FEDERAL COURT OF AUSTRALIA

Tam v Minister for Immigration and Border Protection [2019] FCA 780

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The circumstances giving rise to this appeal are unusual, because the appellants have been allowed two opportunities to engage in the process of review of a decision of a delegate of the Minister.

2    The appellants appeal against a judgment of the Federal Circuit Court (the FCC) (Tam v Minister for Immigration & Anor [2018] FCCA 3728) dismissing the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 10 March 2017. By that decision, the Tribunal had affirmed the decision of a delegate of the Minister not to grant the appellants a Partner (Residence) (Class BS) visa.

3    The first appellant (Ms Tam) is a national of Hong Kong born in 1979. The second appellant is her son born in 2002. He is a dependent of Ms Tam and was a secondary applicant for a Partner visa. Ms Tam claimed to have been in a de facto relationship with a Mr Munn, to whom I will refer to as “the Sponsor”. The difference between the ages of Ms Tam and the Sponsor is just on 49 years.

4    Although in some respects the issues on the appeal are quite narrow, it is appropriate to record relevant features of the statutory scheme and aspects of the course of events commencing with the applications for visas which have given rise to the appeal.

Statutory setting

5    Section 5CB of the Migration Act 1958 (Cth) (the Act) specifies the circumstances necessary for persons to be in a de facto relationship for the purposes of the Act. They are that the persons:

    not be in a married relationship as defined in s 5F;

    have a mutual commitment to a shared life to the exclusion of all others;

    their relationship be genuine and continuing;

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis; and

    not be in a familial relationship.

6    Regulation 1.09A(3) of the Migration Regulations 1994 (Cth) (the Regulations) specifies matters to be considered when determining whether the elements of s 5CB are satisfied. They are:

(a)    the financial aspects of the relationship;

(b)    the nature of the household;

(c)    the social aspects of the relationship; and

(d)    the nature of the persons’ commitment to each other.

7    The Regulations provide for different forms of Partner visas. The two which are pertinent presently are the Class UK (Partner–Temporary) (Subclass 820) visa and the Class BS (Partner-Residence) (Subclass 801) visa. I will refer to these respectively as the Partner-Temporary and the Partner–Permanent visa.

8    Clause 820 of Sch 2 to the Act contains the criteria for a Partner–Temporary visa. Relevantly for the purposes of the present appeal, an applicant must, at the time of application for the visa, be the spouse or de facto partner of an Australian citizen and be sponsored by that person (cl 820.211(2)) and, subject to some exceptions which are not presently material, continue to satisfy those criteria at the time of the decision on the visa application (cl 820.221(1)).

9    Clause 801.221 contains the criteria for the grant of a Partner–Permanent visa to be satisfied at the time of the decision. Clause 801.221 provides (relevantly):

(1)    The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

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

  (a)    the applicant is the holder of a Subclass 820 visa; and

(b)    the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i)    the sponsoring partner; or

(ii)    …; and

(c)    the applicant is the spouse or de facto partner of the sponsoring partner; and

(d)    subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

10    Clause 801.221(8) provides for a circumstance in which an applicant who had in the past held a Subclass 820 visa could also satisfy the criteria.

11    The effect of these regulations was that, in order for Ms Tam to satisfy the requirements for a Partner–Permanent visa, she had, at the time of the decision on her application, to be the holder of a Subclass 820 visa (the Partner–Temporary visa) or have held such a visa in the past, continue to be sponsored by her sponsoring partner, and two years had to have elapsed since the making of the application.

12    In the case of Ms Tam’s son, a requirement for a grant to him as a secondary applicant was that he be the holder of a Partner–Temporary visa (granted on the basis of his dependency on Ms Tam as the principal visa holder) or the holder of a Subclass 445 (Dependent Child) visa. It was common ground that he has never held either visa.

13    As the FCC Judge noted, the distinction between a Partner–Temporary visa and a Partner-Permanent visa is that the former is temporary in nature and the latter is permanent. In practical terms, a Temporary visa is precursor to the grant of a Permanent visa.

Factual setting

14    On 10 July 2012, Ms Tam and her son, using the prescribed form for applications made within Australia, lodged an application for a:

    Class UK (Partner–Temporary) (Subclass 820) visa; and

    Class BS (Partner–Residence) (Subclass 801) visa.

A single application was made for both visas with the application by the son, as a secondary applicant, being made in the same document lodged by Ms Tam.

