Yathirajam v Minister for Immigration and Anor (No.2)
[2018] FCCA 1534
•2 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YATHIRAJAM v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 1534 |
| Catchwords: MIGRATION – Student visa application – application for judicial review of Administrative Appeals Tribunal decision – order made upon show cause hearing that proceeding be fixed for final hearing – grounds wholly generalised – whether applicant was an eligible higher degree student – whether applicant was enrolled in a course of study offered by an eligible education provider – whether applicant satisfied financial capacity criteria – where Tribunal applied wrong criteria – error of law – whether jurisdictional error or mere error of law – whether error manifest or causative of error in the decision – whether error could not have affected outcome or review – relevant principles – no jurisdictional error – error of law immaterial – application dismissed. |
| Legislation: Constitution, s.75 Migration Act 1958 (Cth), ss.5, 424AA, 474, 476 Migration Regulations 1994 (Cth), regs.1.40A, Sch 2 cll. 866.211, Sch 5A cll. 5A408, 5A508, 573.111, 573.112, 573.22, 573.223 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | SWAROOP KUMAR YATHIRAJAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 775 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 4 June 2018 |
| Date of Last Submission: | 4 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 775 of 2016
| SWAROOP KUMAR YATHIRAJAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why orders were made on 4 June 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 March 2016. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse an application for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act). These reasons should be read in conjunction with the reasons for judgment delivered on 3 November 2017 that the application be fixed for final hearing pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Rules): Yathirajam v Minister for Immigration& Anor [2017] FCCA 2655 (first reasons).
In the first reasons, I concluded that the stated grounds for judicial review were of no substance but then re-examined the decision and materials before the Tribunal. I decided that the applicant had an arguable case for relief as it appeared the wrong criteria had been applied to the assessment of the student visa application.
First, cl 573.223(2) of the Migration Regulations 1994 (Cth) (Regulations) had been applied when cl 573.223(1A) of those regulations appeared to be applicable. This finding rested upon a conclusion that, contrary to a finding of the Tribunal, the institution with whom the applicant had enrolled in a course of study, Holmes Institute, was an eligible education provider within the meaning of the Regulations.
Secondly, the Tribunal had applied the financial capacity requirements in cl 5A408 (not cl 5A508) of Sch 5A of the Regulations. The Minister contended that this error was immaterial because the two provisions contained identical criteria in relation to, relevantly, the applicant’s financial capacity to meet specified educational and living expenses while in Australia. I did not decide the question of materiality.
On the show cause hearing, being an interlocutory application, the threshold of the test was whether the applicant had shown an arguable case for relief. Upon further consideration at the final hearing I was satisfied that Holmes Institute was not an eligible education provider. For that reason, the applicant did not meet the definition of eligible higher degree student. In its review of the delegate’s decision, the Tribunal correctly applied the criteria in cl 573.223(2). Concerning the erroneous use of cl 5A408, I am satisfied that this was not material to, and did not cause the Tribunal to either exceed, or fail to exercise, its jurisdiction in the conduct of the review or making of the decision. There was no manifest error in the decision. The erroneous use of cl 5A408 was not of such gravity as to constitute jurisdictional error.
Background
The background of the matter is set out in the first reasons at [4]-[24]. As recorded in those reasons, the applicant is a citizen of India now aged 28 years who applied in Australia for a student visa. While processing his application, the Department of Immigration and Border Protection invited the applicant to comment on adverse information that the applicant did not, contrary to his claim, have access to financial resources sufficient to meet his educational and living expenses while studying in Australia. The Departmental invitation arose upon the receipt of information from the Australian High Commission to the effect that, while certain term deposits were held by the applicant’s father indicating that sufficient funds would be available to the applicant to meet his living expenses, the term deposits had matured, been redeemed and closed. The applicant did not take the opportunity to respond to the invitation to comment on that adverse information.
At the hearing, the applicant failed, despite request, to provide the Tribunal with evidence of his financial capacity to meet his educational and living expenses while studying in Australia.
In all of those circumstances, the Tribunal found that the criteria prescribed by Sch 2, cl 573.223(2) were not satisfied and affirmed a decision of the delegate of the Minister to refuse the visa application.
