Wang v Minister for Immigration
[2007] FMCA 809
•1 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 809 |
| MIGRATION – Review of decision of Minister’s Delegate to refuse skilled migrant visa – whether interrogatories can be directed to delegate – interests of administration of justice – matters to be considered. |
| Migration Act 1958, s.66 Migration Regulations Federal Magistrates Act 1999, ss.3,45 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 NAQR & Ors v Minister for Immigration (No.1) [2002] FMCA271 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 Muin v Refugee Review Tribunal and Ors [2002] 190 ALR 601 Hennessy v Broken Hill Pty Ltd (1926) 38 CLR 342 Herijanto v Refugee Review Tribunal & Ors [2000] HCA 16 |
| Applicant: | TIAN JIAO WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | FEE LEE |
| File Number: | ADG54 OF 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 24 May 2007 |
| Date of Last Submission: | 24 May 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 1 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | Xiao Lawyers |
| Counsel for the Respondent: | Mr Roder |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application of the applicant for leave to serve interrogatories for answer by the second named respondent is dismissed.
The cost of the application regarding the administration of interrogatories be reserved to the substantive hearing of the application filed 27 February 2007.
The substantive application be listed for final hearing on 9 July 2007 at 2.15pm.
The respondent file and serve written submissions 7 days prior to the hearing.
The applicant file and serve written submissions 14 days prior to the hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG54 of 2007
| TIAN JIAO WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| FEE LEE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal aspect of these proceedings relate to an application for judicial review. The Applicant, Ms Wang applied for what is known as Class BN Skilled-Independent (Migrant) Visa (“the visa”) pursuant to the provisions of the Migration Act1958 (Cth) (“the Act”). Pursuant to s.65 of the Act, the first named respondent (“the Minister”) is authorised to grant or refuse such a visa and in particular to determine whether the criteria relevant to the granting of the visa have or have not been satisfied by the Applicant concerned. The Minister delegated this power to the second named respondent, Ms Fee Lee (“the Delegate”).
On 31 January 2007, the Delegate refused to grant the Applicant the visa for which she had applied. The Applicant wishes to be granted the visa so that she can pursue the occupation of translator within Australia. It is common ground between the parties that the Applicant completed a masters degree in marketing at the University of South Australia between January 2004 and December 2005.
The Migration Regulations (“the Regulations”) provide the applicable criteria, which must be met before consideration is given to the granting of a visa to enable a person to pursue a skilled occupation within Australia. It is uncontroversial between the parties that the occupation of translator is such a skilled occupation.
In particular, Part 136 of Schedule 2 to the Regulations sets out the relevant application criteria. Applicants are required to satisfy the Minister that they have relevant experience in the nominated skilled occupation in either a period of twelve or twenty-four month preceding the application. However, the work experience criterion does not apply if the Applicant concerned has completed a degree, diploma or trade qualification which “is relevant to the skilled occupation nominated by the Applicant in his or her application”.[1]
[1] See item 136.223A(2)(a)(ii) of the Migration Regulations
In refusing the Applicant’s visa application, the Delegate recorded as follows in her decision record dated 31 January 2007:
“Item 1.36.223a(2)(A)(ii) requires the degree, diploma or trade qualification to be relevant to the skilled occupation nominated by the Applicant in his or her application. As the degree, Master of Marketing, is not relevant to the nominated skilled occupation of Translator, you have failed to satisfy Item 136.223A(2)(a)(ii) and hence Item 136.223A(2). Therefore you do not qualify for a waiver of the recent work experience requirement.”
This led to the Delegate deciding to refuse the Applicant the visa. It is this decision which the Applicant seeks to challenge by way of judicial review. By way of her application filed in this Court on 27 February 2007, she seeks orders in the nature of certiorari and mandamus to quash the Delegates decision made 31 January 2007 and requiring the Minister to consider her application according to law. The grounds for the application are as follows:
“1.The Delegate exceeded, and/or constructively failed to exercise, jurisdiction in making the Decision by:
1.1asking the wrong question in relation to whether the Applicant’s Masters degree in marketing was relevant to her nominated occupation of Translator 2529-15 within the meaning of subparagraph 136.223A(2)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”); and/or
1.2ignoring relevant material, being the Applicant’s Masters degree in marketing, in relation to whether the Applicant satisfied paragraph 136.223A(2) of Schedule 2 to the Regulations.”
