Minister for Immigration and Citizenship v Dhanoa

Federal Court of Australia (Full Court)|2009-10-30|Before: Foster JJ, Moore J

BACKGROUND 18 Mr Dhanoa applied for a visa on 3 November 2006. 19 Section 31(1) of the Migration Act 1958 (Cth) prescribes classes of visas for which an application may be made. Regulation 2.01 of the Migration Regulations 1994 (Cth), for the purpose of s 31 of the Act, prescribes the classes of visas set out in Sch 1 to the Regulations. The only potential class of visa relating to Mr Dhanoa's application was Subclass 880 (Skilled - Independent Overseas Student) (Class DD) visa. 20 Section 31(3) provides that "[t]he regulations may prescribe criteria for a visa or visas of a specified class". Regulation 2.03 of the Migration Regulations identifies the prescribed criteria by reference to the primary and secondary criteria set out in the relevant parts of Sch 2 to the Regulations. 21 Under s 65 of the Migration Act, after considering a valid application for a visa, the Minister is to grant the visa if certain pre-conditions are satisfied. These pre-conditions include any criteria prescribed for the visa by the Migration Act or the Migration Regulations. 22 By operation of Subdiv B of Div 3 of Pt 2 to the Migration Act and the associated provisions of the Migration Regulations, applicants for different classes of visa obtain points relating to various matters, which may or may not amount to a "qualifying score" for the relevant class of visa. Section 93 requires the Minister to make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. Section 96 authorises the Minister to set the pass mark and pool mark for applications for a visa of a particular class by notice in the Gazette. In the present case, the marks are the same and, in any event, the concept of the pool mark is immaterial. 23 Pursuant to these provisions Mr Dhanoa required 120 points to qualify for a Subclass 880 (Skilled - Independent Overseas Student) (Class DD) visa. Under cl 880.222 of Sch 2 to the Migration Regulations (specifying the criteria to be satisfied at the time of decision) the applicant is required to have the qualifying score when assessed in relation to the visa under Subdiv B of Div 3 of Part 2 of the Migration Act. 24 Mr Dhanoa's application included a document stating that he had achieved a level of "competent" in his IELTS test, entitling him to 20 points on account of his English language skills as per Pt 3 of the table to Sch 6A to the Migration Regulations. An IELTS test is the International English Language Testing System test (Reg 1.03). Mr Dhanoa's total score reached 115 points on this basis (excluding any bonus points). 25 The bonus points system enables applicants to obtain an additional 5 points for making a deposit in a designated security. The Minister is able to designate securities issued by State or Territory Governments for this purpose under Reg 2.26C. By Regs 2.26A(1)(d), (2) and (3) the prescribed qualifications and related points for the relevant classes of visa are specified in Sch 6A to the Regulations. Part 8 of Sch 6A to the Regulations concerns bonus points relating to designated securities as referred to in Reg 2.26C. Part of the table for the bonus points qualification appears as follows:

Part 8 Bonus points qualification Column 1 Column 2 Column 3 Item Qualification Number of Points 6A81 Application for: 5 · Skilled - Independent Overseas Student (Residence) (Class DD) visa … The applicant: (a) has deposited at least AUD100 000 in a designated security for a term of not less than 12 months; or …

