FEDERAL COURT OF AUSTRALIA

Hong v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1308

MIGRATION – procedural fairness – relationship to s 357A of the Act – construction of s 357A – application of procedural fairness provisions – whether denial of procedural fairness at common law – Tribunal affirmed decision cancelling applicant’s visa because business sponsor did not comply with undertakings – Tribunal and applicant unaware that delegate had already approved another business sponsor

MIGRATION – s 349 – a source of power not of jurisdiction

MIGRATION – failure to take account of relevant consideration– whether Tribunal fixed with constructive knowledge of Minister’s approval decision – whether Tribunal had duty to inquire – whether approval decision was a relevant consideration

MIGRATION – erroneous assumption of fact – whether error went to jurisdiction

Acts Interpretation Act 1901 (Cth) s 33(1)

Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)

Migration Act 1958 (Cth) ss 48, 82(2), 116(1)(g), 348, 349, 351, 352(4), 353, 357A, 359C(2), 360, 363(1)

Migration Regulations 1994 (Cth) Regs 2.43(1)(l)(i), 457.223(4), 457.6, Sch 8 con 8107

Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 applied

Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936 applied

SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

Re Ruddock;  Ex parte Applicant S154/2002 (2003) 201 ALR 437 cited

Sun Zhan Qui v Minister for Immigration & Ethnic Affairs, unreported, FCA 6 May 1997 cited

NAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 221 cited

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 cited

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited

Moldrich v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1010 cited

Comcare v Burton (1998) 157 ALR 522 applied

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 cited

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 cited

Abebe v The Commonwealth (1999) 197 CLR 510 applied

Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Applicants S134/2002 (2003) 211 CLR 441 applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1014 cited

R v Criminal Injuries Compensation Board;  Ex parte A [1999] 2 AC 330 cited

R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 cited

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited

Re Minister for Immigration & Multicultural Affairs;  Ex parte S20/2002 (2003) 198 ALR 59 applied

Aronson & Dyer, Judicial Review of Administrative Action, (3^rd ed 2004)

KYUNG SUK HONG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, PAUL WAKIM, MEMBER MIGRATION REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

No S 112 of 2004

FINN J

ADELAIDE

12 OCTOBER 2004

THE COURT ORDERS THAT:

1.         The application be dismissed with costs. 

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

REASONS FOR JUDGMENT

1                     This proceeding is, to say the least of it, unfortunate.  Unless he succeeds in this application or the respondent Minister exercises a favourable discretion under s 351 of the Migration Act 1958 (Cth) (“the Act”), the applicant will be compelled to return to Korea simply to apply for a Subclass 457 Business (Long Stay) visa for which the Minister has already approved his business nomination, his present visa of that type having been cancelled because his original business sponsor did not comply with undertakings given to the Minister.  It is that cancellation decision which is the subject of this proceeding. 

Subclass 457 Visas

2                     A visa of this class, insofar as it relates to sponsorship by an Australian business, is granted on the basis that the visa applicant has been nominated by, and is to be employed by, an approved sponsoring employer:  Migration Regulations 1994 (Cth) Sch 2 reg 457.223(4).  In nominating an applicant the sponsoring employer is required to give undertakings to the respondent Minister in respect of the visa applicant which include an undertaking to provide monitoring information.  A sponsoring employer’s failure to comply with the undertakings given is a prescribed, though discretionary, ground for cancelling a visa under s 116(1)(g) of the Act:  see Reg 2.43(1)(l)(i) of the Migration Regulations.

3                     Subclass 457 visas of the variety I am describing are subject to condition 8107 which is imposed by Reg 457.6.  The precursor to the condition 8107 that applied to Mr Hong provided:

“The holder must not change employer or occupation in Australia without the permission in writing of the Secretary”:  emphasis added.

