MZYPZ v Minister for Immigration and Citizenship

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: BROMBERG J DATE: 9 MAY 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate (MZYPZ v Minister for Immigration & Citizenship [2011] FMCA 531) in which the Federal Magistrate dismissed the appellant's application for writs of prohibition and certiorari, a declaration of invalidity and an order remitting the matter for determination according to law. The Federal Magistrate reviewed a decision of the Migration Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the appellant a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa ("the Partner visa"). 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 4 The appellant is a Sri Lankan citizen who arrived in Australia in 1999 on a subclass 676 visa. On the expiration of that visa, the appellant applied for a Protection (Class XA) visa, which application was refused by a delegate of the Minister. That decision was the subject of subsequent review by the Refugee Review Tribunal ("RRT"), however, the appellant was ultimately unsuccessful and the original decision of the delegate of the Minster was affirmed. 5 The appellant subsequently applied for a Partner visa, sponsored by his wife. The appellant claimed that he was married on 23 November 2008 and separated on 23 April 2010 allegedly due to his wife being violent toward him. A delegate of the Minister refused to grant the Partner visa, and as a result, the appellant applied to the Tribunal for review of that decision. Ultimately the appellant was unsuccessful, and made an application for judicial review to the Federal Magistrates Court, which as set out above, was dismissed. 6 The only issue raised by this appeal is whether the learned Federal Magistrate erred in failing to identify jurisdictional error in the way the Tribunal dealt with whether or not the appellant satisfied cl 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). 7 For the reasons that follow, I have determined to allow the appeal and make consequential orders remitting the matter to the Tribunal for redetermination. 8 The learned Federal Magistrate correctly identified the only live issue before her at [10]-[13] as follows: [10] In the present case, only sub-cl.820.211(2) is relevant to the Applicant's circumstances. Under cl.820.211(2)(d), if an applicant does not hold a substantive visa, (as the applicant did not), the applicant is required to: • have entered Australia on a subclass 995 (Diplomatic) visa or a special purpose visa and satisfy criteria 3002 of Schedule 3 of the Regulations: cl.820.211(2)(d)(i); or • satisfied criteria 3001, 3003 and 3004 in Schedule 3 of the Regulations unless the Minister is satisfied that there are 'compelling reasons' for not applying these criteria; cl 820.211(2)(d)(ii). [11] As the Applicant did not satisfy cl.820.211(2)(d)(i), the issue was accordingly reduced to whether the Applicant satisfied cl.820.211(2)(d)(ii). [12] In order to satisfy criterion 3001, the Applicant must have lodged the application for a Partner visa within 28 days of the relevant day, being the day that he last held a substantive visa. In the Applicant's case, this was on 10 August 1999. The Tribunal found that the Applicant could not satisfy criterion 3001 and, accordingly, the issue was whether it was satisfied that there were 'compelling reasons' not to apply the criteria. 9 Clause 820.211(2)(d)(ii) is in the following terms: (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) … (ii) the applicant satisfies Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 10 That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, "compelling reasons" means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). 11 As Whitlam J said in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10]: Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another. The adjective 'compelling' does not introduce an objective standard. The waiver decision will always involve a subjective judgment. 12 In the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred. 13 The decision-maker needs to be "satisfied" that compelling reasons exist. 14 The limitations upon a judicial review of the exercise of a power or discretion conditioned upon a decision-maker reaching an opinion or state of satisfaction was a matter addressed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. Gleeson CJ at [8] referred to the following statement by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360: But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. 15 In Applicant S20, McHugh and Gummow JJ at [36] observed that a stricter view should be taken as to what must be shown in order to make out jurisdictional error in circumstances where the power exercised by the decision-maker is conditioned upon the decision-maker's satisfaction that a certain state of affairs exists and that state of affairs includes factual matters. Their Honours referred to R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 where at 120 Dixon CJ, Williams, Webb and Fullagar JJ said: The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact. 16 Kirby J at [126] in Applicant S20 said: As Latham CJ explained in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd, on review a court's inquiry is limited to determining "whether the opinion required by the relevant legislative provision has really been formed". Where the decision and the reasons and critical findings of fact that form the basis of that decision are recorded (as was obligatory under the Act in the present case) the Tribunal's reasoning may disclose a misconception about the nature of the fact-finding process required by the Act. It may then become apparent that the fact-finding has miscarried to a significant degree, in the sense that it does not conform to the requirements, express or implied, in the empowering statute. In such circumstances it may be concluded that the opinion or satisfaction reached was not the kind of opinion contemplated by the statute. In each case, the identified pre-condition for the exercise of the power conferred would not be fulfilled. 17 What each of those statements of principle show is that if jurisdictional error is to be found, it must be found in the process by which a state of satisfaction is reached rather than in the correctness of the opinion arrived at. 18 The challenge raised by the appellant is that the Tribunal failed to consider a matter that it was bound to consider. That is a challenge to the decision-making process and raises for consideration the possibility of jurisdictional error of the kind referred to by Dixon CJ in the passage from Avon Downs set out above at [14]. The relevant question raised by this appeal is, has the decision maker excluded "from consideration some factor which should affect his determination"? That, inturn, involves consideration of the nature of the fact-finding process required by cl 820.211(2)(d)(ii) in order for the Tribunal to have reached the requisite state of satisfaction. 19 In my view, the process required by the clause entails a duty to consider whether compelling reasons exists. A cursory consideration will not suffice where there exists, as in this case, a mandatory consideration (whether compelling reasons exist) which the Tribunal was bound to take into account. To comply with the duty conferred, the Tribunal had to engage in "an active intellectual process" in which the prescribed circumstance "receives [the Tribunal's] genuine consideration": Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57] (Stone, Foster and Nicholas JJ), citing Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (Gleeson CJ and Gummow J). 