26 In his application Mr Dhanoa indicated that he wished to apply for 5 bonus points by making a deposit into a designated security, the effect of which would be to take his total score to 120 points (thus meeting the qualifying score for the relevant Subclass of visa as required). 27 However, the Department of Immigration and Citizenship checked Mr Dhanoa's IELTS test results which disclosed a score of 5.5, not 6, in one of the required bands. The consequence was that Mr Dhanoa's score for English language qualifications decreased from 20 to 15. The Minister's delegate noted that "the applicant intended to claim 5 bonus points for capital investment option however he did not meet the 115 point requirement to initiate a request for capital investment". By this the delegate meant that Mr Dhanoa would not reach the required 120 points even with the 5 bonus points because his total had reduced from 115 to 110 without those bonus points. In consequence, the Minister's delegate refused the application on 6 November 2007. 28 On 4 December 2007 Mr Dhanoa applied to the Tribunal for a review of the delegate's decision. Applications to the Tribunal for review are regulated by Pt 5 of the Migration Act. Section 338 defines "MRT-reviewable decisions", that is decisions reviewable by the Tribunal. The decision of the delegate was such a decision. An application for review of an MRT-reviewable decision is made under s 347. Under s 348 the Tribunal must review an MRT-reviewable decision which is the subject of an application for review properly made. 29 On 12 July 2008 Mr Dhanoa took another IELTS test and on 29 July 2008 was notified that he received a score of 6 for each component, entitling him to 20 points for that item under Item 6A31 of Sch 6A. 30 The hearing before the Tribunal was held on 22 September 2008. 31 On 26 September 2008 the Tribunal wrote to Mr Dhanoa inviting him to comment or respond to information in writing pursuant to s 359A of the Act. The letter said that there was "no evidence before the Tribunal that [Mr Dhanoa] had deposited at least $100,000 in a designated security for a term of not less than 12 months". The letter continued: …The Tribunal has taken into account that on the visa application form you indicated that you are willing to deposit at least $100,000 in a designated security for a term of not less than 12 months. Under items 6A81(a) an applicant is entitled to 5 points if the applicant has deposited $100,000 in a designated security for a term of not less than 12 months (note that the Tribunal is of the view that this requires evidence of an amount having been deposited and a statement indicating a willingness to deposit or evidence of funds available is not sufficient). You told the Tribunal that you were not invited by the Department to make the deposit as you had not achieved a mark of 115 but you have now achieved this mark. 32 Mr Dhanoa's solicitor responded by a facsimile received on 15 October 2008 to the effect that they were instructed to advise that: …the review applicant is ready to deposit the $100,000 deposit but has no[t] received a formal invitation by [Department of Immigration and Citizenship] as advised during the hearing. 33 On 27 November 2008 the Tribunal affirmed the delegate's decision not to grant Mr Dhanoa a Skilled - Independent Overseas Student (Residence) (Class DD) visa. 34 In its reasons for decision at para 20, in a section entitled "Claims and Evidence", the Tribunal recorded as follows: The Tribunal indicated that it had verified the results of the IELTS test that the applicant had provided to the Tribunal and it would appear that the applicant may achieve a mark of 115. The applicant stated that he is claiming another 5 points, as he intends to lodge $100,000 in a designated security. He had indicated this intention on the application form but the Department was not prepared to invite him to lodge the money until he achieved a mark of 115, which he has now done. He is requesting that the Tribunal remits the matter on the basis that the applicant will lodge the money in a designated security when the Department invites him to do so. The Tribunal put to the applicant that although schedule 6A criteria must be met at the time of decision, the relevant clause refers to an applicant having already lodged the money in a designated security. 35 In a part of its reasons entitled "Findings and Reasons", at para 28, the Tribunal referred to the further IELTS test that Mr Dhanoa took on 12 July 2008 as follows: The Tribunal finds that the applicant undertook an IELTS test that was conducted on 12 July 2008 during the processing of the application, for which he achieved an IELTS test score of at least 6 for each component. Accordingly, the Tribunal finds that the applicant is entitled to 20 points for Part 3 in accordance with item 6A31 of Schedule 6A. 36 In the same part of its reasons, at para 36, the Tribunal dealt with the bonus points qualification in these terms: There is no evidence before the Tribunal that the applicant has deposited at least $100,000 in a designated security for a term of not less than 12 months. The Tribunal noted that on the visa application form the applicant indicated that he is willing to deposit at least $100,000 in a designated security for a term of not less than 12 months. The applicant has also advised the Tribunal orally and in writing that he was not invited by the Department to make the deposit, as he had not achieved a mark of 115 but as he has now achieved this mark, he is prepared to make the deposit. However, the Tribunal is of the view that item 6A81(a) requires an applicant to have deposited $100,000 in a designated security for a term of not less than 12 months and a statement indicating a willingness to deposit or evidence of funds available is not sufficient. This is consistent with the recent decision (12 November 2008) of Perera v MIAC & Anor [2008] FMCA 1526, which confirms that an intention to lodge the $100,000 security is not sufficient to satisfy item 6A81 - it must actually have been lodged. 37 For these reasons the Tribunal allocated no bonus points to Mr Dhanoa under Item 6A81 of Sch 6A of the Migration Regulations. The Tribunal thus concluded that Mr Dhanoa achieved a total of 115 points when the pass mark and the pool mark were each 120 points. Accordingly, Mr Dhanoa did not reach the qualifying score and did not meet cl 880.222 of Sch 2 to the Migration Regulations which is a prescribed criterion for a grant of a Subclass 880 visa. The Tribunal affirmed the decision of the Minister's delegate not to grant Mr Dhanoa a visa. 38 Mr Dhanoa appealed to the Federal Magistrates Court. His principal claim was that the Tribunal fell into jurisdictional error by not considering its power to remit the matter to the Minister for further consideration under s 349(2)(c) of the Migration Act. 39 Sections 349(1) and (2) of the Migration Act vest various powers in the Tribunal as follows: (1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. 40 Regulation 4.15 of the Migration Regulations provides: (1) For paragraph 349(2)(c) of the Act (which deals with the Tribunal's power to remit): (a) an application for a visa or entry permit made on or after 19 December 1989 is a prescribed matter; and (b) subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit. 41 The Federal Magistrates Court allowed Mr Dhanoa's appeal on the basis that the Tribunal had committed a jurisdictional error in determining the application. 42 The Federal Magistrate considered that the outcome of the case turned on the Tribunal's failure to inquire of the Minister's Department about the position in respect of designated securities (at [34]). The Federal Magistrate noted a concession by the Minister (at [23]) that, at the time of the Tribunal's decision, there was no approved designated security regime specified by the Minister for the purposes of Reg 2.26C. The Federal Magistrate also acknowledged the facts recorded in another decision of the Tribunal (Haider [2007] MRTA 701) to the effect that the Department was deferring or delaying decisions on applications dependent for success on an allocation of 5 bonus points. Based on these factors, the Federal Magistrate concluded that, if the Tribunal had made an inquiry of the Department about designated securities, it would have been advised that there were "at that time no designated securities into which a deposit could be made and that the Department was holding applications such as Mr Dhanoa's (which otherwise met the components of the points test) while the Commonwealth attempted to sort out the situation with the States" (at [34]). 43 Referring to SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22; [2008] FCA 1372 his Honour concluded (at [35]) that: In my view, and consistently with the decision of the Federal Court in SZIAI, it was unreasonable in the exceptional circumstances of this case for the Tribunal not to make a further enquiry. I am bound by that decision. Information was readily available to the Tribunal that no designated security was available at the relevant time into which the applicant could make the required deposit. That information was centrally relevant to the decision and was of immediate relevance to both the timing of the decision and the appropriate power to be exercised by the Tribunal in the circumstances. 44 Accordingly, his Honour held (at [37]) that by failing to make this inquiry the Tribunal committed a jurisdictional error, thereby invalidating its decision. 45 The Federal Magistrate also rejected the Minister's contention that the Tribunal had no power to remit the application for the visa to the delegate for reconsideration in the circumstances of the case (at [27]). His Honour concluded that Reg 4.15(1)(b) of the Migration Regulations, properly construed, limited the directions that could be made on remittal but did not limit the Tribunal's power to remit an application without any direction (at [27]-[29]). His Honour also considered that, properly construed, Reg 4.15(1)(b) did not limit the Tribunal's power to the giving of a direction in respect of the qualifying score for a visa. As the qualifying score was comprised of component items, the Tribunal's power extended to the making of a direction relating to specified components of the points test (at [30]-[31]). However, given the operative conclusion recorded above, the Federal Magistrate's decision did not turn on these matters and the related question of any obligation on the part of the Tribunal to consider the remittal of the application or a deferral of a decision about it. His Honour's observations about these matters are thus obiter dicta. Mr Dhanoa, however, filed a notice of contention seeking to support the Federal Magistrate's decision on these alternative grounds.

