Braganza v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Migration Review Tribunal ("MRT") dated 24 April 2002 affirming a decision of a delegate of the Minister. The delegate refused to grant the applicant a Family (Residence) (Class AO) visa. The delegate's decision refusing to grant the visa was made on 20 September 1999. 2 The application for judicial review is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). 3 The application for review by the MRT of the delegate's decision was lodged on 11 October 1999. It was accompanied by an application for waiver of the lodgement fee. The application for waiver was refused by the MRT. The applicant applied to the Court for a review of the waiver refusal. That application was refused at first instance but allowed on appeal. 4 The decision of the Full Court to allow the appeal on the fee waiver question was given on 28 March 2001. On that date, the Full Court remitted the matter to the MRT. 5 The application for judicial review of the MRT's decision of 24 April 2002 was filed on 10 May 2002. 6 The decision of the MRT was governed by the amendments to the Migration Act 1958 (Cth) ("the Act") which came into effect on 2 October 2001. The decision is a privative clause decision within the meaning of s 474(2) of the Act. Background Facts and Claims 7 The applicant is a citizen of India. He entered Australia on 8 February 1998. At that time, he was a permanent resident of New Zealand. 8 On 28 October 1998, he signed an application for a Family (Residence) Class Visa. The application was filed on or about 5 November 1998. 9 The applicant's claim for a visa was made as a "special need relative" of his sister, Mrs Jeanne Patricia Fernandez, who nominated him for the visa. At the time of the application, Mrs Fernandez was a permanent resident of Australia. She had been a permanent resident since 9 February 1998, that is, for a period of approximately 9 months as at the date of her brother's application for the visa. 10 The ground upon which it was said that the applicant was a special need relative of Mrs Fernandez was that she needed her brother's assistance to care for their mother, Mrs Sybil Enid Braganza. 11 Mrs Braganza suffers from a severe respiratory condition. She was 74 years old at the time of the visa application. Mrs Braganza is a citizen of India. She has applied for permanent residency of Australia but her application was refused. An application for review of the decision was under consideration by the MRT when it handed down its decision in Mr Braganza's application. 12 There are a number of different sub-classes of Family (Residence) Visas. Mr Braganza's application was dealt with by the delegate and by the MRT under sub-class 806. It was not suggested that any other sub-class was applicable. 13 Clause 806.213 of the Regulations made under the Act sets out criteria for an application for this class of visa. The criteria included a requirement that, at the time of the application, the applicant be a "special need relative" of the nominator who was required to be "a settled Australian permanent resident". 14 The terms "special need relative" and "settled" are defined in Regulation 1.03 as follows:- "'special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia; 'settled' in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period" (emphasis added) 15 The Regulations do not define or spell out the length of, or the matters to be taken into account in determining, a reasonable period. 16 However, at the time when the matter was dealt with by the MRT, there was a Migration Series Instruction ("MSI") 205, a policy statement produced by the Department of Immigration and Multicultural and Indigenous Affairs. MSI 205, par 7.4, stated that: "Regulation 1.03 defines "settled" as meaning lawfully resident in Australia for a reasonable period. Under policy, it can be said that in normal circumstances, two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis." 17 When the visa application was dealt with by the delegate, there was a departmental policy statement in force which was in similar terms to MSI 205. 18 There was evidence before the MRT to support the claim that the applicant was a special need relative. The evidence was that Mrs Braganza needed full time care for her respiratory condition, that the applicant had carried out this role since November 1998 and that, although Mrs Fernandez provided assistance, she was unable to do so on a full-time basis. This was because Mrs Fernandez was a working mother with two school age children. 19 The applicant is unmarried and there was evidence that he was living with his mother in a two bedroom home unit. There was also evidence that it was necessary to house Mrs Braganza separately from Mrs Fernandez because of Mrs Braganza's propensity to chest infections. Mrs Fernandez made a statutory declaration which included a statement that her mother had suffered a serious pneumonia attack in March 1999. Mrs Braganza had been hospitalised for pneumonia in November 1998 and her daughter was concerned to ensure that, since at that time she and her family had influenza, her mother should not share accommodation with them. 20 Mrs Fernandez, as the nominator of the applicant, had not been lawfully resident in Australia for two years at the time of the application. Nevertheless, her statutory declaration contained evidence to substantiate her claim that she was lawfully resident in Australia for a reasonable period. 