FEDERAL COURT OF AUSTRALIA

Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 27 August 2019 be set aside and in lieu thereof:

(a)    an order in the nature of certiorari be made to quash the decision of the second respondent dated 19 November 2015;

(b)    an order in the nature of mandamus be made remitting the matter to the second respondent to be re-determined in accordance with law; and

(c)    the first respondent pay the appellant’s costs of the proceeding.

3.    The first respondent pay the appellant’s costs of this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Mr Babar, and his partner, Ms Nicholson, have at all relevant times been in a de facto relationship. On 28 May 2014, Mr Babar applied for two visas, the Partner (Temporary)(Class UK)(Subclass 820) visa (temporary partner visa) being the subject of this appeal, with Ms Nicholson identified in the application as Mr Babar’s partner. In a separate form prescribed by the Minister which was provided as part of the application, Ms Nicholson was identified as the “sponsor” for the visa application.

2    On 4 September 2014, the application was refused by a delegate of the Minister, who found that the evidence provided was “not sufficient” to demonstrate that Mr Babar and Ms Nicholson were in a genuine and continuing de facto relationship as defined in s 5CB of the Migration Act 1958 (Cth) (Migration Act). Mr Babar sought a merits review in the Administrative Appeals Tribunal (the Tribunal). The Tribunal concluded that while Mr Babar and Ms Nicholson were in a de facto relationship, Ms Nicholson could not meet the requisite sponsorship obligations. It followed that Mr Babar was not “sponsored” for the purposes of the Migration Act, and therefore, he did not satisfy the criteria for the grant of a visa. On 27 August 2019, the Federal Circuit Court dismissed an appeal from that decision: Babar v Minister for Immigration & Anor [2019] FCCA 2311.

3    The appeal to this Court identifies one ground, which as amended, was as follows:

1.    The learned primary judge erred in finding that it was permissible for the Tribunal to apply the PAM3 Policy to ask the question whether the Appellant’s sponsor met the sponsorship criteria.

Particulars

On the proper construction of the Regulations, a sponsor is someone who meets the definition in reg 1.20. The PAM3 Policy was unlawful to the extent that it purported to impose additional criteria for the determination of whether the Appellant had a ‘sponsor’ or was ‘sponsored’, or had an ‘approved sponsor’.

4    The ground of appeal focuses attention on the decision of the Tribunal and its use of the Procedures Advice Manual (PAM3 policy), a policy document, in resolving the issues which it considered were before it.

5    Consequently, it is necessary to first consider the relevant regulations as set out in the Migration Regulations 1994 (Cth) (the Regulations).

The Regulations

6    In this instance, the criteria to be satisfied at the time of both the application and decision for the grant of a temporary partner visa, are set out in Schedule 2 of the Regulations. The criteria to be satisfied at the time of application for a temporary partner visa contemplates the grant of the visa to an applicant who is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen: cl 820.211(2). Relevantly, the criteria also requires that the applicant be “sponsored”: cl 820.211(2)(c). The sponsor is to be the spouse or de facto partner, except when the spouse has not turned 18: cl 820.211(2)(c).

7    Regulation 1.03 provides that “sponsor” has the meaning given by reg 1.20(1), which in turn provides that a sponsor is a “person …who undertakes the obligations stated in sub-regulation (2) in relation to the applicant”. Relevantly, for a temporary partner visa, the obligations are in sub-reg 1.20(2)(c), which provides that the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation if the applicant is in Australia, during the period of 2 years immediately following the grant of the provisional or temporary visa. The undertakings given by the sponsor to that effect are to be provided in writing, “not later than a reasonable period after the Minister approves the person as a sponsor”: reg 1.20(3).

8    Meanwhile, in this case, one of the criteria required to be satisfied at the time of the decision in relation to the temporary partner visa is contained in cl 820.221(4) which states:

The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.

9    So, for present purposes, the Regulations required two things. First, a spouse or de facto partner of the applicant who undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation for 2 years after first entry of the applicant to Australia. Second, the approval of that person by the Minister.