UNREASONABLE FAILURE TO MAKE INQUIRIES? 46 As noted, the Federal Magistrate (at [35]) considered the decision in SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22; [2008] FCA 1372 to be binding on him (as, indeed, it was at the time of his decision). The Federal Magistrate also considered (again at [35]) that the decision of the Federal Court in SZIAI required a finding that, on the facts of the present case, the Tribunal's failure to make inquiries about the availability of a designated security for the purpose of the making of a deposit was unreasonable in the sense required so as to amount to jurisdictional error. 47 At the time of the hearing before the Federal Magistrate, and of this appeal, the judgment of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 had not been delivered. The High Court overturned the decision which the Federal Magistrate considered binding. At [25] in its reasons the High Court observed that: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction (see authorities collected in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51). It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. 48 The High Court found it unnecessary to explore these questions of principle because on the facts of SZIAI the Court was not satisfied that the proposed inquiry could have yielded anything useful. At [26] the High Court said: … there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. …For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error. 49 In the present case the facts said to be centrally relevant to the decision, and unreasonable for the Tribunal not to have investigated, are that there were no designated security deposits in existence (so the 5 bonus points were unavailable) and that the Department was apparently deferring dealing with applications to see if the impasse with the States and Territories (which created the deposits) could be resolved. 50 As the Minister observed, however, the only consequence of there not being any designated security deposits under Reg 2.26C is that an applicant cannot obtain 5 bonus points for making a deposit into one of them. Nothing in the Migration Act or Migration Regulations indicates that the Minister was bound to designate any security or that a State or Territory was bound to issue such a security. Against that background, the fact that the Department apparently elected to defer determining certain applications is immaterial. That was an administrative decision the Department was entitled to make and, it might be said, to change its mind about. As the Minister also said, information cannot be "centrally relevant" (as required to found a case of an unreasonable failure to inquire) when the only indications available at the time were that the information, even if obtained, would not have yielded a different outcome. On remittal, the Minister would have been entitled to determine the application on the information then available. The coming into existence of a designated security at the time required would be mere speculation. Any opportunity depended on factors within the discretion of the States and Territories to issue the securities and the Minister to designate them under Reg 2.26C. But for any such designation the Minister would have been bound by s 65 of the Migration Act to refuse Mr Dhanoa's application. Mere speculation cannot found the existence of an obligation on the part of the Tribunal to permit Mr Dhanoa a "real opportunity" to make a security deposit. 51 For these reasons the Federal Magistrate erred in holding that the Tribunal committed jurisdictional error by failing to make inquiries about the availability of a designated security into which Mr Dhanoa could make a deposit. The Federal Magistrate, as noted, reached this conclusion by relying on a decision of this Court subsequently overturned by the High Court. Analysis of the circumstances in accordance with the correct principles necessitates a different conclusion about this issue.

OBLIGATION TO CONSIDER REMITTING MATTER? 52 Mr Dhanoa's Notice of Contention, which raises this issue, pre-supposes that the Tribunal had the power to remit the matter. The Minister disputes the availability of the power. If the Tribunal had no power to remit then no obligation to consider could arise.

