Wang v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FMCA 918
•1 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION | [2005] FMCA 918 |
| MIGRATION – Review of Migration Review Tribunal’s decision affirming a delegate’s decision not to review the cancellation of a student visa held by the applicant – breach of Condition 8202 of Schedule 8 of the Migration Regulations (where applicant failed to achieve an academic result which is certified by the education provider to be at least satisfactory for a semester) – consideration of the requirements of s.137L(1)(b) of the Migration Act 1958 – whether applicant’s breach of condition 8202 was due to exceptional circumstances beyond her control – elements of s.13L(1)(b) – meaning of “exceptional circumstances” – no reviewable error found. |
Migration Act 1958 (Cth)
Health Insurance Act 1973 (Cth)
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
Oreb v Willcock (2004) FCA 15 20
Hatcher v Cohn (2004) FCA 15 48
Chen v MIMIA (2005) FCA 229
Re: MIMA: Ex parte Cohen (2001) HCA 10
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Muin v RRT; Lie v RRT (2002) 190 ALR
Malik v MIMA (2000) FCA 562
Parra v MIMA (2000) FCA 85
Prasad v MIEA (1985) 6 FCR 155
Landers v MIMIA (2003) FMCA 223
MIMIA v Landers (2003) FCA 1485
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
MIMIA v Eshetu (1999) 197 CLR 611
Waterford v The Commonwealth (1987) 163 CLR 54
Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297
Applicant: | TONG WANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | PEG 4 of 2005 |
| Delivered on: | 1 July 2005 |
| Delivered at: | Perth |
| Hearing date: | 27 June 2005 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M McPhee |
| Solicitors for the Applicant: | Michell Sillar McPhee |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs of the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 4 of 2005
| TONG WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 15 December 2004. The Tribunal affirmed the decision of the delegate of the Minister not to revoke the cancellation of a Student (Temporary) (Class TU) visa held by the applicant.
I accept the following statement of background facts and information contained in paragraphs 1 to 6 (inclusive) of the written submissions prepared by Mr Macliver on behalf of the respondent:
1. The Applicant is a citizen of the People’s Republic of China who first entered Australia on 13 October 2001 as the holder of Student (Temporary) (Class TU) visa, Subclass 560. On 12 November 2001 she was granted a Subclass 574 Student visa, and on 2 April 2002 was granted a further Subclass 574 visa which was due to expire on 30 July 2004. The Subclass 574 Student visa granted to the Applicant on 2 April 2002 was subject to condition 8202 of Schedule 8 to the Migration Regulations.
2. In January 2003 the Applicant enrolled in a Master of Professional Accounting course at Edith Cowan University (“ECU”). In Semester 2 of 2003 the Applicant failed two out of the three subjects in which she was enrolled. On 16 December 2003 ECU wrote to the Applicant and advised that as a result of her academic results for Semester 2 of 2003 her progress was regarded as unsatisfactory, and she had therefore “been excluded from the course indefinitely”, and that she would “not be permitted to re-enrol or continue in the course”. That decision was subsequently confirmed in a letter to the Applicant dated 30 March 2004.
3. On 4 May 2004 ECU sent the Applicant a notice pursuant to s.20 of the Education Services for Overseas Students Act 2001 (Cth.), stating that she had breached a condition of her student visa relating to satisfactory academic performance in the course in which she had been enrolled. Particulars of the breach were described as “Excluded indefinitely”.
4. The Applicant failed to respond to the notice within the 28 day period prescribed by s.137J(2) of the Migration Act… . The Applicant’s visa was therefore automatically cancelled pursuant to s.137J on 1 June 2004.
5. By a letter dated 1 June 2004, the Applicant’s representative wrote to the Department …seeking revocation of the automatic cancellation of the Applicant’s visa, pursuant to s.137K of the Migration Act. The letter submitted that the Applicant’s studies at ECU had been adversely affected by her menstrual problems, and while the Applicant had breached condition 8202 in Semester 2 of 2003, that was “due to an exceptional circumstance that had been beyond her control for some time during her study at ECU”.
