Youssef v Minister for Immigration - [2007] FMCA 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUSSEF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 691

MIGRATION – MRT decision – cancellation of sponsored employment visa – withdrawal of sponsorship and cessation of employment – discretionary considerations – whether Tribunal required to determine reasons for loss of employment – status and effect of administrative guidelines – no jurisdictional error found.

Migration Act 1958 (Cth), ss.116, 116(1), 116(1)(a), 116(1)(b), 119, 359A, 359A(1), 359A(4)(b), 368, 474(1), 476(1)

Migration Regulations 1994 (Cth), Sch.8, items 8107, 8107(a)(i)

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1122
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43
Elliott v Minister for Immigration & Multicultural Affairs [2007] FCAFC 22
Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency & Ors (2002) 125 FCR 186
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
Tax Agents’ Board of New South Wales v Aqabani (2005) 144 FCR 446

Applicant:

TONI HABIB YOUSSEF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG120 of 2006

Judgment of:

Smith FM

Hearing date:

7 May 2007

Delivered at:

Sydney

Delivered on:

25 May 2007

REPRESENTATION

Counsel for the Applicant:

Dr J Azzi

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG120 of 2006

TONI HABIB YOUSSEF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 13 January 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 16 December 2005. The Tribunal affirmed a decision of a delegate made on 28 April 2005, which cancelled a Class 457 visa granted to the applicant on 27 November 2003 which was due to expire on 27 November 2007.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to remit the matter to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the discretion to cancel the applicant’s visa should have been exercised in favour of the applicant.
The background to the matter is set out in the Tribunal’s reasons. In short, the applicant arrived in Australia in 1995 to visit his sister. His stay became protracted, and he became involved in running a Lebanese restaurant at Randwick called “Lebanon and Beyond”. Initially, he was a co‑owner of the business, but to procure his last visa he decided to present himself as a sponsored employee in relation to his particular employment. He therefore transferred his interest in the restaurant to Mr Faraj, who became the sole owner and the sponsoring employer under the Class 457 visa issued to the applicant in November 2003.
The visa was subject to conditions under item 8107 of Sch.8 of the Migration Regulations 1994 (Cth), which included the requirement: “The holder must not: (a) if the visa was granted to enable the holder to be employed in Australia: (i) cease to be employed by the employer in relation to which the visa was granted; or …”.
On 27 December 2004, the Department of Immigration received a letter from Mr Faraj, which expressed a clear desire to terminate his sponsorship. It said: “From this day forth I am not responsible for any action in which Mr. Tony Youssef is involved”. It then made several allegations, including that Mr Youssef had “left the restaurant running on debt, did not pay or treat his employees in the correct way, and pocketed as much money as he could”. The applicant was described as “a corrupt human being”, and the letter said that he “steal from me and not respond to the damages caused to me …”. The particular circumstances of the termination of their relationship were not described, nor evidenced.
The Department then served a s.119 notice, informing the applicant that it was contemplating the cancellation of his visa on the ground under s.116(1)(a) of the Migration Act that “any circumstances which permitted the grant of the visa no longer exist”. In response, the applicant on 14 April 2005, wrote to the Department, stating: “on the 11^th of December 2004 I have been sacked by Mr. George Faraj and forced to leave my work place without any prior notice”. His letter suggested that his sacking was due to Mr Faraj’s financial problems, and the applicant’s inability to “arrange someone to buy the business so he can recover and pay off his debt”. He also complained that he had not been paid “my full wages”.
The delegate on 28 April 2005, decided that there was power to cancel the visa, and that a discretion to do this under s.116 should be exercised. It is unnecessary to examine her reasoning.
On appeal, the applicant made a written submission to the Tribunal which said:
As DIMIA was aware I owned shares with the business and after I received advice that under Class 457 I cannot have shares I decided in good faith to give the restaurant to Mr Faraj who promised to continue my nomination and I would be treated as an employee.
Firstly my employment with Lebanon and beyond was genuine and the Honourable Minister intervened in my case because of my contribution towards the restaurant and its employees and most importantly as the Minister saw that my skills benefit Australia.
My position as holder of Class 457 was critical as I wanted to maintain a solid nomination to remain in Australia where I can contribute and receive, as a matter of fact I have been assisting my family in Lebanon with approx. $500 monthly.
When I sold my shares, George Faraj did not honour his promise and did not pay any money which was due and he had some evil thoughts by withdrawing my nomination he thought that my Visa can be cancelled and he would not be under any obligation to pay me as he wanted me out of the country. I have not received wages for a while and that could be part of possible steps used by Faraj to get rid of me.
When I wanted to extend my Visa for another 4 years, George Faraj bought Joseph Saleh’s shares and I gave my shares to George Faraj who promised to pay me later and continue my sponsorship and employment.