Tribunal's power to remit generally: s 349(2)(c) 53 Contrary to the submissions for Mr Dhanoa and the conclusions of the Federal Magistrate, we are not persuaded that s 349(2)(c) of the Migration Act vests in the Tribunal a general power of remittal (that is, a power to remit a matter without any direction or recommendation permitted by the regulations). Our reasons are as follows. 54 First, the words of s 349(2)(c), construed in accordance with their natural and ordinary meaning, express a power of remittal subject to a limitation (that the remittal be for reconsideration "in accordance with" permissible directions or recommendations). As the Minister submitted, the construction preferred by the Federal Magistrates Court does not give the words "in accordance with" in s 349(2)(c) any work. 55 Second, s 349(2)(c) only applies if the decision relates to a prescribed matter. By s 5(1) "prescribed" means "prescribed by the regulations". The legislature is free to prescribe any decision under the Migration Act as relating to a prescribed matter but has chosen to prescribe only the classes specified in Regs 4.15(1) and (2). Given these circumstances, which confine the operation of the provision to decisions the legislature has defined as relating to prescribed matters, there is no justification for reading s 349(2)(c) more broadly than is indicated by the natural and ordinary meaning of its language indicates. 56 Third, and to a similar effect, the express words of the provision convey a limitation on the power of remittal. Accordingly, it is difficult to justify a construction supporting the existence of a more general power. If a general power exists then what is the purpose of confining the class of permissible recommendations or directions on a remittal? The answer favoured by the Federal Magistrate and supported by Mr Dhanoa, that the purpose is merely to confine the power to make directions and recommendations and not to limit the power of remittal, is unpersuasive. It does not follow from the words of the section and confronts the difficulty that the power sought to be found in the section would encompass and render superfluous the express words of limitation. 57 Fourth, the decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, relating to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and referred to by the Federal Magistrate, does not provide support for the construction which the Federal Magistrate preferred. Section 43 of the Administrative Appeals Tribunal Act concerns remittal after a decision under review by the Administrative Appeals Tribunal has been set aside, but it is not equivalent to s 349(2)(c) of the Migration Act. The language of s 43 of the Administrative Appeals Tribunal Act envisages that directions or recommendations may be given to the relevant decision-maker by the Administrative Appeals Tribunal. That language also contemplates the possibility that no such directions or recommendations are given. 58 Fifth, we do not agree that construing the power of remittal in s 349(2)(c) in accordance with the natural and ordinary meaning of the words used leads to an absurd result. As the Minister submitted, the statutory scheme vests the Tribunal with "all the powers and discretions that are conferred by [the Migration Act] on the person who made the decision" (s 349(1)). The scheme contemplates that the Tribunal will exercise those powers on review by making a decision in accordance with ss 349(2)(a), (b), (c) or (d). Section 349(2)(c), by its reference to "reconsideration", indicates that the section is enlivened where the Tribunal has set aside a decision (consistent with the decision in Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 about the equivalent provision of s 415(2)(c) which concerns the powers of the Refugee Review Tribunal); but where the decision relates to a prescribed matter, rather than substituting its own decision (s 349(2)(d)), the Tribunal has elected to remit the matter for reconsideration with a permissible direction or recommendation. If there is no permissible direction or recommendation that can be made, the Tribunal's powers do not include remittal. We cannot see the absurdity of a scheme to this effect given both that the Tribunal is vested with the functions of the original decision-maker and the legislature is free to identify as it sees fit decisions as relating to prescribed matters and permissible directions and recommendations. The scheme simply appears to favour bringing finality to an application at the review stage before the Tribunal other than in confined circumstances. That is a legitimate statutory object. 59 Sixth, this statutory object appears consistent with the available extrinsic material which the Minister identified in his written submissions. Paragraph 12 of the Minister's written submissions, which we adopt for the purpose of these reasons, records as follows: A power in the Immigration Review Tribunal (the IRT) to remit in not materially different terms to s 349(2)(c) was originally inserted as s 118(4)(ba) of the Act by s 13(b) of the Migration Amendment Act (No 2) 1992 (No 84 of 1992). The Explanatory Memorandum for s 13(b) stated: "This clause amends section 118 of the Principal Act to allow the review authority to remit a decision to the original decision maker in accordance with the review authority's directions subject to regulations which prescribe the matters which may be remitted. This amendment, which is supported by the Immigration Review Tribunal, will lead to speedier review decisions in that it will eliminate unnecessary steps in the review process." (Emphasis added). The current form of s 349(2)(c) derives from the Migration Reform Act 1992 (No 184 of 1992) s 23, which (inter alia) repealed s 118 and substituted s 119(2)(c) of the Act (a section later renumbered to s 349(2)(c)…). The relevant part of the Explanatory Memorandum for s 23 relating to s 119(2)(c) stated: The power to remit a decision with directions will permit the IRT to review the substantive matters which must be satisfied before the application can be approved and, if these matters are decided in favour of the applicant, to then send the case back to the Department to get clearance of the more procedural criteria, which would not be convenient for the IRT to deal with. (Emphasis added) 60 Seventh, the direction made by the Principal Member of the Tribunal under s 353A of the Migration Act (Principal Member's Direction 2/2005 (5 October 2005)), referred to by Mr Dhanoa, cannot assist the task of construction. A direction may only be made if it is not inconsistent with the Act and Regulations (s 353A(1)). In any event, the terms of the direction identified (particularly the sentence in para 23 that "[t]he Tribunal has a power to remit applications for visas to the Department for reconsideration, and may do so by finding that one or more criteria have been met") do not support Mr Dhanoa's case. Further, the fact that satisfaction of health and other criteria is frequently left to the Minister's Department by an order for remittal does not undermine the fact that the power to remit is confined to cases where a permissible direction or recommendation may be made (for example, based on a finding that one or more criteria have been met as the Principal Member's Direction notes). 61 Finally, we do not accept Mr Dhanoa's submission that this construction creates an inconsistency with the Tribunal's function of "providing a mechanism of review that is fair, just, economical, informal and quick" (s 353(1)) and, in so doing, not to be "bound by technicalities, legal forms or rules of evidence" (s 353(2)(a)) and to "act according to substantial justice and the merits of the case" (s 353(2)(b)). Fairness and justice are only meaningful when considered in the context of the interests of all parties and the public at large. Confining a power of remittal is a policy decision for the legislature and cannot be reasonably characterised as inevitably giving rise to any undue technicality. 62 Accordingly, insofar as Mr Dhanoa's case in answer to the appeal depends on the Tribunal having had a power (and, as argued, an obligation to consider) remitting the matter to the Minister for reconsideration without any direction or recommendation, we do not accept it.

