Wirya v Minister for Immigration - [2009] FMCA 590

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WIRYA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 590

MIGRATION – Review of MRT decision refusing a skilled student visa – where Tribunal affirmed the delegate’s decision because the applicant had not made an investment into a designated security which would have given her a qualifying score overall – applicant unable to make such an investment at the time as no designated securities existed – where Tribunal unaware of Department’s policy of holding such applications in abeyance – whether Tribunal ought to have made inquiries – Tribunal’s power of remittal considered.

Migration Act 1958 (Cth), ss.92, 93, 94, 95, 96, 349
Migration Regulations 1994 (Cth)

Dhanoa v Minister for Immigration [2009] FMCA 383
SZIAI v Minister for Immigration (2008) 104 ALD 22
Lal v Minister for Immigration (2000) 106 FCR 12
Poudyal v Minister for Immigration [2005] FMCA 265
Prasad v Minister for Immigration [1985] FCA 47
SAEED v Minister for Immigration [2009] FCAFC 41
Patel v Minister for Immigration [2009] FCA 392
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

ADISTI ANGELICA WIRYA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3444 of 2008

Judgment of:

Raphael FM

Hearing date:

18 June 2009

Date of Last Submission:

18 June 2009

Delivered at:

Sydney

Delivered on:

1 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr N Poynder

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the First
Respondent:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 9 December 2008.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
The First Respondent to pay the Applicant’s cost assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3444 of 2008