The procedural history of the matter is set out in the first reasons at [25]-[32]. The history included that the applicant had not taken an opportunity to file any submission informing the grounds upon which he claimed that the decision was affected by jurisdictional error.
On 3 November 2017, an order was made upon a show cause hearing that the application for judicial review be fixed for final hearing. Conclusions which grounded this order included that: (1) the applicant claimed that he had enrolled in an MBA at Holmes Institute; (2) in ascertaining the criteria that were to be applied in the assessment of a student visa application, certain legislative instruments were relevant for the purposes of identifying: (a) the assessment level for the eligible passport type; (b) the type of course; (c) the institutions which were eligible education providers; (3) it appeared the applicant was enrolled in a course of study with an eligible education provider; (4) the applicant had not given evidence that he had funds sufficient to meet his living or educational expenses; (5) an arguable case for relief had been raised which warranted investigation at a final hearing.
Again, and despite orders made on 3 November 2017, the applicant failed to take up an opportunity to file any further affidavits or outline of submissions bearing upon the final hearing.
Consideration
The principles applicable to the grant of visas generally and student visas in particular were set out in the first reasons at [42]-[75].
The grounds of review advanced by the applicant were as follows:
1. The tribunal decision is affected by Jurisdictional error.
2. The tribunal did not take account of relevant considerations and took account of irrelevant considerations.
3. The tribunal did not comply with s 424AA of the [Act].
Those grounds were otherwise wholly generalised.
By the first reasons, the Court concluded that those grounds were not made out: see at [124]-[134]. In the course of that analysis, the Court was assisted by submissions made on behalf of the Minister as to how the applicant’s grounds of review might be properly understood.
Consideration of the present application is assisted by recognising the distinction between the claims-based approach to the evaluation of applications for visas such as protection visas[1] and those applications, such as the present, where the decision-maker is required to proceed according to specific criteria: see Sun v Minister for Immigration and Border Protection.[2] There Reeves J stated at [56]-[57]:
A convenient starting point for my consideration of these contentions is the distinction Jessup J drew in Li between the claims-based approach which applies to applicants for protection visas under the Refugee Convention reflected in decisions such as Htun, Dranichnikov and [NABE], and applications for a spouse visa such as the present one, where the decision-maker is required to proceed according to prescribed statutory criteria. As Jessup J observed in Li, with the former applications, where the material which is submitted by an applicant puts forward an identifiable claim, that claim must be considered by the Tribunal rather than being treated “merely [as] pieces of evidence in support of a contention” (see Li at [22]). With respect to the latter category, as Jessup J also observed in Li: “the elements of an applicant’s case ... are the components of the definition of ‘spouse’ in reg 1.15A” (see Li at [23]). . .
I respectfully agree with the reasoning of Jessup J in Li on this distinction between the critical elements requiring consideration being defined by the claims made by the applicant as against those elements being defined by an Act or Regulation. (Citations omitted)
[1]See, eg, Sch 2, cl 866.211(1)(a)-(b) which fix upon the requirement to identify claims.
[2][2017] FCA 1270, [56].
The present application also falls within the latter category of case such that the Tribunal was required to consider whether it was satisfied that the criteria applicable to the applicant’s student visa met each of the elements prescribed by the Act and Regulations for such visa. Specifically, in the present case the critical elements were whether the applicant was enrolled in a course offered by an eligible education provider and whether he satisfied the financial capacity criteria for his visa: see Sch 2, cl 573.111; Sch 5A, cl 5A508.
Eligible education provider
As the applicant was self-represented, I have again re-examined the Tribunal’s reasons for its decision together with the materials on which the decision had been made. Having rejected the grounds of review upon which the applicant relied, my re-examination of the decision focussed on the Tribunal’s conclusion that the applicant was not enrolled in a course of study offered by an eligible education provider. This was necessary for four interrelated reasons.
First, reg 1.40A(1) provided that the Minister must specify, by instrument in writing, the types of course for each sub-class of visa. However, by cl 1.40A(2), the Minister was not required to specify a course where, relevantly, the course of study would be undertaken by an applicant for a Subclass 573 (Higher Education Sector) visa who would be an eligible higher degree student within the meaning of Part 573 of Sch 2 to the Regulations.
