Minister for Immigration & Multicultural & Indigenous Affairs v Landers

Delegate's decision 9 On 7 February 2002 the delegate delivered a decision rejecting the application. The delegate concluded as follows: "Based on the information presented, I find that the applicant and his spouse do not provide the nominator, or any member of his family unit, with 'substantial and continued' assistance within the meaning of Migration Regulation 1.03. Although the nominator's child does suffer from behavioural and intellectual disabilities, the claimed babysitting and domestic assistance provided by the applicant's spouse only occurs for a period of fifteen minutes per day. The assistance provided is intermittent, no [sic] permanent. I also find that the care required by the nominator can be readily obtained from his spouse's Australian relatives. I find that the applicant and his family are not special need relatives to the nominator's family unit in this case." 10 The delegate's reasons contain no mention of the commencement criterion.

Application to the Tribunal 11 The respondent lodged an application for review by the Tribunal. In support of his application the respondent submitted substantial medical and other evidence and statements by himself and the nominator and the nominator's wife. This material extends over some forty-one pages in the appeal book. 12 At the commencement of the hearing the following exchange took place between the Tribunal and the respondent: "MS HOPKINS: … Now, Mr Landers, I know a bit about your case because I have read these files. All right? MR C LANDERS: Okay MS HOPKINS: Today is your opportunity to put your side of the story to me so that I may take your evidence and the other people's evidence into account together with the evidence in the files and make a new decision. MR C. LANDERS: Okay. MS HOPKINS: All right. Now, you understand that I am bound by the law and the regulations - - - MR C. LANDERS: Yes, I do. MS HOPKINS: - - - that apply in your matter. MR C. LANDERS: Yes. MS HOPKINS: Now ,by way of background, let us just recapitulate over a couple of technical points. You applied for the special need relative visa in 1998 - July 1998. MR C. LANDERS: That is right, July. Yes, that is right. MS HOPKINS: Your previous visa application had been in July '97. MR C. LANDERS: ' 97, yes. MS HOPKINS: And that was rejected in August '97. MR C. LANDERS: Yes, that was the - - - MS HOPKINS: 435. MR C. LANDERS: 435, that is right, yes. MS HOPKINS: Okay. So at the time when you applied to be a special need relative - - - MR C. LANDERS: Yes. Ms Hopkins: - - - you did not hold a substantive visa. You didn't have a visa except a permit to be here. MR C. LANDERS: Yes, that is right, yes. MS HOPKINS: Okay. Now - so we have to look at that period between July '97 and July '98 to see if there was a change in circumstances. MR C. LANDERS: All right. MS HOPKINS: Because that is the category of visa that your application comes under. MR C. LANDERS. Okay. MS HOPKINS: All right? MR C. LANDERS: Yes. MS HOPKINS: So that is by way of background. Now, would you like to tell me what is relevant in this newspaper?"

Tribunal decision 13 The Tribunal found that it was clear from the documentary evidence "as well as from the open and honest evidence of all witnesses at the hearing" that the condition of the nominator's son manifested itself and was clearly diagnosed as early as 1991 and that the nominator's need for assistance because of his son's development of behavioural problems began as early as that year. The Tribunal noted the delegate's finding that the respondent did not provide substantial and continuing assistance and continued : "44. The Tribunal notes that the assistance which the visa applicant and his wife provide to the nominator and his family, due to their son's needs and to a minor degree their daughter's needs, is valuable and much appreciated. However the Tribunal is not required and does not make any findings on whether such assistance meets the requirement of the regulation. This is because the decision in this matters [sic] turns on whether the circumstances changed in the period between July 1997 and July 1998, so that in that period the visa applicant became the special need relative of the nominator. 45. The disabilities of the nominator's son and daughter manifested themselves well before 31 July 1997, being the date of the application for the subclass 435 visa. The visa applicant began assisting the nominator's family from the time of his arrival in 1995. The type and amount of care provided did not change in the relevant period. This means that the visa applicant did not become a special need relative of the nominator in the required period from 31 July 1997 to 27 July 1998."