The decision of the delegate

15    On 22 March 2013, a delegate of the Minister (the first delegate), refused the visa applications. The first delegate concluded that Ms Tam and the Sponsor were not in a genuine de facto relationship at the time of the decision and had not been in such a relationship during the period of 12 months immediately preceding the lodgement of the visa application. In relation to the financial aspects of the relationship, the first delegate said that he was not satisfied that, at the time of the application, or for the prior period of 12 months, Ms Tam and the Sponsor had had any joint assets, had made any joint purchases, or had shared any past, current or ongoing financial responsibilities.

16    In relation to the nature of their household, the first delegate considered that Ms Tam and her Sponsor had not provided any documentary evidence that they were living together as a couple, and were sharing a household and the responsibilities of a household.

17    In relation to the social aspects of the relationship, the first delegate said that there was no convincing evidence that, in the 12 months prior to the lodgement of the visa application and at the time of his decision, Ms Tam and her Sponsor had presented themselves as a de facto couple to family or to the wider community, had undertaken regular joint social activities, had undertaken holidays or short breaks together, had attended significant events together, or had belonged to any organisations or groups together. Having regard to identified shortcomings in the statutory declarations from friends concerning the claimed social aspects of the relationship, the delegate said that he gave them little weight.

18    The delegate then found that Ms Tam did not satisfy any of the other criteria by which the cl 820 criteria could be satisfied.

19    The conclusion of the first delegate in the Decision Record was as follows:

As you do not meet clause 820.211, I find that you do not meet the criteria for a Partner (Temporary) (Class UK) subclass 820 (Spouse) [visa]. Therefore, I refuse your application for a Partner (Temporary) (Class UK) visa.

As your Partner (Temporary) (Class UK) subclass 820 (Spouse) [visa] has been refused, you consequently cannot meet any of the relevant criteria at subclause 801.221 for a Partner (Residence) (Class BS) subclass 801 (Spouse) [visa]. As per regulation 801.221(7), there is nothing which prevents me from refusing to grant a Subclass 801 visa less than two years after the application is made if the criteria are not met. Therefore, I refuse your application for Partner (Residence) (Class BS) visa.

20    As is apparent from these passages, the first delegate made decisions rejecting the applications for both the Partner–Temporary and the Partner–Permanent visas and informed Ms Tam and her son of both decisions.

21    The first delegate provided a copy of his Decision Record to Ms Tam under cover of a letter dated 22 March 2013. Because of its significance to later events, I set out aspects of the notifying letter:

Dear Ms TAM

Notification of refusal of a Partner (Temporary) (Subclass 820) visa

This letter refers to your application for a combined Partner (Temporary) Visa (Class UK 820) and (Permanent) (Class BS 801) which was lodged at a DIAC office on 10th July 2012.

I wish to advise you that the application for this visa has been refused for the following applicant(s).

[Ms Tam and her son named]

After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

The application by SIN YING TAM was refused because SIN YING TAM did not satisfy 820.221 and 801.221 of the Migration Regulations 1994.

Secondary Applicants

The application by [Ms Tam’s son] was refused because TAM, SIN YING did not satisfy 820.211 and 801.221 of the Migration Regulations 1994.

The attached Decision Record provides more detailed information about this decision and the applicants it applies to.

…

(Emphasis in italics added and bold emphasis in original)

22    The subject line in this letter suggested that the notification related only to the refusal of the Partner–Temporary visa. However, the first delegate referred in the opening paragraph to the application for a “combined” visa. His later references to “this visa” are, clearly enough, a reference to the “combined visa”. It is also apparent that the first delegate informed Ms Tam that she and her son did not meet the criteria for both the Partner–Temporary and Partner–Permanent visas, these being the criteria contained in cll 820.221 and 801.221.

The application to the MRT and to the FCC

23    On 15 April 2013, Ms Tam and her son lodged an application with the Migration Review Tribunal (the MRT) for review of the first delegate’s decision. By a decision delivered on 24 April 2014, the MRT affirmed the decision of the first delegate. Ms Tam and her son then sought judicial review of the MRT’s decision in the FCC. By a decision delivered on 30 April 2015, the FCC dismissed the application: Ying v Minister for Immigration [2015] FCCA 1089.