10    As to the second requirement of approval, neither the Migration Act nor the Regulations provide any machinery governing how the Minister is to “approve” the sponsor. Relevantly, for the purposes of this appeal the PAM3 policy, as recited in the decision of the Court below, includes as follows:

[P D1.4-Form 40-3] The sponsorship process

The sponsorship relationship assessment is a two-stage interrelated process:

•    the undertaking given by the sponsor is assessed under regulation 1.20; and

•    the relationship of the sponsor to the applicant, and the sponsorship, are assessed as Schedule 2 visa criteria.

These two separate but interrelated processes "merge" when assessing Schedule 2 time of decision criteria for the visa applicant.

Officers cannot decide whether regulation 1.20 sponsor requirements are met unless a valid visa application has been made. This is because:

•    the power to approve or not approve a sponsorship lies within the relevant Schedule 2 sponsorship criterion; and

•    s 47(3) of the Act precludes officers from considering visa applications (and it follows, associated requirement) unless the application is valid.

…Regulation 1.20 requires officers to be satisfied that the sponsor can meet the financial needs of the applicant, to the extent necessary, for the 2 year period specified in the applicable regulation 1.20(2) provision. In general terms, officers are to assess the risk of whether or not a sponsor can provide sufficient support for the applicant so as to prevent the applicant from becoming a cost to the Australia taxpayer within the first two years of their settlement in Australia…

However even if prima facie a sponsor does not comply with that is not the end of the matter as there is a discretion.

11    It can be seen that the PAM3 policy proceeds on the basis of a particular view of the meaning of reg 1.20, namely that it is the source of a statutory requirement that an officer of the Minister's department must be satisfied that the sponsor can meet the financial needs the subject of the undertaking. However, reg 1.20 does not take that form. Rather, it defines the term “sponsor” as the person who undertakes the obligations specified in reg 1.20(2). Approval of the sponsorship is a separate matter. One of the main issues in these proceedings concerned the nature and extent of any discretion attendant to the requirement for approval by the Minister. However, of fundamental importance, is a recognition that whatever the nature and extent of the approval power, it was not to be found in reg 1.20(2). A sponsor was a person who gave the required undertaking. Whether the sponsor should be approved was a different matter. If, as the appellant contended, the sponsor did not have to demonstrate a capacity to meet the undertaking in order to satisfy the terms of reg 1.20(2) then that distinction assumed considerable significance.

The Tribunal's task

12    The delegate did not need to consider whether the sponsorship should be approved because it found that the appellant was not the de facto partner of the sponsor. When the matter came before the Tribunal it had to address the approval question. The Minister submitted that in those circumstances it was necessary for the Tribunal, in conducting its review of the delegate's decision, to assess, and make a determination, as to whether the sponsorship by the sponsor should be approved. This was said to be supported by s 349(1) of the Migration Act which provided that the Tribunal may exercise all the powers of the Minister on review. The appeal proceeded on that basis.

13    Therefore, it was for the Tribunal itself to consider whether to approve the sponsorship. As it happens the better view is that the Tribunal did not consider this issue. That is because the Tribunal decided that the appellant had never been sponsored by Ms Nicholson in accordance with reg 1.20(2).

The Tribunal’s decision

14    The Tribunal identified the issue for it to decide as being whether Ms Nicholson could meet the sponsorship criteria.

15    Under the heading “sponsorship requirements”, the Tribunal referred at [8] to cl 820.211(2)(c) of the Regulations, noting that it was a “time of application” criterion that provided that an applicant meets the requirements of this subclause if: the applicant is sponsored; the applicant’s spouse or de facto partner has turned 18; and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

16    The Tribunal stated at [9] that at “the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force”. This statement reflected cl 820.221(1), which provided that “in the case of an applicant referred to in cl 820.211(2), (5), (6), (7), (8) or (9), the applicant either: continues to meet the requirements of the applicable subclause; or meets the requirements of subclause (2) or (3)”. Subclauses 820.221(2) and (3) concern circumstances including where the sponsor has died or the relationship becomes affected by domestic violence; they are not relevant to Mr Babar’s case, although the Tribunal referred to them. This statement also reflected cl 820.211(4), recited above at [9], which is concerned with the Minister’s sponsorship approval. The Tribunal also referred to certain limitations on sponsorships imposed by regs 1.20J, 1.20KA, and 1.20KB.