Essentially it is the Applicant’s contention that the Delegate fell into jurisdictional error by failing to ask herself the correct question regarding the issue of the visa or alternatively ignored material, which was relevant to the question of whether such a visa should be granted, namely the applicability of the Applicant’s masters degree in marketing. As such, she contends that the Delegate’s decision was affected by jurisdictional error, such error being a failure to exercise jurisdiction or an excess of jurisdiction as described in Plaintiff S157/2002 v Commonwealth of Australia.[2]
[2] Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
I am not considering that issue in these present reasons for judgment. A subsidiary issue has arisen. The Applicant is critical of the bald nature of the reasons provided for the decision and particularly the unelaborated assertion that “the degree, Masters of Marketing, is not relevant to the nominated skilled occupation of Translator…”. For that reason, the Applicant wishes to deliver interrogatories for answer by the Delegate. The Minister opposes this application. These reasons for judgment are directed to resolving this preliminary issue.
The application
By way of her application filed 7 May 2007, the Applicant seeks the following procedural orders:
“1. An order in the nature of certiorari to quash the decision of the First Respondent by his Delegate the Second Respondent made on 31 January 2007 in Application File No CLF2006/71580.
2. An order in the nature of mandamus requiring the First Respondent requiring him to determine the Applicant’s application for Skilled-independent (Migrant) (Class BN) visa according to law.
3. An order that the First Respondent pay the Applicant’s costs of this application.
4. Such further or other orders as this Honourable Court deems fit.”
The interrogatories, which the Applicant wishes to administer to the Delegate are as follows:
“In making the findings that the Applicant’s Master of Marketing degree is not relevant to the skilled occupation of Translator 2529-15 and t hat the Applicant had failed satisfy Item 136.223A(2)(a)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (as set out in page 3 of the Decision Record dated 31 January 2007 and signed by you, which is annexed to the affidavit of Jia Xiao affirmed on 27 February 2007):
1.Did you find that any degree, diploma or trade qualification specialising in Marketing could not, in any circumstances, be relevant to the occupation of Translator 2529-15?
2.If not, did you find that a Masters degree in marketing could not, in any circumstances, be relevant to the occupation of Translator 2529-15?
3.If the answer to questions 1 or 2 is yes, did you find that the only degrees, diplomas or trade qualifications relevant to the occupation of Translator 2529-15 were ones in which subjects concerning interpretation and translation of languages were taught?
4. If the answer to question 2 is no, did you find that the subjects contained in the Applicant’s Masters degree in Marketing had no connection to the occupation of Translator 2529-15 at all?
5. If the answer to question 4 is no, did you find that the subjects contained in the Applicant’s Masters degree in Marketing had an insufficient connection to the occupation of Translator 2529-15?”[3]
[3] See affidavit of Jia Xiao filed 7 May 2007
It is the Minister’s position that this application should be dismissed. The major objection put forward by the Minister is that the purpose of the proposed interrogatories is to oblige the Delegate to provide further reasons for her decision. It is the Minister’s contention that it is inappropriate to administer interrogatories for such a purpose, as administrative decision makers cannot be required to explain their decisions. Further, it is the Minister’s contention that it would not be in the interests of justice for the Court to give leave to the Applicant to administer these interrogatories to the Delegate. Counsel for the Minister also contends as follows:
“The proposed interrogatories appear to proceed on the basis that the Delegate should have made a series of intermediate findings of fact. The Applicant seeks to interrogate for the purpose of a fishing exercise to construct a case of jurisdictional error. There is no proper basis for the assertion of jurisdictional error or the proposed interrogatories. It is respectfully submitted that the application for interrogatories should be dismissed with costs.”[4]
[4] See Respondent’s outline of submissions at paragraph 17
The applicable legislation
A party in proceedings before the Federal Magistrates Court is not entitled to administer interrogatories as a matter of right. Pursuant to section 45 of the Federal Magistrates Act1999:
“(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.”
The relevant rules of the court are contained in rule 14.01 of the Federal Magistrates Court Rules. If a declaration is made pursuant to section 45(1), the Court is directed to have regard to any relevant rules of the Family Court or Federal Court.