Federal Magistrate's decision 14 After reviewing the legal authorities cited by counsel for the parties the Federal Magistrate said: "44. The MRT's approach to the matter appears to have been to allow the applicant to lead detailed - and persuasive - evidence of his likely status as a special need relative. The MRT inquired into and tested that evidence in an entirely appropriate manner. In so doing, however, and whether wittingly or unwittingly, it effectively diverted the applicant's attention away from the critical factor on which the decision had to turn, and gave him no opportunity of dealing with it in any real or practical sense. The applicant appeared before the MRT without legal representation, and the few sentences from the transcript to which Mr Fairfield referred did nothing - in my view - to warn the applicant of the overwhelming significance of the issue. Indeed, it is fair to conclude that the MRT, by bracketing the comments with the expression 'by way of background', and by describing them as 'technical points' inappropriately minimised the issue in the mind of the applicant at that time. The contents of the letter dated 15 March 1999 from the Department and the manner in which the matter was dealt with by the delegate simply reinforce the view that the applicant had been conditioned (as it were) to focus on issues other than the specific issue upon which the MRT determined that its decision should turn. 45. The passage from Kioa v West [(1985) 159 CLR 550 at 587] and VAAC v MIMIA [[2003] FCAFC 74 at [27]] to which I have referred underline the need to bring to a person's attention the 'critical issue' or 'critical factor' on which an administrative decision is likely to turn. The MRT cannot and should not 'lie doggo' (to use a colloquialism), and fail or refuse to draw the applicant's attention - clearly and directly - to the core or ultimate issue upon which it considers that the entire decision must necessarily turn. In my opinion, that is what the MRT did." 15 The Federal Magistrate also went on to hold that the respondent "could have argued" that the process gave rise to a 49. "…subjective, but legitimate and understandable, expectation in the mind of the applicant that the real or critical core issue or factor on which the MRT's decision was likely to turn was the question of whether or not he was a special need relative during the relevant period, and not the change of circumstances already referred to." 16 His Honour found that the respondent relied upon that expectation and that the practical effect of that "factual scenario or matrix" was that the procedure was unfair to such an extent to cause an injustice to the applicant. His Honour went on to hold that finding constituted jurisdictional error within the meaning of Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24. The Tribunal cited the decision of NAFF v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52 at [31] where it was said: It is not in dispute that natural justice requirements applied to the tribunal's review of the delegate's decision, or that a denial of natural justice by the tribunal may result in a decision being made in excess of jurisdiction. … Once a non-observance of (the requirements of natural justice in the particular circumstances of a case) is established, it is only if it is positively concluded that observance of the requirements 'could not possibly have produced a different result' that the decision impugned will allowed to stand: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gaudron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J." 17 The Federal Magistrate concluded (emphasis in original): "56. In all the circumstances, I am unable to conclude that observance of the requirements of procedural fairness could not have produced a different result. I can only but guess at the type and quality of evidence that the applicant might have placed before the delegate and/or the MRT if his attention had been properly drawn to the significance of the issue. That is a path down which I am not prepared to proceed. In my opinion, once a denial of procedural fairness has been demonstrated, it is for the respondent to satisfy the court of the inevitability of the original result. There is no onus on the applicant to show that a different result would have followed. This is so because the MRT's decision - infected, as it is , with jurisdictional error - is no decision at all. Prima facie therefore, the applicant is entitled to have his application re-heard according to law."

Section 359A of the Act 18 Section 359A of the Act requires the Tribunal to give an applicant information in certain circumstances. I accept that from what I was told by Mr Livermore of counsel for the respondent that s 359A was relied on before the Federal Magistrate but the principal argument was on the basis of common law procedural fairness. The Full Court has held that s 424A (the comparable provision in relation to the Refugee Review Tribunal) does not preclude the continued existence of the common law requirements of natural justice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [30]. 19 I shall therefore proceed on the basis that the common law rules of natural justice or procedural fairness governed the conduct of the review by the Tribunal in the present case. It was common ground that s 422B, introduced into the Act on 3 July 2002 by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), was not applicable.

