FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Hayman [1999] FCA 217

MIGRATION – judicial review – application for a visa – review of refusal to grant a visa by the Immigration Review Tribunal – tribunal requested to grant a visa different from that specified in the application - whether tribunal has the power to grant a different visa

PRACTICE AND PROCEDURE - costs – whether costs should be awarded against an unsuccessful applicant for judicial review

Migration Act 1958 (Cth) ss 45, 46, 47, 349, 481(1)

Bandura, Re  (unreported, Immigration Review Tribunal, Italiano Presiding Member, 24 May 1996), not followed

Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647: on appeal, not followed

Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, applied

Holden & Co v Crown Prosecution Service (No. 2) [1994] 1 AC 22, applied

Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254, considered

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V GORDON WILLIAM HAYMAN

NO VG 120 of 1998

JUDGE:          FINKELSTEIN J

PLACE:          MELBOURNE

DATE:            15 MARCH 1999

THE COURT ORDERS THAT:

1.         The decision of the Immigration Review Tribunal be set aside.

2.         The matter be remitted to the Tribunal for reconsideration according to law.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Brian Hayman is a citizen of and lives in Sri Lanka.  His four brothers, sister and widowed mother live in Australia. Apart from Mr Hayman’s brother, Gordon Hayman, who has been granted Australian citizenship, they are permanent residents of Australia.  Mr Hayman’s mother, Leena Hayman, is elderly and in poor health.  She suffers from non-insulin dependent diabetes, hypertension, ischaemic heart disease and cerebrovascular disease.  Mrs Hayman has had a stroke, cardiac valve surgery and coronary bypass grafts.  She also suffers from depression, a state that is contributed to by her anxiety that her son, Brian, lives in Sri Lanka.

2                     On 24 April 1995 Mr Hayman, on behalf of himself, his wife and children, applied for a visa for entry into Australia.  The grant of a visa, that is a permission to travel to and enter Australia or a permission to remain in Australia, is governed by the Migration Act 1958 (Cth).  There are prescribed classes of visa (see s 31(1) and reg 2.01 and Schedule 1 of the Migration Regulations) as well as classes created by the Migration Act (see ss 32 to 38).  The Migration Regulations prescribe criteria for visas and visas of a specified class:  the power to prescribe criteria is to be found in s 31(3).

3                     Mr Hayman’s application was made on a form approved by the Minister:  the power to approve forms for making applications for a visa is to be found in reg 1.18(a).  The form stated that it was to “be used to apply for a visa for entry into Australia in one of the following classes.”  This was followed by a list of fifteen classes of visa including “preferential relative” and “concessional family”.  Below the list there appeared the following instruction:  “Write here the name of the class for which you are applying You must write one visa class only”.  In the space provided was written “concessional family”. 

4                     The criteria for the grant of a concessional family visa (that is a Concessional Family (Migrant) (Class AJ) visa subclass 105) in accordance with the regulations in force at the date of the application included the following:  the application must be made outside Australia; the applicant must be sponsored; the applicant must achieve a certain score after an assessment based on points given for particular attributes such as the applicant’s age, occupation, English language skills and other matters:  see Schedule 1, item 1110 and Schedule 2, subclass 105.

5                     On 25 October 1996 a delegate of the Minister determined that Mr Hayman was not eligible for the grant of a concessional family visa.  The reason given was that as a result of his assessment Mr Hayman scored fifty-five points, whereas the score required to pass the assessment was ninety-five points. There was an internal review of this decision (as to internal review see ss 338 to 343) and the review officer affirmed the decision of the delegate.

6                     Subject to immaterial exceptions, a decision made on internal review is reviewable by the Immigration Review Tribunal:  see s 346.  In the case of a refusal to grant a concessional family visa the application for review is to be made by the sponsor: see s 347(2)(b) and the definition of a “Part 5 reviewable decision” in s 337.

7                     Gordon Hayman was Mr Hayman’s sponsor.  On 13 May 1997 he applied to the Immigration Review Tribunal for the review of the decision of the review officer.  Thereafter it must have become apparent that the application to the tribunal would not succeed on its merits.  Accordingly, Gordon Hayman’s solicitor filed a submission with the tribunal requesting “that the application should be assessed against the criteria relating to a subclass 104 preferential family visa on special need relative grounds:  see Bandura  (IRT, J Italiano,  Member, No. V95/110901, 24 May 1996) in relation to consideration of an application under a different class.” The reference to a “subclass 104 preferential family visa” was a reference to a Preferential Relative (Migrant) (Class AY) subclass 104 (preferential family) visa:  see Schedule 1, item 1125 and Schedule 2, subclass 104 of the Migration Regulations.