I ask in good faith the Migration Review Tribunal to give me the opportunity to appear and give evidence under oath and in the same time I ask the Tribunal to request George Faraj to attend the Tribunal and give evidence as I believe that George Faraj has done injustice to me and cheated me and as a result of his behaviour my Visa was cancelled and my money got lost and I believe that the tribunal can make me regain my Visa and also assist me in recovering my financial losses as at present I have no money to fight and get my rights and we are waiting for the decision made by the Migration Review Tribunal in order to see what further steps can be taken.
I ask you kindly to allocate a hearing date as soon as possible because what happened between Mr Faraj and I is upsetting and has traumatised me and I believe when I give evidence person to person I can explain in more details.
The applicant presented to the Tribunal a number of references concerning his running of the restaurant, and sought further time to obtain and present to the Department a new sponsoring employer for a new visa. This was discussed with the applicant at a hearing held on 27 October 2005, and the applicant was allowed until 11 November 2005 to present evidence of a sponsorship application being lodged with the Department. However, no such evidence was forthcoming before the Tribunal gave its decision on 16 December 2005.
At the hearing, the applicant repeated his request that the Tribunal take evidence in support of his account of why Mr Faraj had withdrawn his sponsorship and why he had “left the restaurant” on 11 December 2004. It is clear from the transcript of the hearing that the Tribunal was uncertain whether it should investigate this issue, and whether the adverse allegations made by Mr Faraj to the Department should be put to the applicant in a written invitation to comment under s.359A of the Migration Act.
Ultimately, as will appear below, the Tribunal decided that it did not need to take evidence from witnesses and make findings of fact determining the reasons for the applicant’s loss of his employment and sponsorship. This is challenged under the second ground of review which I shall address below. The Tribunal did not serve a s.359A invitation relating to this issue, but no ground of review contends that this gave rise to jurisdictional error.
In its statement of reasons, the Tribunal identified two grounds for considering the discretion provided in s.116(1). They were:
116.(1)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)     any circumstances which permitted the grant of the visa no longer exist; or
(b)     its holder has not complied with a condition of the visa; …
The Tribunal made findings of fact that both of these grounds were established. No error is argued to be revealed in these findings, and indeed, the applicant had conceded to the Tribunal that grounds for cancellation existed. Its findings were:
31.The Tribunal finds that the review applicant’s subclass 457 visa granted on 27 November 2003 was granted on the basis of the sponsorship by Mr George Faraj of ‘Lebanon and beyond’. The Tribunal finds that this sponsorship is a specific circumstance which permitted the grant of the visa. The Tribunal finds that the circumstances that permitted the grant of the visa no longer existed once Mr Faraj withdrew or terminated the sponsorship in December 2004. The Tribunal finds that grounds for cancellation of the visa under paragraph 116(1)(a) have been made out.
…
33.The Tribunal also finds that the review applicant breached condition 8107 of his visa, as he ceased to be employed by ‘Lebanon and Beyond’ in December 2004, which was the employer in relation to which his visa was granted. The Tribunal also finds that grounds for cancellation of the visa under section 116(1)(b) are made out.
The Tribunal then addressed whether it should exercise the discretion to cancel which was indicated in the present situation by the word “may” in s.116(1). It is convenient to set out the whole of its reasoning:
34.In considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the evidence and the matters identified in the policy guidelines contained in the MSI referred to above, in particular:
•The purpose of the visa holder’s travel to and stay in Australia
35.The review applicant initially travelled to Australia in June 1995 on a subclass 676 Tourist (Short Stay) visa. He stated that he visited Australia initially to see his sister. He sought to obtain a business visa because the situation in Lebanon was not good at the time, and the circumstances there were not conducive to him being able to do business. He stated that in Australia he got the opportunity to work in the restaurant business. He was granted a subclass 457 visa in 1999. In November 2003 he was granted a further subclass 457 visa, after being sponsored by an Australian business, “Lebanon and Beyond”.
•The extent of non‑compliance with any conditions
36.The owner of the review applicant’s sponsoring business wrote to the Department in December 2004, and stated that he had decided to terminate the sponsorship of the review applicant. The review applicant stated that while he left the restaurant on 11 December he was not aware that the sponsor would withdraw the sponsorship. He had hoped that the problems relating to the restaurant and his employment could be resolved. He was not aware of the sponsorship withdrawal until he obtained the department’s letter in March 2005.
•The degree of hardship which may be caused to the visa holder and any family members
37.The review applicant has stated to the Department and the Tribunal that he had been providing financial support to his family (parents and younger brother) overseas. He stated he was the only person financially supporting them, though he also stated that his sister also provides some support given that he has not been able to work since the visa cancellation. He stated that the family overseas would be in hardship if he could not support them. He also stated that he was not able to do business in Lebanon and the circumstances there were not encouraging for him. He explained that he did not have records of business activity that would enable him to get business finance in Lebanon. He explained that his ambition was to undertake business activities in Australia, and that he had in fact been a partner in the business ‘Lebanon and beyond’ but had been required to divest himself of his share in the business in order to get the last held subclass 457 visa.
