Scargill v Minister for Immigration & Multicultural & Indigenous Affairs

· by applying a wrong test of 'usually resides'; and

· by failing to apply binding legal authority, namely the decision of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 (Gauthiez).

Was there a failure to consider the criteria at the time of the application? 20 The reasoning of the Tribunal is directed almost entirely to the situation as it was disclosed to the Tribunal at the time of the hearing, but we do not think it follows that the Tribunal overlooked the situation at the time of the application. The Tribunal found that from the time the appellant left the USA he did not retain, nor did he currently have any continuing association with that country, nor an intention to return there. That finding covered both the relevant dates for the purpose of applying the criteria in Subclass 806. Further, the finding that 'The ties are rather with the United Kingdom …' is a finding that we think was intended to cover the whole period from the time the appellant left the USA. We do not think the Tribunal fell into the error alleged, but in any event, it is not an error that would assist the appellant, as the criteria require that the appellant was a 'remaining relative' both at the time of the application and at the time of the decision.

Was a wrong test of 'usually resides' applied? 21 We have already observed that the Tribunal did not apply the test propounded in pars 28 and 29 of its reasons in finding that the appellant 'usually resides' in the United Kingdom. It applied a test that made decisive the combination of three matters, namely that the appellant was born in the United Kingdom, that he remained a citizen of the United Kingdom, and that by reason of him having a maternal grandparent and an uncle in the United Kingdom he had greater ties with that country than the USA. In our opinion, in so deciding, the Tribunal failed to consider the factors of physical residency and intention which are essential elements in the notion of 'usually resides'. Gauthiez, which the appellant's counsel relies on to support the third, and different, limb of her submissions is also instructive on this limb. Gauthiez concerned the meaning and application of a regulation that is not relevantly different to reg 1.15. Mr Gauthiezwas born in France in 1953 and from then until moving to Belgium in 1972 lived partly in France and partly in French Guinea. In 1981 Gauthiez's sister and parents came to Australia and became Australian citizens. Gauthiezentered Australia on 24 January 1986 and was granted a temporary entry permit valid to 24 April 1986, since when he remained in Australia unlawfully. On 26 October 1990 he applied for an Extended Eligibility (Family) Entry Permit which was refused by a decision of the Minister's delegate. That decision was affirmed by a decision of the Immigration Review Tribunal on 20 December 1993. Thus, at the date of the application for a visa the applicant had been unlawfully in Australia for approximately three and a half years, and by the time of the Tribunal's decision, unlawfully in Australia for more than six and a half years. 22 The Tribunal held that Gauthiez's country of residence was not Belgium as he contended because there was no evidence that since coming to Australia in 1986 he had maintained 'any ties with that country'. The Tribunal held that he usually resided in France where his brother also resided, thus he was disqualified as a 'remaining relative'. The Tribunal considered three matters taken together pointed to France as the country of residence, namely he was born and grew up there, and he was a French citizen. 23 Gauthiez applied to the Federal Court to review the Tribunal's decision. Gummow J, in reliance upon authorities discussed by him at 519 - 521, held that in considering where an applicant 'usually resides' for the purpose of the regulation, the applicant cannot rely on unlawful residence in Australia as constituting 'usual residence'. His Honour noted that the Tribunal, correctly, left out of account the illegal presence of Gauthiez in Australia from the time his temporary entry permit expired on 24 April 1986. 24 Gummow J held that the Tribunal fell into error of law in concluding that Gauthiez usually resided in France. His Honour held that the fact that the applicant was born in France and grew up partly in France and partly in French Guinea were, in the circumstances of the case, matters of historical tie and no more. His Honour said, at 521: 'His citizenship was an enduring link with France. But citizenship and residence are distinct concepts although, of course, in common experience most people usually reside in a country of which they have citizenship. Nevertheless, in my view, and as a matter of law, the mere circumstance that the applicant retained his French citizenship could not, without more, indicate that he was a resident in France. Accordingly, there was an error of law by the Tribunal which is reviewable in this proceeding.' 25 In our opinion that reasoning applies directly to this case. The fact that the appellant was born in the United Kingdom and lived there until about 1993 were matters of historical tie but, without more, those matters said nothing about the appellant's current place of abode or his intentions. His citizenship was a factor to be taken into account, but again, required other evidence to lead to an inference that he usually resides in the United Kingdom. In the circumstances of this case, we consider there was no other evidence, and the finding that the appellant 'usually resides' in the United Kingdom was not open on the material before the Tribunal. 