In NAQR & Ors v Minister for Immigration (No.1)[5] Driver FM said as follows:
“Two things are immediately apparent from s.45 of the Federal Magistrates Act and the rule 14.01. The first is that there is a rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted. That is consistent with Parliament's direction (s.3 Federal Magistrates Act) that the Court should act informally and use streamlined procedures. Secondly, where a Federal Magistrate or a Court decides that interrogatories or discovery should be permitted in a particular case, reference should be made to the relevant rules on discovery or interrogatories in the Family Court or the Federal Court.”
[5] NAQR & Ors v Minister for Immigration (No.1) [2002] FMCA271 at para 5
Section 66 of the Act deals with the obligation of the Delegate to provide reasons for her decision. The Minister is required to notify an Applicant of the decision concerned and, in particular, specify which particular criterion for the visa or specific provision of the Act was not satisfied. Pursuant to section 66(2)(c) the Minister or his Delegate is required to give written reasons why the criterion was not satisfied or the provision of the Act prevented the grant of the visa for which application was made
The Delegate is an adjudicative decision maker. It is a well established principal of law that such a decision maker should not become actively involved in subsequent proceedings regarding the appropriateness or correctness of his or her decision but rather should submit to whatever orders a court called upon to review that decision later makes.[6]
[6] See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36
Driver FM referred to what he described as “the Hardiman principle” in NAQR (supra) in indicating his opinion that the court should “resist” any efforts to subject tribunals, such as the Refugee Review Tribunal or the Migration Review Tribunal, to interlocutory orders directed to discovery or interrogation. However, His Honour accepted that there was “a range of matters”, where it was appropriate that an administrative decision maker could be so interrogated. Undoubtedly this appears to be the case.
In Minister for Immigration & Multicultural & Indigenous Affairs v Wong[7] the Full Court of the Federal Court said as follows:
“It is now too late in the day to argue that discovery cannot be ordered in proceedings for judicial review. …
The provisions of s.23 of the Federal Court of Australia Act1976 (Cth) which confer power on the Court in relation to matters in which it has jurisdiction, to makes orders of such kind, including interlocutory orders as the Court thinks appropriate are expressed in the widest terms. There is no need for those provisions to be read down. The limitations on the proper exercise of the power so granted go only to the question of whether the proceedings are within jurisdiction and to the appropriateness of the order.
We see no need in the present case to determine whether the Court has power generally to order interrogatories to be answered in proceedings for judicial review. …in more recent times this Court has only sparingly given leave to administer interrogatories… We are prepared for the purposes of the present case to accept that there is jurisdiction to order interrogatories in an appropriate case. In so doing we note that the nature of judicial review will, necessarily, limit the cases in which it would be appropriate to order interrogatories to be answered.”
[7] Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC327
Accordingly, the question before the court is whether the current matter is one where it is “appropriate” for interrogatories to be administered. It seems clear that the power is to be used “sparingly” in judicial review proceedings, given the nature of such proceedings and further, in this Court, there is a rebuttable presumption that interrogatories are not to be allowed unless their administration is found to be in the interests of the administration of justice.
The Minister’s submissions
It is the Minister’s position that the Delegate has discharged her obligations pursuant to section 66 of the Act. Mr Roder, counsel for the Minister, contends that the Delegate was not required to give detailed reasons for her decision or obliged, if requested to do so, to elaborate on her decision. As such, he contends that the interrogatories, sought to be administered in this case, are impermissible because they are an attempt to achieve such an outcome.