Secondly¸ reg 1.40A(2) was confined in scope to eligible higher degree students as defined in Sch 2, cl 573.111. One element of that definition was that the course of study to be undertaken was offered by an eligible education provider. If the proposed course of study was not offered by an eligible education provider, an applicant could not satisfy that element of the definition and so could not be assessed on the basis that he or she was an eligible higher degree student.
Thirdly, cl 573.112 provided that the Minister may by legislative instrument specify an education provider to be an eligible education provider. By legislative instrument ‘Eligible Education Providers and Educational Business Partner – IMMI 14/075’ (IMMI 14/075), the Minister acting under, relevantly, cll 573.111 and 573.112, specified certain institutions as eligible education providers and educational business partners of such providers respectively.
Fourthly, the specification by ministerial instrument of whether an institution was an eligible education provider provided an essential link in the pathway to whether the criteria under cll 573.223(1A) or 573.223(2) were applicable to the particular visa application.
Relevantly, cl 573.22 of Sch 2 to the Regulations prescribed criteria applicable to a higher education sector visa which were to be satisfied at the time of decision. Two options appeared to be open: (1) if the course of study was offered by an eligible education provider, the applicant’s visa application fell to be considered upon the streamlined approach afforded via reg 1.40A(2) under cl 573.223(1A), or; (2) otherwise, the application fell for evaluation upon the more rigorous approach prescribed via reg 1.40A(1) under cl 573.223(2).
The applicant claimed that he had enrolled in an MBA with the Holmes Institute. Whether the Holmes Institute was an eligible education provider was to be ascertained by reference to IMMI 14/075. On the show cause application, I found that Holmes Institute was listed in that schedule and accordingly held the designation or status of an eligible education provider.
At the final hearing, the Minister correctly submitted that while Holmes Institute and Holmesglen Institute were each listed in that schedule as education business partners of the University of Canberra, Holmes Institute was not listed as an eligible education provider in its own right. It was also correctly submitted that this conclusion was supported by the quite distinct CRICOS Codes assigned to Holmes Institute and Holmesglen Institute respectively. The show cause hearing was an interlocutory hearing at which the threshold of the test was whether an arguable case for relief had been shown: r 44.12(1)(a).
While I held that an arguable case for relief had been shown, I now accept the Minister’s submission that Holmes Institute was not an eligible education provider. It follows that the applicant could not satisfy that element of the definition in cl 573.111 so as to establish that he was an eligible higher degree student and for that reason, his student visa application fell to be assessed, not pursuant to the criteria in cl 573.223(1A), but against the criteria prescribed by cl 573.223(2). As further appears, in conducting a merits review of the decision, the Tribunal was correct to refuse the visa application upon those criteria.
Financial Capacity
Applying the more rigorous approach prescribed by cl 573.223(2)(a), it was necessary for the applicant to provide the Minister with evidence in accordance with the requirements in Sch 5A for the highest assessment level applicable. Schedule 5A contains criteria which an applicant must satisfy, including in relation to financial capacity. Clause 5A508(1) prescribed that the applicant must provide evidence that he or she had funds from an acceptable source, including funds that were sufficient to meet course fees and living costs for the first twelve months of study together with travel costs: see Sch 5A, para 5A508(1)(a)(i)-(ii) and (b).
The Australian High Commission ascertained that the term deposits provided by the applicant’s father had been withdrawn, redeemed and closed. Once that adverse information had been put to the applicant for comment, he repeatedly failed to respond or provide evidence that he had access to funds sufficient for the first twelve months of his study. A failure to provide evidence of an ability to meet the financial capacity requirements of Sch 5A, cl 5A508(1) would be dispositive of a merits review of the application. Upon such failure, it was for the Tribunal to conclude that the applicant had not persuaded it that the requirements of cl 573.223(2)(a) were satisfied. Subject to what follows, the Tribunal was otherwise correct in affirming the delegate’s decision to refuse the student visa application.
Materiality
As set out in the first reasons at [114]-[121], instead of applying cl 5A508 of Sch 5A the Tribunal applied the financial capacity criteria prescribed by cl 5A408, concluding that its requirements were not met.
Schedule 5A concerns the subject Evidentiary requirements for student visas and is arranged in 8 Parts comprising cll 5A101 – 5A806. Part 4 concerns, Subclass 572 (Vocational Education and Training Sector) while Part 5 concerns Subclass 573 (Higher Education Sector).
