Did The Decision Makers Properly Apply The Law?
TABLE OF CONTENTS
Introduction
Failing to properly apply the law is usually about (although not always) an error in statutory interpretation.
Two seminal Federal Court cases have determined that depth and breadth of judicial review and those 2 cases are
Scargill v MIMIA [2003] FCAFC 116 (3.6.03) & Lobo v MIMIA [2003] FCAFC 168 (8.8.03).
In Scargill the Full Federal Court found that the failure to properly apply a criteria amounted to judicially reviewable error. The reasoning of the Full Federal Court makes instructive reading:
[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).
Scargill’s case concerned the issue of when did a person have a overseas near relative, the existence of which would disqualify the applicant from being eligible for the visa. The updated version of Reg Reg 1.15 (as relevant) states:
1.15. (1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(c) if the applicant or the applicant’s spouse (if any) has an overseas near relative:
(i) the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and
(ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application;
The Full Federal Court found that the words ‘not being Australia’ referred to where the relative was, not where the applicant was. The Court made the observation that one could not have an overseas near relative living in the same country as the applicant if the applicant resided in Australia. The question turned on what does ‘reside’ mean.
Scargill concerned a UK citizen whose last residence was the USA. He was an applicant for the now discontinued subclass 806 family visa. The applicant arrived in Australia some 4 years before the MRT decision, initially on a visitor’s valid for 3 months and then on a bridging visa having applied for the 806.
The question was, where was the applicant resident? He said he was resident in Australia, but the MRT disagreed. The Full Federal Court observed:
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.
Finally Scargill, also looked at the definition of residence:
17 It is not contended by either party before this Court that the Tribunal erred in formulating the test which should be applied to determine under reg 1.15(2)(a) where the appellant `usually resides’. In Koitaki Para Rubber Estates Ltd v FCT (1941) 64 CLR 241, to which the Tribunal referred, Williams J, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation that is pertinent to this case, at 249:
`The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode: see Halsbury’s Laws of England, 2nd ed., vol. 17, pp. 376, 377.’
What is often not understood about ‘residence’ is that a person can have a number of residences and residence (as explained in the above passage) does not necessarily connote permanent residence.
In Lobo the Full Federal Court had to examine a key criterion for the subclass 845 established business visa which states:
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.
In Lobo the trial judge found against the applicant because he took a narrow view of the judicial review restrictions but the Full Federal Court (FFC) took a wider view. The trial judge however agreed the MRT had made a mistake. Here is what the Full Court said:
36 His Honour found that the Tribunal had been diverted by the policy into an examination of which person held the principal or dominant role in the company rather than concentrating upon whether Mrs Lobo was involved in the manner required. However counsel for the Minister submitted that, leaving aside the effect of the policy, the findings of fact were enough to show that the statutory criterion was not met. Taking the policy into account did not lead to an operative error. His Honour however found that it was by no means clear that the same decision would have been reached if the Tribunal had concentrated upon the statutory criterion rather than the policy. The Tribunal member apparently accepted that Mr L was overseas for much of the twelve months before the application but did not consider and did not make any finding about the conduct of the business during that period. This could be explained on the basis that the Tribunal was trying to identify one controller of the business.
The FFC concluded:
63 It was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclass 845 visa set out in cl 845.216 of the 2nd Sched to the Migration Regulations. The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business `… 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’. 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.
64 Having regard to the concession made, a want of satisfaction of the criteria set out in the departmental policy would not equate to a want of satisfaction of the criterion in cl 845.216.
65 It is apparent from the reasons of the Tribunal, particularly pars 39, 40 and 46 set out earlier in these reasons, that the Tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216. In so doing it erred and its error was jurisdictional. It did not address the question which s 65(1) of the Act required it to address.
Here is the Full Court’s reasoning as to why it concluded there was jurisdictional error (at 370-371):
The criterion prescribed for the grant of a subclass 845 visa in cl 845.216 sets out a matter on which the minister must be satisfied before he can grant such a visa. His satisfaction that the criterion has been satisfied is, by virtue of s 65(1)(b), a necessary condition of his power to grant the visa. If he is satisfied that the criterion has been satisfied and that the other conditions set out in s 65(1)(a) are met, then he has a statutory duty to grant the visa. That is a duty to exercise the power conferred upon him by s 29 of the Act.
Where the minister misconstrues one of the criteria prescribed in the Act or regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and regulations, upon a proper construction of the criterion, require him to ask. In such a case, absent s 474, the minister’s decision would be a nullity. The minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.
The question that then arises is whether, having regard to s 474, misconstruction of the criterion for the grant of a visa has the effect of vitiating the minister’s decision or, in this case, that of the tribunal.’