17    Relevantly, the Tribunal then stated at [10] and [11]:

10. Regulation 1.20(2)(c) sets out the sponsorship undertakings for this visa type and requires the sponsor to undertake to assist the applicant, to the extent necessary, financially and in relation to accommodation for a period of two years after the grant of this visa.

11. The decision-maker must be satisfied that the sponsor can meet the sponsorship obligations prescribed in regulation 1.20(2): PAM3: Div1.4 - Form 40 sponsors and sponsorship para 7. This determination involves assessing the applicant's likely need for assistance and the sponsor's capacity to provide assistance. PAM3: Div1.4, para 23.3.

18    Therefore, it can be seen that the Tribunal considered that its task concerned whether the sponsor could meet the requirements under reg 1.20(2) and it appears to have adopted that formulation because of the language in the PAM3 policy (quoted above). Rather than frame the question as being whether the sponsorship should be approved (an inquiry that would have depended upon the ambit of the approval power conferred by cl 820.221(4) and any policy guidance formulated by reference to that power), it framed the question in the narrow and specific terms of whether the undertaking could be met (an inquiry said to be required by reg 1.20(2)). The Tribunal then proceeded to refer to the factual background and procedural history of the matter. This included that the State Administrative Tribunal had made orders in respect of Ms Nicholson, appointing the Public Advocate as her limited guardian, and that the Tribunal had obtained a report from Ms Nicholson’s treating psychiatrist as to her capacity to both understand and meet the sponsorship obligations.

19    Thereafter the Tribunal provided its findings and reasons. The Tribunal discussed Ms Nicholson’s financial position, and concluded at [50]-[52]:

50. Based on the evidence of Dr Gurgone, as well as the evidence of the orders made by the WA-SAT in relation to the sponsor’s finances and given the applicant’s clear reliance to date on the sponsor, I cannot be satisfied that the sponsor has the capacity to meet the financial sponsorship obligations at the time of decision. Therefore, the applicant is not sponsored. There is no evidence before the Tribunal that one of the alternative ‘time of decision’ criteria are met.

51. On the evidence before the Tribunal the requirements of cl.820.221 are not met.

52. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

Federal Circuit Court

20    It is unnecessary to rehearse all the detail in the reasons of the judgment below. Relevantly, the Court below concluded that the Tribunal had the jurisdiction to determine whether Ms Nicholson was an “approved sponsor” or whether the Minister’s approval was “still in effect”. The primary judge observed that neither the Migration Act nor the Regulations provided any machinery for the approval of a sponsorship.

21    The primary judge concluded that while Ms Nicholson agreed to enter into the sponsorship when submitting her sponsorship application, and she expressly signed the agreement to provide the “undertakings” as she was required to do so, Ms Nicholson had not yet been approved by the Minister, who was required by cl 820.221(4) to have approved the sponsorship. That, the primary judge concluded, necessarily required the Minister to have some consideration of what was required of Ms Nicholson to be a sponsor. The primary judge concluded that the Tribunal was correct to ask whether Ms Nicholson met the sponsorship criteria.

22    The primary judge concluded that it was a criterion for the grant of the temporary partner visa that the Tribunal be satisfied that Ms Nicholson’s sponsorship had been approved by the Minister, and it was relevant for the Tribunal to consider and be affirmatively satisfied if it was met, otherwise it must refuse to grant the visa. It was permissible for the Tribunal to refer to the PAM3 policy to ask the question whether Ms Nicholson met the sponsorship criteria and accordingly, the Court below found that no jurisdictional error arose, and the application was dismissed.

Issues on the appeal

23    The submissions of the parties can be shortly stated.

24    The appellant submitted that the issue before the Tribunal was whether Ms Nicholson’s sponsorship was approved within the meaning of cl 820.221(4), and that the Tribunal was in error in relying on the PAM3 policy to determine whether Ms Nicholson was a sponsor because it superimposed requirements for that approval not authorised by the Regulations, relying on the line of authority reflected by the reasoning in Green v Daniels [1977] HCA 18; (1977) 51 ALJR 463 (Green v Daniels) at 467 per Stephen J. The consequence, it was submitted, was that the relevant part of the PAM3 policy was an unlawful policy and the primary judge erred in finding that it was permissible for the Tribunal to refer to it.

