ZHANG v Minister for Immigration
[2017] FCCA 134
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 134 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Business Skills (Provisional) Subclass 188 visa – whether the Tribunal was obliged to provide a second hearing – whether the Tribunal’s refusal to allow time for the applicant to make a complying investment was unreasonable in the Li sense – whether the Tribunal was obliged to follow departmental policy. |
| Legislation: Migration Regulations 1994, reg.5.19B, cl.188.252 of Sch.2 |
| Cases cited: Karras v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 167; [1998] FCA 1705 Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18 Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; (2009) 110 ALD 238; (2009) 258 ALR 434; (2009) 83 ALJR 1017; [2009] HCA 30 |
| Applicant: | WEN ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1983 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 30 November 2016 |
| Date of last submission: | 30 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| Advocate for the applicant: | Nigel Dobbie |
| Solicitors for the applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the first respondent: | Andrew Yuile |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal handed down on 27 July 2016 in matter number 1503731 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1983 of 2016
| WEN ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration not to grant the applicant a Business Skills (Provisional) Subclass 188 visa.
The applicant applied for the visa on 17 September 2014. A criterion for the grant of the visa was that the applicant had, at the time of decision, invested $A5,000,000 in a complying investment, using funds that were unencumbered and lawfully acquired.
A document checklist for applications for the visa is exhibited to an affidavit affirmed on 7 November 2016 by the applicant’s migration agent. The document checklist was issued by the Department of Immigration and Border Protection. It said, at page 4:
Note:You are not required to have made the complying investments at the time that you apply. You will be advised when you are required to make the complying investments and when this evidence is required.
The relevant departmental policy provided that:
57 Inviting the applicant to make investment
57.1 When to invite the applicant to make an investment
For 188.252(1), the invitation to the applicant to make a complying investment should be the final stage of processing the visa application. Officers are not to invite applicants to make a complying investment until:
·the applicant has been assessed as having satisfied all other criteria in 188.21 and 188.25 and
·family unit members have been assessed as having satisfied all criteria in 188.31 and
·officers are satisfied that the applicant will satisfy the remaining visa-specific criteria if a complying investment is made (that is, full VAC payment and circumstances applicable to grant).
57.2 Standard letter
There is a standard letter officers should use when inviting an applicant to make a complying investment.
Under no circumstances is the invitation (however worded) to anticipate or otherwise give rise to an expectation that visas will be granted if the complying investment is made. This is because, for example:
·as indicated in EB-188 primary applicant Common criteria, it remains open up to time of decision for officers to assess the primary applicant against criteria in 188.21 and 188.25 or
·situations may otherwise arise requiring re-assessment of an applicant's ability to satisfy public interest criteria (for example, the applicant may be subject to a health undertaking) or
·applicants may subsequently notify changes in circumstances (as required of them under s104 of the Act).
Rather, the applicant should simply be advised that their application has reached the stage where they are required to make a complying investment. The standard letter explains how the applicant should go about making the investment and the evidence they need to provide to the department of making the complying investment.
57.3 Time limited for making the complying investment
Requirements
The letter requires officers to specify that, should the applicant intend to liquidate assets originally proposed to make the complying investments listed in the form 1139A (SALP), the applicant is to provide, within 70 days of the date of the letter:
·evidence that those assets have been liquidated to fund the complying investment (documentation may include evidence of, for example, sale of assets and transfers from an investment account) and
·evidence of making and holding complying investments of at least AUD 5 000 000 (see section 51.10 Evidence of making and holding the complying investments).
Relevant factors
In deciding the date, officers should have regard to factors such as:
·the time the applicant may take to make the complying investment and for the investment to be processed. Applicants who delay making a complying investment should be counselled that it remains open for officers to assess that the applicant does not satisfy 188.252(1) and
·(subject to section 42.1 When to invite the applicant to select a designated investment) which visa criteria, if any, remain to be assessed and
·the extent, if any, to which officers may wish to (or need to) re-examine the applicant's ability to satisfy certain visa criteria and
·(subject to The visa ‘first entry’ date) whether the time remaining between the date specified in the letter and the date by which the applicant will, under policy, need to first enter Australia is sufficient to allow the applicant to finalise travel arrangements.