21 The evidence was that she and her spouse were both working in paid employment; that they owned a car and household goods; that one of their children was attending a private college and that the other was attending high school; she filed tax returns, had a bank account and a share certificate. Mrs Fernandez also stated that she had strong family ties in Australia because her mother and three close relatives were Australian citizens who had lived in Melbourne for many years. 22 Mrs Fernandez's statutory declaration also declared that she would qualify for Australian citizenship in February 2000. By the time the MRT handed down its decision, she had become an Australian citizen. 23 The last matter was relevant because the Regulations provide that the nominator must satisfy the criteria at the time of the application and must continue to do so at the time of the decision. The MRT decision 24 At [5] the MRT stated that it was bound by the Act, the Regulations and written directions issued by the Minister under s 499 of the Act. There were no such directions in the present case. Nevertheless, the MRT observed in the same paragraph that some matters may be the subject of Departmental policy as found in MSIs and that the MRT was required to have regard to policy and to apply it unless there were "cogent reasons" for departing from it. 25 At [10] to [12] the MRT referred to the applicant's background details including his visa application. The MRT also referred to Mrs Fernandez's nomination of her brother for permanent residency and the reason why she needed his assistance as a carer for their mother. 26 The MRT referred at [13] to Mrs Fernandez's statutory declaration and, in particular, to her statement that she was married with two children, that she was unable to provide full time care because of her various duties and that her brother had provided the assistance which their mother required. 27 There was medical evidence to support the claim that Mrs Braganza had a long term or permanent need for assistance. This was referred to by the MRT at [14]. 28 As to the claim that the nominator was "settled", the MRT said at [16] that the applicant accepted that a nominator who had lived in Australia for less than two years is not usually able to fulfil the responsibility of a sponsor. The MRT went on to say in the same paragraph:- "He claims, however, that if the sponsor can demonstrate that they are well established in Australia they may be able to sponsor their relation after a short period of time. He states that the nominator and her family are economically and financially stable, as both the nominator and her husband are employed. Tax file returns, bond, and FDS statements were provided as evidence." 29 The MRT pointed out at [24] that one of the criteria to be satisfied by an applicant for a sub-class 806 visa was contained in clause 806.213. That clause provided, in part, that the visa applicant be a "special need relative" of the nominator. The MRT set out the definitions of "special need relative" and "settled" contained in Regulation 1.03. 30 The MRT accepted at [28] that it was necessary to address each aspect of the definition of "special need relative". As to the requirements of clause 806.213 that the nominator be settled, the MRT stated at [28] that Mrs Fernandez had been resident for nine months at the time of the application. The MRT did not refer in this paragraph to the matters upon which the applicant relied to support his contention that the case should fall within the exception to the two year rule. 31 In the balance of [28] the MRT dealt with the other criteria for establishing that the applicant was a special need relative. The MRT accepted at [28] and [29] that Mrs Braganza had a permanent or long-term need for assistance because of her medical condition. The MRT seems to have accepted at [28] that the applicant was willing and able to provide the necessary assistance. However, it is not clear from [28] whether the MRT accepted that this assistance could not reasonably be obtained from anyone else. 32 In [29] the MRT said that a hearing with oral evidence had taken place on 19 March 2002. It listed, without providing any detail, documentary evidence tendered at the hearing. The list included Mrs Fernandez's statutory declaration and a copy of her certificate of Australian citizenship. 33 The only reference to the oral evidence given before the MRT was the migration history of the applicant and his sister which confirmed the details set out in the departmental files; at [30] and [31]. 34 The whole of the MRT's reasoning was contained in [32]. The paragraph is long but I will set it out in full as follows:- "In issue in this review is whether or not the nominator was 'settled' in Australia at the date of this application as that word is understood in regulation 1.03. The meaning of the word 'settled' is not defined in the regulations. The Tribunal has read the comments of Lord Scarman in R. v. Barnet London Borough Council; ex parte Shah but notes that most of the comments in that decision relate to the meaning of 'usually resident' or 'settled purposes'. MSI 205 defines 'settled' as meaning lawfully resident in Australia for a reasonable period. What is a 'reasonable period' is not defined. Under policy, it can be said that in normal circumstances two years is considered to be a reasonable period before an Australian resident can lodge an application for permanent residence for another person but that there may be exceptions and the facts of each review must be considered. The Tribunal finds that the particular facts in this review are that the visa applicant is caring for an ailing parent but that there is another member of the family unit who has cared for the parent in the past and still performs