In Lobo the Full Court took cognisance of Scargill and rejected an invitation to find that Scargill had been wrongly decided. (Applications by the Minister for special leave to appeal to the High Court were rejected)
The first Federal Court case to apply the reasoning of the High Court in S157 was Tran v MIMIA [2003] FCA 44 (7 February 2003). The case concerned a failure by the MRT to grant natural justice and Finkelstein J had little difficulty setting aside a decision of the MRT. He concluded:
In due course the tribunal handed down its decision in which it affirmed the decision of the delegate because it was not satisfied that Ms Tran and Mr Thai were in a genuine and continuing relationship. The tribunal reached this conclusion notwithstanding the facts that Ms Tran had given evidence that she and her husband were in such a relationship and that her evidence had been corroborated by the witnesses. It follows that Ms Tran’s evidence as well as that given by the witnesses was rejected, at least to a significant extent. The tribunal explained why it had rejected the witnesses’ evidence. It said:
“The Tribunal would have been able to attach more weight to the evidence of Mr. Nguyen, Ms. Thi Ngo Hai Tran and Ms. Thi Muon Tran had they not been present in the hearing room when the visa applicant gave her evidence which took place prior to them giving their evidence.”
8 In treating the witnesses’ evidence in this way the tribunal fell into grave error. I put to one side altogether the question whether an administrative tribunal is entitled to take into account the possibility that when a witness remains in the hearing room and listens to the evidence of others that his or her credibility may be affected. In curial proceedings some judges certainly take that view, but it is by no means universal: see Moore v Lambeth County Court Registrar [1969] 1 WLR 141, 142. I will also assume, without deciding, that it is permissible for an administrative tribunal to give less weight to the evidence of a witness who has heard the evidence of others before giving his own, even when no order is made requiring the witness to leave the hearing room, as occurred in R v Thompson (1966) 110 Solicitors’ Journal 788. The question that arises in this case is whether the tribunal can take such a course without any warning at all.
9 There is a duty upon bodies such as this tribunal to act fairly so that a person like Ms Tran can have a “fair crack of the whip”, to use the words of Lord Russell in Fairmont Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1225, 1266. That is, the tribunal is under an obligation to observe the rules of natural justice. These “rules”, however, have no fixed content. In Wiseman v Borneman [1971] AC 297, 308-309 Lord Morris said:
“We often speak of the rules for natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only `fair play in action’. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J called `the justice of the common law’ (Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 194).”
10 Was it fair for the tribunal to reject the evidence of important witnesses without informing Ms Tran that this might occur if the witnesses remained in the hearing room? Fairness is a flexible concept: R v Norfolk County Council Social Services Department; Ex parte M [1989] QB 619, 630. It is sufficiently flexible to lead to the conclusion that what occurred in this case was quite unfair. If the tribunal had honoured its obligation to act fairly it would not have sworn in the witnesses and allowed them to remain in the hearing room without warning of the danger this entailed. A bystander observing the tribunal’s conduct would have been left with the impression that it was proper that the witnesses remain in the room until they gave their evidence. The error of the tribunal is all the more grievous because it had statutory declarations sworn by some of the witnesses, and so knew the evidence they would give.
Finkelstein J added
There are two other aspects of the tribunal’s decision which concern Mr Thai’s illness that should not escape comment. It will be remembered that Mr Thai has been provisionally diagnosed as suffering from schizophrenia. The tribunal took this into account when considering whether Ms Tran and Mr Thai were in a genuine and continuing relationship. The tribunal said:
“There was no medical evidence produced at hearing as to the sponsor’s competence to give evidence. In addition, in his letter of 10 January 2002, the migration agent states that if the sponsor was at the hearing he would not be called to give evidence in the light of his medical condition. Under these circumstances, the Tribunal is unable to form the view that at the date of the decision, the sponsor understands the nature of the marriage, the relationship, or that there is a mutual commitment on the part of both parties to a shared life together to the exclusion of all others. Nor is the Tribunal able to conclude that there is an ongoing genuine (spousal) relationship between them.”
13 The absence of any warning that the tribunal would use the medical evidence this way is another example of unfairness in the procedure that was followed. Moreover, the tribunal was wrong to make this finding solely on the basis of the medical report. It shows a remarkable lack of understanding of schizophrenia and the various ways in which the illness manifests itself. When the matter goes back to the tribunal, albeit differently constituted, Ms Tran should take the precaution of calling medical evidence to explain more fully the nature of her husband’s illness.
14 The second difficulty with the tribunal’s attitude to Mr Thai’s illness is this. According to the tribunal, a couple cannot be “in a married relationship” (as defined) if one of them is suffering from an illness which impairs that person’s ability to fully comprehend the nature of mutual commitment and a genuine continuing relationship. A construction of reg 1.15A which produces this result is absurd and I would not adopt it unless required to do so by binding authority. I have not been able to find any such authority. I think the true position is this. In deciding whether two parties are in a married relationship (as defined), the decision-maker is required to have regard to the particular circumstances of the relationship (reg 1.15A(3)). Accordingly, the married relationship must be examined bearing in mind that one or other of the parties may be suffering from a physical or mental disability. Their relationship must be judged in the light of that disability, as must their shared mutual commitment. In that regard the mutuality that is required need not be co-extensive. For example, if a married person must care for his or her spouse because the spouse suffers from, say, dementia and, because of the nature of that disease, the care cannot be reciprocated, it does not follow that there is an absence of relevant “mutual commitment”.