Lee v Minister for Immigration and Citizenship - [2007] FCAFC 62 - FCAFC 2007 case summary — Zoe

CTHFCAFC

Lee v Minister for Immigration and Citizenship

[2007] FCAFC 62

Federal Court of Australia (Full Court)|2007-07-01

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Federal Court of Australia (Full Court)

Decision date

2007-07-01

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Judgment (45 paragraphs)

[1]

Lee v Minister for Immigration and Citizenship [2007] FCAFC 62

[2]

MIGRATION - appeal from orders of Federal Magistrate dismissing appellant's application for constitutional writs and relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of two decisions of the Migration Review Tribunal - where appellants applied for Temporary Business Entry visas - where application refused by delegate of Minister - where Tribunal affirmed delegate's decision - where Federal Magistrate held that Tribunal committed jurisdictional error but declined to exercise discretion to grant relief sought by appellants - where respondent by way of notice of contention challenged Federal Magistrates conclusion that Tribunal committed jurisdictional error - whether Federal Magistrate erred in finding that Tribunal committed jurisdictional error - whether Federal Magistrate erred in dismissing application in the exercise of discretion. MIGRATION - business visas - where visa sought by appellants required support of approved business sponsor - where business sponsor's application to Minister's delegate refused - where refusal affirmed by Tribunal - whether appellants entitled to challenge refusal of business sponsor's application. MIGRATION - authorised recipients - where appellants nominated an authorised recipient pursuant to s 379G of the Migration Act 1958 (Cth) - where Tribunal sent letter of invitation in purported compliance with s 359A of Migration Act to appellants in person and not to authorised recipient - whether s 379G of Migration Act required Tribunal to give invitation to authorised recipient - whether giving of letter to appellants in person sufficient to discharge Tribunal's obligations regarding invitation. ADMINISTRATIVE LAW - discretionary relief - futility - Federal Magistrate declined to exercise discretion to grant relief on the basis that in the absence of a business sponsor the appellant's visa application could not succeed - relevant considerations. Held: appellant's not entitled to challenge business sponsor's application - s 379G creates obligation that Tribunal provide letter to authorised recipient - provision of letter to appellants in accordance with a method of service specified in s 379A not sufficient to comply with obligations in s 359A and s 379G - failure to comply with s 379G amounts to jurisdictional error - futility to be assessed by reference to time in the future when reconsideration or rehearing takes place - Court cannot be certain application will be futile on rehearing - Magistrate erred in declining to exercise discretion to grant relief - appeal allowed in relation to appellants' application for business visas. Acts Interpretation Act 1901 (Cth) s 13 Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) s 32AB Federal Court Rules (Cth) O 52 r 22(3) Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 359, 360, 379, 483A Migration Regulations 1994 (Cth) Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 referred to Giretti v Commissioner of Taxation (1996) 70 FCR 151 referred to House v The King (1936) 55 CLR 499 referred to Le v Minister for Immigration and Citizenship [2007] FCAFC 20 referred to Lo v Minister for Immigration and Citizenship [2007] FCA 553 referred to Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 referred to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 referred to R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 referred to Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 referred to Ross v The Queen (1979) 141 CLR 432 referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to The Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 referred to The Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 referred to SANG BAK LEE, YONG HEE KIM, BOM LEE AND JIN WOO LEE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 1133 OF 2006

[14]

