FEDERAL COURT OF AUSTRALIA

Lal v Minister for Immigration & Multicultural Affairs [2000] FCA 1488

MIGRATION – decision of Migration Review Tribunal affirming decision of delegate of Minister not to grant General (Residence) (Class AS) visa – whether, in reviewing decision of delegate, Tribunal exercised a “discretionary power” or a “personal discretionary power” for the purposes of ss 476(1)(d) and 476(3) of Migration Act 1958 (Cth)

WORDS AND PHRASES – “discretionary power”

Migration Act 1958 (Cth) ss 65, 348, 349, 476(1)(d), 476(3)

Ward v Williams (1955) 92 CLR 496 referred to

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 considered

Igancio v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 81 referred to

Singh v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Mansfield J, 4 July 1997) referred to

Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867 referred to

NARENDRA LAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 698 OF 2000

MOORE J

24 OCTOBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent's costs.

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

REASONS FOR JUDGMENT

1                     This is an application by Narendra Lal ("the applicant") for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") of 5 June 2000.  The decision was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") of 22 July 1998 that the applicant was not entitled to the grant of a General (Residence) (Class AS) visa or any other class of visa.

2                     The applicant is a national of Fiji.  After arriving in Australia the applicant entered what he said was a de facto relationship with a New Zealand citizen resident in Australia who ultimately became the nominator for the purposes of the application.  The de facto relationship commenced, on the applicant's account, in May 1996.  The Tribunal appears to have accepted evidence before it that the nominator left Australia on 12 September 1997.  This was important because Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations") provided that the criteria for a subclass 801 visa (which is the visa in question) must be the holder of a subclass 820 spouse visa.  A criterion for that latter visa was that the applicant was the spouse of the nominator.  Part of the definition of "spouse" in reg 1.15A of the Regulations was that the relationship between the two people in question (in this case the applicant and the nominator) was "genuine and continuing".

3                     The Tribunal concluded, inter alia, that the applicant was not a spouse of the nominator at the time of its decision, viz. 5 June 2000.  Neither this nor any other finding or conclusion of the Tribunal was challenged in these proceedings.  Rather, the ground of review ultimately relied upon by the applicant focused on administrative procedures within the Tribunal evident from the material before the Court which I apprehend is, in substance, the departmental file (which includes the Tribunal file).  The solicitor appearing for the applicant, Mr Newman, drew attention to reports submitted to the member of the Tribunal who made the decision (but before it was made) and other documentation.  Those reports were prepared, I infer, by administrative support staff who were members of teams variously described in the documentation as the "Copper Team" and the "Gold Team".  For reasons which will become apparent shortly, it is unnecessary to set out in detail the contents of the reports and other documentation relied upon by Mr Newman.  However two reports which received particular attention in submissions were prepared for the apparent purpose of gaining the agreement of the member to send the applicant letters pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) inviting comment on information held by the Tribunal.  In one of those reports the administrative staff member expressed, in blunt and unqualified terms, her view about what was the main issue in the applicant's application, what some of the salient facts were and the prospects of the applicant succeeding.  In the report it was said that "purely on the merits … the (applicant) cannot succeed".  For my part, I would view a report to a member of an independent administrative tribunal by support staff couched in these terms as inappropriate.  However that is not to suggest that ultimately the member of the Tribunal did not bring an open mind to the decision-making required by the Act and was influenced by the language used in these reports.  It is, for reasons I shortly explain, not an issue I need consider.

4                     The Act identifies in s 476 the grounds on which an application for judicial review may be made.  The only ground relied upon was that in s 476 (1) (d), namely that "the decision was any improper exercise of the power conferred by this Act or the regulations".  What is comprehended by this ground is made clear by s 476 (3).  The solicitor for the applicant indicated that pars (b) and (c) of that subsection were relied upon.  That is, the relevant exercise of the power was "the exercise of a personal discretionary power at the direction or behest of another person" or the "exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case".  I presently assume (and it is probably correct) that pars (a), (b) and (c) separately identify a circumstance in which there is an improper exercise of a power.  However the two circumstances relied upon involve the exercise of either a "personal discretionary power" or a "discretionary power".  Counsel for the Minister took issue with whether the making of the decision in question involved the exercise of such a power.

5                     Sections 348 and 349 of the Act require the Tribunal to review the challenged decision and confer on the Tribunal the same powers and discretions as the primary decision maker.  Section 349 enables the Tribunal, inter alia, to affirm the decision, vary the decision, or set aside the decision and substitute a new decision.  In the present case the challenged decision of the delegate of the Minister was made under s 65 of the Act.  That section provides that the Minister should be satisfied about certain matters and, if so satisfied, "is to grant the visa" or, if not so satisfied, "is to refuse to grant the visa".  In my opinion, neither the power conferred by s 65 nor the power conferred by s 349 is a discretionary power let alone a personal discretionary power.

6                     The use of the word "may" in s 349 (1) is not intended, in my opinion, to confer, in a case such as the present, a discretionary power on the Tribunal to exercise or not exercise powers and discretions of the primary decision maker.  That is because plainly the primary decision maker was, as just discussed, obliged to grant or refuse to grant the visa.  There is no reason to imagine that the legislature intended that the Tribunal would have any greater latitude in dealing with an application of the type under consideration than the primary decision maker.  Moreover the use of the word "may" in s 349 (2) was not, in my opinion, intended to confer a discretion to grant or not grant a remedy.  Rather "may" in that subsection is intended to signify that one (or a number) of the identified remedies can be granted depending on the conclusion reached: as to the applicable principles see Ward v Williams (1955) 92 CLR 496.

7                     A convenient exposition of what may be a discretionary power is found in the recent judgment of the High Court in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348.  In the joint judgment of Gleeson CJ and Gaudron and Hayne JJ the following said (at 1354):

"Discretion" is a notion that "signifies a number of different legal concepts".  In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result".  Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.  The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion.  On the other hand, it may be quite narrow where, for example, the decision-making is required to make a particular decision if he or she forms a particular opinion or value judgment.

8                     In the present case, Schedule 2 to the Regulations specifies criteria for the grant of the visa in question.  In order to determine whether each criterion is satisfied the decision maker has to ascertain what the facts are and then, by reference to the found facts, reach a conclusion as to whether the criterion is met.  While various of the relevant criteria (for a subclass 801 visa and a subclass 820 visa) require evaluation by the decision maker (such as whether a relationship is continuing), I do not consider that the process of evaluation is, for the purpose of s 476 (3), to be treated as the exercise of a discretionary power in the sense that the decision maker is intended to have some latitude in deciding whether the criteria are met.  An analogous power concerns the determination of whether Australia owes protection obligations to a person (that is, whether a person is entitled to a protection visa).  That does not involve the exercise of a discretionary power: see Ignacio v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 81 and Singh v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Mansfield J, 4 July 1997) and see also Jun v Minister for Immigration & Multicultural Affairs [2000] FCA 867.  Examples of the type of power to which s 476 (3) is directed are the discretionary power to decide to deport: s 200 or to refuse to grant a visa because a person does not satisfy the character test: see s 501 (1) or the personal discretionary power to refuse to grant or cancel a visa because of suspected non-compliance with the character test and considerations of the national interest: see s 501 (3) and (4) and also see s 500 A (6) and s 501 A (5).

9                     In my opinion, the decision of the Tribunal which is challenged in these proceedings, is not amenable to review on the ground relied on by the applicant.  Accordingly I dismiss the application with costs.

Associate:

Dated:              24 October 2000