8                     The submission contained the reasons why it was said that Mr Hayman satisfied the criteria for the grant of preferential family visa.  In short, the case put was that Mr Hayman was a “special need relative” (as defined in reg 1.03 of the Migration Regulations as then in force) of Mrs Leena Hayman being a relative who was willing and able to provide assistance to his mother who was in need of that assistance by reason of her state of health.  Evidence to that effect, in the form of medical reports, was forwarded with the submission.

9                     When the matter came on for hearing before the tribunal it was not suggested that Mr Hayman satisfied the criteria for the grant of a concessional family visa.  The only point  that was argued was that Mr Hayman satisfied the criteria for the grant of a preferential family visa and the tribunal was requested to grant that visa to Mr Hayman.

10                  The tribunal held that it had jurisdiction to treat the application of 25 April 1995 as an application for both a concessional family visa and a preferential family visa.  It cited Re Bandura as authority.  There it had been held that where an applicant made application for a particular class of visa the decision-maker could grant a visa of another class if the applicant satisfied the criteria for that other class:  See also Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647 where this approach was affirmed by the court:  On appeal (sub nom Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399) the decision of the trial judge was reversed on grounds that did not require the Full Court to consider the correctness of Bandura.

11                   The tribunal found that Mr Hayman did satisfy the prescribed criteria for a preferential family visa, except in two respects as to which it had no evidence.  Accordingly the tribunal remitted the application for reconsideration with a direction that Mr Hayman had satisfied all of the prescribed criteria for a preferential family visa with the exception of the prescribed public interest criterion and the criterion requiring an acceptable assurance of support.  In consequence of this decision, if Mr Hayman is able to show that he does satisfy the prescribed public interest criterion and the criterion requiring an acceptable assurance of support, he will be entitled to the grant of a preferential family visa.

12                  The Minister now applies to review the decision of the tribunal.  The application is made pursuant to s 476, and the grounds that are relied upon are as follows:  (a) that the tribunal did not have jurisdiction to make the decision (see s 476(1)(b)); (b) that the decision was not authorised by the Migration Act or the Regulations (see s 476(1)(c)); and (c) that the decision was an improper exercise of the power conferred by the Migration Act and the Regulations upon the tribunal (see s 476(1)(d)).  Although three separate grounds are raised there is, in reality, only one issue that is to be determined.  That issue is whether the tribunal has power to grant, or to consider whether it is appropriate to grant, a visa that is different from the visa that is applied for. 

13                  In dealing with this question, the parties approached the matter on the basis that it was appropriate to determine whether the Minister (or his delegate) has power to grant a visa other than that applied for.  It was assumed that if the Minister did not have power to grant such a visa, the tribunal could not do so.  Speaking generally, that assumption is well founded.  However, it was also assumed that if the Minister did have power to grant the visa so too did the tribunal.  This assumption is not correct: it fails to have regard to the function and jurisdiction of the tribunal.  Nevertheless, it is appropriate to consider the power of the Minister and it is to this issue that I will now turn.

14                  The power to grant a visa, other than a criminal justice visa, is conferred on the Minister: see s 29.  Subdivision AA of Division 3 of the Migration Act contains provisions concerning how an application for a visa (other than a criminal justice visa) is to be made and how that application is to be dealt with.  It is necessary to set out the three principal sections.

15                  Section 45 relevantly provides:

            “(1)     Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

(2)        Without limiting subsection (1), the regulations may prescribe the way for making:

            (a)        an application in specified circumstances; or

            (b)        an application for a visa of a specified class; or

(c)                an application in specified circumstances for a visa of a specified class.

(3)…”

16                  Section 46 relevantly provides:

“(1)     Subject to subsection (2), an application for a visa is valid if, and only if:

            (a)        it is for a visa of a class specified in the application; and

(b)               it is made in the way required by section 45(2)…; and

(c)                any fees payable in respect of it under the regulations have been paid; and …

(2)               …”

17                  Section 47 relevantly provides:

“(1)     The Minister is to consider a valid application for a visa;

 (2)      The requirement to consider an application for a visa continues until:

            (a)        the application is withdrawn; or

            (b)        the Minister grants or refuses to grant the visa; or

            (c)        the further consideration is prevented by sections 39 (limiting number of visas) or 84 (suspension of consideration).”