The facts 6 The first appellant was born on 20 June 1959 and he is a national of Korea. As the primary applicant, he applied for a business visa on 28 October 2002. The second, third and fourth appellants are his wife and two of his children, respectively, and they applied as secondary applicants. A third child also applied as a secondary applicant, but she discontinued her application in the Federal Magistrates Court and is not a party to the appeal. 7 In the circumstances, it is convenient for me to focus on the application and appeal of the first appellant. 8 Under the Act and the Migration Regulations 1994 (Cth) ("the regulations") a business visa may be granted on a number of grounds. The ground relied upon by the first appellant was that his proposed employer was an approved standard business sponsor operating in Australia, and he was the subject of an approved business nomination by that proposed employer. For reasons which will become apparent, it is significant that the regulations provide that these are requirements which must be satisfied by the first appellant at the time of the decision rather than at the time of the application. 9 At all events, in the circumstances of this case it was necessary for the first appellant to show that his proposed employer had been approved as a standard business sponsor: reg 457.223(4) of the regulations. 10 The process of obtaining approval as a standard business sponsor is dealt with in Div 1.4A of the regulations, and the criteria for approval are set out in reg 1.20D. That regulation relevantly provides: "(1) Subject to this regulation, the Minister may, in writing, approve or reject an application for approval as a pre-qualified business sponsor or as a standard business sponsor. (2) The Minister must approve an application for approval as a pre-qualified business sponsor, or as a standard business sponsor, made in accordance with regulation 1.20C if: … (c) the Minister is satisfied that the applicant for approval: (i) will introduce to, or utilise or create in, Australia new or improved technology or business skills; or (ii) has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the applicant in Australia; …" 11 A business operating under the business name of Konel Trading Co ("Konel") was the first appellant's proposed employer, and it applied for approval under the regulations as a standard business sponsor. I will refer to this application as the 'sponsorship application'. Konel's sponsorship application was made at the same time as the appellants made their applications for business visas, namely, on 28 October 2002. On 3 December 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellants' applications for business visas and Konel's sponsorship application.

[15]

12 On 2 January 2003, the appellants applied to the Tribunal for a review of the delegate's decision to refuse their applications for business visas and, on the same day, Konel applied to the Tribunal for a review of the delegate's decision to refuse its sponsorship application. Konel had a right to apply to the Tribunal for a review of the delegate's decision: s 338(9); reg 4.02(4). 13 On or about 31 October 2003, a Tribunal member affirmed the delegate's decision to refuse Konel's sponsorship application. He found that Konel did not meet the criteria for approval as a standard business sponsor. Konel has not sought to challenge that decision. The appellants have sought to challenge the decision and, in those circumstances, it is necessary to say something about the decision and the grounds upon which it is challenged. The Tribunal member said that in conducting the review he must have regard to the Act and regulations. He also referred to policy statements issued by the Department of Immigration and Multicultural and Indigenous Affairs and, in particular, a Procedures Advice Manual 3 ("PAM3") and Migration Series Instructions ("MSI"), and said that the Tribunal was required to have regard to policy and apply it unless there were cogent reasons for departing from it. The Tribunal member described the circumstances surrounding Konel's sponsorship application as follows: "The review applicant claims to be a business operating as an international importer and exporter of sportswear products and other items and has applied for approval as a standard business sponsor (seeking entitlement to make one nomination of business activities within a 12 month period). The Tribunal is dealing with a separate application for review in relation to the refusal of a visa applied for by Mr Sang Bak Lee (the visa applicant), his wife, and three children on the basis that the review applicant is proposing to employ the visa applicant as a Marketing Manager (MRT case number N03/00434)." 14 The Tribunal member then considered whether Konel met each of the criteria set out in the regulations. The particular focus was on the criteria in reg 1.20D(2)(c)(ii). Konel did not argue that it would introduce to, or utilise or create in, Australia, new or improved technology or business skills (reg 1.20D(2)(c)(i)). It did submit that it had a satisfactory business record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the appellant in Australia (reg 1.20D(2)(c)(ii)). The Tribunal member referred to the policy guidelines on this issue in PAM3. As to whether Konel had a satisfactory training record, the Tribunal member said: "While the in-house training undertaken by the review applicant is to be commended, it is a policy expectation that where formal training is available and relevant, the company should have a record of providing its Australian trainees with access to such training. In the absence of evidence of such formal training, the Tribunal considers that the review applicant cannot be deemed to have a satisfactory training record." 15 As to the other limb within reg 1.20D(2)(c)(ii), namely, whether Konel had a demonstrated commitment to training, the Tribunal member said: "While the review applicant's intentions are again commendable, its training plan does not represent the sort of detailed and quantifiable program (including, for example, projected training numbers and the identification of relevant training courses) envisaged under the policy guidelines. The Tribunal therefore considers that the review applicant has not demonstrated an adequate commitment to training." 16 The appellants claim that they are able to challenge the Tribunal's decision in relation to Konel's sponsorship application and that it is vitiated by jurisdictional error. The thrust of their challenge is that the Tribunal member applied policy guidelines in an inflexible and impermissible way and failed to have regard to the matters he was required to consider under the Act and regulations. 17 I turn now to consider the Tribunal's decision in relation to the appellants' application for review. The Application for Review document is a printed document with provision for certain parts to be completed by an applicant for review. In this case, the appellants completed the form and lodged it with the Tribunal on 2 January 2003. The appellants nominated Mr Dennis Taeroo Park of Strathfield Immigration Services of Australia, PO Box 401, Strathfield, New South Wales 2135, as the person they wished to receive all correspondence in relation to their application. The form stated that as an authorised recipient pursuant to s 379G(2) of the Act, any correspondence given to the appellants' representative by the Tribunal will be taken to have been given to the appellants. There is no dispute that by their Application for Review document the appellants nominated Mr Park as their authorised recipient within the provisions of s 379G of the Act. That section is in the following terms:

