FEDERAL COURT OF AUSTRALIA

Elbrow v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 595

MIGRATION – Special Eligibility (Residence) (Class AO Subclass 832 (close ties)) visa – whether applicant, before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia – whether guidelines in the Procedure Advice Manual 3 properly applied – whether privative clause decision – application of wrong test by Migration Review Tribunal amounts to jurisdictional error

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 474, 475A

The Constitution subs 75(v)

Migration Regulations 1994 subcl 832.212(4) of Schedule 2

Plaintiff S157/ 2002 v The Commonwealth of Australia (2003) 211 CLR 476 referred to

Craig v The State of South Australia (1995) 184 CLR 163 referred to

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

referred to

Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 referred to

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

200 ALR 359 considered

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003]

FCA 144 referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 cited

Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

75 ALD 53 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Scargill; Minister for Immigration and Multicultural and Indigenous Affairs v Lobo [2004] HCA Trans 21

TINA LOUISE ELBROW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL

No Q 165 of 2003

SPENDER J

BRISBANE

14 MAY 2004

THE COURT ORDERS THAT:

(1)     An order is made in the nature of certiorari directed to the Migration Review Tribunal quashing its decision given on 30 September 2003 affirming the decision of the respondent’s delegate made on 21 June 2002 to refuse the applicant’s visa application.

(2)     An order is made in the nature of mandamus directed to the Migration Review Tribunal to rehear and determine the applicant’s application for review according to law.

(3)     The respondent is to pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

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 Tina Louise Elbrow (“the applicant”) under s 39B of the Judiciary Act 1903 (Cth) and with reference to s 475A of the Migration Act 1958 (Cth) (“the Act”), seeking to set aside a decision of the Migration Review Tribunal (“the Tribunal”) made on 30 September 2003 to affirm a decision made on 21 June 2002 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, refusing the applicant a Special Eligibility (Residence) (Class AO Subclass 832 (close ties)) visa (“a subclass 832 visa”).

2                     The applicant contends that she should have been granted a subclass 832 visa because she meets the requirements for such a visa and, in particular, the requirement that before turning 18 she spent the greater part of the period that the Minister should regard as the applicant’s formative years in Australia.

3                     The applicant was born in High Wycombe, England on 1 March 1969.  On 16 March 1973 when she had just turned four years of age, she arrived in Australia for the first time with her family.  On 19 May 1981 the applicant, then aged twelve, left Australia, having spent just over eight years in Australia.  On 15 June 2001 the applicant returned to Australia, and on 22 June 2001 lodged her application for a subclass 832 visa with the Perth office of the Department of Immigration and Multicultural and Indigenous Affairs.

4                     The criteria which is the subject of disputation between the parties for the subclass 832 visa is subcl 832.212(4) of Schedule 2 to the Migration Regulations 1994, which read at the relevant time:

‘(4)   An applicant meets the requirements of this subclause if the applicant:

(a)     has turned 18; and

(b)     ceased to hold an entry permit or a substantive visa before turning 18; and

(c)      before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.’

5                     It is relevant to note that the requirement in subcl 832.212(4)(c) is not expressed to be “before turning 18, spent the greater part of the applicant’s formative years in Australia”, but is expressed to be “before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.”

6                     The Department of Immigration and Multicultural and Indigenous Affairs has a Procedures Advice Manual 3 (“the Manual”) which is the third version of a procedures advice manual which provides “Guidelines for officers administering Migration Legislation”.  

7                     As at 22 June 2001, the Manual instructed, in respect of subcl 832.212(4)(c):

‘Formative years

832.212(4)(c)

‘before turning 18, spent the greater part of … the applicant’s formative years in Australia”

2.4.2        ‘Formative years’ does not have legislated meaning.  The following guidelines provide policy interpretation of this term.

2.4.3        A person who has spent the greater part of their life in Australia between the ages of 5 and 18 may, without further enquiry, be regarded as satisfying this criterion.  However, in all other cases, the period which constitutes the applicant’s formative years will depend on that person’[s] particular circumstances.

2.4.4        The wording of this criterion reflects policy that assessment not be based on mere mathematical calculation.  Nor (except as indicated in paragraph 2 above) is the test simply whether the person was in Australia for the greater part of their youth.