The Tribunal erroneously applied the criteria in Part 4 of Sch 5A and in particular, the financial capacity requirements prescribed by cl 5A408: first reasons at [136]-[139].
The Minister correctly conceded the use of cl 5A408 constituted a legal error. As the statutory conferral of authority on an administrative decision-maker is conditioned by an implied requirement that a valid exercise of such authority can only be on a correct understanding of the applicable law,[3] to have assessed the applicant’s financial capacity by reference to cl 5A408 was to have asked the wrong question.[4]
[3]Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [75] (Gageler J).
[4] Craig v South Australia (1995) 184 CLR 163, 179.
Although the Tribunal had erroneously applied the criteria for financial capacity requirements in cl 5A408(1), the Minister contended that the error was immaterial. The error was submitted to be immaterial by reason that the text of the clause was relevantly identical to the applicable clause; namely, cl 5A508. I agree that the two provisions are in identical terms: cf par 5A408(1)(a)-(c), 5A508(1)(a)-(c).
The Minister’s response opposed the application for judicial review on the ground that the Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision within the meaning of sub-s 474(2) of the Act and was not open to judicial review.[5]
[5]See para 476(2)(b).
Part 8 of the Act concerns the subject Judicial Review and comprises ss 474-484. Division 1 of Part 8 concerns the subject, Privative clause. By sub-s 474(1), a privative clause decision is final and conclusive, incapable of challenge in any Court and is not amenable to prerogative relief: s 474(1). The term Privative clause is defined by s 474(2). Sub-section 474(2) provides that in s 474:
. . . “privative clause decision” means a decision of an administrative character made, [or] proposed to be made, . . . under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Certain decisions are taken not to be privative clause decisions: sub-s 474(4)-(5). A decision to grant or refuse a student visa application is a decision of an administrative character made under the Act and Regulations. It is not a decision referred to in sub-s 474(4)-(5).
Division 2 of Part 8 of the Act concerns the subject Jurisdiction and Procedure of Courts and comprises ss 474A-484. By s 476(1), the Federal Circuit Court has the same original jurisdiction in relation to a migration decision[6] as the High Court under para 75(v) of the Constitution. The High Court has jurisdiction with respect to all matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. It is accepted that the conferral of jurisdiction to issue such writs implies an incidental or ancillary authority to the effective exercise of that jurisdiction, including the authority to grant certiorari against an officer of the Commonwealth.[7]
[6]The term ‘migration decision’ is defined by s 5 and includes a privative clause decision.
[7]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [13] (Gleeson CJ), citing R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 33; Glover v Walters (1950) 80 CLR 172 at 174-175.
The implied authority to issue a writ of certiorari so as to quash an administrative decision should be understood as affording relief in cases of jurisdictional error but not for mere errors of law.[8] In Craig v South Australia, the plurality discussed[9] the limitations upon the availability of prerogative relief and held[10] that an error of law would only constitute jurisdictional error where it was causative of the decision-maker exceeding or failing to exercise its jurisdiction in some material way. Expressed in positive terms, an error of law which causes a tribunal “to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[11]
[8]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [120]-[121] (Callinan J); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [13] (Gleeson CJ).
[9](1995) 184 CLR 163 at 176-177.
[10](1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[11] Craig v South Australia (1995) 184 CLR 163 at 179.
Contrastingly, an error of law which does not affect the tribunal’s exercise of jurisdiction can only be an error within jurisdiction and falls outside of the original jurisdiction conferred by paragraph 75(v) of the Constitution. Such an error is accordingly, beyond the jurisdiction conferred on this Court by s 476(1).
It may be accepted that the distinction between jurisdictional error and error within jurisdiction may be difficult to draw; however, the importance of the distinction should not be ignored. In Re Refugee Review Tribunal; Ex parte Aala, Kirby J stated:[12]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. . . The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
Upon this reasoning, to incorrectly decide something which a decision-maker is authorised to decide is treated as an error within jurisdiction.
[12]Eg, Ex parte Aala (2000) 204 CLR 82 at [163] (Kirby J).