Tribunal's power to remit with a direction: Reg 4.15(1) 63 As noted, for the purpose of s 349(2)(c) of the Migration Act, Reg 4.15(1)(a) of the Migration Regulations prescribes a decision relating to an application for a visa after 19 December 1989 as a prescribed matter. Regulation 4.15(1)(b) identifies as a permissible direction "that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit". 64 According to the Minister, the Federal Magistrate erred by not construing the permissible direction as a reference to the prescribed criteria for a class of visa as identified in s 31(3) of the Migration Act ("[t]he regulations may prescribe criteria for a visa or visas of a specified class") and Reg 2.03(1) of the Migration Regulations which states: (1) For the purposes of subsection 31 (3) of the Act (which deals with criteria for the grant of a visa) and subject to regulation 2.03A the prescribed criteria for the grant of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. This, noted the Minister, is consistent with the requirement in s 65(1)(a)(ii) (that the criteria for the visa, other than the health criteria, have been satisfied). 65 The Minister submitted that it followed that the specified criteria for a Subclass 880 visa are those set out in Subclass 880 of Sch 2, including the criteria in cl 880.222 ("the applicant has the qualifying score when assessed in relation to the visa"). Mr Dhanoa did not have the qualifying score (the total of 120 points) and thus, according to the Minister, the Tribunal could not make the permissible direction and had no power to remit the matter with a direction. The sub-components of the qualifying score, as set out in Sch 6A, are not "a specified criterion for the visa", even though they contribute to a specified criterion (being the qualifying score itself). The Minister supported this submission by referring to the need for the words "criterion" and "criteria" to take the same meaning throughout the statutory scheme and the language of Reg 4.15(1)(b), particularly the words "…for the visa". 66 Mr Dhanoa's submissions adopted the reasoning of the Federal Magistrate at [30]-[31], based on his submissions before the Federal Magistrates Court recorded at [16]. That is, that while "in a strict sense, the relevant visa criterion is the sum of the component parts of the points test,… the Tribunal is not required to disregard these component parts in considering whether to remit a case to the Department (with or without a direction or recommendation) in accordance with factual findings made by the Tribunal in relation to those component parts" (at [30]). The Federal Magistrate described this approach as "sensible and practical", giving the Tribunal "flexibility in order to achieve the most appropriate outcome for applicants and in accordance with any perceived public interest" (at [31]). In particular, Mr Dhanoa observed that the word "criterion" is not defined in the Act or Regulations. Its ordinary meaning includes any standard. The words in Reg 4.15(1)(b) are "specified criterion" and not "prescribed criteria" as used in the provisions relied upon by the Minister. The words "set out" in Reg 2.03(1)(a) merely identify the location of the criteria and not their content. By referring to an assessment under "Subdivision B of Division 3 of Part 2 of the Act" (that is, ss 92 to 96 concerning the points system), cl 880.222 of Sch 2 of the Migration Regulations effectively constitutes each of the matters that makes up the points test as criteria for the grant of the visa. The Minister's approach is narrow and results in inconvenience contrary to the purposive approach to construction as endorsed by the High Court in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 and given statutory effect in s 15AA of the Acts Interpretation Act 1901 (Cth). 67 Consideration of the statutory scheme as a whole supports the Minister's submissions as a matter of both language and logic. The Minister's decision to grant or refuse a visa application depends on satisfaction of the health criteria and the other criteria for the visa as prescribed (s 65(1)(a)(i) and (ii)). The criteria for a visa of a specified class are prescribed by the Migration Regulations (s 31(3)). The "specified" classes of visas are the "prescribed classes". In other words, "prescribed" and "specified" are used interchangeably at least in s 31. The prescribed criteria for the grant of a visa are identified in Reg 2.03(1) of the Migration Regulations as those criteria set out in Sch 2. Regulation 2.03(1) both identifies the location of the criteria (the relevant part of Sch 2) and their content (those criteria as set out in that relevant part). Schedule 2 identifies the primary and secondary criteria for the various classes of visas. Insofar as relevant, one criterion for a Subclass 880 visa is the criterion in cl 880.222. That criterion is that the applicant has the qualifying score when assessed as required. The qualifying score is thus a "specified criterion for the visa" as referred to in Reg 4.15(1)(b). The component parts of the qualifying score are not a "specified criterion for the visa". 68 Consideration of the context does not lead to a different conclusion. It is true that cl 880.222A refers to "a criterion" in relation to employment which is part of the points system in Pt 4 of Sch 6A. But that reference to a criterion is a criterion for the determination of employment for a certain period. Despite its appearance in the list of criteria to be satisfied at the time of decision, it is an interpretative provision. It assists in determining whether the criterion in cl 880.222 is satisfied or not. Given its function in the clause it should not be used as a basis to construe Reg 4.15(1)(b) other than in a manner which reflects the language of the statutory scheme as a whole. 69 This construction of Reg 4.15(1)(b) does not unduly constrain the Tribunal from the performance of its functions in accordance with its statutory mandate. It is not inconsistent with the purpose of the statutory scheme once it is recognised that identifying a statutory purpose involves a conclusion derived from the language of the statute construed in the light of its surrounding circumstances (for example, Singh v Commonwealth of Australia (2004) 222 CLR 322; [2004] HCA 43 at [19]-[20]). 70 Given that s 65(1)(a)(ii) requires that the criteria prescribed by the Act and Regulations for the visa be satisfied in order for the Minister to grant the visa, it makes sense to confine permissible directions under Reg 4.15(1)(b) to the prescribed criteria for the relevant class of visa. Viewed at the level of the statutory scheme as a whole why should there be any power of remittal when an applicant satisfies one component making up the specified criterion but fails to satisfy the whole of the specified criterion itself? For example, what purpose could be served by a direction that an applicant satisfies only one of the public interest criteria in cl 880.225 or did not say anything materially false or misleading about only one of the matters specified in cl 880.224? The specified criteria are subsets of the specified criterion as a whole. The Minister would still be bound to refuse to grant the visa under s 65. The same conclusion must follow in relation to an applicant who does not have the qualifying score as required by cl 880.222. The same conclusion does follow unless there is imposed on the statutory scheme some overriding policy objective of ensuring that an applicant, under the umbrella of a single application, is to be permitted to undergo as many attempts as possible to satisfy the specified criteria before a decision on the application can or should be made. We do not see any basis for the imposition of that objective on the statutory scheme. 71 For these reasons we accept the Minister's submission that, on the facts of this case, the Tribunal had no power to remit the matter to the Minister for reconsideration under s 349(2)(c) because there was no permissible direction or recommendation the Tribunal could make so as to enliven its power to do so. The Tribunal could not remit the matter generally without any direction (for the reasons already given above) and could not remit the matter with a direction relating to Mr Dhanoa having achieved 20 points for his IELTS test on 12 July 2008 because the language skills component is not a "specified criterion for the visa" within the meaning of Reg 4.15(1)(b). The specified criterion is the qualifying score of 120 points which Mr Dhanoa, pursuant to the assessment as required, did not satisfy for the reasons the Tribunal gave.