24    The Appeal Book did not include a copy of the appellants’ application to the MRT. However, the reasons of the MRT indicate that the appellants had sought review only of the decision refusing the Partner–Temporary visa. On the other hand, the decision of the FCC Judge records that the MRT had affirmed the decision of the first delegate not to grant Ms Tam either a Partner (Temporary) (Class UK) or a Partner (Residence) (Class VS) visa.

The request for Ministerial intervention

25    Following the decision of the FCC on 30 April 2015, Ms Tam, by a letter dated 26 May 2015, sought Ministerial intervention pursuant to s 351 of the Act. In that letter, Ms Tam referred to the adverse decision from the MRT on the applications for a Partner visa in both Subclass 820 and 801.

26    Thus, there did not seem to be any misunderstanding by Ms Tam that the application for both forms of Partner visas had been refused.

27    The materials in the Appeal Book do not indicate whether the Minister ever made a decision on Ms Tam’s request for Ministerial intervention.

Re-notification of the decision on the Partner–Permanent application

28    In 2016, events took the curious turn which give rise to this appeal. By a letter to Ms Tam dated 11 May 2016, a Departmental officer (not the first delegate) informed her that she had not been “correctly notified” of the decision “in respect of the application for Partner (Residence) (Class BS) (Subclass 801) visa”. The Departmental officer said:

Because of this I am now re-notifying you that your application for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa has been refused.

The letter continued:

After careful consideration of all the information provided, the delegate who signed the attached decision record was not satisfied that you met the relevant criteria for the grant of the visa as provided in Australian migration law.

Your application for the grant of a Subclass 801 visa was refused because you did not satisfy clause 801.221 of the Migration Regulations 1994 (the Regulations). Clause 801.221 requires that the applicant meets the requirements of subclauses 801.221(2), (2A), (3), (4), (5), (6) or (8). These subclauses relevantly require that the applicant holds or held a subclass 820 visa. You could not satisfy any of the subclauses in clause 801.221 because your application for the grant of a subclass 820 visa was refused so you do not hold and have not held a subclass 820 visa.

The attached decision record also has the decision on your Partner (Temporary) (Class UK) (Subclass 820) visa application but you are not being re-notified of that decision.

What this means for you

As a result of the incorrect notification of the decision to refuse to grant you a Partner (Residence) (Class BS) (Subclass 801) visa you continue to hold a Bridging Visa which was granted to you at the time you applied for Partner (Residence) (Class BS) (Subclass 801) visa to ensure that you remained lawful during the processing of your application.

As a result of the incorrect notification of the decision to refuse to grant you a Partner (Residence) (Class BS) (Subclass 801) visa, the time period within which an application for review of the decision can be made has not commenced. The time period within which an application for review of the decision can be made will commence when you are taken to have received this letter.

For more information about the time period within which an application for review of the decision can be made, and other information about making an application for merits review, please refer to the headings in this letter ‘Review Rights’, and ‘Lodging an Application for Review’.

Review rights

The decision can be reviewed.

No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

Please note that you may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

…

29    As is apparent, the re-notification related only to the decision on the application for the Partner–Permanent visa. The Departmental officer told Ms Tam expressly that she was not being re-notified of the decision on the Partner–Temporary visa application. The letter also informed Ms Tam that it was open to her to bring an application for review of the re-notified decision, gave her information as to the manner in which she could do so, and attached a copy of the Decision Record of the first delegate dated 22 March 2013.

30    The Departmental officer also sent a letter on 11 May 2016 to Ms Tam’s son (via Ms Tam) indicating that his secondary application for a Partner–Permanent visa had been refused. He too was told that it was open to him to apply to the Tribunal for a merits review of the decision.

31    It is important to note that the Departmental letters of 11 May 2016 constituted, on their face, only a re-notification of the first delegate’s decision with respect to the applications for the Partner–Permanent visas and not the making of a new decision. In any event, s 67(4) of the Act seems to have the effect that the Minister lacked the power to vary or revoke the first delegate’s decision.

The application to the Tribunal

32    Ms Tam and her son exercised the “entitlement” to which the Departmental officer had referred in the re-notification letter by making an application to the Tribunal on 1 June 2016. In that application, Ms Tam and her son indicated that they sought review only of the decision refusing the Partner (Residence) (Class BS) (Subclass 801) visa which had been notified to them by the Departmental letter of 11 May 2016. The application did not refer at all to the first delegate’s decision refusing the Partner–Temporary visas.