•The circumstances in which the ground for cancellation arose
38.The Department was contacted by the owner of the review applicant’s sponsoring business in December 2004. The owner described a number of incidents which had taken place between the sponsoring business and the review applicant and the owner stated he was withdrawing sponsorship of the review applicant. The visa applicant stated that he felt the problems arose because of financial problems faced by the owner Mr Faraj. Mr Faraj had wanted to sell the business and had asked the review applicant to find a buyer. The review applicant stated that the business’s reputation had largely been built up by the review applicant from the time he was first involved in the business as a partner. The review applicant stated that he felt the sponsorship was withdrawn possibly as a means for the owner to avoid paying monies due to the review applicant after the review applicant gave up his share of the business.
•The person’s behaviour in relation to the Department, now and on previous occasions
39.The review applicant explained why he did not contact the department after he left the sponsor’s employment in December 2004; he hoped that the problems were temporary and that they could be resolved. He did not speak with the sponsor after he discovered the sponsorship had been withdrawn as he felt he had lost a friend as well as involvement in the business.
•Any other matters the visa holder raises
40.The review applicant has asked the Department for time to find a new sponsor, but had not been able to find a new sponsor. The review applicant has also asked the Tribunal for time to find a new sponsor. He provided evidence at the hearing that Euro Pizza and Gelati would sponsor him. The Tribunal provided the review applicant with additional time for the proposed new sponsor to lodge a sponsorship application. This does not appear to have eventuated, however, as letters the Tribunal received from the review applicant after the hearing continue to ask for further time for the review applicant to find a sponsor. He stated that he felt he could make a contribution to Australia given his experience and skills in the food industry.
41.The Tribunal has considered all the evidence before it. The Tribunal finds that the purpose of the review applicant’s travel to Australia was to visit his sister. His initial travel to Australia occurred some 10 years ago. Although the review applicant has applied for and has been granted subclass 457 visas in Australia, the initial stated purpose of his travel was to visit relatives. The Tribunal has given significant weight to the fact that the review applicant applied to travel to Australia for a visit, and not for long term employment.
42.The Tribunal has considered the evidence in relation to the withdrawal of the visa applicant’s sponsorship. The Tribunal notes that the sponsor set out particular views about the review applicant to the Department. The Tribunal notes also that the review applicant has set out to the Tribunal his views about the sponsor’s actions and his financial troubles. The Tribunal makes no adverse findings regarding the respective views of the sponsor and the review applicant regarding the reasons for the sponsorship withdrawal. It seems clear to the Tribunal that the relationship between the review applicant and the sponsor in regard to the review applicant’s employment had broken down. Whatever the reasons for the breakdown in that employment relationship, the fact remains that the review applicant’s sponsorship by ‘Lebanon and beyond’ was withdrawn. The fact remains also that the review applicant does not have a business sponsor. The Tribunal considers that the review applicant had had a reasonable opportunity to obtain a new sponsor, but finds that the review applicant has not established that he has a new sponsor.
43.The Tribunal has considered the review applicant’s evidence regarding the support he has provided for his family. The Tribunal accepts that he may have done so, although it notes that since the review applicant has not been able to work, his family has received some support from the review applicant’s sister. The Tribunal is not satisfied that the review applicant has established that he would not be able to assist his parents and younger brother in Lebanon unless he continued to be employed in Australia. The Tribunal is not satisfied that the review applicant has established that he would not be able to assist them through employment or business activities that he might undertake in his home country. The Tribunal finds that while the review applicant may prefer to be employed in Australia, the Tribunal is not satisfied that he or his parents would necessarily suffer significant financial hardship if he had to consider finding employment or undertaking business in Lebanon or elsewhere.
44.The Tribunal has also taken into account the period of time in which the review applicant has been in Australia, that he has provided letters of support from members of the community, and that, on his own evidence, he would like to remain in Australia in the long term. The Tribunal finds, however, that the review applicant does not have a business sponsor and has not established that a new sponsorship from a new sponsor is imminent. Having regard to all the evidence, the Tribunal finds that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that in the circumstances of this case the visa should be cancelled. The Tribunal therefore affirms the decision under review to cancel the review applicant’s subclass 457 visa.
Counsel for the applicant disclaimed any reliance upon the grounds of review set out in the applicant’s original application, and his amended application filed on 20 April 2006. He addressed a written submission, which he said raised two grounds of review. He undertook that the applicant would file a further amended application properly formulating only these grounds. I shall address their substance as revealed in counsel’s oral submissions.