The applicant said in her application that she intended to invest $A5,000,000 in a complying managed fund in Victoria, being the managed fund, “MIF ARSN of fun: 162 978 181”. A delegate of the Minister emailed the applicant’s migration agent on 22 September 2014 asking her to provide supporting documents. The applicant’s agent provided those documents on 10 October 2014, and said in the covering letter that the funds to be used were a gift from the applicant’s father, who had a successful construction business and had acquired the funds by legal means.
On 27 February 2015, the delegate refused the visa on the basis that the applicant did not meet cl.188.252(1) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) which required that the applicant had made a complying investment of at least $A5,000,000 on the date the delegate made the decision. The delegate’s reasons for decision analysed the source of the funds the applicant proposed to use to make the complying investment. The delegate concluded:
On the basis of the information provided so far, I am not satisfied that you have established through acceptable evidence that the assets you nominated for making the complying investment are unencumbered and lawfully acquired. Therefore you have failed to satisfy clause 188.252(2) that requires an applicant has made a complying investment of at least AUD 5,000,000.
The delegate did not, at any stage, require or invite the applicant to make the investment of $A5,000,000. Rather, the delegate evidently decided not to require or invite the applicant to make the investment, because the delegate considered that, even if the applicant made a $A5,000,000 investment, it would not be a complying investment because the source of the funds would not be unencumbered and lawfully acquired.
On 16 March 2015, the applicant lodged an application for review with the Migration Review Tribunal, which later became the Administrative Appeals Tribunal. On 26 April 2016, the Tribunal wrote to the applicant, through her migration agent, inviting her to a hearing on 2 June 2016. The invitation said:
We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 26 May 2016.(emphasis in original)
The applicant did not provide any further documents or information. On 24 May 2016, the applicant’s agent asked for an adjournment of the hearing on the basis that the agent would be overseas at the time of the scheduled hearing. The Tribunal agreed to postpone the hearing. On 9 June 2016, the Tribunal sent the applicant another hearing invitation specifying a hearing date on 27 July 2016. The hearing invitation enclosed a form and said:
Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator. They must be provided to the Tribunal 7 days before the date of the hearing. (emphasis in original)
The applicant did not provide any further documents or information. On 20 July 2016, the applicant asked for another adjournment on the grounds that her mother was in hospital in China and the applicant would be unable to get back to Australia in time for the hearing. The Tribunal refused that adjournment.
The hearing proceeded on 27 July 2016. The applicant attended by telephone from China. The Tribunal contacted the applicant’s agent by telephone at the time of the hearing. The agent said that she would not be attending. The hearing began at 10:28am and concluded at 11:10am.
The Tribunal made its decision later that day. The Tribunal affirmed the delegate’s decision.
Criteria
Clause 188.252 of Schedule 2 to the Regulations provided at the relevant time that the requirements for the visa included that:
(1)The applicant has made a complying investment of at least AUD5,000,000.
(2)The applicant has a genuine intention to hold the complying investment for at least 4 years.
“Complying investment” was defined in reg.5.19B of the Regulations as follows:
Complying investment
(1)An investment by a person (the investor) is a complying investment if all of the requirements in this regulation are met.
Description
(2) The investment must consist of one or more of the following:
(a)an investment in a government bond (however described) of the Commonwealth, a State or Territory; or
(b)a direct investment in an Australian proprietary company that meets the following requirements:
(i) the company is not listed on an Australian stock exchange;
(ii) the company has not been established wholly or substantially for the purpose of creating compliance with this paragraph;
(iii) the investment is an ownership interest in the company; or
(c)an investment in a managed fund (directly or through an investor directed portfolio service) for a purpose specified by the Minister in an instrument, in writing, for this paragraph.
