INVOLVEMENT IN THE BUSINESS
5 The Tribunal said that it was required to have regard to policy and to apply it (the policy) unless there were cogent reasons for departing from it. The Tribunal considered it was bound to apply the policy called 'Established Businesses in Australia' (PAM3:SCH2 Visa 485) in respect of its approach to cl 845.216. That clause provided:
'845.216 In the 12 months immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses in Australia, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses.'
6 Although the particular document containing the policy was not part of the appeal papers or before the trial judge, during the course of argument before me, two documents were produced. One was headed 'About Visa 485' and I was informed by counsel for the Minister that its provisions applied as the policy at the time at which the appellant made his original application for a visa. Unhelpfully, it did not set out criteria for the purposes of assessing whether cl 845.216, should be interpreted in any particular way, but, simply referred to another policy for those criteria. The policy in effect for the period 11 May 2005 to 15 June 2005, being the period in which the Tribunal's decision was given, was also produced. It set out, in par 8.1, criteria, for the purposes of cl 845.216, materially identical to those the subject of consideration by a Full Court of this Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at 101-102 [30].
7 The terms of par 8.1 of the policy were:
'8.1 The policy intention of this criterion overall is to establish whether the applicant has the ability to manage and operate a main business successfully.
Under policy, it requires [sic] the applicant to demonstrate that
. they have exercised responsibility within the main business(es) in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure;
. such responsibility has been exercised on a continuous (as opposed to on an occasional basis); and
. their skills have been fundamental to, or have exerted direct influence on, the operation of the main business(es).
The success (or otherwise) of the business(es) is not a relevant factor in assessing this criterion. Rather, if an applicant satisfies this criterion in respect of a failed or declining business, this should be considered in assessing whether the applicant "has overall had a successful business career".'
8 The Full Court held, following a concession by the Minister, that the requirements of the identically worded policy did not correspond to the requirements of the Regulations. The court said (132 FCR at 112 [63]) that:
'… the departmental policy … was narrower than the criterion for a subclass 845 visa set out in cl 845.216 …. The criterion requires satisfaction on the part of the Minister that the applicant for the visa as owner of and interested in a main business "maintain direct and continuous involvement in the management of that business or in those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses." This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees, and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance.' (emphasis added)
9 It is unsatisfactory that the Minister, despite a Full Court of this Court holding that the wording of this policy was narrower than the Regulations, and thus not justified by law, had nonetheless since August 2003 to at least June 2005 persisted in promulgating that 'policy'. It is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions (The Commonwealth v New South Wales (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann & Co [1915] AC 750 at 759).
10 In this case, the Tribunal set out its findings in its reasons for decision. It noted that the appellant's letter of employment, which had been provided to the Department, described his role as floor manager, stating that he would be responsible for all stock, sales, delivery and personnel concerns. He had replaced a Ms Le, who became the buying manager. His duties included liaising with sales representatives for point of sale and training. As noted above, the Tribunal identified that the appellant had said in his evidence that he had started the business day, checked the shop, checked the delivery and collection of goods, placed orders, checked bank statements and made decisions on pricing.
11 The Tribunal continued:
'The activities of the visa applicant are at a level of a Shop or Floor Manager and do not satisfy the Tribunal that the visa applicant maintained direct and continuous involvement in the management of that business from day-to-day and in making decisions that affected the overall direction and performance of that business.'
12 The Tribunal then noted that another part-owner and director of the company that owned the business, Mr Schultz, stated that the appellant was a valuable employee who acted in the position of floor manager, that Mr Schultz dealt with the business finances, and accountant, because of the appellant's level of English. And again, the Tribunal noted that Mr Schultz's evidence showed that the appellant worked in the position of floor manager of the shop (which comprised the business) but this did not satisfy it that the appellant had met the criteria in cl 845.216.
13 Another employee of the business who was a sales assistant gave evidence to the Tribunal of his understanding that the appellant was an owner. The Tribunal said that whilst the appellant opened and closed the business premises and was considered to be an owner, that was '…not compelling evidence …' that he satisfied the criterion of maintaining a direct and continuous involvement in the management of the business from day to day and in making decisions that affected its overall direction and performance.
14 The Tribunal, having set out those facts, or assessments, then concluded that after considering the legislation, policy considerations and all of the evidence cumulatively, it was not satisfied that the appellant had met the criteria in cl 845.216.
15 The Minister relied on remarks of McHugh J in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 74 ALJR 405 (and in particular I apprehend at 412-413 [35]-[36] and 416-418 [60]-[70]) that in effect the Tribunal in stating its reasons for decision was entitled to make findings of fact and was not required to go through line by line each item of evidence, or each relevant matter and deal with it in turn, accepting or dismissing it. So much may be accepted.