33    A further indication that the appellants intended the subject of the application to the Tribunal to be only the decision refusing the Partner-Permanent visa is seen in Ms Tam’s letter to the Registrar of the Tribunal on 28 February 2017. By that letter, Ms Tam provided “more information and documents” for the Tribunal to consider in relation to “the decision to refuse to grant Partner Subclass 801 visas” and made no reference to the refusal of the Partner–Temporary visas.

34    There was no suggestion by the Minister in the Tribunal that the application for review was incompetent.

35    On 10 March 2017, the Tribunal affirmed the re-notified decision not to grant Ms Tam and her son Partner (Residence) (Class BS) visas. Both the Tribunal’s statement of reasons and the accompanying letter to Ms Tam and her son indicate that the decision related only to the Partner–Permanent visa applications.

36    The Tribunal’s reasons indicate that the application for review was dismissed because:

    the only decision which could be reviewed by the Tribunal related to the decision concerning the Partner–Permanent visa application in respect of each of the appellants;

    it was not open to the Tribunal to review the decision concerning the Partner-Temporary visa decision because that had not been re-notified to Ms Tam and her son on 11 May 2016, because there had already been a review by the Tribunal of that decision, and because it was not open to the Tribunal to “hear appeals from itself”;

    the application for the Partner–Permanent visa could not succeed because the fact that Ms Tam did not hold, and had never held, a Partner–Temporary visa meant that she could not satisfy one of the essential criteria for the grant of that visa;

    given that Ms Tam could not satisfy that essential requirement, it was not necessary for the Tribunal to consider her claims of family violence; and

    Ms Tam’s son could not satisfy the criteria for the grant of a Partner–Permanent visa to him as a secondary applicant.

The FCC decision

37    The appellants then applied for judicial review of the Tribunal’s decision in the FCC, pursuant to s 476 of the Act. The amended application on which the hearing in the FCC proceeded alleged two jurisdictional errors by the Tribunal:

1.    Failure to assess under s 66 of the Migration Act (the Act) the improper visa refusal notifications;

2.    Failure to properly assess the Applicant’s claim, as required by law and the rules of procedural fairness.

Each of those grounds was supported by multiple particulars.

38    The appellants were represented by counsel in the hearing before the FCC. Counsel’s submission, as recorded by the FCC Judge, proceeded as follows:

(a)    there had been only one visa decision made by the first delegate on 22 March 2013, the import of which had been conveyed improperly to Ms Tam;

(b)    the appellants had been entitled to a full merits review of the composite visa decision made by the first delegate on 22 March 2013;

(c)    the decision of the MRT on 24 April 2014 was “irrelevant” for this purpose;

(d)    accordingly, the Tribunal had been required to undertake a review of the entire decision-making process when determining the application lodged on 1 June 2016; and

(e)    because the Tribunal had not done so, it had not discharged its statutory function and its decision was thereby affected by jurisdictional error.

39    This submission did not explain why it was that the appellants’ entitlement to a review of the first delegate’s decisions should not be regarded as having been exercised by the application to the MRT on 15 April 2013 and why the decision of the MRT on that application should be regarded as “irrelevant” for that purpose. On its face, it had been open to the appellants at that time to seek review of the refusal of both the Partner–Temporary and the Partner–Permanent visas. The fact (assuming it be the case) that the appellants had confined their application to the refusal of the Partner–Temporary visa does not alter that circumstance.

40    The FCC Judge rejected the appellants’ submission. His Honour referred to the decision of Moshinsky J in Basra v Minister for Immigration and Border Protection [2018] FCA 422 and to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 and concluded as follows:

(i)    while the decision of the first delegate on the application for a Partner–Permanent visa had no legal foundation, his decision on the Partner–Temporary “remained jurisdictionally intact and valid”, at [55];

(ii)    the decision of the first delegate on the Partner–Temporary visa application had been affirmed by the MRT, and no challenge had been made to the MRT’s decision, at [56];

(iii)    the first delegate had been entitled to revisit his decision in respect of the Partner – Permanent visa and to “correct apparent errors regarding its transmission to the applicant”, at [58];

(iv)    the first delegate’s action in re-notifying the decision on 11 May 2016 had “converted the void decision into a valid one”, which became subject to independent merits review in the Tribunal, at [58];

(v)    the issue before the Tribunal was whether Ms Tam and her son could satisfy the criterion requiring that they held a valid Partner–Temporary visa, at [59]. The FCC Judge was willing to characterise this issue as jurisdictional, at [59];

(vi)    it was plain that Ms Tam and her son could not satisfy that criterion and, accordingly, the Tribunal had exercised its jurisdiction correctly, at [60];

(vii)    the Tribunal had not failed to exercise its statutory function on the review by not conducting a merits review of the decision refusing the Partner–Temporary visas because it had had no jurisdiction to do so, at [60]; and

(viii)    in these circumstances, the appellants’ complaints of jurisdictional error based on illogicality, unreasonableness and a denial of procedural fairness fell away, at [61].