20 In Tickner, Burchett J stated at 476 that to "consider" required the decision-maker to apply "his own mind to the issues raised". The decision-maker may be assisted by others to collect the relevant facts but it is the decision-maker's task to "evaluate" them. Whilst an administrative decision-maker must exercise his or her own judgment, not every step in the decision-making process must be personally done by him or her. Reliance may be placed on facts found by others (such as advisers to a Minister), provided that the decision-maker acts on the basis of an accurate summary of the relevant evidence and submissions upon which the facts have been found: Asiamet (No 1) Resources Pty Ltd v Commissioner of Taxation (2003) 126 FCR 304 at [116] (Emmett J) approved on appeal Commissioner of Taxation (Cth) v Asiamet (No 1) Resources Pty Ltd (2004) 137 FCR 146 at [217]-[218] (Allsop J, with whom Ryan and Finkelstein JJ agreed). 21 In its decision at [65]-[81], the Tribunal considered whether "compelling reasons" existed for applying the criteria specified in 3001, 3003 and 3004 in Schedule 3 of the Regulations. Having examined a number of considerations, the Tribunal considered that it was not satisfied that there were compelling reasons. 22 One of the matters which the Tribunal considered was the appellant's claim that he was fearful of returning to Sri Lanka. The Tribunal had material before it that indicated that long before the appellant had met his wife in 2006, the appellant had applied to remain in Australia as a refugee. He had made an application for a protection visa in or about 2000. He claimed that as a journalist he would face political persecution should he be returned to Sri Lanka. In addition to that, the Tribunal's decision records that the appellant had told the Tribunal that he had received death threats in Sri Lanka, had faced a lot of hardship there, and could not go back. 23 The Tribunal's determination of that issue was briefly explained at [74] of its reasons as follows: …and the Tribunal finds that the applicant has made an application for a protection visa in the past and that this application was refused. Accordingly the Tribunal finds that these claims do not amount to compelling circumstances. 24 In the proceeding before the Federal Magistrate, and on this appeal, the appellant contended that the Tribunal failed to consider and assess the appellant's ongoing fears for his safety, as at the time of his application, and instead had relied upon findings made by the RRT some two years earlier in relation to the appellant's application for a protection visa. 25 The Federal Magistrate dismissed that contention at [46] of her reasons for judgment, as follows: The Applicant argues that his fear for his safety as at November 2009 was what the Tribunal should have considered. The Applicant, however, raised only matters with the Tribunal which occurred prior to his arrival in Australia in 1999. These matters must have been considered by the Refugee Review Tribunal which refused his application for a protection visa in August 2007. He raised nothing to suggest any reasons why those fears should be given greater weight in November 2009 or any factors occurring between August 2007 and November 2009 which should cause the Tribunal to consider such fears to now constitute 'compelling reasons' for waiving the requirements of the relevant regulations. 26 With respect to the Federal Magistrate, her Honour's decision fails to grapple with the appellant's primary contention. That contention is that because the Tribunal relied upon the rejection by the RRT of the appellant's application for a protection visa, the Tribunal foreclosed and did not consider for itself whether the appellant's return to Sri Lanka posed sufficient risk to the appellant's safety to warrant a finding that compelling reasons existed. That contention raises the issue of whether the Tribunal's decision-making process is affected by jurisdictional error because the Tribunal failed to consider for itself, and thus failed to satisfy itself, whether compelling reasons existed. 27 There can be little doubt that whether it was safe for the appellant to return to Sri Lanka was an issue capable of grounding a finding that compelling reasons existed. There was at least some probative material before the Tribunal which could have supported a finding that it was unsafe for the appellant to return to Sri Lanka. In the discharge of its duty to consider whether compelling reasons existed, the Tribunal was required to consider that material for itself and evaluate it. The Tribunal was required to engage with that material and give it genuine consideration. It was not entitled to reject the material on the basis of its unstated assumption that, because the appellant's application before the RRT was rejected, the material before the Tribunal must have been rejected by the RRT and thus should now be rejected by the Tribunal. By adopting that assumption, the Tribunal failed to consider the evidence before it as it was required to do. 28 I should add that the assumption that the Tribunal made was not necessarily well founded. Whilst the outcome of the RRT's review was before the Tribunal, it is not apparent that the Tribunal had before it the RRT's reasons or any record of the proceedings before the RRT. 29 Finally, I should also say that it would have been permissible for the Tribunal to have had regard to any findings made by the RRT about the issue of the appellant's safety, so long as it did so assisted by an accurate account of the relevant evidence and submissions upon which those findings were made. If the Tribunal had done that, the inference that it failed to exercise its own judgment may not have been available. 30 The Tribunal's failure to consider and evaluate for itself whether the material relied upon by the appellant, as to the risk to his safety should he return to Sri Lanka, resulted in the failure by the Tribunal to deal with the consideration (whether compelling reasons existed) that the Tribunal was bound to consider. That failure in the decision-making process involved jurisdictional error.

disposition 31 In light of my conclusion that the process engaged in by the Tribunal involved jurisdictional error, the appeal should be allowed, the decision of the Tribunal should be set aside, and the appellant's application for a visa should be remitted to the Tribunal, differently constituted, for determination in accordance with law. I will make orders to that effect. 32 I have not heard the parties on the question of costs and it is unclear whether the appellant seeks to set aside the order made by the Federal Magistrate that the appellant pay the first respondent's costs. I will not make any orders in relation to costs until I have received further submissions from the parties. The parties should confer as to the question of costs and either file proposed consent orders or if no agreement is reached file submissions in accordance with the directions I will make. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.