[16]

(a) a person (the applicant) applies for review of an MRT‑reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method. (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. (3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient. (4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication. (5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal." 18 As I have said, on or about 31 October 2003, a Tribunal member affirmed the delegate's decision to refuse Konel's sponsorship application. Shortly after that, and in relation to the appellants' application for review, the Tribunal sent a letter to the first appellant care of Mr Park at the Strathfield Immigration Services of Australia, PO Box 401, Strathfield, New South Wales 2135, and a copy of the letter was sent to the first appellant at his residential address as set out in the Application for Review document. 19 In part, the letter, which is dated 3 November 2003, reads as follows: "You are invited to comment, in writing, on the following information:

[23]

The Magistrate's reasons 23 The first question addressed by the Magistrate was whether the Tribunal had complied with s 359A so that, given the lack of comments from the appellants, the obligation in s 360(1) did not arise. He held that the letter dated 3 November 2003 had not been given to the appellants' authorised recipient within s 379G of the Act because it had been addressed to the first appellant care of the authorised recipient. He applied the decision of the Full Court of this Court in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 ("VEAN"). He held that the obligation imposed on the Tribunal by s 379G(1) to give a document to the appellants' authorised recipient was modified by subsection (2) but only to the extent that actual service of the document on the appellants, as distinct from deemed receipt, was established. It was not enough that a copy of the letter had been sent to the first appellant at his residential address as set out in the Application for Review document and apparently in accordance with s 379A(4)(c)(ii) of the Act. On the facts of the case, actual service of the letter dated 3 November 2003 on the appellants was not established and therefore the Tribunal was not entitled to decide the review without first complying with the obligation in s 360(1). It had not done that and its failure to do so constituted a jurisdictional error. 24 The Magistrate then considered whether he should grant relief in the exercise of his discretion. He decided that it would be futile to require a further hearing of the appellants' application for review by the Tribunal because the first appellant did not have an approved standard business sponsor. The appellant sought to meet this difficulty by including, in their challenge to the Tribunal's decision in relation to their application for review, a challenge to the Tribunal's decision in relation to Konel's sponsorship application. The Magistrate said that the appellants could not challenge the latter decision in proceedings under the Act. He said that they probably could not challenge the decision in proceedings under the ADJR Act or, in the alternative, he said they could not do so in the absence of Konel. The Magistrate said that in the absence of a challenge to the validity of the Tribunal's decision in relation to the application for review by Konel, the Tribunal member was entitled to treat that decision as a valid one. Furthermore, the Magistrate said that even if the Tribunal's decision in relation to Konel's sponsorship application could be challenged by the appellants and was held to be invalid, the result would be the same because there would still be no approved standard business sponsor. 25 There are two issues on the appeal. The first is the first respondent's challenge, by way of a notice of contention, to the Magistrate's conclusion that the Tribunal committed a jurisdictional error. The second is the appellants' challenge to the Magistrate's exercise of his discretion so as to decline to grant the relief sought by the appellants.