41    The FCC Judge then addressed a separate complaint of a denial of procedural fairness arising from the circumstance that Ms Tam had not been informed of the existence of a certificate issued by the first delegate pursuant to s 375A of the Act prohibiting the disclosure of certain documents. The Judge considered that any denial of procedural fairness resulting from the non-disclosure of the s 375A certificate was immaterial because its contents could concern only the refusal of the Partner–Temporary visa, and the decision refusing that visa had not been the subject of review by the Tribunal. The Judge was satisfied positively that Ms Tam and her son had not been “procedurally disadvantaged” by the non-disclosure of the s 375A certificate and, in any event, that the grant of relief would be futile because it was not possible for Ms Tam and her son to satisfy the essential requirement that they hold a Partner–Temporary visa, at [65]-[68].

42    For these reasons, the FCC Judge dismissed the application for judicial review.

The appeal to this Court

43    On the appeal to this Court, the appellants were unrepresented. Ms Tam spoke on behalf of both appellants. Her son did attend the hearing and did not not seek to be heard separately.

44    The Amended Notice of Appeal contains eight grounds, some of which are expressed at a level of high generality. Further, several of the submissions made by Ms Tam overlapped more than one ground. On my understanding, the appellants’ complaints in the Amended Notice of Appeal can be grouped as follows:

(a)    a complaint that the FCC Judge had misunderstood the nature of the jurisdiction which he was exercising, by reference to s 474 of the Act, with the consequence that he had regarded himself as lacking the power to grant the relief which the appellants were seeking (Grounds 2, 7 and, in part, 8);

(b)    a complaint that the FCC Judge should have found that the whole of the decision by the first delegate had been reviewable in the Tribunal by reason of the first delegate’s non-compliance with the requirements of s 66 of the Act when notifying his decision on 22 March 2013 (Ground 2(a), 3 and, in part, 8);

(c)    a complaint that the FCC Judge had been in error in determining the claimed denial of procedural fairness resulting from the non-disclosure of the s 375A certificate (Grounds 1, 4, 5 and 6); and

(d)    a (largely unparticularised) complaint that the FCC Judge had “erred in law in [his] interpretation and application of [the] proper standard of assessment under section[s] 474, 359a, 359, 360(1), 376, 348, 353, 66 [and] 5E of the Migration Act”, (Ground 8).

The claimed misunderstanding of s 474 of the Act

45    The jurisdiction of the FCC with respect to migration decisions is specified in s 476 of the Act to be the same as the original jurisdiction of the High Court under s 75(v) of the Constitution, but subject to the limitations imposed by s 476 itself. Section 476(2) provides that the FCC does not have jurisdiction with respect to a “primary decision” which is defined in subs (4) to include a “privative clause decision” of defined kinds. These include decisions made under Pt V of the Act. The term “privative clause decision” is defined in s 474(2) as:

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).

46    Section 474(1) of the Act 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.

47    However, despite its terms, s 474 does not preclude the exercise of jurisdiction by the FCC with respect to jurisdictional error in a migration decision: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76], [83].

48    The contentions of the appellants with respect to the misunderstanding by the FCC Judge of the effect of s 474 were these:

(a)    the FCC Judge should have found that a decision made without compliance with the procedure specified in s 66(2) and s 359A of the Act is not a decision “under” the Act and therefore not a privative clause decision within the meaning of the definition in s 474(2);

(b)    the FCC Judge should have found that s 474 of the Act does not preclude the FCC exercising jurisdiction with respect to jurisdictional error, including jurisdictional error resulting from a failure by the Tribunal to comply with required procedural steps and to provide procedural fairness; and

(c)    the FCC Judge should have found that s 474 of the Act does not preclude judicial review when there has been a constructive failure by the Tribunal to exercise its jurisdiction.