(3) The funds used to make the investment are:
(a) unencumbered; and
(b) lawfully acquired.
Investor
(4) The investor must be an individual.
(5) The investor must make the investment:
(a) personally; or
(b) with the investor’s spouse or de facto partner; or
(c)by means of a company that has issued shares and in which:
(i) the investor holds all of the issued shares; or
(ii) the investor and the investor’s spouse or de facto partner hold all of the issued shares; or
(d) by means of a trust:
(i) that is lawfully established; and
(ii) of which:
(A) the investor is the sole trustee; or
(B)the investor and the investor’s spouse or de facto partner are the sole trustees; and
(iii) of which:
(A) the investor is the sole beneficiary; or
(B)the investor and the investor’s spouse or de facto partner are the sole beneficiaries.
(6) If:
(a)an investor withdraws money from a complying investment, or cancels the investment; and
(b)the investor makes an investment of at least the value of the withdrawn money or cancelled investment in one or more other investments mentioned in subregulation (2); and
(c)no more than 30 days passes between the events mentioned in paragraphs (a) and (b);
the investment is taken not to have ceased to be a complying investment during the period between the events mentioned in paragraphs (a) and (b).
The Tribunal’s reasons for decision
The Tribunal noted that:
The delegate refused to grant the visa on the basis that cl.188.252(1) was not met because she was not satisfied that the assets nominated for making the complying investment were unencumbered and lawfully acquired.
After setting out the background and relevant criteria, the Tribunal said
14. In this context the tribunal raised what it considered to be the threshold issue, that is, that cl.188.252(1) requires that the applicant has made the relevant complying investment of at least $AUD5,000,000. On the records before it, the bulk of her funds claimed to comprise her ‘complying investment’ were in her bank account in China. The applicant responded that the investment would be made in August. The tribunal said no records relating to any/ potential such investment had been provided and asked the applicant what was proposed. She said she had decided to invest in the national debt. The tribunal asked her to clarify what she meant by this but she was unable to explain, saying she had to invest in something. She later clarified that she meant a government bond. She confirmed that no investment had yet been made but said the money was “nearly ready”, that they had only been able to collect it recently. The tribunal observed that that she had made the claim of a complying investment in her visa application in September 2014. She did not respond. The tribunal further observed that the Department’s decision had been made in February 2015, so she had more than ample time to find and produce evidence of that investment. She maintained that it would be made in August and she had the assistance of a migration expert to do so. In this context the tribunal noted that it had previously adjourned the hearing because her representative could not attend yet she was not present at this hearing. It asked the applicant why her representative was not at this hearing. She said that she did not know the reason.
15.… The tribunal observed that on the material before it the applicant had not made a complying investment. She responded that in 2014 the company had not been able to collect the money and had only recently been able to do so. The tribunal reiterated that in September 2014 she had told the Department in her visa application that she had the funds, even though it had appeared that the vast bulk of them had been in her personal account in China. She repeated that the money would be in Australia in August.
16.The tribunal has considered whether it should wait until August in the event that the applicant does in fact make a complying investment however, on the basis of her application made in September 2014 and the findings of the delegate in February 2015, and the postponed hearing, the tribunal considers that the applicant has been afforded a significant amount of time within which to gather and provide the documentation necessary for the grant of the visa. The tribunal has therefore decided to proceed to make its decision on the material before it.
…
18.Overall the tribunal found the applicant’s oral evidence inconsistent and unconvincing. Given the visa application was made in 2014 and the delegate’s decision in February 2015, the tribunal has significant reservations both as to the applicant’s capacity to make the complying investment and the lawful and unencumbered nature of the funds.
19.In this context the tribunal notes the then-Department’s guidelines with respect to cl.188.252. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it, however it sees no cogent reason, in the circumstances of this application and the statutory framework, to depart from it.
