Babicci v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of the Court (Moore J) given on 16 December 2004. His Honour refused to issue Constitutional writs to set aside a decision of the Migration Review Tribunal ("the MRT") dated 3 May 2004. The MRT affirmed a decision of a delegate of the Minister that the appellant's spouse was not entitled to be granted a Partner (Provisional) (Class UF) visa. 2 The appellant is the spouse of Marita Babicci ("Mrs Babicci") who was the visa applicant. The appellant was her sponsor. He sought review of the delegate's decision in the MRT and was the applicant for Constitutional writs. 3 There are two issues on the appeal. The first is the meaning of the expression "compelling circumstances" in Reg 1.20J(2) of the Migration Regulations 1994 ("the Regulations"). The second is whether the primary judge erred in finding that although the MRT adopted an incorrect meaning of the expression, it nevertheless did not fall into jurisdictional error. 4 The issue before the MRT was whether to exercise the power to approve the sponsorship of Mrs Babicci if it was satisfied that there were "compelling circumstances affecting the sponsor"; see Regulation 1.20J(2). 5 The need to exercise this power arose because the appellant had previously sponsored two former spouses for visas. He was therefore disqualified under the provisions of Regulation 1.20J(1) from sponsoring another spouse unless the discretion conferred by Regulation 1.20J(2) was exercised. 6 It should be noted that the MRT did not consider that the appellant's sponsorship of Mrs Babicci was an abuse of the visa process. Indeed it expressed sympathy and compassion for the applicant. The Regulations 7 Regulation 1.20J provided relevantly as follows:- (1) Subject to subregulations (2) and (3), the Minister must not approve: (a) the sponsorship of an applicant for: (i) a Spouse (Provisional) (Class UF) visa, a Partner (Provisional) (Class UF) visa or a Prospective Marriage (Temporary) (Class TO) visa, as the spouse or prospective spouse of the sponsor; or (ii) an Interdependency (Provisional) (Class UG) visa or a Partner (Provisional) (Class UF) visa, as a person in an interdependent relationship with the sponsor; or (b) the nomination of an applicant for an Extended Eligibility (Temporary) (Class TK) visa or a Partner (Temporary) (Class UK) visa as the spouse of, or as a person in an interdependent relationship with, the nominator; unless the Minister is satisfied that: (c) not more than 1 other person has been granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, the sponsor or nominator on the basis of a sponsorship or nomination; and (d) if another person has been granted a relevant permission in the circumstances referred to in paragraph (c) - not less than 5 years has passed since the date of making the application for that relevant permission; and (e) if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, another person on the basis of a sponsorship or nomination - not less than 5 years has passed since the date of making the application for that relevant permission. … (2) Despite subregulation (1), the Minister may approve the sponsorship or nomination of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor or nominator." The MRT's decision 8 The MRT observed that "compelling circumstances" is not defined in the Regulations. It adopted a dictionary definition of "compelling" as meaning "to force or drive, especially to a course of action"; see at [32]. 9 The appellant put a number of matters before the MRT which he relied upon as constituting "compelling circumstances". The first was that he suffered from a variety of ailments and that Mrs Babicci's presence in Australia would alleviate some of his symptoms. The second was that it was necessary for the appellant to work hard to provide child support for his son from a former marriage and to provide funds for Mrs Babicci. The third was that he was not at fault in the break-up of his earlier marriages. The fourth was that he had psychological and emotional problems. 10 The MRT essentially accepted that each of these circumstances existed but the MRT did not consider that, individually or as a whole, the matters relied upon by the appellant constituted compelling circumstances. It said at [37] that one of the matters relied upon did not "drive" the MRT to the view that the discretion should be exercised. It said at [38] that the waiver of Regulation 1.20J(1) could "only be used where the Tribunal is compelled to exercise the discretion" conferred by Regulation 1.20J(2). Notwithstanding the sympathy and compassion it felt for the appellant, the MRT said it was "not forced or driven to waive the prohibition in subregulation 1.20J(1)"; see at [42]. 11 The MRT concluded at [43] as follows:- "43. The Tribunal has found that, when considering subregulation 1.20J(2), there are not compelling circumstances affecting the review applicant that allow the Tribunal to approve the sponsorship of the visa applicant. The Tribunal is therefore prevented by subregulation 1.20J(1) from approving the sponsorship of the review applicant. As the sponsorship of the visa applicant is not approved, the visa applicant does not satisfy clause 309.222. The visa applicant is therefore not entitled to the grant of a subclass 309 (Spouse or Partner) visa."