Ground 1

This ground contended that a failure to comply with s.359A(1) of the Migration Act was revealed by the Tribunal’s statement in paragraph [41] of its reasons: “The Tribunal has given significant weight to the fact that the review applicant applied to travel to Australia for a visit, and not for long term employment”. The applicant’s counsel conceded that the information used in the first wing of this finding, i.e. “travel to Australia for a visit”, had been given to the Tribunal in response to a question at the hearing, and therefore was excluded from the obligations of s.359A(1) by reason of s.359A(4)(b). However, he argued that the applicant did not give the Tribunal the information that his travel was “not for long term employment”.
Counsel for the Minister conceded that no information as to the purposes of the applicant’s travel was put to the applicant in a s.359A(1) invitation for comments. However, he argued that the Tribunal’s finding that it was “not for long term employment” was either the gist of information given by the applicant to the Tribunal at the hearing, or was merely an inference or assessment drawn from the applicant’s evidence. On either basis, no failure of obligation under s.359A(1) was established.
Neither counsel took me to authorities on s.359A, and they accepted that the issue turned essentially upon my interpretation of the applicant’s evidence shown in the transcript and the Tribunal’s reasoning in paragraph [41]. I have extracted that paragraph above. The relevant part of the transcript was:
THE TRIBUNAL: … Your initial visas were tourist or what we call visitor visas. So I say to you that when I look at your circumstances I can see that you came to Australia on a tourist visa but you are now saying that you want to continue staying in Australia and you want to continue undertaking work. What I am interested in, I guess, is the change from your original purpose in coming to Australia as a tourist and the work that you have been undertaking you want to continue doing in Australia. Have you got any comments on this change from your initial visa to the subsequent business visas that you have applied for?
THE INTERPRETER: Can I talk now?
THE TRIBUNAL: Yes, sure.
THE INTERPRETER: When I came in 1995 I came based on tourist visa. The situation was in Lebanon wasn’t that good by that time. My reason to come to Australia is to visit Australia and to see my sister, who lives here. After a while I got to know a lot of people and I got to be interested in doing business based on the experience in restaurants I have. I was ambitious when I was in Lebanon to do a business but the situation, the circumstances in Lebanon did not help me to do so. Having visited Australia and having been on many tours I loved Australia too much. I loved it and I loved to stay here.
By the time I had the opportunity to work in restaurants. I started to work in restaurants and I got the work easily because I am an expert in Lebanese cuisine. I love my job, I loved people who loved my dishes. They were Australian people, Arab. The Australian people love the Lebanese dishes. That is why I got very indulged in my business. Should I give more evidence?
THE TRIBUNAL: I think that covers that issue of why you moved into the business visas. …
In my opinion, this clearly shows the applicant giving the Tribunal the information that his travel to Australia was “not for long term employment”. His evidence might not have used that exact language, but this was inherent in his explanation that his visit was “to visit Australia and to see my sister”, and that he “got to be interested in doing business based on the experience in restaurants I have” after his arrival. I consider that the Tribunal’s finding that the applicant’s travel was “for a visit, and not for long term employment” reveals only its “thought processes” concerning information given by the applicant to it for the purposes of the review application (cf. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [206]).