49    It is plain that the FCC Judge did not have the misunderstanding of the jurisdiction of the FCC which the appellants’ submissions impute to him. The FCC Judge referred to the FCC’s jurisdiction under s 476(1) and noted that, on its terms, s 476(2) has the effect that the FCC has no jurisdiction in relation to privative clause decisions. His Honour then noted the definition of “privative clause decisions” in s 474(2) and noted the terms of s 474(1).

50    However, in the paragraphs immediately following, the Judge recorded expressly that s 476 did not affect the jurisdiction of the FCC to grant relief in respect of decisions of the Tribunal affected by jurisdictional error. His Honour said:

[43]     However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.

[44]    In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.

[45]    It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal. The court’s jurisdiction, on review, is confined to the determination of whether a jurisdictional error has been established.

(Citations omitted)

51    The appellants’ submissions overlook both the presence and effect of these paragraphs. They make it plain that the FCC Judge did not misunderstand his jurisdiction nor the power of the FCC to grant relief if satisfied of the presence of jurisdictional error in the Tribunal’s decision. There is no basis on which to conclude that the FCC Judge had any misapprehension about the matters which could constitute jurisdictional error in relation to the appellants’ applications. The appellants’ Grounds 2 and 7 (and Ground 8 to the extent that it raises the same complaint) fail.

The alleged failure of the Tribunal to exercise its jurisdiction

52    Ground 3 in the Amended Notice of Appeal asserts:

That His Honour should have granted an order in the nature of mandamus on the basis that the Second Respondent constructively failed to exercise its jurisdiction.

53    As the ground was unparticularised, it did not indicate the respects in which the Tribunal should have been found to have failed to exercise its jurisdiction. Ms Tam’s submissions suggested that she relied in part on an asserted non-compliance with s 66 of the Act and in part on the same ground as was advanced by the appellants’ counsel in the FCC, summarised earlier in these reasons. That was to the effect that the Tribunal had failed to discharge the function imposed on it by s 348 of the Act, because it had been required to review all aspects of the appellants’ applications for Partner visas, that is, both the application for the Partner–Permanent and the Partner–Temporary visas.

54    This requires consideration of the effect of the re-notification on 11 May 2016.

55    It seems that it was a belief by the Departmental officer that the notification by the first delegate of his decision on 22 March 2013 had not complied fully with the requirements of s 66 which led to the re-notification of 11 May 2016. Section 66 of the Act provides (relevantly):

(1)    When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

(2)    Notification of a decision to refuse an application for a visa must:

(a)    if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and

(b)    if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and

(c)    unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)    if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

(i)    that the decision can be reviewed; and

(ii)    the time in which the application for review may be made; and

(iii)    who can apply for the review; and

(iv)    where the application for review can be made; and

(e)    in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

(f)    in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.

…

(4)    Failure to give notification of a decision does not affect the validity of the decision.

…

56    Counsel for the Minister explained that the Departmental officer had taken the view that the first delegate’s notification was inadequate because it had not specified the particular criterion for the Partner–Permanent visa which the appellants did not satisfy (subs (2)(a)), nor given reasons why the particular criterion had not been satisfied (subs (2)(c)). It is not necessary to express a view about the correctness of that submission.

57    Even if the submission be correct, the re-notification cannot be regarded as having the consequence that the Tribunal was required, in reviewing the re-notified decision, to consider both the application for the Partner-Temporary visa as well as the Partner–Permanent visa.

58    First, s 66(4) of the Act has the effect that the non-compliance with s 66(2) did not invalidate the decision of the first delegate. The phrase “failure to give notification of a decision” in that subsection may be taken to encompass the giving of a notification which does not contain all of the prescribed content. With due respect, the FCC Judge appears to have overlooked the effect of s 66(4) when he held, at [55], that the defect in the communication of the decision meant that it “had no legal foundation” and, at [58], that the re-notification “converted the void decision into a valid one”. Counsel for the Minister acknowledged that the Judge had in those respects expressed himself “too broadly”.

59    Secondly, even if there was invalidity, it would affect only the decision on the Partner-Permanent visa applications. This is what was found by Moshinsky J in Basra which involved a similar, but not identical, issue. Like the present appellants, Mr Basra had applied for both a Partner–Permanent and Partner–Temporary visa by lodging a single application. The application had been refused by the Minister’s delegate and that decision was affirmed on review by the MRT. Subsequently, the Department informed Mr Basra that it had detected error in the MRT’s decision because it (the MRT) had referred only to the refusal of the Partner–Temporary visa and had made no reference to the refusal of the Partner–Permanent visa. The Department was of the view that the Decision Record and notification letter did not satisfy the requirements of s 66. The Department took the view that the error was jurisdictional with the consequence that a new decision could be made. A second delegate then made a new decision refusing the application for the Partner–Permanent visa. Mr Basra failed in his application to the AAT for review of the second decision. He then sought judicial review on grounds which included the claim that the discharge by the AAT of its statutory function had required it to consider also the refusal of the Partner–Temporary visa.