4                     Its replacement (which still is operative) provides insofar as presently relevant that:

“8107  The holder must not:

            (a)        if the visa was granted to enable the holder to be employed in Australia:

(i)                 cease to be employed by the employer in relation to which the visa was granted;  or 

(ii)               work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted.”

The consequence of this change to the condition and the removal of the Secretary of the Department’s discretion is that the holder of a Subclass 457 visa such as Mr Hong could not change employers.  Even if a visa holder could obtain ministerial approval for a new nomination by a different approved business sponsor, he or she would have to obtain a new Subclass 457 visa before taking up employment with that different business sponsor.  If such a new visa was granted the original visa would cease to be in effect when the new visa came into effect:  s 82(2).

5                     If before applying for a new Subclass 457 visa, a visa holder had his existing Subclass 457 visa cancelled under s 116 of the Act, that person would be unable to apply for the new visa while he or she was within the migration zone because of the provisions of s 48 of the Act.

6                     It is this last consequence that Mr Hong seeks to avert in this proceeding.

THE PRESENT MATTER

(1)        The Factual Setting

7                     Mr Hong was granted his Subclass 457 visa on an approved business sponsorship by Kosyd Pty Ltd.  Kosyd failed to respond to the Department’s requests to provide monitoring information in accordance with its undertaking.  On 14 October 2003 the Department notified Mr Hong of its intention to cancel his visa under s 116(1)(g) of the Act.  Mr Hong was invited to give reasons why the visa should not be cancelled;  he was advised of the issues that would be considered, of the consequences of cancellation and of the date by which his response was to be provided (30 October 2003).

8                     He sent a response by letter on 9 November 2003 the “gist” of which was described by the Tribunal (insofar as presently relevant) as follows:

“l        The sponsor was unable to respond to the Department’s requests for information because there was a change of ownership;  the company is undergoing restructuring;  and things should settle down by Christmas.  The company is relocating. 

l                     The review applicant stated ‘Please do not cancel my visa, please give us more time to reply to your cancellation letter, I will reply soon’.”

9                     No monitoring information was thereafter provided.  On 9 January 2004 a delegate of the Minister cancelled Mr Hong’s visa.  He lodged an application for review with the Migration Review Tribunal (“the Tribunal”) on 16 January 2004.  That application stated:

“We are in the position of negotiating with original sponsor to reconsider monitoring reply to DIMIA.  I am also approached by new sponsor.  I will submit new sponsorship as soon as all the documents get finalised.”

10                  On 11 February 2004 the Tribunal sent Mr Hong a s 359A letter inviting him to comment on the information it considered would be the, or part of the, reason for affirming the delegate’s decision.  That information was specified to be:

“l                The Department found that your sponsor continuously failed to provide information related to the monitoring of your sponsorship.”

Mr Hong did not respond to this letter or otherwise provide comments.  His explanation for not doing so was that he moved to a different address “during this time” and “the other reason for not replying promptly was that I was organising for a new business sponsor”. 

11                  On 7 April 2004 the Tribunal wrote to him inviting him to attend the handing down of its decision on 30 April 2004.  Mr Hong received this letter.

12                  On 28 April the Tribunal received a communication from a migration agent for Mr Hong.  It indicated that Mr Hong had found an approved business sponsor (“BDS”) and that that sponsor had lodged an application for nomination with the Department on 27 April.  The letter annexed supporting documentation to that effect.

13                  Neither the Tribunal nor Mr Hong were aware that BDS’s nomination of Mr Hong was approved by a delegate of the Minister on 28 April 2004.  The approval was sent direct to BDS.  Apparently, according to Mr Hong, the addressee of the letter of approval was not at BDS at the time and he, Mr Hong, did not receive a copy of the approval until after 30 April 2004. 

14                  The Tribunal handed down its decision on that date.  It confirmed the delegate’s cancellation decision. 