[27]

(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document." 30 Section 379G (set out in [17] above) is also in Part 5 Division 8A of the Act. 31 It is not disputed that the Tribunal did not invite the appellants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. It was required to do that unless s 359C(2) applied to the appellants. That section applied to the appellants if they were invited to comment on information under s 359A. There is no dispute that they did not give comments before the time for giving comments had passed. In those circumstances, the critical question is whether the information and invitation contained in the Tribunal's letter dated 3 November 2003 was given to the appellants in accordance with s 359A of the Act. 32 The question is to be determined in a context in which the appellants had an authorised recipient and there is no challenge to the Magistrate's conclusion that the letter dated 3 November 2003 was not given to that person in accordance with s 379G of the Act. The letter was given to the first appellant by one of the methods specified in s 379A (that is, subsection (4)) but actual service or receipt by the appellant was not established. 33 The questions raised by the notice of contention relate to the proper construction of s 379G and the relationship of that section to s 359A and other sections in the Act. Although it is submitted by the first respondent that the proper construction of s 379G is to be considered in light of other sections in the Act, it is convenient to consider first the construction of s 379G simply by having regard to the terms of the section itself. 34 On the face of it, the section is expressed in mandatory terms, and the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. If a document is given to an authorised recipient by the Tribunal then it is taken to have given the document to the applicant. The qualification in subsection (2), namely, "However, this does not prevent the Tribunal giving the applicant a copy of the document", makes it clear that the earlier provisions do not prevent the Tribunal from giving the applicant a copy of the document. The word "this" in the qualification is a reference to the statement in the immediately preceding sentence whereby it is said that by giving a document to the authorised recipient the Tribunal is taken to have given the document to the applicant, and is not a reference to the section as a whole. In other words, the qualification operates where the document has been given to the authorised recipient, not as an alternative to the giving of the document to the authorised recipient. Furthermore, it is not without significance that what may be given to the applicant under s 379G(2) is a copy of the document. If the process of construction was restricted simply to the terms of s 379G, I do not think that the qualification in subsection (2) has the effect of giving the Tribunal the option of giving a document to the authorised recipient or to the applicant. The qualification simply makes it clear that if a document is given to the authorised recipient, the Tribunal is not thereby prevented from also giving a copy of the document to the applicant. 35 This construction of s 379G is consistent with what might be considered to be the purpose of the section. An applicant may have language difficulties or other difficulties in terms of his or her ability to comprehend written documents and, in those circumstances, it may be considered desirable to give the applicant the right to nominate a person who the applicant knows will receive documents. This construction of the section places no additional or higher obligation on the Tribunal; it can give a document to an authorised recipient instead of an applicant. On the other hand, it is difficult to see why the section would be in the terms in which it is if the intention of Parliament was to give the Tribunal an option as to the person to whom it gives documents. 36 Section 379G must of course be construed having regard to its place in the Act and in light of other relevant provisions. Section 359A does not refer to s 379G; in subsection (2) it simply refers to one of the methods of giving a document to an applicant specified in s 379A. Section 379A does not refer to s 379G. 37 One construction of the relevant provisions is that s 379G is simply not relevant to the obligation in s 359A. On this construction s 379G would have no role to play in a case such as the present. As long as the appellants were given the letter by one of the methods specified in s 379A then the provisions of s 359A were satisfied. A second construction of the relevant provisions is that s 379G has a role to play in the operation of s 359A but, because of the qualification in s 379G(2), its operation is such that, in the context of s 359A, the Tribunal has the option of giving the document to an applicant in accordance with one of the methods specified in s 379A or giving it to the authorised recipient in accordance with the provisions of s 379G. In my opinion, neither of these constructions is the proper construction of the relevant provisions. 