16 The Minister also argued that the decision required under s 65 of the Migration Act 1958 (Cth) ('the Act') was whether or not the Tribunal, standing in the shoes of the Minister as the decision-maker, was satisfied of the matters set out in the Regulations for the purposes of granting the visa for which the appellant applied. She contended that findings along the way were not ones which went to jurisdiction.
17 I am of opinion that it was not open to the Tribunal, on the basis only of the findings it set out, to find that a person in a single business that consists of running one retail trading shop who makes decisions daily about placing orders and pricing of goods offered for sale, and had done so for over one year prior to his application without any suggestion of supervision or control, did not have direct and continuous involvement in the management of that business from day to day or in making decisions that affect the overall direction and performance of that business. The Tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling.
18 The Tribunal's findings of fact do not explain or support its conclusion that the appellant did not satisfy the criteria in cl 845.216. It found that he was a co-owner of the business, albeit not a majority shareholder, a director, a person who appeared to have and to exercise authority to place the shop's orders for its merchandise and he made decisions about the pricing of that merchandise. Those findings showed that the appellant was as involved directly and continuously in the management of the business from day to day as one could be, and he actually made, on a daily and continuing basis, decisions that affected the overall direction and performance of that business. For a retail shop, in essence, has as the core of its activities little more than buying and selling merchandise, necessitating the placing of orders for that merchandise and deciding on the price at which it is to be sold on a daily basis. The Tribunal found the appellant was a shop or floor manager of the only shop or floor of the business.
19 The trial judge adopted the submission of the Minister that the Tribunal's approach to this issue was not a misconstruction of the requirements of a statutory criterion for the granting of a visa by applying a policy which was narrower than the criterion in cl 845.216, in contrast to Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93. Rather, his Honour, in adopting the Minister's submission, found that it was clear from the Tribunal's decision that it had applied the very words of the enactment (in the passages at [30]-[33] to which I have referred) and that the case was no more than a merits review, as opposed to an error going to jurisdiction.
20 I do not agree. The Tribunal's obligation was to conduct a review of the decision of the delegate (s 348(1)). In performing that review it had power to exercise all of the powers and discretions that were conferred by the Act on the person who made the decision (s 349). And, having made a decision, the Tribunal was obliged to prepare a written statement under s 368(1) which set out:
· the decision of the Tribunal on review;
· its reasons for that decision;
· the findings on any material questions of fact; and
· references to the evidence or any other material on which those findings of fact were based.
21 I am of opinion that the Tribunal did not, in its reasons for decision, set out the evidence or any other material on which the ultimate findings of fact to which it came in relation to cl 845.216 were based. There was nothing in the findings or other material set out in its reasons that enabled it to come to the conclusion that it could not be satisfied on the issue of the appellant's involvement in the business.
22 In Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ referred to s 430 of the Act, a cognate provision of s 368. They said that:
'The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.' (emphasis in original)
23 Indeed, in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, Dixon J said, in a case where the Commissioner was not required to give reasons, that:
'The conclusion that 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. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'
24 The inadequacy of the material relied on by an administrative decision-maker while, not itself, being a ground for prohibition is a circumstance which may support, in a case like the present, the inference that the Tribunal was applying the wrong test or was not in reality satisfied of the requisite matters. As Dixon CJ, Williams, Webb and Fullagar JJ held in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120:
'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.'
25 And, in Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67 [36]-[37], McHugh and Gummow JJ, having applied the passage just cited said that the particular circumstances disclosed by the written statement required by s 430 (here s 368) of the Act was important in this regard (see too at 198 ALR at 71 [52], 98 [173] per Callinan J agreeing). In Minister for Immigration v SGLB (2004) 207 ALR 12 at 20 [38] Gummow and Hayne JJ said that:
'…the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 20/2002 (2003) 198 ALR 59 at 67 [37], 71 [52], 98 [173]). If the decision did display these defects, it will be no answer that the determination was reached in good faith … However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.'
26 If a decision-maker does not give any reason for his or her decision, the court may be able to infer that he or she had no good reason (Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Palme (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ).
27 In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, 656-657 [144]-[147] per Gummow J, 672-673 [194] per Callinan J, the distinction between a decision which the court finds no reasonable decision-maker could have come to and one which the court considers simply to be unreasonable, was discussed. The latter characterization involves a broad spectrum at the extreme end of which may be found decisions of the former category in the sense of unreasonableness of the kind recognized in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. The existence of that spectrum reminds the courts that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunized from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her.
28 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 Mason J noted that the Court should proceed with caution in cases where it was suggested that a decision-maker had erred by giving too much or too little weight to particular considerations '… lest it exceed its supervisory role by reviewing the decision on its merits'. He said that a close analogy existed between the judicial review of administrative action and appellate review of a judicial discretion. He pointed to the fact that in cases of the latter kind appellate courts could review discretionary judgments that had failed to give proper weight to a particular matter, but were slow to do so because the mere preference for a different result was not sufficient to disturb the exercise of the discretion by the judge at first instance (162 CLR at 42).