ADISTI ANGELICA WIRYA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a young Indonesian who came to Australia to study. In July 2005 she completed her Bachelor of Business (E Commerce and Marketing) degree at Edith Cowan University. She obtained a skills assessment by the Australian Computer Society as a Computing Professional (ASCO 2231-79). This assessment allowed her to apply within Australia for a Class DD (Sub-class 880) permanent residence visa. In order to be granted such a visa, the applicant was required to achieve a qualifying score when assessed under Sub-division 3 of Part 2 (ss.92 – 96) of the Migration Act 1958 (the “Act”). This qualifying score is known generically as the “points system” under which applicants for particular kinds of visas are given a score based on points for particular qualifications. For a Sub-class 880 visa the possible points are set out in Schedule 6A of the Migration Regulations 1994. The total points required are 120. This can be made up by utilising any of the nine categories. One of the categories (Part 8) is the bonus point qualification. This allows an applicant to receive five additional points provided she can show that she has deposited at least $100,000.00 in a designated security for a term of not less than 12 months. There are other provisions of clause 6A81 of the Regulations which are not relevant for the purposes of these proceedings. When the applicant made her application on 1 December 2005, her migration agent noted that she wished to make a $100,000.00 capital investment in order to gain five bonus points and assessed her other points total at 115 points so that altogether she obtained the necessary 120 points.
At all material times the Department’s Procedures Advice Manual (PAM) entry on Schedule 6A, “Bonus Points” at paragraph 75.5 “making the deposits”, states:
“As depositing this money may represent a significant financial step for some applicants, the visa application form tells applicants not to deposit the money until asked to do so by the officers handling their visa application. Schedule 6A item 6A81(a) requires the deposit to be made in order for points to be awarded and the applicant given their assessed score. However, officers should invite the applicant to deposit the money in a designated security (which the applicant chooses) only after all other Schedule 6A factors have been considered and resolved.
The standard letter to used when inviting an applicant to select a designated security is available to officers separately electronically. Under no circumstances is the invitation (however worded) to anticipate or otherwise give rise to expectation that the application is likely to be successful if the deposit is made. Rather, the applicant should simply be advised that their application has reached the stage where they are required to deposit money in a designated security. The letter explains how the applicant should go about selecting the security and depositing the money.
Officers should include with the letter a form 1134 Declaration – general skilled migration (Bonus points for capital investment). The form includes:
·    authorisation by DIMA to allow the deposit to be made
·    a declaration to be signed by the applicant (to ensure they are aware of the conditions governing the deposit) and
·    a confirmation of deposit by the participating State/Territory agency.”
Ms Wirya’s application took a considerable time to be processed. The reason for this as exposed by a series of emails in the court book would appear to be because Ms Wirya was having difficulty in meeting the IELTS English language ability score that would give her the 20 points necessary if she was to achieve the full 120 points including the bonus points. Eventually she submitted the results of her tests and on 28 November 2007 a delegate of the Minister declined to grant her a visa on the ground that she did not achieve the necessary point score. The delegate only awarded Ms Wirya 15 points for English language ability and because of this did not award any bonus points saying:
“BONUS POINTS
You have indicated on your application form your intention to claim bonus points through capital investment in Australia. Capital investment has not been requested as you would not achieve the current pass mark of 120 points through this requirement. No points have been awarded.” [CB 121]
The applicant sought review of the decision from the Migration Review Tribunal. It is common ground that the Tribunal decision is based upon a full merits review so that if the applicant can demonstrate at the time of the Tribunal’s decision that she has a achieved a score higher than that she had achieved at the time of the delegate’s decision the Tribunal should take that latter score into account. By the time Ms Wirya’s application came to be considered by the Tribunal she had achieved a sufficient score in her IELTS tests to be awarded the full 20 points. In its findings and reasons [CB 159] under “Language Skill Qualifications” the Tribunal said:
“The Tribunal finds that the applicant undertook an IELTS test that was conducted during the processing of the application and achieved an IELTS test score of at least 6 for each component. Accordingly, the Tribunal finds that the applicant is entitled to 20 points for Part 3 in accordance with item 6A31 of Schedule 6A.”
The Tribunal discussed with the applicant her wish to be considered for the five bonus points. At [19] [CB 158] of the “Claims and Evidence”, the Tribunal said:
“At hearing, the Tribunal discussed the details of the points test with the applicant and she confirmed the details as set out in the visa application. The applicant explained that at the time of application she was willing and able to invest $100,000 and remains willing to do so. The Tribunal explained that to be awarded bonus points on this basis, she needed to have deposited the $100,000 in a designated security for a term of not less than 12 months. As she had not done so, it appeared she would not be entitled to bonus points on this basis. The applicant indicated it was unfair.”
In the “Findings and Reasons” for its decision at [36] [CB 161], the Tribunal said:
“Although it would be possible for an applicant to meet the requirements of item 6A81(a) during a review application if the required deposit was now made, it appears that States and Territories are not accepting deposits/securities any longer and it is thus not possible for an applicant to lodge a designated security even where invited to do so. The Department have previously indicated that they are attempting to resolve the issue.
However, as the applicant has not deposited at least $100,000 in a designated security that has been specified by instrument in writing (gazette notice) under r.2.26C for at least 12 months, she is not entitled to any points under item 6A81(a).”
The Tribunal found that the applicant had not achieved the required score and therefore was not entitled to a visa.
At the time that the Tribunal made its decision, the situation for persons in the position of Ms Wirya who wished to deposit the required amount of money in order to obtain the bonus points but who had been unable to do so because the states had withdrawn from the scheme had advanced from that noted by the Tribunal. The Department had in fact determined, as explained in a document put out by the Department entitled “Frequently Asked Questions – Capital Investment Scheme”, that the states that had operated the scheme had withdrawn from it and under the heading “What is the Department Doing to Resolve This Issue?” said:
“The Department will not finalise those applications which require a capital investment until all available options have been fully explored.”
In other words, any relevant application which might benefit from the award of five bonus points would not be processed in the Department until the situation in regard to the deposits had been clarified. The effect of this would be that a person applying for a visa to which these bonus points applied could remain in Australia under the bridging visa granted at the time of the application. On a date after the Tribunal’s decision the South Australian Government agreed to reopen its capital investment scheme. On 30 January 2009 the Department issued another “Frequently Asked Questions” advising of this development and stating:
“To assist processing applicants may only make a deposit accompanied by Form 1134 “Declaration General Skilled Migration (Bonus Points for Capital Investment in Australia)”. This form can only be used if Part A is completed by your case officer and it will be sent to affected applicants as the Department recommences processing of these applications.”
I believe it is common ground that if Ms Wirya had achieved the requisite marks on the IELTS examination at the time her application was being considered by the delegate, the delegate would have complied with the policy of the Department and placed her application in abeyance pending the eventual decision by South Australia to reopen the scheme after which the delegate (case officer) would have acted in accordance with the FAQ document:
“Applicants will be considered in the order in which they lodged their applications. Please wait until you are contacted by your case officer, which will be within the next couple of months as the processing of these applications is recommenced and finalised. Your case officer will give you detailed information about how to lodge your capital investment.”
The applicant comes to this Court seeking judicial review of the decision of the Tribunal. In an amended application filed in Court on 18 June 2009 her grounds of application were set out.
“1. The second respondent erred in the exercise of its discretion under s 349 of the Act.
Particulars
Having been satisfied that the applicant achieved 115 points in Schedule 6A of the Migration Regulations 1994, the Tribunal should have exercised its discretion under s.349(2)(c) of the Act to remit the matter to the first respondent with a direction that the applicant satisfies the relevant criteria in the points test to achieve 115 points, and a recommendation that the first respondent invite the applicant to deposit $100,000 in a designated security for a term of not less than 12 months.
2. The second respondent failed to make an enquiry of the first respondent regarding the procedures that it had in place for finalising visa applications where the only outstanding issue was a required capital investment in a designated security.
Particulars
Had the second respondent made an enquiry of the first respondent it would have had information relevant to the exercise of its discretion to remit the matter; namely, that the first respondent was not finalising visa applications which required a capital investment until it had explored all available options.”
The facts of this case trespass significantly upon those considered by Driver FM in Dhanoa v Minister for Immigration [2009] FMCA 383. The applicant says that the facts are indistinguishable. The respondent does not agree. In her helpful written submissions Ms Clegg says:
“Here, at the time it made its decision, the Tribunal was on notice that there were in fact no designated securities into which a deposit could be made. There is no suggestion (nor could there be) that this was an error of fact. In other words, on the information before the Tribunal at the time of the decision, it would have been futile (even if it were permissible, which it was not) to remit the matter under s.349(2)(c) with a recommendation.”
For reasons which I give below, I believe this is a distinction without a difference.
In Dhanoa, Driver FM found that the Tribunal had fallen into jurisdictional error by failing to inquire of the Minister’s Department what the situation was regarding the making of deposits into designated securities and followed Flick J in SZIAI v Minister for Immigration (2008) 104 ALD 22 in concluding that such a failure to inquire could in rare circumstances constitute a jurisdictional error. Driver FM came to the view that the necessary circumstances existed in this case saying at [35]:
“In my view, and consistently with the decision of the Federal Court in SZIAI, it was unreasonable in the exceptional circumstances of this case for the Tribunal not to make a further enquiry. I am bound by that decision. Information was readily available to the Tribunal that no designated security was available at the relevant time into which the applicant could make the required deposit. That information was centrally relevant to the decision and was of immediate relevance to both the timing of the decision and the appropriate power to be exercised by the Tribunal in the circumstances.”
His Honour was of the view that if the Tribunal had made inquiries it could have remitted the matter to the delegate under s.349(2)(c) with a recommendation that the application be held in abeyance pending a decision about the future of the scheme.
The Minister argues that his Honour was wrong in his decision. Much of the argument concentrated on the ability of the Tribunal to make a recommendation of the type suggested by Driver FM to hold the application in abeyance. I do not think it is necessary for the purposes of this decision for me to take any view upon that because before me it was conceded by the Minister that it was permissible for the Tribunal to remit the matter under s.349(2)(c) with a finding that the applicant had achieved 20 points under the language skills qualification. If the Tribunal had done this, and no more, the application would be returned to the Department which would then apply its policies. On the date of return those policies were to keep all matters in abeyance pending resolution and shortly thereafter when resolution occurred it was to process the deposits by the issue of Form 1134. Presumably, once a deposit had been made to the satisfaction of the delegate the visa would be granted. Whilst the applicant does not withdraw the first ground of her application, she was content to proceed before me on the basis that the Tribunal had fallen into jurisdictional error by not remitting the matter in the truncated form discussed above once it had determined that the applicant was entitled to the extra five points for English proficiency.
Thus the issue for determination before me is whether the Tribunal made a jurisdictional error in determining the application in the way in which it did. The Minister argues that there was no such error because the Tribunal was at all times entitled to complete its determination on the basis of the facts that were before it and on those facts there was no point in remitting the matter to the delegate because there was no available opportunity to make the deposit.
I cannot deny that there is considerable strength in this argument. In particular, I accept that wherever possible a Tribunal should conclude its determination of an application. Section 349 is in the following terms:
“Powers of Migration Review Tribunal
(1)The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”
These terms suggest that the conclusion of an application can take more than one form. Like Moore J in Lal v Minister for Immigration (2000) 106 FCR 12 at [6], I am of the view that:
“[t]he use of the word “may” in s.349(1) is not intended, in my opinion, to confer, in a case such as the present, a discretionary power on the Tribunal to exercise or not exercise powers and discretions of the primary decision maker… “may” in that subsection is intended to signify that one (or a number) of the identified remedies can be granted depending upon the conclusion reached.”
The applicant argues that the jurisdictional error committed by the Tribunal was its failure to consider the exercise of its power under s.349 to remit the matter. It did not take the step of considering whether it was appropriate and administratively efficient in the circumstances to allow the primary administrator rather than itself to complete the process; Poudyal v Minister for Immigration [2005] FMCA 265 at [48]. The applicant says that the Tribunal’s reason for not so acting was either that it did not consider it had the power to remit with a direction that the applicant had obtained the requisite number of points, which she clearly did, or it did not consider that the use of such power was appropriate. The first reason would be an error of law on the part of the Tribunal which would constitute a jurisdictional error. The second reason would only fall to be considered a jurisdictional error if the Tribunal had failed to make an inquiry that would have shown that such a remitter was appropriate. If an inquiry had been made the Tribunal would have discovered that the current policy of the Department was to hold these matters in abeyance which would have made a remitter entirely appropriate.