Procedural Fairness 20 I agree with the Federal Magistrate's perceptive analysis of what happened in this case. Counsel for the Minister argued that there was no obligation to set out all the criteria for the particular visa class or sub-class. That is no doubt true. Natural justice does not require a formalistic, box-ticking approach. But what is required, as the authorities such as Kioa v West show, is that a substantial issue on which the case is likely to turn is clearly brought to the notice of the person affected by the decision. This principle does not depend on whether the issue is one of law or fact, or mixed fact and law. 21 The present case was not a question of making an applicant's case, or prompting an applicant as to the material that he should rely on (cf Luu v Renevier (1989) 91 ALR 39 at 45-46) or advising an applicant of deficiencies in the material provided (cf Malik v Minister of Immigration and Multicultural Affairs (2000) 98 FCR 291 at [22]). On the contrary, this was a case of failing to tell an applicant what, in practical terms, was the issue on which the decision was likely to turn so that the applicant could work out for himself what evidence and argument might best help him to obtain the decision he sought. 22 Not only was this not done in the present case but the whole circumstances were such as to distract the attention of the respondent from the critical issue. The commencement criterion is not mentioned in the application form, nor in the delegate's letter, nor in the delegate's reasons for decision. On the application to the Tribunal the respondent advanced substantial material in an attempt to meet the ground on which the delegate had decided against him. Of course, as counsel for the Minister pointed out, the Tribunal was obliged to conduct a complete rehearing and would have erred in law if it simply adopted the delegate's reasons. But that does not gainsay the fact that the way the delegate decided the case was one of the factors in the overall scheme of things which led to the respondent not being directed to the critical issue but instead being diverted from it. 23 The passage relied on by counsel for the Minister and quoted above (at [12]) did not rectify the omission. I agree with the observations of the Federal Magistrate about this. Moreover the use of the term "background" rather suggests something which is perhaps interesting as setting the scene but not really critical. If it were, it would be in the foreground. The reference to "change in circumstances" was ambiguous and would not bring home clearly to the respondent the commencement criterion. Evidence of reliance 24 Counsel for the Minister argued that there was no evidence that the respondent in fact held any kind of subjective expectation as to how the Tribunal would approach the application, or that he relied on such an expectation. Reference was made to Muin v Refugee Tribunal (2002) 190 ALR 601, Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 at [36]-[38] and [106] and Re Ruddock; ex parte Applicant S154/2002 (2003) 201 ALR 437 at [2],[38]-[39],[55]-[57] and [127]-[128]. 25 As appears from the passage in the Federal Magistrate's reasons cited at [15] above, "legitimate expectation" was an alternative basis for his decision and, it would seem, one that had not been argued. Breach of the particular subset of the rules of natural justice involved in the present case - failing to direct the person affected to what the decision-maker regards as the real issue - has nothing to do with legitimate expectation. If a decision-maker relies on adverse evidence from a third party without giving the person concerned the opportunity to meet it, relief does not depend on the person demonstrating how he or she would in fact have dealt with that evidence had he or she been aware of it, or what his or her expectation was. The onus is on those seeking to uphold the decision to show that observance of natural justice "could not possibly have produced a different result": Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The rule that requires the person concerned to be notified of the real issue for decision stands on the same footing. It is a positive obligation on the decision-maker, part of the general obligation imposed by law to follow a fair procedure in arriving at the decision. The authorities cited by counsel for the Minister deal with the quite different situation where the allegation is that a decision-maker has misled the person affected. 26 In any case, it was open to the Federal Magistrate to infer from all the circumstances that the respondent in fact formed a belief that the critical issue was not the commencement issue but whether he was a "special need relative" at all, and that in reliance on that belief he advanced the kind of case that he did. Findings as to the existence or otherwise of belief or reliance are findings of fact and can, like most findings of fact, be inferred from circumstantial evidence without necessarily having direct evidence of the person concerned: Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 at 481-483. Conclusion 27 The appeal will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Solicitor for the Appellant: Australian Government Solicitor