(2)        The Tribunal’s Reasons

15                  The Tribunal correctly identified that there was a prescribed ground for cancelling Mr Hong’s visa under s 116(1)(g), but that the Tribunal was not for that reason obliged to cancel the visa.  It was a discretionary matter and while there were no “regulatory provisions” that related to the exercise of the s 116(1) discretion there were departmental policy guidelines.  It then proceeded to have regard to the matters identified in the guidelines.  It noted the history of Mr Hong’s dealings with the Department and the Tribunal relating to the proposed cancellation of his visa up until his agent’s communication of 28 April 2004.  It referred to the application for nomination of Mr Hong lodged by BDS with the Department on 27 April 2004. 

16                  Its reasons continued:

“32.     There is no evidence before the Tribunal that the nomination has been approved or that the review applicant has the necessary qualifications to satisfy that proposed nomination. 

33.       The Tribunal has regard to the decision in Hou where it was stated in relation to the fact that a sponsorship application had been lodged but not approved

                        ‘If the Tribunal were obliged to await the decision at all on all sponsorship and nomination applications relevant to an applicant, the situation could arise whereby an applicant may remain within the immigration system by the expedient of continuing to seek sponsorship from different businesses, even though such applications may be continuously refused.’

34.       The Tribunal notes that the review applicant has been aware of the difficulties with his immigration status since the middle of October 2003.  He has failed to respond to the Tribunal’s letter of 11 February 2004 thereby forfeiting his right to a hearing.  He has no contact with the Tribunal until 2 days before the handing down of the Tribunal decision in the matter. 

35.       The Tribunal is not prepared to defer the handing down of its decision as there is no substantial objective evidence before it that the nomination will be approved or that the review applicant will be qualified for that position.

FINDINGS

36.       The Tribunal makes the following findings:

l                    The review applicant breached section 116(1)(g).

l          The reasons for not cancelling do not outweigh the reasons for cancelling the visa. 

REASONS

37.       Having made the above findings the Tribunal has no alternative but to affirm the decision under review.”

CONSIDERATION

17                  It may well have been the case that if the Tribunal had been aware that Mr Hong’s business nomination had been approved, it would have exercised its discretion differently.  That is not the issue with which I am concerned in this proceeding.  It is with whether there has been a jurisdictional error committed by the Tribunal. 

18                  Before dealing with the various challenges made to the Tribunal’s decision, it is appropriate to draw attention to the following matters.  First, in his communication to the Tribunal of 28 April 2004, Mr Hong’s migration agent did not request that the handing down of the Tribunal’s decision be adjourned or deferred pending a decision on the business nomination lodged on 27 April 2004.  Nonetheless, the Tribunal did advert to and reject deferral in the circumstances.

19                  Secondly, the applicant has not attempted to found his claim on any failure of the Secretary to comply with the provisions of s 352(4) of the Act:  see Acts Interpretation Act 1901 (Cth), s 33(1);  the 28 April approval of the business nomination being a document in his “possession or control”.  It is, in any event, now accepted that such a failure would not have rendered the Tribunal’s decision without legal effect as compliance with that subsection was not a precondition to the Tribunal’s exercise of its review function nor was the Tribunal obliged to consider the documents described in s 418(3);  Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309;  aff’d [2004] FCAFC 125;  Applicant P40/2003 v Refugee Review Tribunal [2004] FCA 936. 

20                  Thirdly, the Tribunal correctly identified the “question” it was required to, and did, answer to enliven its jurisdiction to cancel the visa under s 116, i.e. was it satisfied a prescribed ground existed for cancelling the visa:  cf SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303 and [15] ff.  Equally, it correctly recognised that the decision to cancel was discretionary. 

21                  The applicant has searched widely, indiscriminately and optimistically for possible bases upon which to challenge the Tribunal’s decision.  The following “grounds” have been invoked. 

(i)         The Tribunal did not accord him procedural fairness because it did not grant an adjournment after receiving notification that the business nomination had been lodged. 