An applicant for judicial review bears the onus of establishing jurisdictional error by the tribunal.[13] The importance of demonstrating that an error of law constituted jurisdictional error is illustrated by Australian Broadcasting Tribunal v Bond.[14] There, Toohey and Gaudron JJ said at 384:
For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond.[15] (emphasis added)
Mason CJ, with whom Brennan J agreed, stated that a decision did not involve an error of law “unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.”[16]
[13]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [24]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; Minister for Immigration and Border Protection v MZYTS(2013) 230 FCR 431 at [53]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, at [81(g)].
[14](1990) 170 CLR 321.
[15]Citing Kioa v West (1985) 159 CLR 550 at 603 (Wilson J).
[16](1990) 170 CLR 321, 353.
In Samad v District Court of New South Wales,[17] the High Court was concerned to determine whether as a matter of statutory construction a regulation, which provided that an administrative decision-maker “may suspend or cancel a licence or authority”, imposed a duty to exercise a power to either suspend or cancel, once the conditions were satisfied, or was permissive and conferred a power to suspend or cancel as a matter of discretion. Gleeson CJ and McHugh J held at [44], that “[t]o vitiate the decision of an administrative tribunal an error must be material; it must affect the decision itself” (emphasis added). Their Honours further stated, with reference to Craig, that:[18]
[17](2002) 209 CLR 140.
[18](2002) 209 CLR 140 at [26], [44].
. . . the decision must be based upon the error.
The reasoning in Samad was applied in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd;[19] Ilievski v Olympic Aluminium Pty Ltd;[20] Wilson v County Court of Victoria.[21]
[19](2014) 50 VR 256, [178] (Maxwell P),
[20][2011] VSC 472, [36] (Kaye J).
[21](2006) 14 VR 461, [40]-[44] (Cavanough J).
The distinction between jurisdictional and non-jurisdictional errors of law was considered in Plaintiff S157 v The Commonwealth.[22] Gleeson CJ and Callinan J each suggested that anything less than a ‘manifest’ jurisdictional error meant that relief by way of constitutional and prerogative writs would not be available.[23]
[22](2003) 211 CLR 476.
[23](2003) 211 CLR 476 at [12]-[13], [18] (Gleeson CJ), and at [160]-[163] (Callinan J).
Again, in Plaintiff M64/2015 v Minister for Immigration and Border Protection,[24] the plurality held that the plaintiff must show that the approach adopted by the decision-maker manifested a legally erroneous view as to what it was about which needed to be satisfied.
[24](2015) 258 CLR 173 at [24] citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [55] (Gleeson CJ and McHugh J).
In Ibrahim v Minister for Immigration and Citizenship,[25] Jagot J held that:
. . . to be a jurisdictional error the error must be material (in the relevant sense) to the decision. Immaterial errors, by contrast, are errors within jurisdiction.
Her Honour considered where the issue of material error fell for assessment in the context of judicial review. Her Honour stated:[26]
First, it may be accepted that courts frequently deal with matters that might be relevant to materiality in the context of the discretion not to make futile orders.[27] But this does not mean that the latter principle subsumes the former. Nor does it mean that the question of materiality involves the exercise of discretion. The principle that an administrative decision will not be set aside unless affected by a material legal error is separate from, and logically anterior to, the existence of a court’s discretion not to set aside such a decision because its remittal to the administrative decision-maker would be futile. Unless there is a material legal error then the question of the discretion not to make orders setting aside a decision by reason of the futility of any remittal will not arise because the decision will not be vitiated by reason of the legal error.
Second, a legal error is material in the relevant sense when the administrative decision depends or is based on the error. The appellant accepted that an error will not be material if the decision is sustainable on an independent alternative ground (as the Federal Magistrate found in the present case). But this does not exhaust the requirement of materiality. An error also will not be material if no other decision could have been made on the basis of the material available to the decision-maker. The passage inCraig at 179 on which the appellants rely, properly understood, undermines the appellants’ central proposition. . . . (Emphasis added)
[25][2009] FCA 1328 at [14].
[26] [2009] FCA 1328 at [7] - [8]
[27] Citing, for example, X v Commonwealth of Australia (1999) 200 CLR 177 at [112].