6. On 4 June 2004 a delegate of the First Respondent made a decision under s.137L of the Migration Act not to revoke the cancellation of the Applicant’s visa. The applicant lodged an application with the Tribunal on 15 June 2004 for review of the delegate’s decision. The letter accompanying the application stated that the grounds for review were that “the delegate did not recognise the exceptional circumstances beyond the control of Ms Wang that affected her academic performance in the relevant period leading up to the report by the education provider to DIMIA and the automatic cancellation of the visa”.
As indicated above, the Tribunal made the decision which is the subject of the present application on 15 December 2004.
Decision of the Tribunal
After reviewing the evidence, the Tribunal referred to sections 137J, 137K and 137L of the Migration Act 1958. It observed that section 137L sets out the Department’s obligations when an application for revocation is received, and that it sets out the criteria for revocation.
Section 137L is in the following terms:
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
The Tribunal then observed that the applicant’s visa was subject to Condition 8202 – which condition was set out in full in the Tribunal’s decision.
As it was common ground that the applicant was in breach of Condition 8202 as a result of failing two out of her three subjects in semester 2 of 2003 – and that she thereby did not achieve “an academic result which is certified by the education provider to be at least satisfactory” as required by Condition 8202(3)(b)(ii) – the Tribunal then focused on the question of whether the breach was “… due to exceptional circumstances beyond the (applicant’s) control”, as required by s.137L(1)(b).
The Tribunal said:
26. As there has been a breach of condition 8202 it is necessary to consider the circumstances surrounding the breach. In this context the Tribunal notes that the term ‘exceptional’ is not defined in migration legislation and should therefore be given its natural meaning. Dictionary meanings of ‘exceptional’ include: forming an exceptional or unusual circumstance; unusual; extraordinary.
27. MSI-382 gives a number of examples of exceptional circumstances:
Exceptional circumstances beyond the non-citizen’s control
7.3.4 Under policy this is restricted to serious illness, hospitalisation, bereavement of close family members (of either the visa holder or their spouse) or major political upheaval or natural disaster in the borne country requiring their emergency travel..
7.3.7 It is not the intention that ‘exceptional circumstances beyond control’ encompasses such things as difficulties in adjusting to living in Australia or academic life, relationship problems, financial difficulties or generally feeling “depressed” about circumstances ie where the depression is not clinically diagnosed by a qualified professional.
28 While the Tribunal is guided by policy, it retains a discretion to decide what constitutes ‘exceptional circumstances’ on a case by case basis. In this case the review applicant has claimed that her studies were adversely affected by her menstrual problems.
29. The Tribunal accepts that the review applicant has suffered from menstrual problems since 2001 and that the severity of the symptoms varies from month to month. According to the evidence, these symptoms are alleviated to some degree by Chinese medicines. The review applicant stated that her condition is gradually improving and that she continues to take medication.
30. In these circumstances the Tribunal is not satisfied that the review applicant’s condition constitutes ‘exceptional’ circumstances within the meaning of legislation or policy. The condition did not develop suddenly or unexpectedly in 2003; it has been in existence since 2001 and is ongoing. The Tribunal notes that the review applicant treats her symptoms with Chinese medicines, and there is no evidence that she has consulted a doctor or other health professional since 2002. While the Tribunal accepts that the review applicant’s condition may, from time to time, affect her ability to concentrate on her studies, the Tribunal is not satisfied that it affected her academic performance in 2003 to the extent claimed.
The Tribunal ultimately concluded that the applicant had not demonstrated that her failure to make satisfactory academic progress in semester 2 of 2003 was due to exceptional circumstances beyond her control. That being the case, the Tribunal found that there were no grounds to revoke the automatic cancellation of the applicant’s visa.
Grounds for Review
The applicant’s (amended) grounds for review – as relied upon by Mr McPhee (for the applicant) at the hearing – are as follows:
2.1The decision of (the Tribunal) dated 15 December 2004 involved jurisdictional errors and errors of law on the part of (the Tribunal) in that:
2.2(The Tribunal) erred in law by interpreting s.137L(1)(b) of the Migration Act as including a temporal element when construing the term “exceptional circumstances”.