(ii)        The Tribunal breached its s 353 obligation to “act according to substantial justice and the merits of the case” in not granting an adjournment.

(iii)       The Tribunal failed to take account of a relevant consideration, i.e. the approval of the business nomination.

(iv)       The Tribunal proceeded on an erroneous assumption of fact which involved a failure to take account of a relevant consideration, i.e. the grant of the approval.

(v)        The Tribunal could have and would have granted a “new Subclass 457 visa” had it received evidence of the approval, so that its erroneous assumption of fact amounted to a jurisdictional error.

22                  It need hardly be said that these “grounds” betray misunderstandings both as to the scheme of the Act, and of the principles enlivening the grant of relief in the form of constitutional writs.

23                  It is sufficient for present purposes if I identify the following three misconceptions concerning the Act. 

1.         Section 353

24                  The applicant has sought to find in s 353 of the Act a source of obligations in the Tribunal, the breach of which leads, apparently, to jurisdictional error.  That section is in the following terms:

“(1)     The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 

(2)       The Tribunal, in reviewing a decision:

            (a)        is not bound by technicalities, legal forms or rules of evidence;  and 

            (b)        shall act according to substantial justice and the merits of the case.”

25                  The first attempt to transform this provision into a direct source of mandatory obligations was rejected in the well-known decision of the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.  The present attempt can fare no better.  The section (and its counterpart in s 420) “serves to describe the general nature of review proceedings” and does not operate “to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision”:  Eshetu at [77].  The purpose of s 353(2) in particular “is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate”:  Re Ruddock;  Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450.  The section properly has been described, with respect, as containing “general exhortatory provisions”:  Sun Zhan Qui v Minister for Immigration & Ethnic Affairs, unreported, FCA 6 May 1997, at 39 per Lindgren J.  If its statements of objectives and standards were not intended of themselves “to generate a private right of action”:  ibid, at 43;  NAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 221 at [14];  these can, nonetheless, be relied upon as indicative of legislative purpose in the interpretation of other provisions of the Act. 

2.         Section 357A

26                  Though claiming a denial of procedural fairness in the manner in which the Tribunal conducted its review (i.e. by not granting an adjournment), the applicant has not sought to address the relationship of that claim to the provisions of s 357A of the Act.  This section is contained in Division 5 of the Act which is entitled “Conduct of review”.  It provides (insofar as presently relevant):

“357AExhaustive statement of natural justice hearing rule

(1)       This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

This provision, which became operative on 4 July 2002, applied to Mr Hong’s application to the Tribunal.

27                  The construction of this provision is not free from difficulty:  see generally NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456.  That difficulty arises because the Division’s “exhaustive statement of the requirements of the natural justice hearing rule” is only “in relation to matters [the Division] deals with”.  As French J indicated of the counterpart provision (s 422B) in Division 4 of Part 7 of the Act in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [57]:

“This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal.  The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, i.e. the conduct of reviews by the Tribunal.”

28                  The particular provisions of the Act that touch most closely on the type of situation raised in this case are s 359C(2), s 360 and s 363(1)(a).  Section 359C(2) applies where an applicant has been given information by the Tribunal under s 359A of the Act for comment and has failed to provide comments within the time given.  In such case the Tribunal is authorised by the subsection to make a decision on the review “without taking any further action to obtain the applicant’s views on the information”.  Section 360(3) of the Act in turn disentitles an applicant to whom s 359C(2) applies from appearing before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review.  Both s 359C(2) and s 360(3) applied to Mr Hong.  Finally, s 363(1) empowered the Tribunal for the purpose of the review of a decision to “adjourn the review from time to time”. 

29                  If Mr Hong’s claim could be cast as a denial of procedural fairness at common law at all, the question would arise whether it related to an aspect of the hearing rule which was a “matter” identified by reference to the particular provisions of Division 5. 

