Hu v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The question raised by this application is whether the Migration Review Tribunal was correct when, in the course of reviewing a decision of the Minister or his delegate to refuse to grant the applicant a visa, it decided that it does not have jurisdiction to review a decision made under reg 1.20H of the Migration Regulations 1994 (Cth) to approve the nomination of an activity under reg 1.20G by a person who does not operate a business in Australia. To understand how the issue arises, and the significance of the issue, it is necessary first to say something about the facts and the relevant statutory and regulatory provisions. 2 The applicant, Mr Hu, applied for the grant of a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa in 1998. The criteria for the grant for that subclass of visa are found in Pt 457 of Sched 2 to the Migration Regulations. One criterion is that the applicant satisfies the requirements of one sub-clause of cl 457.223, other than sub-cl (1): see sub-cl 457.223(1). The applicant claimed to meet the requirements of sub-cl 457.223(6). In summary, an applicant will meet the requirements of that sub-clause if (a) he proposes to be employed in Australia by a person who does not operate a business activity in Australia, (b) the business activity is the subject of an approved business nomination by the proposed employer, and (c) the proposed employer is a person whom the Minister is satisfied would be likely to be approved as a standard business sponsor. 3 The nomination and approval of business activities is governed by regs 1.20G and 1.20H. In the case of a person who does not operate a business in Australia, the nomination may only be made by a person whom the Minister is satisfied would be likely to be approved as a standard business sponsor: reg 1.20G(1)(d)(ii). 4 The approval of a person as a business sponsor is governed by reg 1.20D. If the criteria in reg 1.20D(2) are satisfied, the Minister must approve an application for approval as a business sponsor. One of the matters that an applicant for approval must show is that it will introduce to, or utilise or create in, Australia new or improved technology or business skills or that it has a satisfactory record of, or commitment towards, training Australian citizens and Australian residents in its business operations in Australia: reg 1.20D(2)(c). 5 In 1998 the applicant was employed in Australia as the managing director of Austasia Trading Enterprises Pty Ltd, a company incorporated in Australia. Hua Xiao Material Machinery Complete Set Company, a company established in China, was a major shareholder in Austasia Trading Enterprises. The Hua Xiao Company, which proposed to employ the applicant, lodged an application for approval as a business sponsor at the same time as the applicant lodged his application for a temporary Business (Long Stay) visa. The regulations do not enable a person who is not lawfully operating a business in Australia to be approved as a business sponsor: see reg 1.20D(2). As the Hua Xiao Company was not operating any business in Australia, its application was bound to fail. However, the Minister, by his delegate, treated the application as if it were a nomination of an activity made under reg 1.20G. If that application were approved under reg 1.20H then the applicant would have satisfied the requirements of sub-cl 457.223(6). 6 Both the visa application and the nomination were considered by the same delegate of the Minister on 23 March 1999. The delegate decided, first, to refuse to approve the nomination of the activity made under reg 1.20G. The reason given was that the delegate was not satisfied that if the Hua Xia Company had operated a business in Australia it was likely to be approved as a standard business sponsor. The basis for this finding was that the delegate was not satisfied that the company had, or would introduce to, utilise or create in, Australia new or improved business skills or new or improved technology and the company had not established that it had a satisfactory training record or demonstrated a commitment to training Australian citizens or permanent residents in its Australian operations. 7 The delegate then turned to the visa application. As the applicant did not satisfy the requirements of sub-cl 457.223(6), it not being suggested that he could satisfy any of the alternative requirements of cl 457.223, the delegate was bound to refuse to grant the visa sought. That is the decision that he reached. 8 When the decision to refuse the visa was made, the decision was a "Part 5 reviewable decision" in accordance with para (a) of the definition of that expression in s 337 of the Migration Act 1958 (Cth), as then in force. Subject to certain immaterial exceptions, a Part 5 reviewable decision was an "internally-reviewable decision" within the meaning of s 338: see s 338(1). The Migration Act made provision for the de novo review of internally-reviewable decisions in Div 2 of Pt 5. Upon application properly made under s 339, a review officer (as defined in s 337) was obliged to review an internally-reviewable decision: see s 340. For that purpose the review officer could "exercise all the powers and discretions that are conferred by [the Migration] Act on the person who made the decision": s 341(1). The review officer could affirm the decision, vary the decision, remit the decision for reconsideration in accordance with such recommendations as were permitted, or set the decision aside and substitute a new decision: s 341(2). 