38 In my opinion, if the circumstances for the operation of s 379G are satisfied then the invitation under s 359A must be given to the authorised recipient. It is not sufficient to give the document to the applicant by one of the methods specified in s 379A and I respectfully disagree with the reasoning of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221. Furthermore, I doubt that proof of actual service on, or receipt of the document by, the applicant overcomes the failure to comply with s 379G or means that such failure does not give rise to jurisdictional error. However, it is not necessary for me to decide this point. 39 In my opinion, in terms of the identity of the person who must be given a relevant document, s 359A and s 379A must be read as subject to s 379G. The various sections must be read so that they operate conformably with each other: Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J (as he then was); The Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479 per McHugh and Gummow JJ; DC Pearce and RS Geddes "Statutory Interpretation in Australia" (6th ed, 2006) [4.3]). There is little difficulty in doing that in the case of s 379A because subsection (1) of that section refers not to an applicant, but to a person the Tribunal is required or permitted to give a document to, and it defines that person as a recipient. If s 359A and s 379A are not read as subject to s 379G in the sense I have indicated then the latter section would have very little work to do and that would seem to be inconsistent with the plain intent of the section. Nor do I think that one can read s 379G as qualifying s 359A and s 379A but, because of the qualification in s 379G(2), there is an alternative available to the Tribunal of giving the document to the applicant as distinct from his authorised recipient. Once s 359A and s 379A are read conformably with s 379G, the section operates according to its clear terms, and if there is an authorised recipient, the document must be given to that person by the Tribunal. Furthermore, it seems to me that to ensure the sections operate conformably with each other, the document must be given to the authorised recipient by one of the methods specified in s 379A of the Act. That is the effect of the clear direction in s 359A(2)(a) of the Act. In this case the authorised recipient was not given the document and therefore the relevant exception in s 360(2) was not established. The Tribunal failed to comply with the obligation in s 360(1) of the Act, and that constituted a jurisdictional error. 40 Submissions were made about the effect of the note in s 379G and it was suggested that it was of assistance in resolving the point of construction. The note is not part of the Act: Acts Interpretation Act 1901 (Cth) s 13. It is extrinsic material that might be considered because it is in the document containing the text of the Act as printed by the Government Printer: Acts Interpretation Act 1901 (Cth) s 15AB(2)(a). However, I do not think the note is of any assistance in resolving the point of construction. 41 Since preparing these reasons in draft, I have considered the decision of the Full Court of this Court in Le v Minister for Immigration and Citizenship [2007] FCAFC 20 ("Le"). There is nothing in the reasons for judgment in that case which is inconsistent with the conclusions I have reached. The Court was there considering the provisions of ss 57, 494A, 494B and 494D of the Act. The Court left open the question of whether there was jurisdictional error if it was established that the document did in fact come to the attention of the applicant ([31]). The Court came to the conclusion that the Minister could decide how he gave the document to the authorised recipient under s 494D [19]. As I have said, I have reached the conclusion that under ss 359A, 379A and 379G the authorised recipient must be given a document by one of the methods specified in s 379A. That follows in my view from the express terms of s 359A(2)(a) of which there was no equivalent in Le. 42 Since preparing these reasons, I have also considered the reasons for judgment of Conti J in Lo v Minister for Immigration and Citizenship [2007] FCA 553 ("Lo"). That decision concerned the appointment of an authorised recipient under s 494D of the Act and may be distinguished on the ground that Conti J found that at the relevant time there was no appointment of an authorised recipient in existence. To the extent that his Honour may have decided the case on a broader basis which is inconsistent with the reasoning set out above, I would, with respect, decline to follow the decision in Lo. 43 The Magistrate was right to conclude that the Tribunal committed a jurisdictional error in relation to the appellant's application for review.