30                  As I have indicated, I have not been addressed by the applicant on the relationship of his procedural fairness claim to the provisions of Division 5.  While there is, in my view, an arguable case that his claim relates in substance to “matters” dealt with in the Division in s 359C(2) and s 363(3), I have not considered it necessary to invite submissions on the matter.  The so-called common law claim must fail in any event.

31                  The case is not one of the Tribunal failing “to accede to a reasonable request for an adjournment”:  cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40].  Notwithstanding that no explicit request was made at all:  cf Moldrich v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1010 at [35] ff;  that no explanation had been given for the failure to respond to the Tribunal’s s 359A notice, and that no indication was given of the prospects of the nomination or of Mr Hong’s qualifications to satisfy the proposed nomination, the Tribunal considered the matter of deferral.

32                  The decision may not have been one at which another Tribunal member might necessarily have arrived.  Nonetheless, it was not in the circumstances an unreasonable one.  The Tribunal had regard to the applicant’s past manner of dealing with the Tribunal;  to his knowledge of the difficulties with his immigration status over some number of months;  to the lack of information about his qualifications;  and to the potential difficulties involved in adjourning such reviews to await decisions on nomination applications.  Against that background it would not defer its decision as it did not have “substantial objective evidence before it” that Mr Hong’s nomination would be approved or that he was qualified for the position.

33                  As I read the Tribunal’s decision, Mr Hong has in this respect been the author of his own harm in quite some degree.

3.         Section 349

34                  In his supplementary contentions, the applicant asserts that s 349 of the Act empowers the Tribunal to set aside the visa cancellation and to substitute its own decision to grant a new Subclass 457 visa.  That provision, insofar as presently relevant, mirrors that of s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  It provides:

“(1)     The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. 

(2)       The Tribunal may:

            (a)        affirm the decision;  or 

            (b)        vary the decision;  or 

            (c)        if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations;  or 

(d)                set the decision aside and substitute a new decision.”

35                  As I understand the submission it is that, if the Tribunal had received evidence that the nomination had been approved, it would have been likely to have found that Mr Hong satisfied the requirements of, and should be granted, a Subclass 457 visa as the Tribunal had power to do this under s 349(2)(d).

36                  The short point I wish to make is that the Tribunal did not have before it an MRT-reviewable decision refusing to grant a new visa to Mr Hong.  The only decision before it was a decision to cancel that visa.  While s 349 conferred power on the Tribunal in relation to matters in which it had jurisdiction, it was not itself a source of jurisdiction:  Comcare v Burton (1998) 157 ALR 522.  While the s 349 powers were available to be exercised “for the purpose of reviewing” the delegate’s decision, the question it was obliged to answer was the same question as that which was before the delegate, i.e. ought the applicant’s visa be cancelled under s 116:  cf Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234.  The question was not whether a new visa should be granted.

The remnants of the applicant’s complaints

37                  The comments I have made above have disposed of much of what has been advanced by the applicant.  I turn now to what I consider to be the essence of what remains.  The complaint is either that the Tribunal did not take account of a fact of which it should have been aware and which was a relevant consideration, or that it proceeded on an erroneous assumption of fact which, in the circumstances, was jurisdictional in character.  Neither complaint can be upheld. 

38                  To deal with these matters it is necessary to refer briefly to the nature and exercise of the review function of the Tribunal.

39                  (1)        The Tribunal must review the decision to which a valid application to it refers and in so doing may exercise all the powers and discretions conferred on the original decision maker:  s 348 and s 349.

40                  (2)        The function of the Tribunal is inquisitorial not adversarial.  It is “an inquisitor obliged to be fair”:  Re Ruddock;  Ex Parte Applicant S154/2002 at [57].  It can require the departmental Secretary to make any investigation it thinks necessary with respect to the review and to report to the Tribunal:  s 363(1)(d) of the Act;  but it is a matter for the Tribunal whether this power should be exercised in a particular case:  WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [16]. 