In Poudyal, Smith FM considered the “discretion” in s.349 and how it should be exercised. His Honour was unable to find any authority on the point. It could be argued that where there are circumstances which allow the Tribunal a choice between affirming the delegate’s decision or remitting the matter so as to give the applicant an opportunity to satisfy the criteria for the visa, the Tribunal would at least be required to consider the latter option. In Patel v Minister for Immigration [2009] FCA 392 the Tribunal discovered information which may have justified giving the applicant an extension of time to apply for review. In declining to consider the factual question, the Court found that the Tribunal had wrongly declined to exercise its jurisdiction. By analogy, in the instant case, had the Tribunal known of the Department’s policy, it would have been required to at least consider whether it was appropriate for it to exercise its power to remit. It could not do this because it did not have the full information. However, perhaps the more correct analysis would be that a Tribunal which had knowledge of the Department’s policy and failed to consider its power to remit would be acting so unreasonably as to fall into jurisdictional error; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason at [41]. In any case, it is unnecessary to decide whether the Tribunal erred in failing to direct its mind to its power to remit. The error arose because the Tribunal failed to make an inquiry that would have properly informed its “exercise of discretion”; cf Dhanoa at [36], or more accurately, properly informed it of the available choices of remedy; cf Lal at [6].
I cannot see any difference between the failure to inquire addressed by Driver FM in Dhanoa and the failure to inquire suggested in this case. In the former, it is suggested that the Tribunal did not know that there were no designated securities into which a deposit could be made. In the instant case the Tribunal did know that but it did not know about the policy to hold applications in abeyance. It seems to me that, if anything, the instant case is stronger than the Dhanoa case because Dhanoa did require a recommendation that the delegate do nothing and there are doubts as to the ability of the Tribunal to make such a recommendation. In the instant case no recommendation was needed because the Department had already determined to do nothing. It seems to me not unreasonable to expect a Tribunal, which is aware of a real problem standing as a hurdle to the grant of the visa that is not of the applicant’s making and which the Minister has publicly announced he seeks to address, to ensure that at the time it makes its decision in such a case it has the fullest and most up to date information available concerning the hurdle. Material was clearly readily available and was centrally relevant to the decision to be made; Prasad v Minister for Immigration [1985] FCA 47. This case, amongst others, was considered by Flick J in SZIAI and that case was followed by Driver FM in Dhanoa. As Driver FM said at [35] of his decision, reproduced in these reasons at [11], he is bound by that decision. I am likewise bound, as I am bound by comity, not to take a view contrary to that expressed by Driver FM only a few days ago unless I can say that his Honour’s decision was plainly wrong. I have considered the views expressed by the Full Court in SAEED v Minister for Immigration [2009] FCAFC 41 at [38] – [41] which deals with the tension between comity and statutory construction. In my view the obligation to inquire in the instant case was stronger than that in Dhanoa and I would be more confident of the correctness of following Flick J in SZIAI. Even if I was incorrect in this assessment it would not lead me to a situation where I believed that Driver FM was clearly wrong and thus I would conclude that in failing to make any enquiries of the Department, the Tribunal fell into jurisdictional error.
In these circumstances, I would grant the applicant the constitutional writs she seeks and order that the respondent pay her costs which I assess in the sum of $5,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 1 July 2009