some of these functions. On the facts as provided by the visa applicant there appears to be no cogent reason why, in this review, the Tribunal should waive the requirement that the nominator be resident in Australia for a 'reasonable period'. A period of nine months falls short of the period that Departmental policy envisages as reasonable. Consideration of the specific facts and circumstances of the review do not reveal facts such as would justify departure from Departmental policy. The Tribunal is mindful of the fact that Departmental policy is not binding on the Tribunal. The Tribunal has noted the comments of Brennan, J. in Re: Drake with respect to the precise part which government policy should ordinarily play in the determinations of the Tribunal. His Honour's view was to the effect that it is a matter for the Tribunal itself to determine the part which policy plays in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. Further, His Honour was of the view that there are powerful considerations in favour of a Minister adopting a guiding policy, among other considerations, because adoption of a policy diminishes inconsistencies in decision-making which might otherwise appear. In light of these comments as well as the specific facts in this review the Tribunal is of the view that the decision of the delegate is the correct and preferable decision." The applicant's submissions 35 Dr Griffiths SC and Dr Kirk appeared for the applicant. Their written submissions said that the MRT's reasons were attended by five errors of law. Dr Griffiths addressed these issues in oral argument. The errors of law were said to be:- (i) that in [32] the MRT incorrectly identified MSI 205 as the source of the definition of the word "settled". (ii) the MRT incorrectly interpreted its task as being to determine whether there were "cogent reasons" why it should "waive" the two year residency requirement. (iii) As a result of the error referred to in (ii), the MRT approached the matter upon the basis that the applicant had the onus of establishing that the two year residency requirement should be waived. (iv) The MRT applied the policy stated in MSI 205 as though it were a rule. (v) Since the MRT misdirected itself as to the effect of MSI 205, it did not determine for itself whether Mrs Fernandez had been a permanent resident for a "reasonable period" as required by Regulation 1.03. 36 Mr Lloyd, who appeared for the Minister, submitted that the MRT made no material error of law. He said that, in any event, the decision was immune from review because of the effect of s 474 of the Act. MSI 205 as the source of the definition 37 The MRT correctly identified Regulation 1.03 as the source of the definition of the word "settled". Indeed, it did so on two occasions at [25] and [26]. In the last mentioned paragraph, it had underlined the words "reasonable period". 38 Nevertheless, the applicant submitted that the MRT became confused about the source of the definition because it stated incorrectly in [32] that MSI 205 defined the word "settled". This was said to have caused the MRT to ask itself the wrong question because it saw MSI 205 as the source of the definition and the source of the two year rule. 39 I do not accept this submission. It seems to me that, on a fair reading of the whole of the MRT's decision, it was aware that the definition was stated in the Regulations and that the policy was contained in the MSI. It said so in [25], ]26] and [27]. Moreover, in [32], the MRT said that the phrase "reasonable period" is not defined, that in "normal circumstances" two years is a reasonable period but there may be exceptions and the facts of each case must be considered. The MRT therefore asked itself the right questions. 40 In my view, it follows that the reference to MSI 205 as the source of the definition in [32] was no more than a slip in the MRT's statement of reasons. To treat it otherwise would be to ignore the well established rule against over-zealous scrutiny of the administrative decision maker's reasons; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Cogent Reasons 41 The MRT referred to "cogent reasons" twice. The first was at [5]. The second was at [32] where it said that there appeared to be no cogent reason why it should "waive" the requirement that the nominator be resident for a "reasonable period". 42 The applicant relies on the MRT's statement in paragraph [32] for the submission that the MRT wrongly understood its task to be whether there were cogent reasons why it should waive the requirement of a reasonable period of residency. 43 There is force in this submission. It is not over-zealous to suggest that the MRT should at least express its task in language which accurately states the language of the policy statement which it applied to the facts. 44 Nevertheless, I have come to the view that on a fair reading of the whole of [32], the MRT correctly understood that its task was to consider the facts in order to determine whether the applicant satisfied the "reasonable period" test in light of the departmental policy statement. 45 The MRT's reference at [32] to the words "no cogent reason" to "waive" the residency period was contained in a sentence which commenced with the words "On the facts provided by the visa applicant". The MRT referred later in the paragraph to "[c]onsideration of the specific facts and circumstances of the review". These matters, in particular, seem to me to support the view that the MRT asked itself the right question. Onus of establishing waiver 46 The applicant submitted that this error came about because the MRT was looking for cogent reasons to depart from the usual two year policy. It therefore, according to the applicant, placed an onus on him to establish that the "requirement" should be waived. 