Ground 2

This ground argued that the Tribunal failed to address a relevant consideration required to be addressed as a condition of its jurisdiction, by failing to determine the reasons for the applicant’s loss of employment and sponsorship. In particular, by failing to rule upon and accept the applicant’s account of his departure from the restaurant, which had sought to show that he was blameless and that the true circumstances of his departure supported the exercise of the discretion in his favour.
Counsel for the applicant cited Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] where the judgment of McHugh, Gummow and Hayne JJ referred to the Tribunal’s obligation to give reasons under s.368 of the Act:
The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
(emphasis in original) (citations omitted)
However, in the present statement of reasons, it is clear that the Tribunal actually held the opinion that it was not required to make a finding as to the reasons why “the review applicant’s employment had broken down”. It is therefore not necessary to infer this from the absence of the findings sought by the applicant. The real issue in the present application is whether a determination on this issue was required as a matter of law, so that the failure to make that determination amounted to a failure to “take into account some relevant consideration”.
As counsel for the Minister pointed out, the classic analysis of Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40, requires that “where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act”.
In the present case, I am unable to find in s.116(1) any implication that it is mandatory before deciding to cancel a visa that the Minister must determine the reasons for an event identified in paragraphs (a) or (b) having occurred. Indeed, the section seems drafted to require only that the existence of such a ground must be determined, and that otherwise the Minister has a broad and unconfined discretion to cancel by reference to any relevant factual consideration identified by the Minister.
As I have indicated above, the Tribunal plainly did make the determinations required by s.116(1)(a) and (b). Beyond this, the section left to the Tribunal a discretion to investigate and rely upon whatever relevant factual circumstances the Tribunal thought should appropriately be given weight. The legislation itself therefore did not require a determination on the issue presented by the applicant, although it might have been open to the Tribunal to treat it as providing “permissible” considerations (cf. Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, and Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency & Ors (2002) 125 FCR 186 at 204).
I might be prepared to accept that the Tribunal was required, at least, to consider whether to make a determination on the reasons for the applicant’s loss of employment and whether to base its decision on this matter, in circumstances where the issue was clearly presented to it by the applicant as a reason for a favourable determination (cf. Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1122 at 1129‑1130, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]). However, I would not conclude that the Tribunal failed to give consideration to the applicant’s contention, in effect, that his loss of sponsorship was blameless and a hardship which itself provided a ground for declining to cancel his visa. In my opinion, the Tribunal’s reasoning shows that it was aware that the applicant sought to gain support from his evidence explaining the withdrawal of Mr Faraj’s sponsorship. It referred to this evidence in its narration, and at [38] expressly identified it as part of “the circumstances in which the ground for cancellation arose”. It then expressly explained at [42] why it did not consider that a determination on that evidence would assist its exercise of discretion. This was because, in its opinion, the centrally significant facts to the exercise of discretion were that the sponsorship had been withdrawn, the applicant “does not have a business sponsor”, and he had not established that he had any new sponsor to present to the Department.
In short, the Tribunal did address the factual issue raised by the applicant, and decided that a determination on it was not necessary. It is conceivable that other decision‑makers might have reasoned differently, and might have decided that their exercise of discretion should turn upon a finding on whether the applicant was innocent or at fault in his loss of sponsorship. However, in my opinion, any error in the Tribunal’s assessment of this issue did not reveal a failure of jurisdiction, but only of merits in the exercise of discretion. I am not persuaded that the Tribunal’s decision not to investigate, make findings upon, and base its exercise of discretion upon a determination on that matter was an exercise of discretion which was so “unreasonable” as to give rise to jurisdictional error.
In his oral submissions, counsel for the applicant accepted, or came close to accepting, that he could not establish only by reference to s.116, or by reference to the case presented by the applicant, that the Tribunal was “bound” to take into account the contended reasons for the applicant’s loss of employment. However, he argued that this matter was made legally “relevant” by reason of the Tribunal’s reference to “matters identified in the policy guidelines” which it extracted by reference to the italicised headings:
•The purpose of the visa holder’s travel to and stay in Australia
•The extent of non‑compliance with any conditions
•The degree of hardship which may be caused to the visa holder and any family members
•The circumstances in which the ground for cancellation arose
•The person’s behaviour in relation to the Department, now and on previous occasions
•Any other matters the visa holder raises
Counsel for the applicant submitted that these were policy considerations analogous to the policies which were considered in Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 and Elliott v Minister for Immigration & Multicultural Affairs [2007] FCAFC 22. In these cases, the Full Court found a failure by a Tribunal to take into account a relevant matter when exercising a discretion, by reason of the decision‑maker’s misapplication or misconstruction of policy after adopting it as a source of guidance.
However, in my opinion, these authorities can be distinguished in the present case. This is so, even assuming that the contents of a relevant “policy” can be found in the six “matters” listed by the Tribunal from unclearly identified guidelines, and assuming that the guidelines had the status of policy directly relevant to the Tribunal’s own decision making (cf. Tax Agents’ Board of New South Wales v Aqabani (2005) 144 FCR 446 at 453 and ff., and El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43 at [45]).
I consider that the very terms of the guideline “considerations” identified by the Tribunal provided no more than suggestions of broad headings or topics for a decision‑maker’s analysis of the particular circumstances, and did not require particular factual determinations to be made within those topics before exercising the statutory discretion. In particular, I am unable to find in any of the six “matters” a requirement that a decision‑maker should in all cases address and make a determination as to the reasons for the occurrence of a ground of cancellation.
Clearly the guidelines pointed to the possible relevance of a consideration of “hardship” or “other matter” raised by an applicant, and also the possible relevance of “the circumstances in which the ground for cancellation arose”. However, I do not consider that any of these headings carried a suggestion that a decision‑maker should always make factual determinations requested by the applicant which fell within their topics, and should not decide the matter without making those determinations. To read the policy in such a prescriptive way might lead to an invalid fettering of the broad discretion conferred by s.116(1) (cf. Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [17] and [137]).
Counsel for the applicant attempted to find the clearest requirement under the guidelines to make a determination as to the reasons for the applicant’s loss of employment and sponsorship, in the consideration suggesting that a decision‑maker should address “the extent of non‑compliance with any conditions”.
However, in my opinion, this consideration could not assist the applicant’s argument. The reference to “non‑compliance with any conditions” must be read as requiring a decision‑maker to identify any visa conditions which gave rise to a ground of cancellation under the ground in s.116(1)(b). The suggested assessment of “the extent” of “non‑compliance” with that condition, on a narrow reading, would require only some quantitative assessment of the degree of non‑compliance. On such a reading, this consideration could not help the applicant in a situation where his non‑compliance with condition 8107(a)(i), when he “ceased to be employed”, was not susceptible of being measured as less than complete non‑compliance.
If a broad reading is given to the reference to “the extent of non‑compliance”, so that it suggested a general assessment of the circumstances surrounding the non‑compliance, then the topic raised the same field for consideration as did the topic “the circumstances in which the ground for cancellation arose”. However, on such a reading, I would not distil a requirement that a decision‑maker must do anything more than consider whether something in those circumstances might provide a ground for exercising, or deciding not to exercise, the discretion to cancel the visa. I would not find a requirement that the decision‑maker must always determine the reason for the non‑compliance in every case, and treat that determination as a reason for the exercise of discretion.
I therefore consider that the guidelines referred to by the Tribunal were properly treated by it as allowing it to decide that it did not need to make a determination on the reasons for the applicant ceasing to be employed and losing his sponsorship.
I am not persuaded that the Tribunal made any jurisdictional error as argued under this ground.
Since both of the grounds argued at the hearing fail, I must dismiss the application.

I certify that the preceding thirty‑eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 25 May 2007