Consequence of lack of power 72 By reason of the conclusions above that the Tribunal had no power to remit the matter, it follows that the Tribunal had no obligation to consider doing so. It also had no obligation to consider deferring or delaying its decision. The Tribunal is entitled to make a decision on the information it has available to it at the time it is called upon to consider the application. It is not bound to consider deferring or delaying its decision merely because an applicant may wish or even request it to do so. In any event, in this case, the evidence records only that Mr Dhanoa made a request that the matter be remitted to enable the payment of the deposit (see para 20 of the Tribunal's reasons). It does not refer to any request that the Tribunal defer or delay making its decision. The Tribunal considered the request recorded in para 20 of its reasons. The Tribunal must be taken to have denied the request for the reason given in para 20 and repeated in para 36, namely, that the requirement of item 6A81 in Sch 6A is that the applicant "has deposited" the security. The source of the obligation to do more, namely to give specific consideration to its powers of remittal, is not apparent.

CONCLUSION 73 For the reasons given above we are satisfied that the Federal Magistrates Court erred in deciding that the Tribunal had committed a jurisdictional error by unreasonably failing to make inquiries of the Minister's Department about the existence of a designated security a deposit into which would have entitled Mr Dhanoa to 5 bonus points under the points system applicable to the Subclass 880 visa to which his application related. We are also satisfied that there was no jurisdictional error by the Tribunal in not considering its power to remit the matter to the Minister for reconsideration as the Tribunal had no power to do so on the facts of this case. Nor was the Tribunal bound to consider delaying or deferring its decision until Mr Dhanoa had an opportunity to make a deposit into a designated security. The existence of any opportunity to that effect would have involved the Tribunal engaging in mere speculation about a matter in the control of the States and Territories to issue securities and the Minister to designate those securities. 74 It follows that the Minister's appeal must be allowed. Mr Dhanoa should pay the Minister's costs of the appeal and the hearing before the Federal Magistrates Court. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot and Foster.