25    The respondent accepted the proposition that if the PAM3 policy was used by the Tribunal to determine whether a person is sponsor, that would be an error for the reasons as articulated in Green v Daniels as it goes beyond what is required to be a sponsor as set out in the Regulations. That said, however, the respondent nonetheless contended that the PAM3 policy was valid and that the Tribunal could have regard to it by taking it into account in relation to the exercise of the discretion in cl 820.221(4), whether the sponsorship was approved by the Minister (that being a task that had been performed by the Tribunal standing in the shoes of the Minister). The respondent also contended that if there was an error in the reasoning of the Tribunal, either as to the question it addressed or the use of the PAM3 policy, the error was not material because on the findings of the Tribunal realistically there would have been no different result: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [45] per Bell, Gageler and Keane JJ.

26    While most of the argument during the hearing was directed to the meaning of “approved by the Minister” in cl 820.221(4), and whether the PAM3 policy which was applied by the Tribunal superimposed requirements for that approval not authorised by the Regulations, there is a necessary antecedent question that first must be addressed, which is to identify the basis of the Tribunal’s decision.

27    The importance of identifying the question that the Tribunal addressed, was bought into stark relief by the respondent’s properly made concession that the PAM3 policy could not be used to determine whether a person is sponsor (as distinct from the issue of Ministerial approval of sponsorship).

28    The issues that arise for determination are therefore threefold: first, identifying what question the Tribunal addressed in reaching its conclusion recited above at [19]; second, whether the PAM3 policy was applied impermissibly by the Tribunal to resolve the question; and third, depending on the answer to the second question, was there any material error in the SZMTA sense.

Consideration

Issue determined by the Tribunal

29    A plain reading of the Tribunal’s reasons, read fairly and as a whole, reflects that the Tribunal addressed the question of whether the person was a sponsor.

30    Paragraph [11] of the Tribunal’s reasons recited above, identified the issue for it to determine as being whether it, as the decision maker, was satisfied that the sponsor can meet the sponsorship obligations prescribed in reg 1.20(2) and the PAM3 policy. In answering that question the Tribunal, based on the PAM3 policy, identified that issue as involving an assessment of the appellant’s likely need for assistance and the sponsor’s capacity to provide such assistance. The Tribunal then proceeded to answer that question. So much is also apparent form the Tribunal’s conclusion at paragraph [50] recited above, finding that the appellant was not sponsored because the Tribunal was not satisfied that Ms Nicholson satisfied the sponsorship obligations. It is clear that the question of sponsorship was resolved by the Tribunal relying on and applying, in particular the financial requirements, specified in the PAM3 policy. It did so on the basis that reg 1.20(2) required it to make that assessment and that the PAM3 policy directed it to approach the matter in that manner.

31    The respondent’s submission that the conclusion at paragraph [50], when read in the context of the reasons, should be taken to be a finding by the Tribunal that it did not approve Ms Nicholson’s sponsorship, and that the appellant was therefore not sponsored in the sense that the Tribunal did not approve the sponsorship, cannot be accepted. Accepting that the Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 271- 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the reasons must be read fairly and as a whole: Wu Shan Liang at 291 per Kirby J, that cannot overcome the plain reading of the reasons. While it may be accepted that the Tribunal referred to the need for approval in paragraph [9], the respondent’s interpretation ignores the clear words of the Tribunal as to the task it then undertook and the conclusion it reached. Both the question posed by the Tribunal and the answer given were directed to whether Ms Nicholson was a sponsor.

32    It also follows from this conclusion, that the question that the Tribunal answered was whether Ms Nicholson was a sponsor, when the issue for it to determine, it having decided that the appellant and Ms Nicholson were in a de facto relationship, was whether the sponsorship was approved: cl 820.221(4).

33    Leaving aside any issue of the use of the PAM3 policy, the Tribunal did not ever address the question whether the sponsorship should be approved. It follows that the Tribunal did not address the requirements necessary under the Regulations.

34    That the Tribunal did not address the correct question, subject to the respondent’s submission as to materiality of the error, is sufficient to dispose of this appeal in favour of the appellant.

The Tribunal’s reliance on the PAM3 policy

35    A sponsor under this legislative scheme is defined as a person who gives particular undertakings to support the visa applicant “to the extent necessary, financially and in relation to accommodation”. There are no other requirements specified.