[28]

The discretion to refuse relief 44 The appellants submit that the Magistrate erred in exercising his discretion to refuse relief. They submit that he had no discretion to refuse relief. Alternatively, they submit that futility is not a ground upon which relief may be refused. In the further alternative, they submit that futility was not made out in this case. 45 As to the submission that there is no discretion to refuse relief, the appellants referred the Court to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and, in particular, to the following passage from the reasons for judgment of Gaudron and Gummow JJ (at 614 [51]) (footnote references omitted). "There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are, or, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition." 46 As I understood it, the appellants' submission is that, there being jurisdictional error, the decision of the Tribunal in relation to the appellants' application for review was in fact no decision at all, and mandamus should issue requiring the Tribunal to conduct a review. In other words, the Tribunal should be directed to carry out what by statute it is required to do. I reject this submission. Whatever might be said as to the precise status of a decision of the Tribunal which is infected by jurisdictional error, and however narrowly confined the discretion may be, the decisions of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 ("SAAP") clearly establish that there is a discretion to refuse relief where jurisdictional error is established. 47 As to the submission that even if there is a discretion, futility is not a ground upon which it may be exercised, it was put by the appellants that SAAP is authority for that proposition. The submission was that SAAP was authority for the proposition that the discretion to refuse relief may only be exercised if there is some type of disqualifying or disentitling conduct on the part of the applicant for relief. I reject this submission. Disqualifying or disentitling conduct by an applicant may be the principal ground upon which the discretion to refuse relief is exercised, but there is nothing in SAAP to suggest that the Court was qualifying what it had previously said in Aala. In Aala, Gaudron and Gummow JJ said that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application (at 109 [58]). Indeed, McHugh J in SAAP referred to this observation with approval (at 1026 [80]) and, at best for the appellants, Hayne J (with whom Kirby J agreed on this point) in SAAP did not discuss the issue. In my opinion, futility is a ground upon which a Court may exercise its discretion to refuse relief. Having said that, it does seem to be clear that the discretion to refuse relief on that ground, and indeed generally, will be somewhat narrowly confined and the words of Gaudron J in The Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 157 [56] must be borne in mind (footnote references omitted): "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the court should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less."

[29]