2.4.5        Rather, officers should keep in mind that

a person’s ‘formative years’ may be taken to mean those years in which they formed a sense of identity and their connection with a place in the world; and

greater weight should be given to where persons spend their adolescence (12-18 years) than to where they spent their earlier years;

policy envisages that persons who spent their formative years in Australia would have developed significant ties with the Australian community.  However, officers should not attempt to define a person’s formative years by reference to the extent, if any, that the person has become part of mainstream Australian society (however that term is understood).

2.4.6        Having established what period constitutes the greater part of the applicant’s formative years, officers should verify from the DIMA data base that the applicant was indeed in Australia during that time.  (Officers may accept other proof if there is no record at all of the applicant on the data base.)

2.4.7        Officers should verify an applicant’s claims to having been in Australia during the period in question from the DIMA data base.  However, where the data base does not verify the applicant’s claims, it is open to officers to accept other forms of proof.’ (Emphasis added)

8                     The Tribunal, in affirming the decision to refuse the applicant a subclass 832 visa noted at par 7 of its reasons:

‘The Tribunal is bound by the Act and the Regulations and applies relevant government policy guidelines unless there are cogent reasons not to do so (see generally Re Drake and Minister for Immigration and Ethnic Affairs (no.2) (1979) 2 ALD 634and Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144).  Most policy guidelines are set out in the Procedures Advice Manual (PAM 3) and the Migration Series Instructions (MSI) issued by the Department of Immigration and Multicultural Affairs (‘DIMA’).  Written directions issued by the Minister pursuant to section 499 of the Act must be complied with unless they are inconsistent with the provisions of the Act or the Regulations (see subsection 499(2A) of the Act).’ 

The Tribunal noted at par 10 of its reasons that:

‘The crucial issue here is whether the Applicant ‘before turning 18, spent the greater part of the period that the Minister regards as [her] formative years in Australia’ as prescribed under subclause 832.212(4)(c)of the Regulations.  This is a criterion which must be met at the time of lodgement of the primary application on 22 June 2001.’

9                     The applicant is a divorcee who has a son, Patrick, born in 1994.  Her parents presently live in Australia under “temporary resident visas”, and have lodged an application for a Subclass 804 Aged Parent (Residence) visa.  The applicant’s brother and his family are now permanent residents of Australia and, in addition to her immediate family, the applicant has a cousin and his family in Australia, and an aunt whom she later discovered was in fact her sister.  In addition, the applicant has many friends in Australia. 

10                  The Tribunal noted at par 15 of its reasons:

‘Since arriving in Australia in June 2001 the Applicant has ‘settled with ease into the community’.  She worked as a part-time carer and in February this year successfully completed a Certificate III course in Children’s Services (Teacher Assistant) at TAFE.  Her son Patrick has settled well in school.  A skin condition from which he suffered in England has improved greatly since arriving in Australia.

11                  It is apparent from the Tribunal’s reasons that it was sympathetic to the application by the applicant (as from the material it was quite entitled to be) and at par 21 of its reasons ‘empathise[d] with the Applicant’s desire to remain in Australia with her parents, who have applied for permanent residence, and her brother.’

12                  However, the Tribunal felt itself unable to reach a finding of fact that the applicant may be described as having spent the greater part of her formative years in Australia before she turned 18, because of its understanding of the law and in particular of the criterion prescribed in subcl 832.212(4)(c) of  Schedule 2 to the Migration Regulations 1994.

13                  The Tribunal set out the guidelines found in the Procedures Advice Manual earlier set out in respect of the interpretation of “formative years”. 

14                  The Tribunal noted at par 18 of its reasons:

‘Before she reached the age of 18, the Applicant was in Australia for 8 years between the ages of 4 and 12 years.  After she returned to England she continued to attend school and in 1987 at the age of 18 years she met the man whom she later married.  She left home when she was about 20 years old and commenced living with her boyfriend in a mobile home which she had bought.  She was married in 1990 at the age of 21 years.  Her son was born in 1994.’

15                  The reason for the Tribunal’s finding appears at pars 19 and 20 of its reasons, as follows:

‘At best the Applicant may have spent only one of her adolescence (sic) years, generally accepted as between the ages of 12 and 18, in Australia.  Whilst mindful that it is only policy which suggests greater weight be given to instances where an applicant had spent his or her adolescence (sic) years there is nothing in the evidence which would provide a cogent reason to warrant a departure from that policy.  The Applicant maintained contact with one of her school mates and has some relatives and close friends in Australia.  It seems inevitable that she would have made friends whilst she was here between the ages of 4 and 12.  However it would be fair to say that she probably would have built far stronger ties had she been Australia during her adolescence (sic) years.  Again the Tribunal is mindful that ties with the community is but one of the considerations which may be relevant but is not determinative of the crucial issue before the Tribunal.