26 Gummow J also considered the question whether a finding as to the place where an applicant 'usually resides' is a reviewable finding of fact. His Honour at 519 said: 'The meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily resides" is such as to make the result in a given case depend largely upon matters of fact and degree. That means that if, in the reasons of a body such as the Tribunal, no misapprehension of the meaning of the provision in question is disclosed, and no misconception appears as to what may amount to "residence" or "usual residence", the decision will not involve a question of law. This will be so unless the facts before the Tribunal were incapable of the legal complexion placed upon them: Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104, per Dixon J.' In our opinion the reasons of the Tribunal in this case disclose that in reaching its conclusion it failed to address the proper meaning of 'usually resides' and reached a conclusion that was incapable of supporting the finding which it made. Hence it fell into error of law. 27 There is an important factual difference between the circumstances considered in Gauthiez, and the present case. In Gauthiez the visa applicant had been in Australia, living here, for a substantial period, but his presence during that time was left out of account as it was an illegal presence upon which he could not rely for the purpose of supporting a visa application. In the present case, the appellant's presence in Australia after he left the USA was lawful. He entered Australia on a temporary permit as a visitor, suggesting that at the time of his entry he may not have had a firm intention to reside in the future in Australia. However, after two and a half months, he made an application for a visa which assumes such an intention, and thereafter he lived in Australia with his mother. Had the Tribunal posed the question: 'Where in that period was his place of abode, where was his home?' the answer inevitably would have been 'in Australia at his mother's place', and the material before the Tribunal indicated that his only intention was to remain living there. 28 Counsel for the respondent contends that the Tribunal did not err in leaving out of account consideration of the appellant's presence in Australia. This submission is based on the following words in reg 1.15(2)(a)(i), namely 'An applicant is disqualified if: the applicant … usually resides in the same country, not being Australia, as an overseas near relative' (emphasis added), and on the following passage from the judgment of Gummow J in Gauthiez at 521 which, it is contended, reflects those words: 'However, I prefer to base my decision upon a more direct ground. It turns significantly upon the legal effect which is to be given, in any proper consideration of the usual residence of the applicant for the purposes of the Regulations, to his illegal presence in Australia for a number of years immediately preceding the application and the decision. It was for the Tribunal to consider whether the disqualification imposed by reg 9 did not apply because, putting aside Australia, as it had to be put aside, the applicant did not usually reside in any country. Rather, as I have indicated, the Tribunal approached its task as if the legislation required a choice to be made between France and Belgium. This is not a case where the error of law was of no significance; it meant that the applicant failed to receive the consideration of his position which the law required (cf Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 265).' (emphasis added) 29 In our opinion this passage is not directed to the construction of the reg 1.15(2)(a)(i). Australia had to be put aside in that case, not because of the express requirement of the regulation, but because the presence of the applicant in Australia after his temporary entry visa expired was illegal. This policy consideration was expressed by Gummow J at 521, saying: 'the applicant cannot rely on his unlawful activities under the immigration law to secure an advantage thereunder, by establishing his usual residence in Australia.' 30 It will be noted that in the definition of 'overseas near relative' in reg 1.15(3), there is no requirement that a person within pars (a) and (b) is overseas, or not usually resident in Australia. The concluding words of reg 1.15(3) confine the definition of 'overseas near relative' to such of those people who are 'not a relative of the kind referred to in subregulation (1)'. That qualification however would not include a non-dependent step-child as a non-dependant step-child is not one of the relatives listed in subreg (1). For that reason, we think, the words 'not being Australia' are included in subreg (2) to make it clear that an overseas near relative whose place of residence may disqualify an applicant is an overseas near relative who does not usually reside in Australia. We do not think that reg 1.15(2)(a)(i) requires that lawful presence of the appellant in Australia is to be left out of account in considering where the appellant usually resides. 31 In our opinion in determining whether the appellant met the criteria prescribed in Subclass 806 it was necessary for the Tribunal to take into account the appellant's presence in Australia, at least from the time when he made his application for the visa. The failure to do so has the consequence in this case that the Tribunal failed to fulfil the task that was required of it under s 65(1) of the Act. It failed to decide according to law whether it was satisfied that the criteria prescribed by the regulations had been satisfied.