29 Administrative decision-making, of its nature, involves the formation of value judgments as to such matters as credibility, the strength or compellingness of the particular case, the importance of consistency in decision-making and the simple formation of the relevant opinion which the statute prescribes as the occasion for the exercise of the power. Thus, s 65 of the Act requires the Minister, as the decision-maker, to be satisfied of particular matters if she is to grant a visa. Value judgments are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cp Norbis v Norbis (1986) 161 CLR 513 at 518 per Mason and Deane JJ; 540-541 per Brennan J; see too at 535 per Wilson and Dawson JJ. As Brennan J said, there is no difference in principle between the review of a judicial discretion and the review of an administrative discretion (161 CLR at 540). He pointed out that if a discretionary power were exercised in a way which a reasonable repository of the power might exercise it, that exercise of power is supported by the statute which conferred it, whether the discretion be judicial or administrative in nature.
30 Brennan J went on to point out that appellate courts were more familiar with the usual confines within which judicial discretions might be exercised and were therefore more sensitive to an unreasonable exercise of such a discretion and more confident of their ability to detect error in its exercise. He said:
'It is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience.' (161 CLR at 541)
31 When a court exercising its power to review an administrative decision concludes that, in accordance with the above principles, the decision is 'unreasonable' its conclusion must be a finding that in truth the power conferred by the statute has not been exercised and so a jurisdictional error has occurred. This a feature of the rule of law which forms a fundamental assumption upon which the Constitution is based: Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [103]-[104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The recognition by the Parliament, in statutory provisions like ss 368 and 430 of the Migration Act 1958 (Cth), that administrative decision-makers should give reasons for their decision and set out their findings, is a reminder to administrative decision-makers of an important aspect of the rule of law: namely, that they must provide the justification, in the reasons required by the statute to be given, for the exercise of the power with which they have been entrusted. And, the requirement to provide reasons is a means of ensuring that courts, when exercising the power of judicial review, are not obliged to approach their consideration of the exercise of the discretion in the same speculative way as in a case like Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
32 The Tribunal expressly said that it had considered policy in arriving at its lack of satisfaction that the appellant had met the criteria of cl 845.216. Here, the Tribunal appears to have been misled by its reliance on the unlawful constriction which par 8.1 of the policy sought to put on the proper interpretation of cl 845.216 as held in Lobo v Minister (2003) 132 FCR 93. As their Honours held, a want of satisfaction of the criteria set out in the policy would not equate to a want of satisfaction of the criterion in cl 845.216. And an assessment by the Tribunal in which, as it said, it was required to have regard to that policy and apply it unless there were cogent reasons for departing from it, involves jurisdictional error because the Tribunal applied the policy rather than the criteria in cl 845.216 (132 FCR at 112 [63]-[69].
33 As McHugh J pointed out, in Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 74 ALJR 405 at 417 [70] the requirements of s 368 are that the Tribunal give a written but not lengthy explanation of the decision already made.
34 I am of opinion that there was an absence of any reason, factual finding or reference to facts expressed in the Tribunal's reasons that could show that a person who had the duties and performed the functions of the appellant in the business during the period which the Tribunal was considering, namely the year prior to his visa application being lodged, did not satisfy the criteria of cl 845.216.
35 Having regard to the Tribunal's expressed findings and reasons, its decision on this issue was so unreasonable that no reasonable decision-maker could have come to it on the basis expressed in those findings and reasons. That is not to say that another tribunal could not come to the same decision, but if it did so it would have to apply the law correctly, make findings and give reasons which were capable of supporting the decision.
36 The question then is whether the error that I have found in the Tribunal's decision amounts to first, a jurisdictional error, and even if it does, whether I should grant relief in respect of it. The Minister argued that the error is not a jurisdictional error because it does not go to the ultimate question under s 65(1) as to whether the Tribunal was satisfied that the criteria prescribed for the visa by the Act or regulations had been satisfied.
37 At the very least the Tribunal's conclusion that it was not satisfied that the appellant had met the criteria in cl 845.216 ensured that he could not be granted the visa because s 65(1) so provided. The Tribunal was required to conduct its review according to law. And a failure to do so is a failure to follow the requirements which the Tribunal had to follow in order to come to a decision that could be valid. The Tribunal had an imperative duty to consider the criteria which the Act and Regulations prescribed and to form a view on those criteria for the purposes of conducting its review: see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 506 [76]. It did not do so and committed a jurisdictional error for the reasons I have given.
38 The Tribunal made an error of law in that it did not correctly understand and apply the criteria in cl 845.216. Nor did it give any reasons for its conclusion in that regard. Each was a failure to conduct that part of the review in accordance with law, being a requirement to decide whether or not the appellant met the criteria for cl 845.216. And, this was also a jurisdictional error (Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR at 112 [64]-[65]).