Her Honour also referred to the Full Court’s decision in Jankovic v Minister for Immigration and Ethnic Affairs,[28] that “it is not enough for an applicant to demonstrate that a tribunal has misstated the law on a particular matter, if the misstatement could not have affected the tribunal’s decision. An immaterial error does not vitiate the decision”.[29] Jagot J held[30] that the alleged errors were not material and so were incapable of vitiating the decision and could not amount to jurisdictional error. The analysis in Ibrahim is with respect very useful.
[28](1995) 56 FCR 474 at 477.
[29]see also SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at [27].
[30][2014] FCA 1328 at [16].
In Pokharel v Minister for Immigration and Border Protection,[31] the Full Court held that a tribunal’s erroneous and repeated reference to the wrong clause of the Regulations relating to a Partner visa was immaterial because it could not have affected the outcome of the case. This was so because, on analysis, each applicable regulation contained the same definition of ‘spouse’.[32]
[31][2016] FCAFC 34.
[32][2016] FCAFC 34 at [48]-[51]; see also Sarabia v Minister for Immigration and Border Protection [2017] FCCA 2642, [24]-[27]; Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [55]ff.
More recently, in CRI026 v The Republic of Nauru,[33] the Court considered the reasons of a tribunal which included a paragraph that described the appellant as being a member of a particular social group, being young Tamils and failed Tamil asylum seekers. In fact the appellant was a Pakistan national. The Court rejected a submission that the tribunal had taken irrelevant considerations into account. Accepting that the tribunal’s reasoning appeared to have gone seriously awry, it held that on closer examination of the tribunal’s conclusion that the appellant was not a refugee on the findings and evidence essayed in the reasons. The ‘incongruous observation’ as to Tamils was intended to have been a formal statement of conclusion concerning the appellant and was probably explained as a ‘cut and paste’ error. While expressing regret at the error, the Court held that, read as a whole it was plain there had been no error in the reasoning process and should be disregarded: falsa demonstratio non nocet.[34]
[33][2018] HCA 19, [57].
[34][2018] HCA 19, [57],
However, in Li v Chief of Army,[35] the Court, citing Samad, held that it would not be open to disregard an error in the process of an administrative decision where it was not possible to be satisfied that the decision was unaffected by the error.
[35](2013) 250 CLR 328, [31].
These decisions support a conclusion that, where legal error is demonstrated, the materiality of the decision-maker’s error falls for consideration at an anterior point to the question whether relief should be refused on discretionary grounds.[36] Before any question of relief arises, the primary question is whether a demonstrated legal error is of such moment as to be characterised as jurisdictional error. The relevant considerations may overlap and apply at each point of analysis.
[36]cf Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [52]-[59].
Whether the significance of a legal error is to be analysed in terms of whether was was causative of jurisdictional error, or whether it contributed in some way to an erroneous decision, or that the decision depended upon or was based upon the error, or whether the postulated error was manifest or grave, the applicant must demonstrate that the error was sufficiently material in one the various senses described. By contrast, if the approach adopted by the decision-maker does not manifest a legally erroneous view about what it needed to be satisfied about, the error will not constitute jurisdictional error.[37]
[37] Cf Eshetu (1999) 197 CLR 611, [55] .
Further, by sub-s 476(2), the Federal Circuit Court has no jurisdiction in relation to certain privative clause decisions. In particular, the Federal Circuit Court has no jurisdiction to review a decision of a tribunal affirming a delegate’s decision to refuse such an application unless the tribunal’s decision is affected by jurisdictional error.
Despite s 474, the Court is authorised by sub-s 476(1) to quash a tribunal decision which is shown to be affected by jurisdictional error;[38] that is, an error of sufficient gravity that the decision does not answer the description of ‘decision’ for the purposes of the Act and which is accordingly, not a decision authorised by the Act.
[38]Plaintiff S157/2002 (2003) 211 CLR 476 at [37] (Gleeson CJ); [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [160] (Callinan J).
Relying upon Plaintiff S157,[39] the Minister accepted that s 474 did not inoculate tribunal decisions against jurisdictional errors. In Plaintiff S157, the Court held that s 474 precluded review of a privative clause decision for non-jurisdictional error.[40] However, as the decision made equally plain, a decision which is affected by jurisdictional error is regarded in law as being no decision at all. Thus a decision affected by jurisdictional error, being no decision at all, cannot be a decision made under the Act. In such a result, s 474 cannot preclude review or the grant of relief in respect of decisions affected by jurisdictional error.