It is the Minster’s further position that administrative decision makers enjoy an immunity from being required to explain or elaborate upon their decisions, once they have been provided. In this regard, Mr Roder relies on the following passage from Muin v Refugee Review Tribunal and Ors:[8]
“Tribunal members, as such, enjoy the same protection and immunity in the performance of their functions as does a Justice of this Court. Justices of this Court enjoy the protection and immunity that, at common law, attached to a judge of a superior court of record in England. Such judges, although competent as witnesses, are not compellable to testify as to matters in which they have been judicially engaged. They never do. Members of the Tribunal are required by the Act to give reasons for their decisions and to provide certain other information. On the face of the Act, this appears to state the entire ambit of the duty of Tribunal members to explain and justify their decisions. It would be destructive of the scheme of the Act and inconsistent with the purpose of the Parliament to conclude otherwise. Further, it would be demeaning to the office of the Tribunal member and potentially damaging to the independence of the Tribunal, if members were effectively obliged to offer testimony in proceedings such as the present for fear that, if they did not, they would be subject to criticism and to inferences adverse to their probity and compliance with the law.” (citations omitted)
[8] Muin v Refugee Review Tribunal and Ors [2002] 190 ALR 601 at 646
In support of the contention that judges are not compellable to testify as to matters in which they have been judicially engaged, the High Court in Muin made reference to Hennessy v Broken Hill Pty Ltd.[9] Mr Roder described this case as setting out the “classic exposition of principal” that administrative decision makers cannot be required to explain their decisions, once they have been delivered. The relevant passage reads as follows:
“Even judges are competent witnesses, although they may not be compellable to testify as to matters in which they have been judicially engaged; but their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers. Arbitrators too are equally competent as witnesses, although they cannot be compelled to testify as to the reasons which influenced them in the exercise of their discretionary powers or to explain, vary, contradict or extend their awards.
Now, the members of the Medical Board are neither judges nor arbitrators: their functions are administrative and supervisory. To them is confided the duty of ascertaining and certifying whether a workman is or is not suffering from lead poisoning, and whether he should be removed from future exposures to its risks. It is impossible in those circumstances, in our opinion, to deny their competency as witnesses; but the extent to which they can give evidence as matters come in before them officially is another matter.
In our opinion the evidence tendered is admissible because it is not prohibited or privileged, because it does not seek to invalidate any act of the Board or to explain, contradict or vary any of those certificates or acts or to disclose the manner in which the Board exercised any of its functions and because it merely seeks the disclosure of existing facts and symptoms and the opinion of expert witnesses who also happen to be members of the Board upon those facts and symptoms.”
[9] Hennessy v Broken Hill Pty Ltd (1926) 38 CLR 342 at 349
It is the Minister’s further contention that it would not be in the interests of the administration of justice to allow the interrogatories to be administered. It is his assertion that each of these interrogatories amounts to an impermissible “fishing” expedition. In response to the Applicant’s assertion that the Delegate asked herself the wrong question, in respect of Ms Wang’s visa application, Mr Roder asserts that the appropriate question is clear, namely “was Ms Wang’s degree in marketing relevant to her nominated occupation?”
From the record, he asserts that there is no evidence to indicate that the Delegate did not confine herself to this question. Accordingly, Mr Roder asserts that the Applicant is endeavouring to secure some kind of admission that the Delegate in some way failed to consider relevant material or alternatively considered irrelevant extraneous material. As such, the interrogatories amount to “fishing” and should not be permitted.
The Applicant’s submissions
It is the Applicant’s position that a Delegate of the Minister is in a different position to a judge, who at common law cannot be required to explain or expand upon his or her decisions by way of interrogatories.[10]
[10] See Applicant’s outline of submissions at para 10 and 12
The Applicant also differentiates between Delegates of the Minister on the one hand and members of tribunals, such as the Refugee Review Tribunal, who enjoy such immunity by reason of statutory conferral, particularly by section 435 of the Act. In this regard, Mr Ower, counsel for the Applicant submits that the authority of Hennessy is of limited assistance.
The Applicant disputes that the interrogatories can be characterised as “fishing”, it being obvious that the Delegate found the Applicant’s marketing degree was not relevant to the issue of the visa concerned. This being so, the interrogatories are directed to determine on what basis the Delegate found this to be so. Accordingly, to use the metaphor adopted by Owen J, this is not a case where the pool is being dragged to see whether there is a particular kind of fish within it, it being apparent that the fish concerned is within the pool.[11]
[11] See Bailey v Beagle Management Pty Ltd (2001) 105 FCR136 at 143
Further, it is the Applicant’s position that it will be of assistance to the court and so in the interests of the administration of justice if the interrogatories are answered. It being submitted that the answers are likely to assist the court to determine whether the Delegate did indeed pose the correct question for herself and thus will “tease out” the test of relevance she applied, which is not apparent from the bald reasons for decision provided by her.