41                  (3)        It is for the applicant for review to advance whatever evidence or argument he or she wishes to bring forward to support the claim propounded.  “The Tribunal must then decide whether that claim is made out”:  Abebe v The Commonwealth (1999) 197 CLR 510 at [187].  The Tribunal is not required to consider “an application, never made, which might have been put on another basis”:  Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]. 

42                  (4)        After handing down its decision on a review, the power of the Tribunal to reconsider its decision is limited to those cases in which its decision was made in jurisdictional error such that it did not effect the review required of it:  Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 

(i)        “failure to take account of a relevant consideration”

43                  The essence of this complaint is that the Tribunal did not take account of a fact of which it was not aware.  As it said in its reasons “[t]here is no evidence before the Tribunal that the nomination has been approved”.  In other words the Tribunal based its decisions not to defer and to cancel on the material that was before it.  Unless it can be fixed with “constructive knowledge” of the approval decision or can in the circumstances be challenged for an improper failure to acquire that knowledge, there is simply no basis here upon which to challenge the Tribunal’s cancellation decision:  Abebe, at [187];  see also NAXN v Minister for Immigration & Multicultural & Indigenous Affairs, at [13] ff;  assuming that the fact of the approval decision was itself a “relevant consideration”.

44                  There is at first flush a curiosity in the facts that the decision made by the Tribunal will be taken to be the decision of the Minister:  see s 116;  see also s 349(3);  and the decision of which it is unaware is also a decision of the Minister:  reg 1.20H.  Be this as it may, the distinctive place and function of the Tribunal in the scheme of the Act and the very limited power of the Minister to substitute her own decision for the Tribunal, make it most unlikely that Parliament would ever have intended that the Tribunal be fixed with knowledge of ministerial decisions not before it or of information in the control or possession of the Minister’s Department:  Ex parte Applicants S134/2002 at [34].

45                  No provision of the Act expressly ordains this outcome.  It is not consistent with provisions such as s 352(4) which require the Secretary to give to the Tribunal documents in his or her possession or control which are considered by the Secretary to be relevant to the review.  It draws no comfort from the decision in Applicants S134/2002 where the Tribunal was not fixed with knowledge of a separate ministerial decision giving the adult applicant’s husband a temporary protection visa or of the content of a departmental file which was before the Tribunal.  And the practical inconvenience that would stem from such imputed knowledge is plain and would imperil the orderly conduct of the review system itself. 

46                  It is one thing, in my view, to deem a Minister to be in possession of material in the possession of that Minister’s department and to find that the Minister’s failure to consider that material (which the Minister was bound to consider) constituted a failure to take into account a relevant consideration:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 31, 45.  It is quite another to deem the Tribunal fixed with knowledge of a matter possessed by a Minister or his or her department which is relevant to a determination of an applicant’s claim, where the Tribunal’s function is to consider and to interrogate that claim as made and no other claim. 

47                  The alternate route of challenge – i.e. that the Tribunal improperly failed to acquire the information – would seem to be premised upon its being subject in the circumstances to a duty to inquire which it failed to do.  This is not the place to canvas the existence of such a duty and its possible provenance in the scheme of judicial review:  see generally Aronson & Dyer, Judicial Review of Administrative Action, 268 ff (3^rd ed 2004).  If it could possibly arise in the circumstances of the present matter it would seem only to be in consequence of the unreasonableness ground of judicial review:  cf Abebe at [194].  I have already indicated when referring earlier to the alleged procedural unfairness in failing to defer handing down its reasons that the Tribunal’s decision not to defer was not an unreasonable one in the circumstances.  For similar reasons I consider its proceeding to hand down its decision without making an inquiry as to the fate of the business nomination did not render its cancellation decision unreasonable in the circumstances. 