[39](2003) 211 CLR 476.
[40](2003) 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
The Minister further submitted Plaintiff S157 made clear that the purpose of s 474 was to be accorded respect in determining if a decision was affected by jurisdictional error. Attention was drawn to the statement by the plurality suggesting that the privative clause in s 474 operated so that “some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision.”[41] The Minister accepted that whether or not this would be the case could only be determined by reference to the requirements in issue in each particular case. So much may be accepted.
[41](2003) 211 CLR 476 at [69].
Just as it is important to recognise that a right to appeal from orders is to be distinguished from a Court’s reasons, so too, the availability of relief upon judicial review stems from the decision under challenge as opposed to the reasons for the decision. Applied to the present case, the decision-maker’s erroneous reference to cl 5A408 rather than cl 5A508 does not, without more, demonstrate jurisdictional error.
In the conduct of a merits review, the task of a tribunal is to arrive at the correct or preferable decision in relation to the application upon the material that was before it. It is an error in the decision which may attract relief on judicial review if that error is properly characterised as being jurisdictional error. The want of precision or felicity in the drafting of the reasons of a tribunal does not, in or of itself, suffice to ground a conclusion that the decision of the tribunal was erroneous or that any perceived error was of such gravity as to attract the characterisation of being jurisdictional in nature.
I do not accept the Minister’s submission that the financial capacity criteria prescribed by Sch 5A, cl 5A508 constituted a mere procedural or other requirement and were to be construed as not essential to the validity of a decision whether an applicant satisfied the requirements for a student visa. To the contrary, I consider that where it applied, cl 573.223(2)(a) expressly required that an applicant must give the Minister evidence in accordance with the requirements prescribed by Sch 5A for the highest assessment level as applied to that applicant.
In this case, the question whether the decision-maker’s error of law constitutes jurisdictional error falls to be assessed in the context that cll 5A408 and 5A508 imposed materially identical financial capacity requirements. In my opinion, this affords a sound reason for concluding that the proper criteria were applied to a merits review of this visa application.
Although the Tribunal committed error in its reference to and use of cl 5A408, the reasons demonstrate that the decision-maker was fully engaged on the prescribed and relevant matters in its evaluation of the application and thus addressed itself to the correct issues: Tribunal reasons [18]-[30]. Whether the applicant was assessed under cl 5A408 or cl 5A508, the applicant was required to demonstrate that he had access to funds in the sum of $21,515. Each of the clauses directed attention to the applicant’s ‘course fees’, ‘living costs’ and ‘travel costs.’ Each of those criteria shared the same meaning whichever of those clauses was applied. The applicant did not meet those financial capacity requirements and did not do so despite the several opportunities that were afforded to him.
For the reasons given above, I am satisfied that the Tribunal undertook the task of examining the issues presented by the applicable regulation and that its decision was the preferable decision on the material before it. I also regard the Tribunal’s reasons as confirming that the Tribunal gave proper, genuine and realistic consideration to those issues.
Conclusion
Taking a broad view of the matter it is plain, in my view, that the erroneous use of cl 5A408 was a technical breach[42] of the Tribunal’s obligation to apply the correct legal test and did not of itself occasion any practical injustice[43] to the applicant.
[42]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [57].
[43]Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, [38] (Gleeson CJ); WZARH (2015) 256 CLR 326, [57].
The erroneous use of cl 5A408 notwithstanding, the Tribunal considered the question of the applicant’s financial capacity in detail: Tribunal reasons at [18]-[30]. The decision to affirm the delegate’s decision refusing the student visa application does not manifest jurisdictional error. The error was not of such gravity as to be charactered as a jurisdictional error. The error was not jurisdictional because cll 5A408 and 5A508 imposed materially identical financial capacity requirements for a person seeking a visa for study which constituted vocational education or training or higher education respectively. In my view, the Tribunal’s decision does not manifest a legally erroneous view about what it needed to be satisfied about. The error did not affect the decision itself. Nor was the decision to affirm the delegate’s decision to refuse the visa based upon an error that was jurisdictional in nature. The error could not have affected the decision. It was not material.
For the reasons above, I have held that the application be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 2 July 2018
0
33
5