In support of the assertion that the interrogatories will be of assistance to the administration of justice in the case, Mr Ower points to the fact that the interrogatories themselves are simple in nature and cannot be regarded as oppressive in the sense that they will take no great effort to answer. He also points to the moment of these proceedings for the Applicant herself. If her application is dismissed, it must inevitably follow that she will not be able to apply further for the visa which she seeks, as she will be unable to satisfy the necessary pre-requisites for it.
Discussion
In pursuit of its objective that its procedures be streamlined, the Federal Magistrates Court is subject to a qualified presumption against the use of interrogatories in its proceedings. It also seems to be the case that interrogatories are to be used sparingly, particularly in judicial review proceedings. The rationale behind this stricture is to protect the integrity of administrative proceedings. It usually being appropriate to allow the record of the decision maker to speak for itself, without further elaboration. Otherwise the independence of the decision maker may become compromised and he or she may be unwittingly drawn into subsequent litigation concerning the decision he or she has earlier made.
In Wong the Full Court of the Federal Court indicated that it did not consider it necessary to determine whether there was or was not a principal of law that interrogatories not be administered on matters which go to the state of mind, or motive of the decision maker.[12] However, the Full Court made the following comment:
“Generally the state of mind of the decision maker would be irrelevant in judicial review and thus it would not be appropriate that interrogatories be allowed. However in some cases, for example, where a question arises as to whether the decision maker acted in good faith so that the decision falls within the exception to the principle of construction enunciated by Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615, it may be that the state of mind of the decision maker has some relevance. In so saying we do not wish to be thought to have decided in the present case, whether the reference in that case to "bona fide attempt to exercise its power" is a reference to subjective matters.”
In this matter it is not the case that the Applicant seeks to challenge the decision on the basis that the Delegate failed to make a bona fide attempt to exercise the authority delegated to her or acted on some improper motive.
[12] See Minister for Immigration & Multicultural & Indigenous Affairs v Wong (supra) at para 26
It is clear that judicial officers have an immunity to protect them from being compelled to testify in respect of previous judicial proceedings in which they have been involved. It is Mr Ower’s submission that this immunity should not be extended to the Delegate in this case, in the absence of a clear statutory provision. I am not convinced that there are not compelling reasons as to why the immunity should not be extended to the Delegate in this case, Ms Lee, given the nature of the interrogatories sought to be administered. I reach this conclusion as a result of my analysis of Gaudron J’s judgment in Herijanto.
Relying on authority from Lord Denning MR, Her Honour accepted that the basis of the immunity was to ensure that judges “may be free in thought and independent in judgment”. Accordingly, Her Honour said as follows:
“…in my view, it is also the true basis of the immunity from compulsory disclosure and on that basis, I see no reason why a judge may not be compelled to disclose the record upon which he or she has acted. However, that is subject to the qualification that disclosure of the record cannot be compelled if it would also reveal some aspect of the decision making process …
There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, "the record" bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.” [13]
[13] See Herijanto v Refugee Review Tribunal & Ors [2000] HCA 16 paras 16-17
The rationale behind the immunity, regardless of whether it applies to judges, members of statutory tribunals or recipients of delegated decision making authority, is to protect the integrity of the adjudicative process. For this reason, Gaudron J considered that such administrative decision makers should be protected from being compelled to disclose the thought processes applied in reaching decisions. This was to ensure “freedom of thought and independence of judgment”.
In my view, each of the interrogatories sought to be administered go to aspects of the delegate’s decision making process, rather than to aspects of the actual administrative record. In large part, the interrogatories are addressed to hypothetical situations, in the sense that the Delegate is asked various situations in which she potentially would have considered a degree in marketing relevant to her delegated decision making process. In my view, such interrogatories are designed to elucidate upon aspects of the decision making process. As such, each should be set aside.
Further, I am not satisfied that it would be in the interest of the administration of justice for the interrogatories to be administered. I reach this view after having considered Section 3 of the Federal Magistrates Court Act and in particular that the court’s processes should be “streamlined”. The presumption is that interrogatories will not normally be permitted. I am fortified in this view when I consider the nature of the judicial review process. It is not likely to be in the interests of the administration of justice that decision makers should be called personally to account for or explain the reasons why they have reached the particular decisions which they have.
For all these reasons, it follows that the application filed on 7 May 2007 should be dismissed. I propose that the costs of the application should be reserved until the substantive application is determined.
I also propose to make orders fixing the matter for final hearing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 1 June 2007
6
3