47 In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 ("Re Drake") at 640, 641, 642, 644-645, Brennan J considered, at some length, the consideration in favour of administrative decision-makers adopting a guiding policy. His Honour referred to the value of consistency in decision-making but said that each case must be decided on its merits. His Honour also said that, of course, a policy must be consistent with the statute. There is no suggestion that MSI 205 is inconsistent with Regulation 1.03. At page 645, Brennan J stated:- "These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. … When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny." (emphasis added) 48 It follows in my view that there was no error by the MRT in the use of the expression "cogent reasons" which reflects the wording of, and the principles stated by Brennan J in Re Drake. Nor can it be said that the use of this expression led the MRT to place an improper onus of proof on the applicant. 49 As I have said above at [39] and [44], the MRT understood that it had to consider whether, on the facts before it, Mrs Fernandez had resided in Australia for a reasonable period. There was no error in using the policy statement as a guide so long as the MRT asked itself whether to apply the guideline to the facts of the case. 50 It seems to me that on a fair reading of [32] the MRT understood that its task was to come to the correct decision on the facts guided by the policy statement. 51 The effect of the MRT's approach seems to be that it required the applicant to satisfy an evidentiary onus of showing why Mrs Fernandez should not be subject to the "normal" two year requirement. In my opinion, this approach is consistent with the principles stated by Brennan J in Re Drake. 52 However, in my opinion, the real issue in the case is whether the MRT actually undertook the task which it was bound to carry out. That is, did it consider the merits or did it simply apply the policy without regard to the merits of the case? 53 The question of whether the MRT fell into this error is raised by the applicant's fourth and fifth submissions which I will deal with together. Whether the MRT applied the policy as a rule and whether it considered the facts 54 The MRT referred to the facts of the case three times in [32]. First, it said that "the particular facts" were that the applicant was caring for an ailing parent but that Mrs Fernandez had cared for her mother in the past and was continuing to perform some of the necessary functions. This was the only specific reference to the facts in the paragraph. 55 Second, the MRT said that "[o]n the facts as provided by the visa applicant", there was no cogent reason for waiving the two year requirement. Third, the MRT said:- "Consideration of the specific facts and circumstances of the review do not reveal facts such as would justify departure from Departmental policy." 56 There was evidence before the MRT in Mrs Fernandez's statutory declaration that Mrs Fernandez had been resident in Australia for a reasonable period. This evidence was set out in paragraph D of her statutory declaration which appears at page 107 of the "green book". The paragraph commenced with the words "[t]o substantiate the clause of "settlement factor" under the nominator's or sponsor's entitlement". 57 The MRT referred to this at [16] of its reasons and I have quoted the passage at [28] above. 58 There is no specific reference to this evidence in [32] of the MRT's reasons. The question which arises is whether the generalised references to "the facts" indicates that the MRT actually carried out the task of considering the merits of the case by determining whether those facts were sufficient to show "cogent reasons" why the ordinary two year rule should not apply to Mrs Fernandez. 59 What was required of the MRT was for it to give "proper, genuine and realistic consideration" to the merits of the application and to be ready in a proper case to depart from the policy; per Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs (Gummow J, 11 December 1987, unreported) at 11-12, quoted and approved by Hill J in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98. 60 In Rendell v Release on Licence Board (1987) 10 NSWLR 449 at 504, 506, the New South Wales Court of Appeal adopted a similar approach when it referred to the requirement of an "individualised decision" in each case. 61 In my view, the reasoning of the MRT does not indicate that it gave proper, genuine and realistic consideration within the test stated by Gummow J. To do so, it would have been necessary for the MRT to reveal some analysis of the facts relied upon by the applicant. 62 I do not think that this view is based upon an over-zealous reading of [32]. The only reference to the specific facts of the case is to facts which do not bear upon the question of whether Mrs Fernandez's period of residency was sufficient. Accordingly, I cannot be satisfied that the two other references, in generalised terms, indicate that the MRT gave the requisite degree of attention to the merits. 