51.10Evidence of making and holding the complying investments
For 188.252, the applicant must provide evidence of making and holding the complying investments at or before the time of decision (otherwise the investment may not be included in the calculations). Evidence includes, but is not limited to:
·a bond holding statement issued by a Commonwealth, State or Territory government
·a holding statement provided by the trustee of a public unit trust
·a holding statement provided by the responsible manager of a registered managed investment scheme
·a shareholder certificate and company extract from ASIC in relation to the shareholder information of an Australian proprietary company.
The applicant may be asked to provide additional supporting evidence if the documents provided are insufficient to support the making and holding of the complying investments as claimed.[2]
20. There is nothing of this nature before the tribunal. As she confirmed at the hearing, the applicant has not made a relevantly complying investment of at least AUD5,000,000. That is, she has not invested AUD5,000,000 in any of the listed complying investments nor is there anything before the tribunal which demonstrates or even suggests she has done so.
21.As at the time of its decision the tribunal is not satisfied that the applicant has made a complying investment, as defined, of at least AUD5,000,000.
[2] PAM3 - MIGRATION REGULATIONS - SCHEDULES > Sch2 Visa 188 - Business Innovation and Investment (Provisional) > THE EB-188 VISA MAIN APPLICANT - SIGNIFICANT INVESTOR STREAM
The Tribunal concluded that the applicant did not meet cl.188.252 and that the delegate’s decision had to be affirmed. However, the Tribunal’s reasons for decision were different to the delegate’s. The delegate refused the visa because the delegate formed the view that the proposed investment was not unencumbered and lawfully acquired. The Tribunal affirmed the delegate’s decision because the proposed investment had not been made at the time of the Tribunal hearing.
Ground 1
The first ground of review in the application filed on 24 August 2016, amended on 16 September 2016 and further amended on 9 November 2016 is:
The Second Respondent committed jurisdictional error by failing to comply with s360 of the Migration Act 1958
Particulars
(A) The Tribunal failed to comply with s360 of the MigrationAct1958 (“the Act”):
(i)Subsection 360(1) of the Act required the Tribunal to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(ii)The issue arising in relation to the decision under review was whether the funds required for the $5,000,000.00 complying investment for the purposes of r5.19B and clause 188.252 of Part 188 of the Migration Regulations 1994 (“the regulations”) were “unencumbered and lawfully acquired”.
(iii)The Tribunal required that the Applicant provide any submissions or materials in support of the review at least seven days before the hearing.
(iv)At the hearing held between the Tribunal and the Applicant on 27 July 2016, the Tribunal raised a new issue, being whether the Applicant had documentation showing that the $5,000,000.00 complying investment had been made.
(v)In the circumstances of this case, compliance with s360(1) of the Act required that the Applicant should have been invited to appear before the Tribunal for a further hearing so that there was a meaningful opportunity to appear before it to give evidence and present arguments relating to the new issue arising in relation to the decision under review. The Tribunal's failure to do so therefore constituted jurisdictional error.
The applicant argued that the issue before the delegate was whether the funds for the proposed investment were unencumbered and legally obtained. As the Tribunal raised a new issue at the hearing, namely, that there had not been any investment at all, the applicant said that the Tribunal was obliged to invite the applicant to a further hearing.
The applicant said this obligation was explained in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; (2009) 110 ALD 238; (2009) 258 ALR 434; (2009) 83 ALJR 1017; [2009] HCA 30, where French CJ and Heydon, Crennan, Kiefel and Bell JJ stated at [51]:
Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah's knowledge of the first respondent's past activities in China deriving from any account given to him by the first respondent was directly related to that issue. Further, s 422B of the Act suggests that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4 of Pt 7. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah's information by responding (as he did) to the letter from the RRT conforming with s 424A.