Counsel for the Appellant: Mr S Lloyd SC and Mr T Reilly

Solicitor/Advocate for the First Respondent: Mr M Jones

Solicitor for the Appellant: DLA Phillips Fox

Solicitor for the First Respondent: Michael Jones

Legislative Instruments Act 2003(Cth)

REASONS FOR JUDGMENT MOORE J: 1 I have had the benefit of reading the judgment of Jagot and Foster JJ in a draft form. I gratefully adopt their Honours' account of the background and the relevant legislative provisions. I would dismiss the appeal. I would do so because, in my view, the Federal Magistrate did not err in concluding that the Migration Review Tribunal fell into jurisdictional error though I reach this conclusion for slightly different reasons. 2 The Tribunal's duty to review a decision arises if an application is made under s 347 of the Migration Act 1958 (Cth) (the Act). The power to review is exercisable in relation to an MRT-reviewable decision. In a case such as the present, the reviewable decision is the decision to refuse to grant a visa to the applicant seeking a review. Thus the review occurs in a context where a decision has already been made by the primary decision maker to refuse to grant a visa. It is in this context that the scope of the power conferred by s 349 must be addressed. In my opinion, the exercise of the power conferred by s 349(2)(c) to remit a matter for reconsideration necessarily involves the exercise of an implied power to set aside the decision under review. Unless the primary decision maker's decision is impliedly set aside, there would be nothing for the primary decision maker to reconsider. Unless the reviewing body had impliedly set aside the decision, the matter would return, by remitter, to the primary decision maker for reconsideration of whether a visa should be granted but in the face of a subsisting decision to refuse to grant the visa. It is unlikely this was intended. A similar construction of a cognate provision was adopted by Lee J in Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 concerning the power of remitter exercisable by the Refugee Review Tribunal under s 415(2) which was then in the same terms as s 349(2). His Honour concluded at [12] that the reviewing body when remitting an application "must be taken to have, at least, set aside the decision under review, without substituting a new decision therefor". 3 This leads to a consideration of whether the power to impliedly set aside and remit can be exercised without making a direction or recommendation and, in particular, a direction or recommendation permitted by the regulations. That is, is the power to remit only exercisable if the Tribunal proposes to make a direction or recommendation permitted by the regulations? On one view, the power is circumscribed in this way and the regulations provide the mechanism for limiting the circumstances in which a decision will be impliedly set aside and the matter remitted. The language of s 349 points to that construction. In one composite phrase, s 349(2)(c) authorises remittal of the matter "for reconsideration in accordance with such directions or recommendations". The language might suggest it is remittal for a limited and specified purpose. 4 However in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [39] Kirby J treated a power conferred on the Administrative Appeals Tribunal expressed in broadly similar terms as enabling remittal with or without directions or recommendations. In my view, nothing turns on the fact that the power to set aside the decision was an express power conferred on that Tribunal by the relevant provision, whereas in the present case it is only an implied power. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly provides: (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. While Kirby J's conclusion was not repeated or adopted by the other High Court Justices in their reasons for judgment in Shi, in the absence of any other authority (and I can find none) on this question, it is a view of the law which should command particular respect: see generally Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 per Gummow J at 504. 5 I have little doubt that if a decision is impliedly set aside under s 349(2)(c) and a recommendation is made, the primary decision maker is not bound to give effect to the recommendation: Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 and Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1993) 120 ALR 362, though in the ordinary course the primary decision maker would be obliged to give the person affected by the decision an opportunity to be heard before departing from the recommendation. On the other hand, if a decision is impliedly set aside under s 349(2)(c) and a direction is made, the direction (putting to one side the terms of any regulation identifying permitted directions) probably must be complied with: Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 but see Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 per Lee J at [17]; Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397 per Lee J at [23]; Re Devine and Commonwealth (1982) 5 ALN N28 per Davies J (President), Dr Glick and Mr Oxby. However, having regard to the combined operation of s 349(2)(c) and reg 4.15, the direction would be one that ought be complied with by the primary decision maker. In these two ways the primary decision maker's powers when reconsidering the matter on remitter are circumscribed. 6 It is not, in my opinion, correct to say that if s 349(2)(c) is construed as conferring a power to remit without directions or recommendations then the words "in accordance with… the regulations" are superfluous. What those words do is limit the way in which the Tribunal could circumscribe the decision-making power of the primary decision maker on remitter. Where there was remitter without a direction or recommendation the primary decision maker would have an unconstrained power to make the decision again though by reference to the facts existing at the time the decision was again being made: Haoucher supra per Spender, Gummow and Lee JJ at [371]. 