an unnaturally restrictive reading of reg.2.41(c) of the Regulations and addressed the wrong question. The Court agrees with this. It incorrectly asked whether or not the visa granted in the name of “Nikolaos Liakos” would have been granted to the Applicant if the First Respondent had been aware that his true name was “Jani Vata”. This was altogether different to asking the correct question, being whether, if the First Respondent was aware of the Applicant’s true name, the Applicant would have been likely to have been granted a visa. The Applicant submitted that the use of the indefinite article in the expression “a visa” is intended to direct the question to the grant of a visa in this general sense, rather than the specific visa actually granted in the name used by the visa holder at the relevant time. There is no justification for a presumption that the disclosure of the use of one or more names or an alias or false name gives rise to an “automatic disqualification” under this provision. This ground in the Amended Application is made out.
Denial of procedural fairness
Section 360 of the Act is relevantly as follows:-
“(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…”
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 231 ALR 592, the High Court said with reference to the terms of s.425 of the Act, which are analogous to s.360 of the Act in the Migration Review Tribunal context, both provisions requiring a person have an opportunity to be heard in respect of the issues arising in relation to the decision under review, the following:-
“[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (Section 425(1) [emphasis added]). The reference to “the issues arising in relation to the decision under review” is important.
[34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise [Section 415.] all the powers and discretions conferred by the Act on the original decision-maker (here, the minister’s delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons.
[35] The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[36] It is also important to recognise that the invitation to an applicant to appear before the tribunal to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”[5]
[5] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 231 ALR 592 at [33] to [36].
The issues which arose in relation to the decision of the Delegate did not include issues relating to the Applicant’s passport which the Delegate identified as determinative against the Applicant. The Tribunal did not thereafter identify for the Applicant that it considered the Applicant’s passport a live issue.
Counsel for the First Respondent submitted that the Applicant should have put to the Delegate that he had a genuine passport in his real name. But the Applicant rightly assumed that was known to the Department, in particular, by virtue of the letter dated 16 January 2012 emanating from the Department to the Applicant, advising of the approval of the Applicant’s request to amend his records to show his correct name, not ‘Nikolaos Liakos’ but ‘Jani Vata’, date of birth and place of birth. I note the visa held by the Applicant then existed in his own name. One part of the evidence relied upon in that change of name process was the Applicant’s Republic of Albania Passport – Z03944550. That Passport was in effect in February 2009, having been issued in 2002 and expiring in 2012. The Affidavit evidence sworn by the Applicant on 11 March 2015 is unchallenged. The Department knew from at least November 2010 of the Applicant’s valid passport in the name of Jani Vata. The Applicant did not need to make this particular point before the Delegate, nor subsequently the Tribunal, unless requested to. The Applicant knew the Department had that information before it.
The passport issue was not raised before the Delegate. The submissions put to the Tribunal by the Applicant indicated that the Applicant’s understanding of the Delegate’s position was that the Department did not dispute the Applicant’s ability to meet the visa criteria, save for character test issues. The Tribunal was aware of that and had constructive knowledge of the updating of the Applicant’s records, but did not put to the Applicant the question of his ability to satisfy reg.856.227 of sch.2 to the Regulations in the requirement he have a valid passport. Had the Tribunal asked the Applicant, as is deposed to in his Affidavit filed on 11 March 2015, he could have said that he had a passport and produced it. The Tribunal had a duty to inquire about a critical fact and failed to do so. The existence of that fact was easily ascertained: “Did you have a passport in your real name on 23 February 2009?” Instead the Tribunal determined wrongly the Applicant did not have a valid passport in his true name at the relevant time. Had the correct answer to that question been arrived at by the Tribunal, it would have been pertinent to the Tribunal’s determination of the likely effect of the correct information on the Applicant’s ability to satisfy cl.856.227 of sch.2 to the Regulations. If the correct information was known at this time, what was the likely effect on a decision to grant a visa? The Tribunal did not accord the Applicant procedural fairness. It did not give the Applicant a sufficient opportunity to produce evidence as to a determinative issues arising in relation to the decision under review.
Character test
Public Interest Criteria 4001 is in the following terms:-
“4001 Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.”
Public Interest Criteria 4001 is taken into account at the point of making a decision on a visa application. Has the First Respondent decided at that time, and despite a failure to satisfy the character test, to grant the visa nonetheless. The Court finds this does not found a futility argument, as submitted by the First Respondent, especially when applying a forward-looking test, as submitted by the Applicant.
In Lee v Minister for Immigration and Citizenship[2007] FCAFC 62, Besanko J stated:-
“[53] However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants’ challenge to the Tribunal’s decision in relation to Konel’s sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants’ application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.”
Public Interest Criteria 4001 could be satisfied by a person satisfying the character test but also, where the character test was not satisfied, it could be satisfied in other ways as provided for in (c) and (d). The Tribunal excluded from its consideration those other ways and, as a consequence, failed to properly assess or lawfully form an opinion as to the likely effect of the correct information on a decision to grant a visa.
The submissions of the First Respondent that claim it would be futile to remit this matter to the Tribunal for redetermination, as there is an alternative basis for concluding that the visa would not have been granted, are rejected. The First Respondent argued that the Applicant would have been unable to meet Public Interest Criteria 4004 (‘PIC 4004’). This criteria is as follows:-
“4004 The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.”
Satisfaction of this criteria is required pursuant to cl.856.223(1) of sch.2 to the Regulations. It is argued the Applicant could not satisfy same because he confirmed in a Departmental interview of 13 January 2011 that he had debts to the Commonwealth. But satisfaction of the criteria was at the time of the visa being decided, being February 2009. Further, if an issue of a debt had been raised in respect of that time, there is no evidence as to whether the First Respondent was satisfied that appropriate arrangements had been made for payment. That is a factual determination for the Tribunal, not this Court. This is not a proper basis for a futility argument. Further, the Migration Series Instruction (MSI 377: Visa applications with debts to the Commonwealth) (‘MSI 377’) is also relevant here. Paragraph 3.3 therein is as follows:-
“What should the applicant do?
3.3.1
Visa applicants with a debt to the Commonwealth must be informed of the existence of the debt, the options for settling the debt and that they will be unable to meet visa criteria for the visa applied for until:
● the debt if repaid;
● appropriate arrangements for repayment of the debt have been made; or
● the debt has been waived.
3.3.2
Applicants must be asked to indicate whether they wish to proceed with the application and, if so, how they wish to settle the debt (see 3.3.1 above for how a debt c.an be settled).
3.3.3
If the applicants decide to repay the debt and to proceed with the visa application, the case officer must verify the debts with the
Debtors’ Clerk in the Melbourne Office [email protected] .
3.3.4
The Debtors’ Clerk can also provide instructions on the most appropriate arrangement for the repayment of the debt in Australia or at an overseas post.
3.3.5
If an overseas applicant indicates that their sponsor in Australia will repay the debt, the applicant should be asked to have the sponsor contact the Debtors’ Clerk.
3.3.6
The sponsor must not be contacted unless the sponsor approaches DIMA with the intention of paying the debt.
3.3.7
When the sponsor pays the debt in Australia, the Debtors’ Clerk will inform the overseas post, including date and receipt number so that the MAL narrative can be amended.”
MSI 377 requires a number of factual determinations to be made by a decision-maker in respect of PIC 4004. That is, a merits inquiry. The Tribunal did not consider this as apposite to its disposition. It is a matter for the Tribunal and not this Court.
Jurisdictional error attends the decision. The Applicant will succeed in his application and costs follow the event.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 26 June 2015
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