48 In my opinion, before a Court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile. 49 I turn now to consider whether futility was made out in this case. A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a "backward-looking test" which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a "forward-looking test" which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow. 50 We were referred to a decision of this Court which has considered which test is appropriate, albeit in the context of a decision made by a Court in breach of the rules of procedural fairness. In Giretti v Commissioner of Taxation (1996) 70 FCR 151 Lindgren J (with whom Jenkinson J agreed) decided the case on the basis that there had been no failure to accord procedural fairness. As an alternative ground upon which the appeal should be dismissed, Lindgren J said that assuming a failure to accord procedural fairness, nevertheless, the appellant had not been deprived of even a possibility of a favourable result. Lindgren J favoured a backward-looking test. He said (at 165): "No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith's Judicial Review of Administrative Action (5th ed, 1995), p 498, 'Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant' and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been." 51 Merkel J favoured a forward-looking test and, in my respectful opinion, his reasons for doing so are highly persuasive, as are the points made by Bingham LJ in R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 352 (see also T Bingham "Should Public Law Remedies be Discretionary?" (1991) Public Law 64 at 72‑73). In my opinion, it is appropriate to apply a forward-looking test at least in the particular statutory context under consideration in this case. Through no fault of their own, the appellants have been deprived of procedural fairness (as prescribed by the Act) and the requirement that the first appellant be nominated by an approved standard business sponsor is a requirement which must be satisfied at the time of decision. 52 I acknowledge that if a backward-looking test is applied it is appropriate to make a finding of futility and to refuse relief. At the time the Tribunal member made his decision on the appellants' application for review, namely, 7 January 2004, there was no approved standard business sponsor. Konel's sponsorship application had been refused by the same Tribunal member about two months before that date. Konel had not challenged that decision and, as at 7 January 2004, there was no suggestion that another applicant for approval as a standard business sponsor had or would come forward. 53 However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants' challenge to the Tribunal's decision in relation to Konel's sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants' application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case. 54 I think the Magistrate erred in a way that warrants the intervention of this Court by reference to the well-established principles (House v The King (1936) 55 CLR 499 at 504-505.) It cannot be said that granting the relief sought by the appellants in relation to their application for review will be futile and, exercising the discretion afresh, I would grant the relief. The appellants applied to put before the Court as fresh evidence a letter from the Managing Director of Konel Enterprise stating that it is willing to sponsor the first appellant and meets the requirements in the regulations, and a letter from a director of Kagro (NSW) Pty Ltd to similar effect. The relationship between Konel Enterprise and Konel Trading Co is unclear. The Court reserved its ruling on whether it would receive this so-called fresh evidence. The appellant succeeds without regard to this evidence and, in any event, it adds little to what I am prepared to infer, namely, that by the time of the decision it is possible the first appellant will have an approved standard business sponsor. I would not receive the evidence because the appellants provided no explanation as to what, if any, efforts were made to gather it and put it before the Magistrate and there is nothing to suggest that it could not have been obtained and put before the Magistrate. 55 That leaves for consideration the appellant's challenge to the Tribunal's decision in relation to Konel's application for review. The Magistrate said that he could not entertain the challenge and I think he was right to take that approach. 56 The appellants sought constitutional writs in relation to that decision. In the course of submissions, they submitted that a declaration would be sufficient. Whether constitutional writs are sought or only a declaration, that part of their application falls within the terms of s 477(1) which at the time provided as follows: "(1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision." 57 Sections 478 and 479 at the relevant time provided for the persons who may make an application under s 477 and the persons who were parties to an application for review under s 477. They were in the following terms: "478 An application referred to in section 477 may only be made by the Minister and: (a) if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of this Act and a decision on such a review has been made - the applicant in the review by the relevant Tribunal; or (b) in any other case - the person who is the subject of the decision; or (c) in any case - a person prescribed by the regulations. 479 The parties to a review of a privative clause decision resulting from an application referred to in section 477 are the Minister and: (a) if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of this Act and a decision on such a review has been made - the applicant in the review by the relevant Tribunal; or (b) in any other case - the person who is the subject of the decision; or (c) in any case - a person prescribed by the regulations." 58 The person who was the subject of the relevant privative clause decision (s 478(b) and s 479(b)) was Konel and not the appellants. By reason of s 478 and s 479 of the Act, it was not competent for the appellants to make an application for constitutional writs or associated relief or both, or be parties to such an application, in respect of the Tribunal's decision on Konel's application for review. 59 The appellants also sought to challenge the Tribunal's decision in relation to Konel's application for review under the ADJR Act. They sought to show that the Tribunal's decision was infected by jurisdictional error and therefore not a decision excluded from the operation of that Act as it stood at the relevant time (ADJR Act s 3 Schedule 1 paragraph (da)). In order to have standing to do that they would have to show that they were persons "aggrieved" by the decision within s 5 of the ADJR Act and that there was no provision in the Act which precluded them from bringing such a challenge. 60 The first respondent submitted that s 486C of the Act prevented the challenge under the ADJR Act. That section is in the following terms: "(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Court or the Federal Magistrates Court that raises an issue: (a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non‑citizens; and (b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations; (whether or not the proceeding raises any other issue).

Lee v Minister for Immigration and Citizenship

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Judgment (45 paragraphs)

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Legislation Cited (6)

Cases Cited (15)

Cited By (15)