(3)               To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)               …”

18                  The scheme of the legislation thus disclosed is as follows:  a non-citizen who wishes to obtain a visa must make an application; that application must be for a particular class of visa; if the regulations specify how an application must be made, the regulations must be complied with; if a fee is payable in respect of an application for a visa then the fee must be paid; if the regulations provide for the manner of payment of the fee then the regulations must be complied with.  These are the conditions that must be satisfied before the Minister can exercise his power to consider an application.

19                  In Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 255 I said that the result of these provisions was that “unless the Migration Act or the Regulations otherwise provide the Minister is not to consider an application for a visa if it is not an application for a visa of a particular class and if the application is not made in the prescribed manner”:  see also Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 where the Full Court held that s 45 and s 46 disclose a clear intention on the part of the parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists. 

20                  The regulations do make provision for the manner in which an application for a concessional family visa and a preferential family visa are to be made.  Regulation 2.07(1) provides that if an application is required for a particular class of visa Schedule 1 will set out (a) the approved form (if any) to be completed, (b) the visa application charge (if any) payable in relation to the application, and (c) any other matters relating to the application.  Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it.  In the case of both a concessional family visa and a preferential family visa the approved form that is required to be completed is Form 47 and the application fee is $550.

21                  Mr  Hayman made his application for a concessional family visa on the prescribed form and paid the prescribed fee.  Accordingly, the Minister was obliged to, and he did (by his delegate), consider that application.  However, Mr Hayman had not made an application for a preferential family visa; that is, he had not lodged an application for such a visa and he had not paid a fee for such an application.  Thus the Minister could not grant a preferential family visa to Mr Hayman.  On one view of the effect of ss 45 to 47, especially s 47(3), the Minister simply lacked the power to grant such a visa. On the other hand, where the Minister receives an invalid application for a visa, whilst he is not to consider the application, if the Minister does consider it and grants a visa that visa is not invalid:  see s 69(1).  In other words, the purported exercise of the power to grant a visa in that circumstance is treated as a valid exercise of that power unless and until the visa is set aside.

22                  The tribunal is in no better position than the Minister as regards a decision under review.  It has power to affirm the decision, vary the decision or set the decision aside and substitute a new decision:  see s 349(2).  In addition, for the purposes of its review, the tribunal may exercise all of the powers and discretions that are conferred on the person who made the original decision:  see s 349(1).  But the tribunal does not have any power in relation to the grant of a visa that is greater than the power of the original decision-maker.  Accordingly if the Minister is only able to consider a valid application for a visa, so too is the tribunal.

23                  This conclusion may appear to be in conflict with Buksh, supra.  However it must be remembered that Buksh was decided before the Migration Act took its present form.  There were significant amendments brought about by the Migration Reform Act 1992 and the antecedents of ss 45 to 47 were cast differently.  In any event, if it be relevant, I doubt that Buksh was correctly decided.  Under the earlier form of the legislation a non-citizen wishing to travel to Australia was required to obtain a visa and a non-citizen wishing to obtain permission to enter or remain in Australia was required to obtain an entry permit:  see generally ss 14 to 18, 23 to 28, 33 and 34. Provision was made for the review of a decision refusing to grant an entry permit:  see the former s 115.  Upon such a review, if it appeared to the review authority (defined to include the tribunal: see the former s 4) that an applicant had grounds for making another application for an entry permit, the review authority was required to notify the applicant accordingly and adjourn the review for ten days to enable the applicant to make that application.  If a new application was made the review authority could not resume the hearing until a decision had been given in respect of the new application.  If that decision was adverse to the applicant the review authority could then review all decisions:  see the former s 121.  It seems to me that the existence of s 121 in the earlier legislation is not consistent with the conclusion that a review authority had power to grant an entry permit different from that which had been applied for.  Indeed s 121 proceeded on the assumption that no such power existed.

24                  It is to be noted that s 121 was repealed by Migration Reform Act 1992 and no equivalent provision appears in the current legislation.  Regulation 2.11 provides that if it appears to the Minister that an applicant may be entitled to the grant of a visa of a different class than that applied for the Minister may invite a new application.  On the other hand, reg 2.11(3) provides that a review authority is not to invite a further application for a visa.  These regulations, which cannot bear on the construction of the statute, do nevertheless provide me with some comfort that the construction of the legislation that I prefer is the correct construction.

25                  Although I have held that neither the Minister nor the tribunal has power to grant a visa for which there is no valid application, it is difficult to imagine circumstances in which either the Minister or the tribunal would purport to grant a visa to a non-citizen who had not requested that visa.   In most cases, as has happened here, there will be a request for a visa different from that specified in the application.  What is the nature of that request?  Can it be regarded as a valid application for a visa?   