63 In my opinion, the reasoning of the MRT is not saved by the reference at [16] to some of the matters which were contained in Mrs Fernandez's statutory declaration. This is because there is nothing in that paragraph or in paragraph [32] to indicate that the MRT analysed those facts in a way which would satisfy the test stated by Gummow J. For the same reason, the MRT's decision is not saved by the reference in para [29] to the list of items which were before it. 64 It follows in my view that the decision was affected by an error of law because I cannot be satisfied that the MRT did not slavishly follow the terms of MSI 205 by giving insufficient attention to the merits of the case. S 474 65 The question which arises is whether the MRT breached an "inviolable limitation" in Part 5 of the Act. There was no suggestion that the three Hickman provisions had not been satisfied. 66 The applicant submitted that there was an inviolable limitation in ss 348 and 353 of the Act which required the MRT to consider the merits of the application. Senior counsel for the applicant called it an "imperative duty" which he said was to be found, in particular, in ss 348(1) and 353(2)(b). 67 Section 348(1) provides that if an application is properly made for a review of an MRT-reviewable decision, the MRT must review it. 68 Section 353(2)(b) provides that the MRT, in reviewing a decision, shall act according to "substantial justice and the merits of the case". 69 There are equivalent provisions in Part 7 for the review of RRT-reviewable decisions. These are contained in ss 414 and 420. 70 The effect of the majority approach of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 is that once the jurisdiction of the MRT is attracted by a valid application, s 474(1) of the Act expands the jurisdiction of the MRT so that irregularities, whether consisting of errors of fact or law, are immune from review so long as the Hickman provisos are satisfied; NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, per Sackville, Hely and Stone JJ, at [24]; Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108 ("Zahid"), per Sackville J, at [73] to [84]. 71 In Zahid, Sackville J at [80] rejected a submission that a distinction is to be drawn between, on the one hand, a failure by the MRT to ask itself the correct question and, on the other hand, a failure to turn its mind to the applicant's claims. 72 The applicant sought to overcome these difficulties by contending that his complaint was not as to the manner of exercise of jurisdiction. Rather, he submitted that the review by the MRT was not a review at all. This was because the MRT had failed to "come to grips with the substance and merits" of the application before it. These words were taken from the decision of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Lindgren J, 6 May 1997, unreported) ("Sun Zhan Qui"). Those words were quoted by his Honour from the decision of Foster J in Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 295. 73 In my view, it cannot be said that even if the MRT failed to come to grips with substance and merits of the case it thereby breached the provisions of s 348(1). It is plain that the MRT did "review the decision" although, in my view, its decision was affected by an error of law. It does not follow that that the MRT failed to review the decision of the delegate; see SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 at [19] per Mansfield J. 74 The applicant's submission that the requirement of s 353(2)(b) that the MRT act according to substantial justice and the merits of the case constitutes an inviolable limitation seems to me to be contrary to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 ("Eshetu"). 75 It is true that Eshetu was not concerned with the effect of the privative clause. However, the case is authority for the proposition that s 420 (which is the equivalent of s 353) did not lay down procedures which were required to be observed under s 476(1)(a) of the Act as it stood before the enactment of the privative clause. 76 The joint judgment of Gleeson CJ and McHugh J at [49], the judgment of Gummow J at [108] - [109] and the judgment of Callinan J at [176] - [178] all referred with approval to Lindgren J's explanation in Sun Zhan Qui of the history and statutory purpose of provisions such as s 420. Lindgren J's judgment was not limited to the provisions of s 420(1). It included an examination of s 420(2)(b); see per Callinan J at [178]. 77 The history and construction of s 420, as analysed and explained by Lindgren J and approved by the judgments of the High Court to which I have referred, are inconsistent with the proposition that s 353(2)(b) gives rise to an inviolable limitation which would exclude the operation of s 474 of the Act. 78 Moreover, there is authority in this Court that s 420 (and therefore s 353) does not constitute an inviolable limitation on the exercise of a tribunal's powers; see SAAZ at [31] per Mansfield J. 79 It follows in my opinion that the effect of s 474(1) of the Act is that the applicant's claim for relief must be dismissed. 80 I should add that it is unfortunate that there was a delay of approximately two years in the determination of the application for review by the MRT. The delay was caused by the error of the MRT in refusing to waive the application fee. The result of the delay is that the application was determined under the provisions of the Act which came into force on 2 October 2001. Nevertheless, the delay cannot prevent the operation of s 474(1) in accordance with its terms. 81 Finally, it is somewhat ironic that, although Mrs Fernandez was found not to be "settled", she became an Australian citizen before the decision was handed down. However, that cannot affect the MRT's decision because its task was to determine Mrs Fernandez's status at the time of the application. Orders 82 The orders I propose to make are that the application is to be dismissed with costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.