2.3 Having accepted there was no applicable statutory definition of “exceptional circumstances” it was not open to (the Tribunal) to restrict the definition of “exceptional circumstances” to instant events.
2.4(The Tribunal) should have construed “exceptional circumstances” for the purposes of the Migration Act, as being free of any temporal considerations.
2.5(The Tribunal) accepted the Applicant was affected by the medical condition and was receiving treatment because:
(a)(The Tribunal) found “The condition did not develop suddenly or unexpectedly in 2004; it has been in existence since 2001 and is ongoing. The Tribunal notes the review applicant treats her symptoms with Chinese medicines, and there is no evidence that she has consulted a doctor or other health professional since 2002.
(b)(The Tribunal) found that an existing medical problem which was the subject of a treatment regime, could not constitute “exceptional circumstances”, and, as a result of such findings, (the Tribunal) had closed its mind to the possibility of there being “exceptional circumstances” in the Applicant’s case.
2.6As a result of the above (2.1 – 2.5), (the Tribunal) erred in law by failing to give any, or any sufficient consideration as to whether or not to request the Applicant provide (the Tribunal) with further, current medical information, so as to ensure the hearing was fair and just.
The Law
Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a ‘privative clause decision’ that is a decision made on a review by the Tribunal. ‘Privative clause decision’ is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
a)the decision is a bona fide attempt by the decision-maker to exercise its power;
b)the decision relates to the subject matter of the legislation; and
c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that, as a matter of construction, the expression ‘decision[s]… made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J
If there is no jurisdictional error affecting the Tribunal’s decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] ¾ but there is no need to consider such issues in the proceedings before the Court.
[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act
“Temporal Element”
The thrust of the applicant’s argument in this Court was to the effect that the Tribunal had “imposed upon the meaning of ‘exceptional circumstances’ a time based, or temporal, constraint” and that the Tribunal had somehow restricted the expression “exceptional circumstances” to “instant events”.
Mr McPhee argued that such an interpretation arises from paragraphs 29 and 30 of the Tribunal’s decision[3].
[3] CB 105.
Mr McPhee argued that, in paragraph 29 of its decision, the Tribunal accepted the applicant’s evidence as to the existence of a medical problem, and accepted that the problem had been ongoing since 2001. Paragraph 29 of the Tribunal’s decision set out in paragraph 8 of these Reasons.
Mr McPhee contrasted the Tribunal’s findings in paragraph 29 with its conclusion in paragraph 30. According to Mr McPhee, that conclusion is as follows:
In the circumstances, the Tribunal is not satisfied that (the applicant’s) condition constitutes “exceptional” circumstances within the meaning of legislation and policy. The condition did not develop suddenly or unexpectedly in 2003; it has been in existence since 2001 and is ongoing.
Mr McPhee submitted that the only reason provided for the finding by the Tribunal to the effect that the applicant’s medical condition did not constitute “exceptional circumstances” is that the medical condition had arisen in 2001 and had been ongoing for some time. According to Mr McPhee, the Tribunal had thereby imposed a form of temporal constraint on the interpretation of the words “exceptional circumstances”.
Discussion
In my opinion, the applicant’s argument to the effect that the Tribunal had somehow introduced an impermissible limitation upon the concept of “exceptional circumstances” is misconceived. It arises because, to use a colloquialism, the applicant has lost sight of the wood for the trees.
Section 137L(1)(b) requires the applicant to satisfy the Minister that the breach was due to exceptional circumstances beyond the applicant’s control. If the applicant is successful in that regard, then the Minister may revoke the cancellation of the applicant’s visa. In other words, and bearing in mind that the existence of the breach was not in issue (and was therefore a “given” in these proceedings) –
a)the onus remains on the applicant at all times to satisfy the Minister (qua the Tribunal) of all the elements of s.137L(1)(b);
b)the elements of s.137L(1)(b) which must be demonstrated by the applicant to the satisfaction of the Tribunal are:
i)that “exceptional circumstances” existed;
ii)that those “exceptional circumstances” were beyond the applicant’s control; and
iii)that the breach was due to those exceptional circumstances; and
c)even if the applicant demonstrates all of the above matters to the satisfaction of the Tribunal, it still retains a discretion as to whether or not the cancellation of the visa should be revoked.