26                  A request for the grant of a visa other than that specified in an application could amount to a new application for a visa or it might be characterised as an application to amend an existing application.  Where the request is made to the Minister before the original application has been disposed of, the validity of the application, constituted by the request, will depend upon compliance with ss 45 to 47. 

27                  If the request is to be regarded as a new application for a visa, it will not constitute a valid application:  the application will not be on the prescribed form and it will not be accompanied by the prescribed fee.  If the request is to be treated as an application to amend an outstanding application, different considerations arise.  (For present purposes I will assume that an application may be amended before it has been determined.)  First it will be necessary to determine whether the amendment brings about a substitution of the visa that is sought or whether the amendment results in an application that the applicant be granted either the original visa that is specified in the application or alternatively the newly identified visa.  If it is the latter then the application as amended will not be a valid application because only one visa can be specified in an application.  If the amendment is of the former kind, provided the amended application is in the form prescribed for the substitute visa and provided also that the fee that was paid on the original application is the same as the fee that is required to be paid on an application for the substitute visa, it is likely that the amended application is a valid application. Ultimately, this will depend upon the applicant being entitled to have the fee that has been paid treated as the fee applicable to the amended application: see reg 2.12F concerning refunds of application fees. Of course the amended application will speak from the date of the amendment: it cannot relate back to the date of the original application.

28                  But, even if the Minister is able to deal with a request for a substitute visa as a valid application for a visa, the tribunal does not have the power to do so. The function of the tribunal is to review a decision made by either the Minister (or his delegate) or a review officer and it is not to determine an original application.  By acceding to a request to consider the grant of a visa not specified in the original application and not the subject of a determination by the original decision-maker, the tribunal would be exercising the functions of an original decision-maker (a power which it does not have) and not the functions of a reviewing body.

29                  Prima facie, then, the Minister is entitled to an order that the decision of the tribunal be set aside: see  s 481.  However, the power of the Court is discretionary and the question that arises is whether that discretion should be exercised against the making of the order.

30                  On this issue, Gordon Hayman relies on the following matters to support his contention that no order should be made.  Since March 1996 it has been the practice of the tribunal to consider whether an applicant is entitled to the grant of a visa other than the visa applied for:  there are at least nine examples where such orders have been made.  The Minister has not submitted to the tribunal that it lacks power to make orders of this type nor has the Minister applied to the Court to review any decision of the tribunal where it has exercised that power.  In consequence Mr  Hayman was led to believe that he could request the tribunal to grant to him a preferential family visa.  Pursuant to s 85 the Minister has fixed the maximum number of preferential family visas that may be granted:  the number was 1,280 in the 12 months ending 30 June 1998.  If Mr  Hayman is now required to apply for a preferential family visa, being a visa to which he may well be entitled, he will be disadvantaged because there are many other applicants for this type of visa and each application will be dealt with in the order in which it has been lodged.  Had the Minister made an earlier application to challenge the power of the tribunal Mr  Hayman would not have suffered the delay that he will now face in having his new application dealt with.

31                  In reality there are only three critical facts that bear upon the submission that there should be no order.  The first is that the request for the grant of a preferential family visa was made on 24 February 1998.  The second is that the tribunal handed down its decision on 2 March 1998.  The third is that the Minister applied to review that decision on 30 March 1998. 

32                  According to this chronology there is only a five week period during which Mr Hayman might relevantly have been led to believe that the Minister accepted the position that the tribunal had power to deal with his application for a different class of visa. If Mr Hayman suffered any prejudice as a consequence of him holding an erroneous belief during this period (as to which I must say I have no evidence) it would not be so great as to justify the withholding of relief. 

33                  In the result there will be an order that the decision of the tribunal be set aside. I am not disposed to award any costs in the Minister’s favour.  Gordon Hayman, and those advising him, were entitled to assume that the tribunal did have power to deal with the application in the manner that it did. It would be unreasonable to require him to pay the costs of this application in those circumstances.  That is to say, if there be fault in what has occurred, it is not the fault of Gordon Hayman.  As Lord Bridge observed in Holden & Co v Crown Prosecution Service (No. 2) [1994] 1 AC 22 at 40 “it is relatively commonplace for a party who is the victim of a misjudgment by an inferior court or tribunal to have to seek relief by an application for judicial review in circumstances where the Divisional Court cannot hold either another party or the inferior tribunal itself liable in costs … ”

Associate:

Dated:              15 March 1999