60    Moshinsky J rejected that contention. His Honour reasoned as follows:

    the statutory scheme establishes (relevantly) two different visas: the Partner–Permanent visa and the Partner–Temporary visa, with separate criteria applicable to each, at [36];

    given this statutory scheme, the first delegate’s decision should be treated as two decisions, one in respect of each visa, even though there was close relationship between the two. Doing so was a matter of substance, and not form, at [36], [38];

    accordingly, it was possible for one of the decisions to be affected by jurisdictional error and the other to have been validly made; and

    that being so, consistently with Bhardwaj, it was open to the Minister to treat the decision of the first delegate in relation to the Partner–Permanent visa as in law “no decision at all” and to “remake” that decision, at [37]. The passages in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [8] and [55] and in Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336 at [83] on which Mr Basra relied were distinguishable.

61    The circumstances in Basra are distinguishable from the present appellants in at least two respects:

    there has been no concession by the Minister of jurisdictional error in the first delegate’s decision arising from the perceived shortcoming in the manner in which the decisions were notified; and

    in the appellants’ case, the first delegate’s decision was re-notified, whereas in Basra, a new decision was made.

62    Nevertheless, like the FCC Judge, I consider the analysis in Basra to be of assistance presently. It indicates that, on applications for a Partner–Temporary and a Partner–Permanent visas, two decisions are required. That being so, each must be notified in the manner required by s 66. A defect in the notification of one decision (assuming that it affected the validity of that decision) would not affect the validity of the other.

63    The appellants did not seek to demonstrate on the present appeal that the postulated defect in the notification of the decision on the Partner–Permanent application had had any effect on the notification of the decision on the Partner–Temporary application.

64    In my view, Ground 3 in the appellants’ Notice of Appeal must fail because the only decision which the Tribunal reviewed in the discharge of its function under s 348 of the Act was the (re-notified) decision refusing the Partner–Permanent visas. A number of matters indicate that that is so.

65    First, it was that decision which was the subject of the application for review lodged by the appellants pursuant to s 347 of the Act. As noted earlier, that application made it express that the appellants were seeking review only of the decision made on 22 March 2013 concerning their application for the Partner-Permanent visa which had been re-notified to them on 11 May 2016. Ms Tam had confirmed that that was so in the letter which she sent to the Tribunal on 28 February 2017. Further, the Tribunal itself had twice informed Ms Tam prior to the hearing in the Tribunal that it regarded itself as dealing with applications for review of the decisions refusing the grant of the Partner-Permanent visas, by letters of 2 June 2016 and 6 February 2017. Both letters were also addressed to Ms Tam’s son. Neither Ms Tam nor her son had suggested that the Tribunal was proceeding on a misunderstanding.

66    In short, it was the appellants’ own application which identified the scope of the review in the Tribunal. The Tribunal was not authorised by s 348 to review any other decision.

67    Secondly, for the reasons given by Moshinsky J in Basra, the visa application lodged on 10 July 2012 was to be regarded as containing applications by each of Ms Tam and her son for two visas: the Partner–Temporary and the Partner–Permanent visa. There is no difficulty in construing the first delegate’s decision of 22 March 2013 as containing, as a matter of substance, decisions on the two applications. The two decisions, although related, were not one and indivisible, so that one could not be reviewed without the other.

68    Thirdly, the re-notification letter of 11 May 2016 sent to each of the appellants said expressly that the re-notification concerned only the decision refusing the Partner–Permanent visas and that they were not being re-notified of the refusal of the Partner–Temporary visas.

69    Fourthly, and in any event, the Tribunal is not vested with jurisdiction to review its own decisions or decisions of the former MRT. As counsel for the Minister submitted, when a decision of a delegate has been reviewed by the Tribunal, it cannot be subject to further review.

70    Accordingly, there was no constructive failure by the Tribunal to exercise jurisdiction with respect to the Partner–Temporary visas to which a writ of mandamus could be directed. Neither as a matter of form nor of substance were the decisions concerning those visas ever before the Tribunal.

