Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs

The background to the Tribunal hearing 5 Ms Da Silva is a citizen of Brazil. She came to Australia in 1997 on a student visa valid until 31 August 1998. She withdrew from her studies at the end of 1997 without notifying the Minister and commenced to work contrary to the student visa conditions. The student visa expired on 31 August 1998. She thereupon became an unlawful non-citizen. She remained in Australia unlawfully for a period of approximately four years and 11 months in which time she also worked illegally. She entered into a de facto relationship with Mr Sneddon in November 2001. 6 In April 2003, Ms Da Silva applied for a bridging visa E, which was granted pending her departing Australia, which she did on 8 May 2003. Immediately on her departure, an application was lodged by Mr Sneddon and Ms Da Silva with the Australian Embassy in Brazil for a subclass 309 Spouse (Provisional) Visa on the basis of the de facto relationship. A delegate of the Minister refused the application on the ground that Ms Da Silva did not pass the character test. The delegate decided to exercise her discretion to refuse the grant of the visa under s 501(1) of the Migration Act. An application was then made to the Tribunal to review that decision. 7 So far as is relevant, s 501(1) confers upon the Minister (and on a review the Minister's powers are to be exercised by the Tribunal) a discretion to refuse to grant a visa to a person if that person does not satisfy the Minister that the person passes the character test set out in s 501(6). The person will not pass the character test if, relevantly, "having regard to either or both of the following: … (ii) the person's past and present general conduct; the person is not of good character;…" 8 In exercising its powers in the review, the Tribunal is bound to comply with directions given by the Minister under s 499(1) of the Migration Act for exercising powers under that Act, so long as those directions are not inconsistent with that Act or the Migration Regulations 1994 (Cth) ("Migration Regulations"). On 23 August 2001 the Minister issued Direction No 21, Visa Refusal and Cancellation under s 501 of the Migration Act. Accordingly, the Tribunal, as is common ground, was bound to consider the matters in the Direction. Three primary matters are set out in the Direction and were required to be addressed by the Tribunal. One of these, relevant to the present proceeding, was the expectations of the Australian community, that is to say, whether the "Australian community would expect that the person would not be granted a visa or should be removed from Australia".

The Tribunal's decision 9 The Tribunal concluded that Ms Da Silva was not of good character within s 501(6). In so finding, the Tribunal took into account the breaches of the immigration law which Ms Da Silva had committed, including breaches of visa conditions and staying illegally in Australia. That is not for present purposes the subject of any controversy. 10 The Tribunal then turned to consider matters relevant to the residual discretion which the Tribunal was required to exercise and, particularly, the issue of community expectations, raised by Direction No 21. In paragraph 48, which is the subject of complaint by Mr Sneddon, the Tribunal said: "Thousands of people who have applied lawfully to enter or stay in Australia are currently waiting permission to do so. The number of available places in the program is necessarily limited, and fairness towards lawful applicants requires that they should not be displaced by persons such as this visa applicant who have committed major breaches of the Migration Act. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who set out to subvert it. That expectation weighs against the grant of a visa in this case."

The submissions of the applicant as tojurisdictional error 11 Counsel for Mr Sneddon submitted that paragraph 48 set out above involved jurisdictional error by the Tribunal in two respects. First it was submitted that the Tribunal had denied to the applicant and Ms Da Silva procedural fairness in that the Tribunal had failed, as it was required to do, to give them an opportunity to respond to the findings which the Tribunal made, and which are set out in paragraph 48, before proceeding to decide the review. Secondly it was submitted that the Tribunal made an error of law in paragraph 48, namely that there was some legal limitation on places in Australia's migration program such that persons seeking spouse visas who conducted themselves lawfully in relation to the Migration Act would, if a visa were granted to Ms Da Silva, be "displaced" by the visa applicant. 12 It is common ground that there is no specified number of available places which limit the number of spouse visas available to be issued (s 87 of the Migration Act) and, to the extent that the Tribunal so held, that was an error of law which amounted to jurisdictional error.