“Exceptional Circumstances”
In Oreb v Willcock (2004) FCA 15 20, Jacobson J said:[4]
The terms “exceptional circumstances” or “special circumstances” are gateways to the exercise of a discretion and are to be found in many statutes. They have been said to be elastic instructions and that all that is contemplated is for there to be something unusual or different to take the matter out of the ordinary (see Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535-6).
[4] At paragraph 218.
In Hatcher v Cohn (2004) FCA 15 48, Kiefel J said:[5]
“Exceptional” circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances…
… The words “exceptional circumstances” may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision.
[5] See paragraphs 49 and 50.
Although their Honours were dealing with a different statutory provision[6], I am satisfied that the expression “exceptional circumstances” in s.137L(1)(b) of the Migration Act should be interpreted in a similar manner.[7]
[6] Section 106KA of the Health Insurance Act 1973 (Cth.)
[7] See also interpretation of “exceptional circumstances” in Chen v MIMIA (2005) FCA 229, at para 111 – quoted in paragraph 27 below.
In its decision, the Tribunal noted that the expression “exceptional circumstances” is not defined. It also referred to dictionary meanings of “exceptional” and noted that the Department’s Migration Series Instruction 382 gives examples of exceptional circumstances (being exceptional circumstances beyond an applicant’s control). In Chen v MIMIA (2005) FCA 229, Lander J said:[8]
I think the published guidelines are unfortunate in providing examples of circumstances where revocation may occur as a result of emergency circumstances beyond the student’s control.
I realise that the examples are given after reference to the appropriate test under s.137L, but the guidelines could lead to (the Tribunal) and to a delegate being confused as to the appropriate test.
The question which needed to be determined by the Minister (and therefore the delegate and the Tribunal) was whether the applicant had satisfied the Minister that the breach was due to exceptional circumstances beyond the applicant’s control.
Any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation.
[8] See paragraphs 108 to 111.
In paragraph 28 of its decision,[9] the Tribunal said:
While the Tribunal is guided by policy, it retains a discretion to decide what constitutes exceptional circumstances on a case by case basis (emphasis added).
[9] CB 105.
Clearly, the Tribunal did not demonstrate a jurisdictional error in this part of its reasoning. It did not have “an excessive regard to policy” as submitted by Mr McPhee in paragraph 27 of his written submissions. Indeed, in paragraph 30 of its decision, the Tribunal recorded that it was not satisfied that the applicant’s condition constituted “exceptional circumstances” within the meaning of legislation and policy (emphasis added).
In my opinion, the Tribunal recognised that the applicant’s medical condition could (or had the potential to amount to) “exceptional circumstances”. It held, however, that it did not amount to “exceptional circumstances” in the particular circumstances of the applicant’s case. I have formed this view because of the following:
a)the Tribunal accepted that the applicant has suffered from menstrual problems since 2001;
b)the Tribunal accepted that the severity of the applicant’s symptoms varies from month to month;
c)the Tribunal accepted that the applicant’s symptoms are alleviated (to some degree) by Chinese medicines;
d)the Tribunal recorded that the applicant had said that her condition is gradually improving and that she continues to take medication – although it made no direct finding in that regard;
e)the Tribunal found that the applicant’s condition did not develop suddenly or unexpectedly in 2003;
f)the Tribunal found that the applicant’s condition had been in existence since 2001 and is ongoing;
g)the Tribunal noted that the applicant treats her symptoms with Chinese medicines;
h)the Tribunal noted that there was no evidence that the applicant had consulted a doctor (or other health professional) since 2002; and
i)the overall effect of the Tribunal’s reasons.
In the last sentence of paragraph 30 of its decision, the Tribunal accepted that the applicant’s condition may, from time to time, affect her ability to concentrate on her studies. The Tribunal was not satisfied, however, that it affected her academic performance in 2003 to the extent claimed by the applicant. In paragraph 31 of its decision,[10] the Tribunal concluded that, as the applicant “… has not demonstrated that her failure to make satisfactory academic progress in semester 2 of 2003 was due to exceptional circumstances beyond her control”, there are “no grounds to revoke the automatic cancellation of (her) visa” (emphasis added).