The first respondent argued that the circumstances in which a further hearing might be required are very limited. In the present case, the first respondent argued that a further hearing was not required, because the Tribunal squarely raised the issue it was concerned about with the applicant and gave her an opportunity to respond. That issue was that the applicant had not actually made the complying investment as at the time of the Tribunal’s hearing. The Tribunal gave the applicant an opportunity to respond and she did so. She said that the complying investment would be made in August. That response amounted to an admission that the complying investment had not been made.
I accept the first respondent’s submissions on this point. I do not consider that a further hearing was required in the present case. Ground 1 is not made out.
Ground 2
The second ground of review in the application filed on 24 August 2016, amended on 16 September 2016 and further amended on 9 November 2016 is:
The Second Respondent committed jurisdictional error by failing to conduct the review required by s348 of the Act
Particulars
(A) The Second Respondent committed jurisdictional error by failing to conduct the review required by s348 of the Act:
(i)The Tribunal’s core function pursuant to s348 of the Act was to review the application which led to the decision under review. It must exercise its review power within the bounds of reasonableness.
(ii)In the present case, the Tribunal required the Applicant to provide any submissions or materials in support of the review at least seven days before the hearing.
(iii)At the hearing held on 27 July 2016, the Tribunal required that the Applicant show, at that time, evidence that the $5,000,000.00 complying investment required for the purposes of r5.19B and clause 188.252 of the regulations had been made. That was the first time the Applicant was informed of that additional issue.
(iv)The Applicant informed the Tribunal at the hearing that the complying investment would be made in August, with the assistance of a 'migration expert'. The Tribunal considered whether it should wait until a time in August for the complying investment to be made, but decided it would not and proceeded to make the decision on the same day. It considered that the Applicant had been afforded a significant amount of time within which to gather and provide the documentation necessary for the grant of the visa.
(v)The Tribunal had only raised the new issue at the hearing. Evidence of the actual making of the complying investment was critical to the Tribunal's determination of the review before it. The only reason for refusing the Applicant's request to allow her a time in August to make the complying investment (which in the scheme of the review was a very short period of time as it had been before the Tribunal for approximately 18 months at the time of the hearing on 27 July 2016) was because she had been afforded a significant amount of time within which to gather and provide the documentation necessary for the grant of the visa. There was no practical countervailing consideration to not allow the short period of time requested by the Applicant. In these circumstances, the Tribunal's decision not to allow the Applicant that requested period of time to make the complying investment was so unreasonable that it failed to exercise its core function to review the decision. That failure constitutes jurisdictional error.
The applicant argued that the Tribunal’s refusal to wait a few weeks to allow the complying investment to be made amounted to legal unreasonableness, in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18 at [63] and following and by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1. In Singh, Gaegler J described the facts in Li as follows at [122]:
… Ms Li had been in Australia for some years. The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA’s second skills assessment, which she contended to have been erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the Minister concedes, “coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained”.
Wigney J summarised the principles from Li and Singh in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 at [41], as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]- [45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]- [45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the tribunal to review a decision may require the tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The applicant argued that the Tribunal’s refusal to allow the applicant a few weeks to make the complying investment, in circumstances in which:
a)the matter was before the Tribunal for about 14 months before the first scheduled hearing on 2 June 2016;
b)departmental policy was to invite an applicant to make the $A5,000,000 investment and give him or her 70 days to do so; and
c)there were no countervailing considerations,
was so unreasonable that the Tribunal’s review function miscarried.
The applicant noted that the Tribunal’s reasons for refusing the applicant any time to make the investment were set out in paragraph 16 of the Tribunal’s reasons for decision as follows:
The tribunal has considered whether it should wait until August in the event that the applicant does in fact make a complying investment however, on the basis of her application made in September 2014 and the findings of the delegate in February 2015, and the postponed hearing, the tribunal considers that the applicant has been afforded a significant amount of time within which to gather and provide the documentation necessary for the grant of the visa. The tribunal has therefore decided to proceed to make its decision on the material before it.