36    In applying that requirement, no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. It follows that a policy, such as the PAM3 policy, which (informed by an incorrect view of the nature of the requirement in reg 1.20(2)) requires officers to confine their consideration to whether the sponsor can afford and provide, sufficient support for the applicant so as to prevent the applicant from becoming a cost to the Australian taxpayer within the first two years, is to adopt an approach that is not consistent with the regulations: Green v Daniels at 467 per Stephen J; Singer v Statutory and Other Offices Remuneration Tribunal (1986) 5 NSWLR 646 at 657 per Kirby P.

37    As was properly accepted by the respondent, the use of the PAM3 policy to resolve the question of sponsorship under reg 1.20 would be an error for the reasons as articulated in Green v Daniels. As the Tribunal’s decision was reached taking that policy into account it is infected with jurisdictional error and the primary judge was in error in failing to so find.

38    In any event, even if the Tribunal was said to address the correct question of approval in cl 820.221(4), it was not open to it to use the PAM3 policy to resolve that issue. For reasons we have given, it was not open to it to take that policy into consideration in exercising the discretion in cl 820.221(4). The policy had not been formulated on the basis that it was giving effect to the approval power.

39    As can be seen from the PAM3 policy, the relevant part of it seeks to address reg 1.20. The policy is not directed to the discretion to be exercised in cl 820.221(4). It is unnecessary in resolving this appeal to address the ambit of the discretion in subclause (4). Whatever the content of the considerations to be taken into account in the exercise of the discretion in relation to the approval in cl 820.221(4), the PAM3 policy is not directed to that question. There is no reference to the content of any discretion, and no reference to reg 1.20J which places a limitation on the approval of sponsorship in relation to applications for a visa of this nature. Moreover, in so far as the PAM3 policy relates to establishing a nominated person as a sponsor, for the reasons above, this aspect of the PAM3 policy is inconsistent with the Regulations: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [29] per McLure P with Wallwork and Steytler JJ agreeing.

40    The respondent’s submission that the PAM3 policy, although directed to reg 1.20 could be taken into account in exercising the discretion as to whether the sponsorship is approved in cl 820.221(4), cannot be accepted.

Materiality

41    Similarly, the respondent’s submission that if there is an error it is not material within the meaning in SZMTA at [45] cannot be accepted.

42    The respondent submitted that even if the Court were to find against it on the nature of the question before the Tribunal, any error did not go to jurisdiction because it is not material within the meaning in SZMTA at [45]. It submitted that if the Tribunal had considered the question of whether to approve the sponsorship then its reasons demonstrated that it would not have approved the sponsorship.

43    However, contrary to the respondent’s submission it is not simply a question of looking at the reasoning of the Tribunal. The question to be addressed is whether that error denied the appellant “the possibility of a successful outcome”: SZMTA at [2] – [3] per Bell, Gageler and Keane JJ and at [77] per Nettle and Gordon JJ citing Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [60]. In addressing this question, “[t]he court must be careful not to intrude into the fact-finding function of the Tribunal”: SZMTA at [48] per Bell, Gageler and Keane JJ. While the court must “be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result” (SZMTA at [48] per Bell, Gageler and Keane JJ), given the nature of the error, the issue in this case, unlike that in SZMTA, is that the information required to conduct the requisite evaluation is not contained in the reasoning of the Tribunal, and is therefore, not before this Court. The error in this case involved the Tribunal being misdirected as to the question it was to decide. The respondent’s submission precedes on the assumption, without addressing the substance, that the factual findings by the Tribunal which were based on a consideration of the PAM3 policy considerations reflect the same factual considerations when considering the discretion in cl 820.221(4). It is unknown what the policy document may have addressed if attention had been directed to cl 820.221(4), and it cannot be for this Court to speculate on what that content may or ought to have been. Moreover, the Tribunal did not address any issue of the exercise of a discretion, or make any findings in relation to consideration which may be relevant to that exercise. Rather, the Tribunal’s consideration ended with the conclusion that it was not satisfied of the criteria in the PAM3 policy, and therefore that the requirements of cl 820.221 were not met.

44    In those circumstances, it cannot properly be said that the error made by the Tribunal was not material within the meaning in SZMTA.

Conclusion

45    The appeal must be allowed.

Associate:

Dated:    12 March 2020