71    It is unnecessary in these proceedings to consider whether it is open to the Minister under the Act to re-notify a decision after an applicant has exercised rights of administrative and judicial review in respect of the previously notified decision or decisions. There may be questions as to whether a second notification of a previously notified decision is capable of enlivening a right to bring a second application for administrative review and, if so, the identification of when the time fixed by s 347(1) of the Act commences to run: cf Minister for Immigration and Citizenship v Manaf [2009] FCA 963 at [26]; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79, (2010) 185 FCR 129. Moreover, public confidence in the administration of the Act and in the administration of justice may be undermined if a mere re-notification of a decision which has previously been notified effectively can trigger the entitlement to engage in further processes of review. In the present case, it had been open to the appellants to agitate in the MRT and, if necessary, on the first application for judicial review in the FCC, any issues arising out of the defects in the notifications of the decisions by the first delegate which are now postulated.

72    For the reasons stated above, while I respectfully disagree with some aspects of the reasoning of the FCC, Ground 3 fails.

The s 375A certificate

73    It was common ground in the FCC that the appellants had not been informed by the Tribunal of a certificate issued pursuant to s 375A by the first delegate on 26 April 2013 and that the appellants had first become aware of the certificate only during the proceedings in the FCC. By that certificate, the first delegate had certified that the disclosure of “folio 83” would be contrary to public interest because it contained an “allegation from [the] sponsor’s daughter”.

74    The appellants contended that the non-disclosure constituted non-compliance by the Tribunal with the requirements of s 359A of the Act and a denial of procedural fairness.

75    Section 359A(1) provides as follows:

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

  (c)    invite the applicant to comment on or respond to it.

76    The appellants referred to authority, including Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1, for the proposition that a failure to comply with s 359A may amount to a failure to discharge the statutory function of the Tribunal under s 348. See also Bhardwaj at [163] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, (2004) 144 FCR 1 at [52]-[53].

77    The inter-relationship between s 357A of the Act (which provides that s 375A constitutes an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with by that section) and s 359A(1) was considered in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305. The Full Court held that, while a direct conflict between ss 359A and 375A will result in the latter prevailing, it is by no means inevitable that the aims of both provisions cannot usually be served without conflict. Further, the Full Court considered that the Tribunal is, ordinarily, obliged to disclose the existence of a s 375A certificate but not its contents, at [58].

78    The FCC Judge rejected the appellants’ complaint that they had been denied procedural fairness by reason of the non-disclosure of the s 375A certificate. His Honour was satisfied that the contents of the certificate related only to the appellants’ applications for the Partner–Temporary visas and they had exhausted their rights of review with respect to the decision concerning that visa. For that reason, the certificate could have no bearing on the determination of the applications for the Partner–Permanent visas which had failed because the appellants could not establish the essential pre-requisite of holding a Partner–Temporary visa. Put slightly differently, the appellants’ applications for the Partner–Permanent visas had failed for a reason which was independent of any issue to which the contents of the s 375A certificate could relate. In the language of s 359A(1)(a), the contents of the certificate did not comprise information which would be the reason, or part of the reason, for affirming the delegate’s decision.

79    The contents of the s 375A certificate set out above suggest that the FCC Judge’s characterisation of it is correct and the appellants did not suggest that that characterisation was erroneous. Accordingly, the FCC Judge was correct to conclude that the non-disclosure of the s 375A certificate was not material to the decision of the Tribunal. This is a case in which it can truly be said that there is no realistic possibility of the Tribunal’s decision being different, had it taken into account the matters to which the s 375A certificate referred: cf Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at [48].

80    For these reasons, Grounds 1, 4, 5 and 6 fail.

Ground 8: the complaints concerning the interpretation and application of multiple provisions

81    The only submission which the appellants made in support of this ground (quoted verbatim) was:

[40]    That the primary Judge was unlawfully made in which his Honour should have found that the Tribunal did not carry out its function under s 348 of the Migration Act to review the delegate's decision. It made an error of law of a kind that deprived the Appellant of jurisdiction, in the sense in which error of law was described in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001).

82    I did not understand this submission to extend beyond the matters canvassed by the appellants in relation to the earlier grounds. For the reasons given in relation to those grounds, this ground also fails.

Conclusion

83    For the reasons given above, the appeal is dismissed.

Associate:

Dated:    29 May 2019