[10] CB 105.
It did not appear to be in dispute at the hearing in this Court that the words “In these circumstances” at the commencement of paragraph 30 of the Tribunal’s decision should properly be interpreted to mean “In all the circumstances of the case”.
In my opinion, a proper and fair reading of paragraphs 29, 30 and 31 of the Tribunal’s decision leads inexorably (as the analysis contained in the preceding paragraphs of these Reasons demonstrates) to the conclusion that the Tribunal was not including a temporal element when construing “exceptional circumstances”, and that it did not restrict the definition of that term to “instant events”. On the contrary, these paragraphs reveal that the Tribunal was prepared to accept that the applicant’s menstrual problems could have amounted to exceptional circumstances (and it does not seem to be in dispute that those problems were beyond the applicant’s control), but that the applicant had failed to satisfy the Tribunal that her unsatisfactory performance in semester 2 of 2003 was due to her health difficulties (irrespective of whether those difficulties did or did not amount to “exceptional circumstances”).
During the course of his submissions, Mr McPhee argued, in effect, that the Tribunal’s finding in the last sentence of paragraph 30 of its decision (that although the applicant’s condition may from time to time affect her ability to concentrate on her studies, the Tribunal was not satisfied that it affected her academic performance in 2003 to the extent claimed) was “a guess”, and that there was no evidence to support such a conclusion. I do not agree. For example –
a)there was evidence that the applicant was enrolled in 2 subjects in summer semester 2003, and that she passed one subject and failed one;
b)there was evidence that the applicant was enrolled in 3 subjects in semester one in 2003 and that she passed two subjects and failed to complete one subject;
c)there was evidence that the applicant was enrolled in three subjects in semester two in 2003 and that she passed one subject and failed two;[11]
d)there was evidence that the applicant failed to make reference to her health difficulties in the letters that she forwarded to the University on 25 July 2003 and 18 March 2004 (both letters being in response to letters from the University informing the applicant that she would not be permitted to re-enrol for or continue in her course);[12]
e)the certificates provided by the applicant in support of her application were not signed by a qualified medical practitioner and did not clearly show a direct link between her medical condition and her ability to meet her course obligations; and
f)there was no evidence that the applicant had consulted a doctor or other health professional since 2002 – notwithstanding the fact that her unsatisfactory academic performance during the first semester of 2003 had already prompted the University to exclude her from her course (which exclusion, had in turn, led the applicant to apply for a review of her course status, and to be placed on conditional status).
[11] CB 6,12,101 and 102.
[12] CB 7 to 9 and 13 to 15.
Clearly, if the applicant’s medical condition had been of the severity claimed by the applicant, and if it had affected her academic results in the first semester of 2003, then it is difficult to understand why she did not seek any form of medical treatment (either Western or traditional Chinese) at any time during that semester or the second semester of 2003. Further, as she was placed on conditional status for the second semester of 2003 (which is the relevant period insofar as the application now before the court is concerned), it is even more difficult to understand why she did not seek such treatment during that semester.
Mr McPhee argued that there was evidence before the Tribunal which could support a conclusion to the effect that the applicant was indeed affected by her medical condition during semester 2 in 2003 to the extent that her medical condition could have been held to have caused the applicant’s unsatisfactory academic results. I make no finding that such evidence exists. Suffice it to say, however, that it is not the role of this Court, in proceedings such as these, to enter into what amounts to merits review. I shall say more about this subject in my concluding remarks.
Tribunal’s Alleged Failure to Consider Providing the Applicant with a Further Opportunity to Supply Relevant Medical Information
The final ground of review raised by the applicant (in paragraph 2.6 of her amended application) is that the Tribunal “… erred in law in failing to give any, or any sufficient consideration as to whether or not to request the applicant to provide (the Tribunal) with further, current medical information, so as to ensure the hearing was fair and just”.