7 I think it can be said that, on any view, the words in the paragraph cannot be read literally. That is because the expression "with such directions or recommendations of the Tribunal as are permitted" is obviously not intended to relate to the content of the direction or recommendation (which the words read literally suggest) but rather relate to a class or type of direction or recommendation which are identified in the regulations as one which might be made. 8 However I am inclined to think that the construction of s 349(2)(c) adopted by Jagot and Foster JJ is the correct one. But for reasons which become apparent shortly, it is unnecessary to determine the question and I can proceed on the assumption that it is. 9 On this assumption, it is necessary to ascertain what the regulations permit by way of direction or recommendation as part of the remitter. Before considering the terms of reg 4.15, it is convenient to refer to some of the facts found by the Federal Magistrate in the present case. These findings were not challenged in the notice of appeal though the Minister's submissions rather suggested that part of the factual matrix considered by the Federal Magistrate resulted from enquiries his Honour made rather than the evidence. At [31] of the Federal Magistrate's reasons his Honour noted that paragraph 75.5 of the Policy and Procedures Manualstated that the visa application form tells applicants not to deposit the required money until asked to do so by the Department because such a deposit represents a significant financial step. Earlier in his reasons at [23], his Honour noted that at the time of the Tribunal's decision, there was no approved deposit regime in place so, as a practical matter, it would have been impossible for the applicant to deposit $100,000 in a designated security. The combined effect of these findings appears to be that depositing money to gain the bonus points requires a request to do so by the Department and at the time of the Tribunal's decision, no such request would have been made because there was no designated security into which money could have been deposited: see reg 2.26C and Part 8 of Schedule 6A. 10 Returning to the terms of reg 4.15, it is to be noted that only one permissible direction is identified and no reference is made to permissible recommendations. The permissible direction is that the applicant must be taken to have satisfied a "specified criterion" for the visa or entry permit. What then is meant by the expression "specified criterion"? The meaning of the word "criterion" in the context of the Act in an earlier form was considered by a Full Court in Pillay v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 368 per Carr, Sackville and R D Nicholson JJ at 373: [T]he ordinary meaning of the word "criteria" supports a wide construction. The Oxford English Dictionary Second Edition, Vol IV, p 29 defines "criterion" as meaning "a test, principle, rule, canon or standard, by which anything is judged or estimated". The Macquarie Dictionary, revised edition at p 437 defines "criterion" as "a standard of judgment or criticism; an established rule or principle for testing anything". These definitions are sufficiently broad to embrace a time limit for the lodging of a visa application. 11 However we are here considering not the word "criterion" in isolation but as part of the composite expression "specified criterion". Had the regulation spoken of "prescribed criterion" there is little room to doubt that it should be taken to have the same meaning as in ss 31 and 65 and, for that matter, s 505. That would be so because of s 13 of the Legislative Instruments Act 2003 (Cth). The enquiry then would be what is meant by the expression "prescribed criterion" in the Act noting that the word "prescribed" is itself defined in s 5 and has the conventional meaning of prescribed by the regulations but also that s 65(1)(a)(ii) speaks of "other criteria… prescribed by [the] Act or the regulations…". However the language adopted, with the adjectival qualification of "specified", does not dictate this enquiry. A different word of qualification has been used. 12 It is tolerably clear, in my opinion, that the matters that result in points being allocated to a visa applicant under Schedule 6A of the regulations constitute criterion in the way discussed by the Full Court in Pillay. Each constitute a standard or test by which, ultimately, the application will be judged. It is true that the prescribed criterion is, in this respect, attaining a qualifying score which, in this case, is prescribed by the regulations in item 880.222 in Schedule 2. However the choice of the word "specified" and not "prescribed" does, in my opinion, point to the possibility of a direction under reg 4.15 concerning any of the matters which collectively might give an applicant a score satisfying the prescribed criterion. 13 The mischief addressed by the section conferring the power to remit is identified in the passage from the Minister's written submissions set out by Jagot and Foster JJ at [59]. The facts of this case which are referred to earlier readily illustrate how the power to remit limited by the regulation might operate to ensure that an application can be "[sent ...] back to the Department to get clearance of the more procedural criteria". The depositing of the security, which was plainly intended to provide a means for an applicant to obtain a favourable outcome by satisfaction of the prescribed criterion involving points test, was singularly a matter to be dealt with by the Department. So much is apparent from the Policy and Procedure Manual referred to earlier. Is the apparent purpose of the referral power achieved by construing the regulation so as to deny the Tribunal the power to refer an application in circumstances such as the present to facilitate or permit the depositing of a security to secure points to satisfy a prescribed criterion? In my view, it is not and the language of the regulation together with a context in which it appears does not require that construction. A construction which is reasonably open and more closely conforms with the legislative intent is to be preferred: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ at [408] and, more recently, Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [9] per French CJ and Bell J and [62] per Crennan and Kiefel JJ. 14 In my opinion, the Federal Magistrate was correct in concluding at [30] that the Tribunal had power to remit the case to the delegate with a direction that the applicant met specified component parts of the points test for the purposes of clause 880.222. The Tribunal did not consider the request of the applicant to remit the matter but rather proceeded to evaluate whether, at the time of its decision, a deposit had been made. That conclusion was reached in the face of the request that the matter be remitted together with a letter from the respondent's migration agent to the Tribunal before it made its decision that the respondent was ready to deposit the required amount though noting that he had received no invitation from the Department to do so. In these circumstances the Tribunal failed, in my opinion, to deal with an essential part of the case advanced by the respondent and fell into jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 per Gummow and Callinan J at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [349], Gleeson CJ agreeing; Craig v State of South Australia (1995) 184 CLR 163 per curiam at [179]; Industry Research and Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47 per Tamberlin, Sackville and Selway JJ at [58]. 15 I would dismiss the appeal with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (22)

Cited By (3)