9 A decision made by a review officer under s 341 was an "IRT-reviewable decision" by reason of s 346(1)(a) and, on application made under s 347, was reviewable by the Immigration Review Tribunal pursuant to s 348. As with the review officer, the Immigration Review Tribunal could, for the purposes of its review, "exercise all the powers and discretions that were conferred by [the Migration Act] on" the review officer (s 349(1)) and it could also affirm the decision, vary the decision, remit the matter for reconsideration in accordance with such directions or recommendations as were permitted, or set the decision aside and substitute a new decision (s 349(2)). 10 On the other hand, the decision under reg 1.20H to refuse to approve the nomination of an activity under reg 1.20G was not a Part 5 reviewable decision that a dissatisfied applicant could take to the review officer. Nor was it an IRT-reviewable decision that could be reviewed by the Immigration Review Tribunal. 11 The Minister had established "interim administrative arrangements for the reconsideration of sponsorship and nomination decisions" made under reg 1.20D (approval as business sponsors), reg 1.20E (renewal of approvals as pre-qualified business sponsors), reg 1.20F (revocation of approval as business sponsor) and reg 1.20H. Those arrangements were based upon s 33(3) of the Acts Interpretation Act 1901 (Cth): see my discussion in Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830 at [6]. In accordance with those arrangements, certain persons, including "the persons occupying or for the time being occupying and performing the duties of a position in the Immigration Review Tribunal" were delegated all of the Minister's powers under these particular regulations. The instrument of delegation is dated 12 November 1996 and was made under reg 1.16. However, in the case of a decision to refuse a business nomination under reg 1.20H, the "administrative arrangements" only applied to a decision where the applicant was "onshore". That is to say, the "administrative arrangements" applied only in the case of a business nomination lodged by a person who was lawfully operating a business in Australia. It is not necessary for me to decide whether the policy to confine the reconsideration of decisions under the relevant regulations to "onshore" applicants was lawful. 12 The practical result was that a decision made under reg 1.20H in respect of an "offshore" applicant could not be reconsidered on its merits. However, it was amenable to judicial review by the Federal Court under s 476, the decision being a "judicially reviewable decision" under s 475(1)(c) (being a decision made under the Migration Regulations relating to visas). The review of a judicially reviewable decision by the Federal Court is not a de novo review of the decision. Review is confined to certain narrow grounds as set out in s 476. 13 Application was made under s 339 for a review officer to review "the decision to refuse [the applicant's] application for 457 visa". No separate application was made, either by the applicant or the Hua Xiao Company, to review the decision under reg 1.20H to refuse to accept the nomination under reg 1.20G. Moreover, the review officer was not requested to review that decision as part of his review of the decision to refuse to grant the visa. 14 On 3 May 1999 the review officer affirmed the decision to refuse to grant the visa. In his reasons, the review officer explained: "Although there is an obvious link between a subclass 457 application which is based on sponsorship and nomination by an Australian employer pursuant to regulation 1.20D, the visa decision is a separate matter from decisions taken on sponsorship and nomination. It is evident that this is so from several factors, including …that separate and different review processes have been established … for reconsideration of eligible Standard Business Sponsorships and Nominations. … However, these special arrangements [a reference to the interim administrative arrangements] are explicitly limited to sponsorships/nominations from businesses operating in Australia, that is to say, it is government policy that businesses outside Australia are not to have access to the special reconsiderations arrangements … . That in turn means that the decision to refuse the business nomination in this case cannot be reconsidered under the present arrangements." It followed that the review officer could only affirm the decision under review. This is what he did. 15 On 11 May 1999 the applicant applied to have the decision of the review officer reviewed by the Immigration Review Tribunal. Before that application could be heard, the Migration Act was amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth), the relevant provisions of which came into force on 1 June 1999. Among the changes brought about by the 1998 Amendment Act was the replacement of the Immigration Review Tribunal by the Migration Review Tribunal. By item 41(1) of Sched 1 to the 1998 Amendment Act, an application to the Immigration Review Tribunal for the review of an IRT-reviewable decision which had been determined was taken to be an application made to the newly-constituted tribunal. In this way the application to review the decision of the review officer came before the Migration Review Tribunal. 