This ground was only faintly pressed by Mr McPhee in the course of his submissions. In my opinion, there are only two comments that ought to be made in response to it –
a)In paragraph 18 of its decision,[13] the Tribunal records that the applicant confirmed that she had no other medical documentation other than that already submitted to the Tribunal. Further, in paragraph 19 of its decision, the Tribunal records that it received a further submission from the applicant’s representative following the hearing. In those circumstances, it is apparent that the applicant had ample opportunity to put all relevant evidence before the Tribunal.
b)In any event, the Tribunal was under no obligation to construct the applicant’s case for her[14] - although the position might have been otherwise if the rules of procedural fairness had demanded that the Tribunal draw the applicant’s attention to a substantial, potentially fatal flaw in her case.[15]
[13] CB 102.
[14] See, for example, Abebe v Commonwealth of Australia (1999) 197 CLR 510 at pp 576 and 608, Muin v RRT; Lie v RRT (2002) 190 ALR 601 at pp 7, 98 and 208; see also Malik v MIMA (2000) FCA 562, Parra v MIMA (2000) FCA 85 and Prasad v MIEA (1985) 6 FCR 155.
[15] See Landers v MIMIA (2003) FMCA 223 and (on appeal) MIMIA v Landers (2003) FCA 1485.
Discretion Inherent in s.137L(1)
Mr Macliver emphasised that, even if the applicant had been successful in demonstrating that a jurisdictional error had occurred in relation to or arising from the Tribunal’s interpretation of s.137L(1)(b), the Minster (qua the Tribunal) still retains a discretion as to whether or not the cancellation of the visa should be revoked. That such a discretion exists is apparent from the provisions of s.137L(1).
As indicated in paragraph 23 above, I accept that such a discretion exists. As I have concluded that the Tribunal did not make any relevant reviewable error, however, it is not necessary for me to consider the effect upon the applicant’s case of the existence of the overriding discretion.
Conclusion
While the making of findings and the drawing of inferences in the absence of evidence is an error of law[16], it is not possible to challenge an administrative decision on the ground that the findings made by the decision maker were “not open on the evidence”. The grounds on which this Court can review the Tribunal’s findings of fact are limited. It is not an error of law (in itself) for the Tribunal to make an incorrect finding of fact – at least where there is some material before the Tribunal to support the finding[17].
[16] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357 per Mason CJ; MIMIA v Eshetu (1999) 197 CLR 611 at 654 (paragraph [138]) per Gummow J.
[17] See Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78; Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303.
As McHugh J said in Re: MIMA: Ex parte Cohen (2001) HCA 10 at [37]:
If an Administrative Tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an Administrative Tribunal to determine, and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process to find it is usually a slender ground for concluding that a Tribunal misconceived its duty.
Overall, I am unable to identify any basis upon which the Tribunal’s decision can be interfered with. The Tribunal acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there can be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amounts to jurisdictional error. It has not been suggested that the applicant did not understand the proceedings in which she was involved – and, in my opinion, the Tribunal clearly understood the applicant’s case.
In my view, the findings of fact contained in the Tribunal’s decision, and the conclusions drawn from those facts, were reasonably open to it.
I am conscious of the observations of Spigelman CJ in Bruce v Coles (1998) NSWLR 163, where his Honour said:
In cases which engage the sense of compassion of a judge…, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society, such conduct transgresses the proper limits of judicial intervention…
The fact of the matter is that Mr McPhee’s arguments amounted to little more than an attempt to review the Tribunal’s decision on its merits. But no basis for review exists (even if a privative clause did not exist) simply because the court disagrees with the weight given by the Tribunal to various factors relevant to its decision. Nor can the court set aside a decision merely because it regards the Tribunal as having followed a process of logical reasoning with which the court has discomfort. The Tribunal’s process of reasoning (leading to a finding of fact) is not reviewable simply because the court may disagree with it — even if it considers that it was illogical or unreasonable to attribute weight to a factor (or to fail to attribute weight to another factor).
For the proceeding reasons, the grounds for review must fail and the application must be dismissed with costs.
I, Paul O’Halloran, certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 1 July 2005
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