Minister for Immigration & Multicultural Affairs v Hayman

REASONS FOR JUDGMENT 1 Brian Hayman is a citizen of and lives in Sri Lanka. His four brothers, sister and widowed mother live in Australia. Apart from Mr Hayman's brother, Gordon Hayman, who has been granted Australian citizenship, they are permanent residents of Australia. Mr Hayman's mother, Leena Hayman, is elderly and in poor health. She suffers from non-insulin dependent diabetes, hypertension, ischaemic heart disease and cerebrovascular disease. Mrs Hayman has had a stroke, cardiac valve surgery and coronary bypass grafts. She also suffers from depression, a state that is contributed to by her anxiety that her son, Brian, lives in Sri Lanka. 2 On 24 April 1995 Mr Hayman, on behalf of himself, his wife and children, applied for a visa for entry into Australia. The grant of a visa, that is a permission to travel to and enter Australia or a permission to remain in Australia, is governed by the Migration Act 1958 (Cth). There are prescribed classes of visa (see s 31(1) and reg 2.01 and Schedule 1 of the Migration Regulations) as well as classes created by the Migration Act (see ss 32 to 38). The Migration Regulations prescribe criteria for visas and visas of a specified class: the power to prescribe criteria is to be found in s 31(3). 3 Mr Hayman's application was made on a form approved by the Minister: the power to approve forms for making applications for a visa is to be found in reg 1.18(a). The form stated that it was to "be used to apply for a visa for entry into Australia in one of the following classes." This was followed by a list of fifteen classes of visa including "preferential relative" and "concessional family". Below the list there appeared the following instruction: "Write here the name of the class for which you are applying You must write one visa class only". In the space provided was written "concessional family". 4 The criteria for the grant of a concessional family visa (that is a Concessional Family (Migrant) (Class AJ) visa subclass 105) in accordance with the regulations in force at the date of the application included the following: the application must be made outside Australia; the applicant must be sponsored; the applicant must achieve a certain score after an assessment based on points given for particular attributes such as the applicant's age, occupation, English language skills and other matters: see Schedule 1, item 1110 and Schedule 2, subclass 105. 5 On 25 October 1996 a delegate of the Minister determined that Mr Hayman was not eligible for the grant of a concessional family visa. The reason given was that as a result of his assessment Mr Hayman scored fifty-five points, whereas the score required to pass the assessment was ninety-five points. There was an internal review of this decision (as to internal review see ss 338 to 343) and the review officer affirmed the decision of the delegate. 6 Subject to immaterial exceptions, a decision made on internal review is reviewable by the Immigration Review Tribunal: see s 346. In the case of a refusal to grant a concessional family visa the application for review is to be made by the sponsor: see s 347(2)(b) and the definition of a "Part 5 reviewable decision" in s 337. 7 Gordon Hayman was Mr Hayman's sponsor. On 13 May 1997 he applied to the Immigration Review Tribunal for the review of the decision of the review officer. Thereafter it must have become apparent that the application to the tribunal would not succeed on its merits. Accordingly, Gordon Hayman's solicitor filed a submission with the tribunal requesting "that the application should be assessed against the criteria relating to a subclass 104 preferential family visa on special need relative grounds: see Bandura (IRT, J Italiano, Member, No. V95/110901, 24 May 1996) in relation to consideration of an application under a different class." The reference to a "subclass 104 preferential family visa" was a reference to a Preferential Relative (Migrant) (Class AY) subclass 104 (preferential family) visa: see Schedule 1, item 1125 and Schedule 2, subclass 104 of the Migration Regulations. 8 The submission contained the reasons why it was said that Mr Hayman satisfied the criteria for the grant of preferential family visa. In short, the case put was that Mr Hayman was a "special need relative" (as defined in reg 1.03 of the Migration Regulations as then in force) of Mrs Leena Hayman being a relative who was willing and able to provide assistance to his mother who was in need of that assistance by reason of her state of health. Evidence to that effect, in the form of medical reports, was forwarded with the submission. 9 When the matter came on for hearing before the tribunal it was not suggested that Mr Hayman satisfied the criteria for the grant of a concessional family visa. The only point that was argued was that Mr Hayman satisfied the criteria for the grant of a preferential family visa and the tribunal was requested to grant that visa to Mr Hayman. 10 The tribunal held that it had jurisdiction to treat the application of 25 April 1995 as an application for both a concessional family visa and a preferential family visa. It cited Re Bandura as authority. There it had been held that where an applicant made application for a particular class of visa the decision-maker could grant a visa of another class if the applicant satisfied the criteria for that other class: See also Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647 where this approach was affirmed by the court: On appeal (sub nom Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399) the decision of the trial judge was reversed on grounds that did not require the Full Court to consider the correctness of Bandura. 11 The tribunal found that Mr Hayman did satisfy the prescribed criteria for a preferential family visa, except in two respects as to which it had no evidence. Accordingly the tribunal remitted the application for reconsideration with a direction that Mr Hayman had satisfied all of the prescribed criteria for a preferential family visa with the exception of the prescribed public interest criterion and the criterion requiring an acceptable assurance of support. In consequence of this decision, if Mr Hayman is able to show that he does satisfy the prescribed public interest criterion and the criterion requiring an acceptable assurance of support, he will be entitled to the grant of a preferential family visa. 12 The Minister now applies to review the decision of the tribunal. The application is made pursuant to s 476, and the grounds that are relied upon are as follows: (a) that the tribunal did not have jurisdiction to make the decision (see s 476(1)(b)); (b) that the decision was not authorised by the Migration Act or the Regulations (see s 476(1)(c)); and (c) that the decision was an improper exercise of the power conferred by the Migration Act and the Regulations upon the tribunal (see s 476(1)(d)). Although three separate grounds are raised there is, in reality, only one issue that is to be determined. That issue is whether the tribunal has power to grant, or to consider whether it is appropriate to grant, a visa that is different from the visa that is applied for. 13 In dealing with this question, the parties approached the matter on the basis that it was appropriate to determine whether the Minister (or his delegate) has power to grant a visa other than that applied for. It was assumed that if the Minister did not have power to grant such a visa, the tribunal could not do so. Speaking generally, that assumption is well founded. However, it was also assumed that if the Minister did have power to grant the visa so too did the tribunal. This assumption is not correct: it fails to have regard to the function and jurisdiction of the tribunal. Nevertheless, it is appropriate to consider the power of the Minister and it is to this issue that I will now turn. 14 The power to grant a visa, other than a criminal justice visa, is conferred on the Minister: see s 29. Subdivision AA of Division 3 of the Migration Act contains provisions concerning how an application for a visa (other than a criminal justice visa) is to be made and how that application is to be dealt with. It is necessary to set out the three principal sections.