Having carefully considered the evidence as a whole, the Tribunal is unable to reach a finding of fact that the Applicant may be described as having spent the greater part of her formative years in Australia before she turned 18.’

16                  It is plain that the Tribunal misapplied the guidelines in respect of the interpretation of “formative years”, and applied the wrong guideline.  The Tribunal purported to apply “relevant government guidelines”.  It did not suggest that it was not applying those guidelines because it found there were cogent reasons not to.  The Tribunal ignored the primacy of the first sentence of those guidelines:

‘A person who has spent the greater part of their life in Australia between the ages of 5 and 18 may, without further enquiry, be regarded as satisfying this criterion.’

The applicant fell within that primary consideration.  The guidelines continue:

‘However, in all other cases, the period which constitutes the applicant’s formative years will depend on that person’[s] particular circumstances.’  (Emphasis added)

The Tribunal did not apply the first sentence in the guidelines found in the Manual, and assessed the applicant’s position as if she were not a person who fell within that first sentence, contrary to the true position.  So much is accepted by counsel on behalf of the Minister.

17                  The Tribunal asserted that it was applying the relevant guidelines, but the test the Tribunal in fact adopted was not the test promulgated by the guidelines.

18                  The decision of the Tribunal in this case purports to be a privative clause decision within s 474 of the Act.

19                  Section 474 of the Act relevantly provides:

‘(1)   A privative clause decision:

(a)          is final and conclusive; and

(b)          must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)           is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)     In this section:

         privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’

20                  In Plaintiff S157/ 2002 v The Commonwealth of Australia (2003) 211 CLR 476, the High Court considered the extent of the protection afforded to decisions of an administrative character by s 474 of the Act, in circumstances where it was alleged that there had been a denial of procedural fairness in arriving at the decision in question.  The Court held that s 474 of the Act did not prevent the judicial review of decisions that involved jurisdictional error.  

21                  In Craig v The State of South Australia (1995) 184 CLR 163 the High Court at 179 said that if an administrative tribunal:

‘… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

22                  Section 39B of the Judiciary Act 1903 (Cth), subject to certain qualifications, confers upon the Federal Court jurisdiction of the character of the High Court set out in s 75(v) of the Constitution.  Notwithstanding the provisions of the privative clause, the Court may exercise its powers of review, but only in relation to decisions affected by jurisdictional error.

23                  In my judgment, the error which taints the decision of the Tribunal in the present case is not protected from review by s 474 of the Act.  The task of the Tribunal was to undertake statutory interpretation and to apply that interpretation to the facts it found.  Quite simply, the Tribunal applied the wrong test in the task of determining whether the applicant satisfied the criterion in subcl 832.212(4)(c), and if it had applied the right test, it ought to have concluded that the applicant satisfied that criterion.

24                  Sir Gerard Brennan, as President of the Administrative Appeals Tribunal, spoke in Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 of the role of policy in administrative decision making:

‘There are powerful considerations in favour of a Minister adopting a guiding policy.  It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy.  By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.’

Sir Gerard Brennan referred with approval to the observations of Lord Denning M.R. in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, where the Master of the Rolls said:

‘I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply.  Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it.  The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say.  It must not “shut its ears to an application”: see [1971] A.C. 610, 625 per Lord Reid.  The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him.  But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.’

25                  In Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 (“Lobo”), a Full Court of the Federal Court (French, Sackville and Hely JJ) allowed an appeal from a judgment of Gyles J.  In Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, the primary judge had concluded that there had been a misconstruction of a visa grant criterion by the Migration Review Tribunal.  Gyles J said at par 11:

‘It may thus be concluded that the Tribunal fell into error in the manner in which it approached its task.  It was conceded by counsel for the Minister that if the argument for the applicants prevailed (contrary to his submission) then the error is jurisdictional in the sense that it was a constructive failure to exercise jurisdiction because the Tribunal did not address the statutory criteria and thus would lead to prerogative relief absent s 474 of the Act (Craig v South Australia (1995) 184 CLR 163 at 179).  This concession makes it unnecessary for me to consider whether the error was of fact or law or was within or without jurisdiction.’

26                  Nonetheless, Gyles J concluded that the conceded error would not ground relief by reason of the operation of s 474 of the Act. 