Procedural fairness 13 It was submitted that the conclusion which the Tribunal reached in paragraph 48 was a conclusion adverse to the applicant and Ms Da Silva and that that conclusion had been reached by the Tribunal without there being any notice to them. It was submitted that procedural fairness required the Tribunal to give notice or other warning to the applicant and Ms Da Silva of the adverse conclusion it proposed to reach and thus afford them the opportunity of replying to the Tribunal on that proposed conclusion. Not that it is necessary for the applicant to go so far, but it was submitted that had the Tribunal given the applicant and Ms Da Silva the opportunity to be heard on this matter, the Tribunal would not have fallen into the error of law that it did. 14 It is not in dispute that if, indeed, the Tribunal denied to the applicant and Ms Da Silva procedural fairness, such a denial would constitute jurisdictional error such that the Tribunal's decision would not be a decision under the Migration Act and Migration Regulations and thus not a privative clause decision. It is also not in dispute that it suffices that the applicant show that had he and Ms Da Silva been given the opportunity to respond to the matters in paragraph 48 that might have made a difference to the outcome of the decision: WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117. It is not for an applicant in a case such as the present to show that any submission that might have been made in the Tribunal would have made a difference. 15 It was faintly submitted by counsel for the Minister that the representative of the Minister had, in the proceedings before the Tribunal, in fact made submissions on the matters raised in paragraph 48, or, in other words, that the applicant and Ms Da Silva were on notice of the subject matter discussed in paragraph 48. With respect to such a submission, the transcript of the proceedings shows only that the representative of the Minister had made submissions in general terms concerning whether the Australian community would expect that a person who remained unlawfully would be permitted to return on a permanent visa, a matter that was answered by the representative of the applicant. That is a far cry from the applicant and Ms Da Silva being given notice that the matter which ultimately fell to be decided by the Tribunal in paragraph 48 would be taken into account adversely against their application. 16 At the heart of the dispute between the parties, both as to whether there had been a denial of procedural fairness and as to whether the Tribunal made an error of law in paragraph 48, is a quite different problem. 17 It was submitted on behalf of the Minister that the submissions of Mr Sneddon proceed on a false premise - a false understanding of what it was that the Tribunal said and decided in paragraph 48. It was submitted that the Court should give the reasons of the Tribunal a beneficial and not a pedantic construction in accordance with the directive of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291, which approved in this regard the decision of the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. It is said that perhaps there was some "loose language" on the part of the learned Deputy President but, properly read, the Tribunal was not in the challenged paragraph seeking to lay down a proposition of law, but rather, seeking to make a general observation about the expectations of the Australian community concerning those in the position of Ms Da Silva who had been involved in serious breaches of the Migration Act. It is said that to read paragraph 48 as if the Tribunal were making a legal finding concerning a cap on the number of spouse visas that could be granted and then using this as a critical factor in refusing to exercise the residual discretion in s 501(1) of the Migration Act in favour of granting Ms Da Silva a visa involved a "strained and unconvincing reading" of the paragraph. The Tribunal, so it was said, was merely making a political judgment based upon the expectations of the community and common sense and not a legal determination concerning the operation of the Migration Act. 18 On behalf of the applicant it was submitted that paragraph 48 meant what it said and in particular that if Ms Da Silva were granted a visa lawful applicants would be "displaced" by persons such as her who had committed visa and other violations of the Migration Act and the Migration Regulations pursuant to it. 19 We accept that reasons of the Tribunal, like other Tribunals such as the Refugee Review Tribunal and the Migration Review Tribunal, should not be read with "an eye attuned to error". However, the construction urged upon us by counsel for the Minister seeks really to excise the second sentence, with its reference to limitation of places and displacement, from the Tribunal's reasons for decision. It gives no weight to the natural meaning of the words used in the sentence notwithstanding that the Tribunal's reasons are apparently written with care and thought. What is said in the second sentence in paragraph 48 is wrong in law and, it seems, contributed significantly to the Tribunal's decision. It cannot be ignored. 20 It follows in our view that counsel for Mr Sneddon has shown that the Tribunal both failed to afford to the applicant and Ms Da Silva procedural fairness in not giving them the opportunity of responding to the adverse finding which the Tribunal made and erred in law in finding that there was some cap upon persons applying for spouse visas which would result in lawful applicants being "displaced" by persons such as Ms Da Silva who had breached visa and other conditions. There being error of law (and jurisdictional error), the decision of the Tribunal will be set aside and the matter will be remitted to the Tribunal for review in accordance with law. The respondent Minister must pay the costs of the application. 21 The applicant has demonstrated jurisdictional error and is prima facie entitled to relief under s 39B of the Judiciary Act. That relief is discretionary and would not ordinarily be granted where another remedy is available. Since a consequence of the presence of jurisdictional error is that the appeal under s 44 of the AAT Act is competent, it follows that the appropriate order is that the decision of the Tribunal be set aside and the case be remitted to the Tribunal to be heard and decided again and that the first respondent pay the applicant's costs of the application to this Court. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Branson & Stone.

Solicitor for the Applicant: Kessels Goddard + Ajuria

Solicitor for the Respondents: Australian Government Solicitor