The first respondent argued that legal unreasonableness is a high bar, that the Tribunal does not need to adjourn a hearing to allow an applicant to improve his or her position, and that the Tribunal has some “decisional freedom”.
Moreover, the first respondent submitted that the applicant should have been well aware that it was necessary for her to make the complying investment prior to the decision being made, not least because the delegate had mentioned that requirement in her reasons. It is true that the delegate mentioned the requirement for a complying investment to have been made as at the date of the decision. However, the gravamen of the delegate’s decision was that the proposed investment would not be complying, if made, because the funds were not unencumbered and lawfully acquired.
Moreover, the applicant could well have been caught unawares by the Tribunal making its decision on the same day as the hearing. As the departmental guidelines permitted an applicant 70 days from the date of an invitation to make the complying investment, the applicant may well have anticipated being given a similar amount of time to actually make it, if the Tribunal were satisfied, following the hearing, that the funds for the proposed investment were unencumbered and lawfully acquired.
The first respondent argued that the present case was different to Li for a number of reasons. The first respondent said, firstly, that, in Li, the applicant had a reasonable basis for being given more time, because she expected a favourable outcome of her Trades Recognition Australia assessment whereas, in the present case, the applicant only said that the money was “nearly ready”. I do not consider this to be a sound basis of distinction. If the Tribunal had refrained from making its decision for a few weeks, the applicant would have either provided the appropriate evidence that the complying investment had been made or she would not. The applicant’s position of seeking a few weeks to make the investment was entirely consistent with the departmental policy. As the Tribunal did not seek to base its decision on the funds for the proposed investment not being unencumbered and lawfully acquired, it can be inferred that the Tribunal was satisfied of those issues.
The first respondent said secondly that, in Li, the applicant had been delayed in obtaining the relevant evidence through no fault of her own whereas, in the present case, the applicant had taken no action to make the complying investment prior to the hearing. However, as explained, the applicant had good reason, consisting of departmental policy, to consider that she would be given 70 days to make the investment after the Tribunal was satisfied that the funds for the proposed investment were unencumbered and lawfully acquired.
The first respondent said thirdly that the applicant had been advised that the Tribunal had been unable to make a favourable decision on the materials available to it at the time the hearing invitations were sent, and had been invited to provide further information and documents seven days prior to the hearing but had failed to do so. However, this submission does not engage with the applicant’s perspective that the issue before the Tribunal was whether the funds for the proposed investment were unencumbered and lawfully acquired, and, if the Tribunal were satisfied of those matters, then the Tribunal would give the applicant 70 days to make the investment.
The first respondent said fourthly that the Tribunal gave rational reasons for not giving the applicant more time to make the complying investment and those reasons were open to it. Those reasons were, essentially, that the applicant had been given enough time, and the applicant had been given the opportunity to provide further material seven days prior to the hearing. However, the Tribunal did not specifically invite the applicant to make the investment. In fact, the Tribunal appears to have been unaware of the relevant part of the departmental guidelines set out above which required the department to invite an applicant to make the complying investment only after all other aspects of the matter had been resolved satisfactorily and which required the applicant to be given 70 days to make the complying investment.
While departmental guidelines are not binding on the Tribunal, they are a factor in assessing the reasonableness of a discretionary decision. In addition, the Tribunal did not identify any harm in allowing the applicant a few weeks to actually make the complying investment.
In all the circumstances of this case, and acknowledging the high bar, it seems to me that the Tribunal’s refusal to allow the applicant a few weeks to make the complying investment was unreasonable in the Li sense. That is because the department’s own guidelines would have allowed the applicant 70 days after all other issues were satisfactorily resolved and because neither the first respondent nor the Tribunal identified any harm in allowing the applicant a few weeks to make the complying investment. The Tribunal’s time limit appears to have arbitrary. This ground is made out.