27                  On the appeal to the Full Court, counsel for the Lobos contended that the error was jurisdictional and thus did not attract the application of s 474 of the Act and relied upon the decisions of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1.

28                  The Full Court considered whether misconstruction of visa grant criteria under the Migration Act was amenable to judicial review.  The Full Court said 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.’ (Emphasis added)

29                  The Full Court had regard to the decision of another Full Court (French, von Doussa and Marshall JJ) in Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 53 (“Scargill”) where the Full Court allowed an appeal against the decision of a single judge dismissing an application for certiorari directed to the Migration Review Tribunal affirming a decision not to grant the appellant a Family (Residence) (Class AO) visa.  The Full Court in Lobo said of Scargill at 375:

‘In allowing the appeal, the Full Court held that, in determining whether the appellant met criteria prescribed in subclass 806, the tribunal had failed to take into account the appellant’s presence in Australia from the time when he made his application for the visa.  The Court said (at [31]):

       “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.”

30                  The Full Court in Lobo said, concerning an invitation by counsel for the Minister to depart from Scargill on the basis that it was plainly wrong, at 376:

‘We are respectfully of the view that not only is Scargill not plainly wrong, but that it was correctly decided.’

31                  In my judgment in this case, the Tribunal failed to decide according to law whether it was satisfied that the criterion prescribed by subcl 832.212(4)(c), namely whether the applicant had spent the greater part of what the Minister regards as her formative years in Australia, was satisfied.  The Tribunal did not address the statutory criterion in subcl 832.212(4)(c), as that criterion is defined in the guidelines, as it should have, and as it purported to do.  The decision tainted by that failure is a decision affected by jurisdictional error.  It is invalid and cannot be said to be a privative clause decision within s 474(2) of the Act.

32                  The Minister sought special leave to appeal in both Scargill and Lobo.  Those applications for special leave to appeal were heard by Gummow and Hayne JJ in Melbourne on 13 February 2004.  In the course of those submissions, Gummow J noted that the Federal Court had said in the reasons in Scargill that:

‘… there was a constructive failure to exercise jurisdiction … by failure to address the proper meaning of “usually reside”.’

33                  In refusing special leave, Gummow J said:

‘… as to the matter of Scargill, the Full Court of the Federal Court concluded that the Migration Review Tribunal made errors of law causing it to identify a wrong issue and to ask it itself the wrong question.  The Minister seeks special leave to appeal to contend that those errors did not constitute jurisdictional error because section 474 of the Migration Act 1958(Cth) “is capable of ‘curing’ what might otherwise have been regarded as jurisdictional error”.  I quote from paragraph 3.14 of the written submissions.

The contention that the Minister would seek to make about the operation of section 474 is inconsistent with the Court’s decision in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.  As was said in the joint reasons in that case at page 506, paragraph 76:

       Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.

It follows that section 474 does not have the effect for which the Minister would contend if special leave to appeal were to be granted.  The actual decision of the Full Court of the Federal Court is not attended by sufficient doubt to warrant a grant of special leave.  Special leave is refused with costs.

Coming to the matter of Lobo, the Full Court of the Federal Court concluded, and the Minister does not dispute, that the Migration Review Tribunal applied a test other than that prescribed by the applicable regulation.  The Full Court’s conclusions that the Tribunal therefore fell into jurisdictional error and that it followed from this Court’s decision in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 that the privative provision in section 474 of the Migration Act 1958 (Cth) was accordingly not engaged are not attended by doubt.  Special leave to appeal is refused with costs in that matter also.’

34                  In this case, the Tribunal purported to apply the test for the proper interpretation of “formative years” which was the subject of exegesis in the guidelines in the Manual.  It did not in fact apply the test as prescribed by that exegesis.  In so doing, in my judgment, it fell into jurisdictional error.  If it had applied the correct test, it should have been satisfied of the subcl 832.212(4)(c) criterion for the grant of a subclass 832 visa.

35                  In the light of the above reasons, I make the following orders:

(1)     An order is made in the nature of certiorari directed to the Migration Review Tribunal quashing its decision given on 30 September 2003 affirming the decision of the respondent’s delegate made on 21 June 2002 to refuse the applicant’s visa application.

(2)     An order is made in the nature of mandamus directed to the Migration Review Tribunal to rehear and determine the applicant’s application for review according to law.

(3)     The respondent is to pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

Associate:

Dated:              14 May 2004