Was there a failure to apply binding authority? 32 The third limb of the submissions made by the appellant's counsel is based on an alleged failure to apply the passage from the judgment of Gummow J in Gauthiez cited above. It is contended that the Tribunal failed to consider the possibility, putting aside the appellant's presence in Australia, that he did not usually reside in any country. In our opinion that was not the question that arose in the circumstances of this case. That question arose in Gauthiez because of the long period of illegal presence in Australia which could not be brought to account. As the question did not arise in this case the Tribunal did not fall into the error alleged. 33 In the present case, the appellant's presence in Australia was lawful and should have been taken into account. It seems that the Tribunal did not consider whether the appellant was usually resident in Australia. It approached its task as if the choice of place where the appellant was usually resident was between the USA and the United Kingdom. To so confine its consideration was an error of law.

Does s 474(1) protect the Tribunal's decision from review? 34 The remaining question is whether the error on the part of the Tribunal, which constituted a failure to correctly address the prescribed criteria for the visa for which application was made, constitutes an error which is not protected from review under s 474(1) of the Act. Such a decision will not be protected as a privative clause decision if it is not one made 'under this Act': s 474(2). 35 In Plaintiff S157, Gaudron, McHugh, Gummow, Kirby and Hayne JJ in their joint judgment said at [76] - [78] (omitting footnotes): '[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] … made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision … made under this Act" and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act. [77] To say that a decision that involves jurisdictional error is not "a decision … made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. [78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft order nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act.' 36 In the present case the reconciliation process to which the joint judgment refers requires an examination of the nature of the obligation imposed on the Minister, and hence the Tribunal, by s 65(1) and its relationship with s 474 of the Act. Such an examination was undertaken by Gaudron and Kirby JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. Their Honours dissented in the result in that case as they considered that the Tribunal was required by s 65(1) to consider all criteria specified for a visa of the kind applied for (in that case a protection visa) notwithstanding that no specific claim was made in regard to the particular criterion under which the applicants could succeed had they made their claim: see [88]. The majority, on the other hand, took the view that the Tribunal was not required by s 65(1), in the case of criteria disjunctively expressed, to reach a state of satisfaction (or otherwise) respecting criteria which the applicants did not advance in their visa application: see [31] - [32]. However, the exercise of reconciliation undertaken by Gaudron and Kirby JJ at [71] - [83] was that required by Plaintiff S157 and has application to the present case. In particular, their Honours said: '[80] It may be that there is no insuperable difficulty in reconciling a particular provision with s 474 of the Act in the case of a power to do some act or to make some decision that involves a significant discretionary element or in respect of which there is no detailed specification as to matters that must be satisfied before a particular act is done or a particular decision taken. In such a case it may be possible to construe the provision governing that act or decision as one which does not impose restraints or limitations which must be observed if the act or decision is to be valid. [81] On the other hand, reconciliation of a particular provision with s 474 of the Act is very difficult, if not impossible, if, as in the case of s 65(1) of the Act, there is detailed specification of conditions which must be satisfied before a particular act can be done or a particular decision taken and there is also prescription of the precise act that must be done or the precise decision that must be reached if the specified conditions are met. [82] It is important to note that s 65(1) of the Act applies to all visa applications, not merely applications for protection visas. Further, s 31 of the Act allows that "regulations may prescribe criteria for a visa or visas of a specified class" and the regulations prescribe detailed criteria for various kinds of visa … [83] In light of the detailed specification in the regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s 65(1) of the Act.' 37 In the present case the appellant's application clearly identified the basis upon which he sought a visa as a remaining relative. The Minister's (and the Tribunal's) satisfaction or lack of satisfaction on that matter was a condition precedent to a valid decision to grant or refuse a visa under s 65(1) of the Act. It was not merely a procedural requirement. For the reasons given, the Tribunal fell into error in the consideration of that question and, in the result, there was a constructive failure to exercise the jurisdiction vested in it. In our opinion, that error makes this case a plain one where the decision was not made 'under this Act'; thus, it is not a decision protected by s 474(1). 38 In our opinion, the appeal be allowed. The order of the primary Judge dismissing the application should be set aside. There should be an order for certiorari to quash the Tribunal's decision and mandamus directed to the Tribunal to decide the case according to law. The respondent should pay the appellant's costs of the application and of this appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, von Doussa and Marshall.

Solicitor for the Respondent: Australian Government Solicitor