16 It is interesting to note another change made by the 1998 Amendment Act and the Migration Amendment Regulations 1999 (No 4) (Cth). Under s 338(9) (one of the provisions introduced by the 1998 Amendment Act) and reg 4.02(4) (introduced by the Amendment Regulations) the Migration Review Tribunal was given jurisdiction to review decisions made under reg 1.20D to reject a person's application, decisions made under reg 1.20E to refuse to renew the approval of a person, decisions made under reg 1.20F to revoke the approval of a person and decisions made under reg 1.20H to refuse to approve the nomination of an activity by a business sponsor. The definition of "business sponsor" is such that the Migration Review Tribunal does not have jurisdiction to review a decision that is made on the application of an "offshore" applicant: regs 4.02(1), 1.20B and 1.20D. It also interesting to note that, in the case of a decision made under reg 1.20H, an application for review can only be made by the business sponsor to whose nomination of an activity the decision relates: reg 4.02(3). 17 The applicant says that both the review officer and the Immigration Review Tribunal, in the course of the review of the decision to refuse to grant the visa, had power to reconsider or review the decision to refuse the nomination of an activity. (The argument proceeded upon the basis that, unless the applicant could show that the Immigration Review Tribunal had that power, he could not establish the existence of the power in its successor, the Migration Review Tribunal). The principal reason why the power was said to be vested in the review officer and the Immigration Review Tribunal was as a necessary adjunct or incident to the power to review the visa decision. Put another way, the argument was that in the absence of a power to review or reconsider the nomination decision, there was not, in the circumstances of a case such as this, any real power to review the visa decision. All that the decision-maker (either the review officer or the Immigration Review Tribunal) could do, in the absence of the power, was to affirm the decision under review. 18 In the alternative, the existence of the power to review the nomination decision by the review officer and the Immigration Review Tribunal was sought to be grounded in the legislation. It was pointed out that if the Minister had power to "reconsider" decisions made under the Regulations, including reg 1.20H, in the case of applications made by "onshore" applicants, a similar power must exist in the case of applications made by "offshore" applicants. Accordingly, so the argument went, because each of the review officer and the Immigration Review Tribunal could "for the purposes of the review … exercise all the powers and discretions that are conferred by [the Migration] Act on the person who made the decision" (see ss 341 and 349 respectively), each could exercise the power of the Minister "to reconsider" the nomination decision in the case of an application made "offshore". 19 In my opinion, neither the review officer nor the Immigration Review Tribunal could go behind a decision made by the Minister or his delegate under reg 1.20H to refuse to approve a nomination of an activity under reg 1.20G. Let me deal with the position of the review officer first. Relevantly the review officer could only consider a "decision to refuse to grant a non-citizen a visa" (para (a) of the definition of "Part 5 reviewable decision"). The refusal to approve a nomination made under reg 1.20G is not a decision to refuse to grant a non-citizen a visa, although it would, if an applicant for a temporary Business (Long Stay) visa were not able to satisfy any other criterion in cl 457.223, inevitably lead to such a decision. Thus the Minister's decision was not reviewable by the review officer. That the visa decision and the nomination decision are separate, and that each decision may be the subject of a different regime for review, is confirmed by cases such as Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632 and Tam Anh Bui v Minister for Immigration and Multicultural Affairs(1998) 52 ALD 536. 20 Although the Minister may have had the power to "reconsider" the nomination decision in the course of dealing with an application for a temporary Business (Long Stay) visa (for present purposes I will assume that such power did exist, although the visa decision was taken by a delegate and not by the Minister), it does not follow that the review officer could exercise that power by reason of s 341. The decision that was committed to the review officer was the decision to refuse the visa to the applicant. For the purpose of the review of that decision, and only that decision, the review officer could exercise the powers and discretions that were conferred by the Migration Act on the person who made the decision. Although the decision was taken by a delegate it is proper to regard the relevant person as the Minister for this purpose. That does not mean, however, that the review officer had all of the powers that are conferred on the Minister by the Migration Act. Section 341(1) gives to the review officer only such of the powers and discretions that are conferred on the Minister as may be necessary to properly and effectively consider the issue that had been committed to him: Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (1978) 1 ALD 167. So, for example, the review officer could exercise the power to obtain information (s 56) or invite comment or information (s 58) or require an applicant to attend a medical examination (s 60). See also s 342 which provides, in substance, that Subdiv AB of Div 3 of Pt 2 of the Migration Act (where ss 56, 58 and 60 are found) is to be read as if the reference to the Minister were a reference to the review officer, and a reference to an applicant for a visa were a reference to an applicant for review. Section 341(1) does not authorise the review officer to reconsider a decision made by the Minister (or his delegate) under reg 1.20H (or for that matter any other regulation) and substitute a new decision in its place. If it had been intended that the review officer have that power, specific statutory provision would be required. 