Ground 3
The third ground of review in the application filed on 24 August 2016, amended on 16 September 2016 and further amended on 9 November 2016 is:
The decision of the Second Respondent is unreasonable, irrational or arbitrary
Particulars
(A) The decision of the Second Respondent is unreasonable, irrational or arbitrary:
(i)The Tribunal found that it had no cogent reason not to follow what it referred to as the then-Department's guidelines (‘the policy’) with respect to cl.188.252 of the regulations. It had regard to paragraph 51.10 of the policy… .
(ii)However, the Tribunal failed to have regard to paragraphs 57.1 to 57.3 of the same policy, and which informed on paragraph 51.10 … .
(ii)In having regard to paragraph 51.10 of the policy, the Tribunal was also required to have regard to paragraphs 57.1 to 57.3 of the same policy, as those paragraphs informed on paragraph 51.10. Its failure to do so was therefore unreasonable, irrational or arbitrary in the circumstances, such that the decision is infected with jurisdictional error.
The applicant noted that the Tribunal itself said in paragraph 19 of its reasons for decision that:
In this context the tribunal notes the then-Department’s guidelines with respect to cl.188.252. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it, however it sees no cogent reason, in the circumstances of this application and the statutory framework, to depart from it.
The applicant noted that the Tribunal confined itself to relying on the policy for a description of evidence of complying investments, but did not apply the aspect of the policy dealing with invitations to make a complying investment, even though the Tribunal itself said that there was no reason not to apply the policy in this case. The applicant argued that this was approach was unreasonable, arbitrary and capricious.
The first respondent argued that the authorities are settled that there is no obligation on a decision-maker to follow departmental policy. The first respondent referred, by way of example, to Karras v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 167; [1998] FCA 1705 where Merkel J stated at page 175:
The IRT had regard to a document of the Department of Immigration and Multicultural Affairs entitled ‘‘Migration Series Instruction’’ which was identified as ‘‘MSI No 207’’. The document sets out guidelines in relation to decisions required to be made under the Act and the Migration Regulations. In the present context, as was identified by the IRT, the guideline was that decision-makers:
. . . should have regard to the applicant’s immigration history and any past dealings with the department.
Government policy and guidelines are matters to which an administrative tribunal may have regard and apply. The particular regard to be had, and the weight to be given, to the policy and guidelines is a matter for the tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 at 419–22; Steed v Minister for Immigration and Ethnic Affairs at ALR 621; and Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 95 at 98–9. Accordingly, it was for the IRT to determine the relevance and weight to be given to ‘‘immigration history’’.
The first respondent argued further that there was nothing unreasonable, irrational or capricious in the Tribunal not looking to aspects of the policy beyond those that concerned the dispositive issue, namely, whether the complying investment had been made as at the date of the decision.
It is axiomatic that a decision-maker is required to apply the law, not departmental guidelines. However, in the circumstances of this case, it was unreasonable for the Tribunal not to have at least partially applied the guidelines, and given the applicant a few weeks to make the complying investment. The relevant circumstances are that:
a)the delegate decided the case on a different basis to the basis on which the Tribunal proposed to make its decision;
b)contrary to the guidelines, the applicant had never been asked to make the complying investment;
c)the Tribunal said there was no cogent reason to depart from the departmental policy in the circumstances of this case;
d)the Tribunal did not identify any harm in giving the applicant a few weeks to make the complying investment;
e)the Tribunal decided the case on the same day as the hearing; and
f)the departmental policy was a rational approach to administering cl.188.252.
For these reasons, I accept that it was unreasonable, arbitrary and capricious for the Tribunal to have not partially complied with the departmental guidelines by delaying its decision for a few weeks, and giving the applicant that time to make the complying investment. This ground is made out.
Conclusion
As two of the applicant’s grounds have been made out, the matter will be remitted to the Tribunal for determination according to law. Costs will follow the event.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 30 January 2017
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