The Primary Judge's Decision 12 The learned primary judge said at [15] that the focus of the appellant's submissions was upon the contention that the MRT had erred in its construction of the phrase "compelling circumstances". He referred, earlier in his reasons at [11], to the construction put forward by the appellant. This was taken from the New Oxford Dictionary and was "evoking interest, attention … in a powerfully irresistible way". 13 His Honour's conclusions were as follows: [16] "I am satisfied the Tribunal mistakenly adopted a meaning of "compelling" apt to describe the present participle of the verb "to compel" and did not resort to the meaning the word "compelling" has as an adjective. The question that arises is whether this resulted in jurisdictional error. I am not satisfied that the approach adopted by the Tribunal discloses jurisdictional error. The Tribunal appears to have approached the matter on the basis that somehow it had to be sufficiently moved by the circumstances established by the applicant to exercise the power to waive the prohibition in reg 1.20J(1) in favour of the applicant. It is not entirely clear whether it proceeded on the footing that it might be required to assess its subjective response or reaction to the circumstances. That view might be open because it indicated in the penultimate sentence in [42] that it felt sympathy and compassion for the applicant but that, as indicated in the next sentence, it was not forced or driven to waive the prohibition. The better view, however, is that it was then simply expressing its sympathy towards the applicant (as it had done earlier in its reasons) before moving on to consider whether the material revealed "compelling circumstances" affecting the applicant. [17] The Tribunal's choice of words, whether it was "forced or driven to waive the prohibition", was curious (but understandable because of an earlier decision of the Tribunal in Re David James Shannon (IRT Decision No. W98/00234, 12 January 1999) which adopted that formulation and to which the applicant referred in written submissions submitted to the Tribunal). Nevertheless, it reveals an approach consistent with what is required. That is, the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal. Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship. [18] In addition, the way the Tribunal actually went about assessing the circumstances indicates that it did not misunderstand its function. It may well be, as the applicant sought to demonstrate, that the Tribunal did not deal with all material as precisely as it could have with regard to the case advanced by the applicant. However, whatever deficiencies the Tribunal's reasons reveal in its analysis, they do not demonstrate error of the character that would constitute jurisdictional error. The Tribunal was aware of what it had to do, went about assessing the material with that in mind and made a decision applying an appropriate test." Discussion 14 The appeal turns on a very short point. Mr Gageler SC, for the appellant, submitted that the learned primary judge was correct in finding that the RRT wrongly considered "compelling" to mean "to force or drive [the MRT] especially to a course of action." He submitted that this was an error of law and that the error led the MRT to decide that it was "not compelled" to exercise the discretion without deciding whether there were "compelling circumstances". 15 Accordingly, it was submitted by Mr Gageler that the MRT's error of construction caused it to ask the wrong question which amounted to jurisdictional error within the well known authorities. 16 Mr Beech-Jones, for the Minister, submitted that the distinction to which the appellant points is a distinction without a difference. He submitted that the various shades of meaning between the dictionary definitions are not to the point. This is because on any view, the MRT must decide, as a jurisdictional fact, whether the circumstances are so compelling as to lead it to exercise its discretion to waive the prohibition in Regulation 1.20J(1). 17 Mr Beech-Jones further submitted that the MRT had addressed each of the circumstances put forward by the appellant and rejected them before returning in the passage set out at [11] above to find that there were not compelling circumstances affecting the appellant. 18 Moreover, Mr Beech-Jones submitted that the expression "compelling circumstances" was a question of fact rather than one of law. He relied on the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [33] - [37]. That case was not concerned with the meaning of "compelling circumstances" but with the question of whether a tribunal had committed jurisdictional error in adopting the meaning of a phrase which was said to have been incorrectly construed by another court. 19 McHugh J observed that adopting an incorrect interpretation is not always synonymous with jurisdictional error and that the ordinary meaning of a term is a question of fact. 20 It is unnecessary to decide whether the meaning of "compelling circumstances" is a question of law or of fact. This is because in our opinion it cannot be said that the construction which the MRT placed on the expression was wrong, or, at least, was so wrong that it failed to address the statutory purpose of Regulation 1.20J(2). 21 In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word "compelling". 22 In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb "to compel". We respectfully disagree with the learned primary judge's view of this. 23 In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that "compelling circumstances" were those which "forced or drove" or "compelled" a particular result. 24 There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of "compelling". But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived. 25 We do not consider that the definition of "compelling circumstances" adopted by the MRT deflected it from deciding the question it had to decide. It is plain that the MRT addressed all of the circumstances put forward by the appellant as affecting him. It considered whether each of the circumstances alone or together "compelled" the exercise of the discretion. We can see no error in this, let alone jurisdictional error. Orders 26 The appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Conti and Jacobson.

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