21 With one possible qualification, the position of the Immigration Review Tribunal, which could only review a decision of the review officer under s 342 in relation to a "decision to refuse to grant a non-citizen a visa" (s 346(1)(a)), was the same as that of the review officer as regards the decision to refuse the nomination, namely the Immigration Review Tribunal did not have power to "reconsider" that decision. The qualification arises from the case of Bellaiche v Department of Immigration and Ethnic Affairs (1998) 51 ALD 356. The applicant had applied for a class 816 visa, one requirement of which was that the applicant held overseas trade qualifications or had work experience assessed to meet Australian education or training standards for that trade. The assessment could be made by the Department of Industrial Relations (DIR), an appropriate State or Territory authority, or the Minister. The DIR misconstrued the regulatory requirements and wrongly decided that the applicant did not have the appropriate qualifications. Because the DIR informed the Minister that the applicant did not possess the relevant requirements he was refused a class 816 visa. The applicant applied to the Immigration Review Tribunal for review of that decision. The Immigration Review Tribunal held itself bound by the erroneous decision of the DIR and affirmed the decision under review. On review to the Federal Court, it was held (per Sackville J) that, because the DIR assessment on its face did not constitute an assessment of the kind required by the regulations, the Tribunal was bound to defer its decision until the DIR properly considered the question, and that a failure to defer in those circumstances amounted to a reviewable error of law. Sackville J said, at 370: "In order to determine whether the tribunal should have affirmed the decision of the review officer it was necessary, in my opinion, for the tribunal to be satisfied that an assessment of the kind contemplated by para (b)(ii) had taken place. It was not necessarily the tribunal's role to reconsider an assessment made by DIR to determine whether its decision was correct. But I think the tribunal had to satisfy itself that DIR had purported to undertake the assessment contemplated by para (b)(ii). If DIR asked the wrong question (as I think occurred in this case), the tribunal was bound as a matter of law to request DIR to consider the right question. In such circumstances, the tribunal was obliged to withhold its decision until DIR undertook the necessary inquiries and provided an assessment (whether favourable or unfavourable to the applicant) of the kind contemplated by para (b)(ii). Once DIR asked and answered the correct question, it may be that the tribunal was bound to accept the answer (although I need not resolve that issue)." It was not suggested that the facts of this case fall within the principles enunciated in Bellaiche. 22 As an alternative to ss 341 and 349 being the source of power in, respectively, the review officer and the Immigration Review Tribunal to review the nomination decision, the applicant placed reliance on the instrument by which the Minister delegated his powers under reg 1.20H to persons who were members of the Immigration Review Tribunal. I leave to one side the fact that, as at 1 June 1999, that tribunal had ceased to exist, so that from that time no person could satisfy the description of the persons (by office) to whom the delegation was given. As to the permissibility of delegation to a person holding an office, see Owendale Pty Ltd v Anthony (1967) 117 CLR 539. 23 The alternative submission assumes that members of the Immigration Review Tribunal could, while exercising their powers as members of that tribunal, make use of their delegated powers. This confuses the nature of the delegation. True it is that the delegation was made to persons who held office as members of the Immigration Review Tribunal. But that did not add to their powers as members of the Immigration Review Tribunal when acting in that capacity. The fact that a delegation is given to a person who occupies a particular position (for example, a member of a tribunal) does not mean that the powers of that person when acting in that office have been increased. To the contrary. The powers of a member of the Immigration Review Tribunal were to be found exclusively in Pt 5 of the Migration Act as in force until amended by the 1998 Amendment Act. If the members of the Immigration Review Tribunal were given powers to be exercised otherwise than while acting as the tribunal, those powers could not be exercised as if they were part of the powers of the tribunal. 24 The application will be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.