48                  The final comment I would make relates to whether an approval of a business nomination could properly be characterised as a “relevant consideration” for the purposes of making a decision under s 116 of the Act.  That section clearly does not expressly stipulate any particular considerations at all of which account must be taken.  In consequence, such considerations (if any) as the Minister, hence the Tribunal, is obliged to take into account are to be determined by implication from the subject matter, scope and purpose of the Act:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 39-40;  Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 347-348. 

49                  Section 116 on its face gives real latitude to the Minister in determining what is relevant and what relevant factors will be considered.  It is unsurprising that the legislature sought fit to do this given both the nature of the discretion to be exercised and the diverse circumstances to which it may be applied.  The question, nonetheless, is whether the Act makes relevant the exercise of that discretion a business nomination approval for the visa holder whose visa is subject to cancellation.  That approval is a prerequisite to the grant of a new visa.  But, in contrast to the situation which obtained before condition 8107 was amended to take its present form, the approval cannot breathe new life into the existing visa.  The visa holder, as I have earlier indicated, cannot change business sponsors under the scheme of the Act.  At best the possible relevance of the approval is that it may incline a Minister not to cancel an existing visa so that the applicant could apply for a new visa without being caught by s 48 of the Act.

50                  It is unnecessary that I express a view upon whether a business approval could properly be characterised as a relevant consideration given my earlier conclusions.  I should, though, indicate that I have some reservation about the matter.

(ii)       “proceeding on an erroneous assumption of fact”

51                  The contention as best I understand it, is that the Tribunal acted on an incorrect basis of fact and thereby committed a jurisdictional error.  Reliance in this was placed on Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047 and R v Criminal Injuries Compensation Board;  Ex parte A [1999] 2 AC 330.

52                  The submission proceeds on the premises that “the court [has] jurisdiction to quash for misunderstanding or ignorance of an established and relevant fact”:  cf R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at 321;  that the approval of the nomination was such a fact but that the Tribunal proceeded on the misunderstanding that it did not exist.

53                  It has not been contended, nor could it be, that the approval of the business nomination was a “jurisdictional fact” that conditioned the exercise of the s 116 discretion:  see generally Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.  The sole jurisdictional requirement (which was satisfied) was the Minister’s satisfaction that “a prescribed ground for cancelling a visa applies to the holder”:  s 116(1)(g).

54                  As I have indicated on a number of occasions, the Tribunal properly comprehended the question it was required to ask and it answered that question by reference to the material that was before it.  In so doing, it acted – and was entitled to act - upon a factual understanding that was later revealed to be erroneous.  That factual mistake, though, was not one which went to the jurisdiction of the Tribunal to decide.

55                  In Re Minister for Immigration & Multicultural Affairs;  Ex parte S20/2002 (2003) 198 ALR 59 McHugh and Gummow JJ re-emphasised (at [59]) that:

“… the distinction between jurisdictional and non-jurisdictional error which informs s 75(v) manifests the separation between the judicial power and the legislative function of translating policy into statutory form and the executive function of administration of those laws.  In this Australian constitutional setting, there is added significance to the point that the English common law courts ‘always disowned judicial review for error of fact’ and ‘jurisdictional fact review proceeds on the basis that it is a jurisdictional error of law for someone to exercise public power in the absence of a jurisdictional fact’.”

56                  The present proceeding is one under s 75(v) of the Constitution.  Whether or not broader scope exists to consider factual errors in “legislatively created systems of judicial review”:  Ex parte S20/2002 (at [60]), it clearly does not exist in a case such as the present.  The factual error such as it was had no jurisdictional consequence for the decision to cancel.  The constitutional setting also makes it unnecessary to consider the extent to which if, at all, the common law principle stated in the English case law relied upon by the applicant has resonance in Australian law beyond the constitutional arena.  It is in that arena that the present matter is to be played out.

57                  I reject this ground of challenge to the Tribunal’s decision.

CONCLUSION

58                  I order that the application be dismissed with costs. 

Associate:

Dated:              12 October 2004