FEDERAL COURT OF AUSTRALIA

Yu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 209

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

THAWLEY J:

OVERVIEW

1    On 27 September 2019, the Federal Circuit Court of Australia (FCCA) dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the then Minister of Immigration and Border Protection not to grant the appellants a Business Skills (Residence) (Subclass 890) Business Owner (class DF) visa (Business Owner visa). The first appellant held an “ownership interest” in a “main business” for at least two years before she applied for the visa. However, by the time the appellants’ application for review was heard by the Tribunal, the first appellant no longer held that “ownership interest”. The principal question before the Tribunal and the FCCA was whether the first appellant was still required to hold the “ownership interest” at the time of the Tribunal’s decision or whether it was enough that she had held the relevant interest at the time of the delegate’s decision.

STATUTORY CONTEXT

2    Section 29(1)(b) of the Migration Act 1958 (Cth) gives the Minister power to grant a non-citizen a visa to remain in Australia. There are prescribed classes of visas: s 31(1). Regulations may be made which prescribe criteria for visas of a specified class: s 31(3).

3    A non-citizen who wants a visa must apply for a visa of a particular class: s 45. Regulation 2.01(1) of the Migration Regulations 1994 (Cth) provides that for the purposes of s 31, the prescribed classes of visas include those set out in Schedule 1 to the Regulations. Schedule 1 relevantly includes a Subclass 890 visa entitled ‘Business Owner’. The appellants applied for a Business Owner visa on 22 October 2014.

4    The criteria for the prescribed classes of visa are located in Schedule 2 to the Regulations: reg 2.03. Schedule 2 includes primary and secondary criteria applicable to the grant of Subclass 890 visas. It is only the “primary criteria” applicable to the Subclass 890 visa which are directly relevant in this appeal.

5    The “primary criteria” are contained in cl 890.2 and are divided into two sub-classes: cl 890.21 “Criteria to be satisfied at time of application” and cl 890.22 “Criteria to be satisfied at time of decision”. The “primary criteria must be satisfied by at least 1 member of a family unit” – see: the note to cl 890.2. The first appellant was the primary applicant of the family unit.

6    The parts of cl 890.2 which are central to this appeal are as follows:

890.2 – PRIMARY CRITERIA

Note:     The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

890.21 - Criteria to be satisfied at time of application

890.211

(1)    The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

…

890.22 - Criteria to be satisfied at time of decision

890.221

The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.

7    The expression “ownership interest” is defined in reg 1.03 by reference to s 134(10) of the Act and includes an interest as a shareholder, a partner or a sole proprietor of a business.

8    The expression “main business” is defined in reg 1.11(1) of the Regulations in the following way:

(1)     For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

(a)      the applicant has, or has had, an ownership interest in the business; and

(b)      the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

(c)    the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:

(i)      if the business is operated by a publicly listed company - at least 10% of the total value of the business; or

(ii)     if:

(A)      the business is not operated by a publicly listed company; and

(B)      the annual turnover of the business is at least AUD400 000;

   at least 30% of the total value of the business; or

(iii)    if:

(A)     the business is not operated by a publicly listed company; and

(B)     the annual turnover of the business is less than AUD400 000;

   at least 51% of the total value of the business; and

(d)     the business is a qualifying business.

9    The term “qualifying business” is defined in reg 1.03.

10    Section 65(1)(a) of the Act provides that if, after considering a valid application for a visa, the Minister is satisfied of the various matters identified, the Minister is to grant the visa. One of the matters of which the Minister must be satisfied is that the criteria prescribed by the Act or regulations for the visa have been met: s 65(1)(a)(ii). If the Minister is not satisfied of the matters identified in s 65(1)(a), the Minister is to refuse to grant the visa: s 65(1)(b).

11    The Minister, by his delegate, was not satisfied that the first appellant satisfied the criteria for the Business Owner visa and, accordingly, refused to grant the visa.

12    The delegate’s decision was a “Part 5-reviewable decision”. A visa applicant can apply for review of a Part 5-reviewable decision to the Administrative Appeals Tribunal: s 347. If such an application is properly made, the Tribunal “must review the decision”: s 348(1). The powers of the Tribunal with respect to Part 5-reviewable decisions on review are provided by s 349 of the Act.

13    Section 349 provides:

(1)    The Tribunal may, for the purposes of the review of a Part 5-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; or

(e)    if the applicant fails to appear – exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

THE DELEGATE’S DECISION

14    The first appellant sought to satisfy the requirements of cll 890.211 and 890.221 by reference to an “ownership interest” in two businesses: New Australia Agricultural Development Company Pty Ltd (NAADCO) and Elbelle’s Early Learning Centre Pty Ltd (Elbelle).

15    The delegate concluded that the first appellant did not satisfy cl 890.211(1) in relation to Elbelle because she had not had an “ownership interest” in that company for at least two years before she applied for the visa.

16    In relation to NAADCO, the delegate concluded that it was not a “main business” of the first appellant – cf: reg 1.11(1)(b). The delegate concluded that, at the time of his decision, the first appellant had not maintained, during the two years immediately before the visa application, continuous involvement in the management of NAADCO’s business from day to day, or made decisions affecting the overall direction and performance of the business. Whilst the appellant had held an “ownership interest” in NAADCO for at least two years before the visa application, it was not an interest in a “main business”. Accordingly, the delegate concluded that the first appellant did not satisfy cl 890.211(1).

17    On 28 October 2015, the delegate refused to grant the visa.

THE TRIBUNAL

18    On 6 November 2015, the appellants applied to the Tribunal for review of the delegate’s decision. Having considered additional evidence put before it, the Tribunal concluded that, at the time of application, NAADCO did meet the definition of “main business” in cl.890.211: T[30].

19    If the additional material before the Tribunal had been before the delegate, and if NAADCO had remained a “main business” in relation to the first appellant at the time of the delegate’s decision, the correct or preferable decision on those findings was for the visa to have been granted. However, because the first appellant did not continue to hold her interest in NAADCO at the time of the Tribunal’s decision, the Tribunal concluded that the first appellant did not satisfy cl 890.221: T[31]. The Tribunal therefore affirmed the delegate’s decision to refuse to grant the visa: see s 349(2).

20    The relevant events before the Tribunal were set out in more detail by the primary judge as follows (footnotes omitted):

[7]    … By letter dated 30 August 2017 to the applicants’ agent, the Tribunal informed the applicants that it obtained information that indicated the applicant had ceased to be a shareholder of NAADCO. The Tribunal said this information was relevant because cl.890.221 of Schedule 2 to the Regulations “requires that you continue to satisfy the criteria in cl.890.211”, and that that clause “requires that you have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made”.

[8]    The applicants responded through their agent’s letter dated 27 September 2017. The agent said the applicant disposed of her “ownership interest” in NAADCO in August 2016, and that she had disposed of her “ownership interest” in Elbelle in August 2017. The agent further stated that the applicant endeavoured to maintain her ownership interest in these businesses, but a downturn in business, and the departure of crucial staff from Elbelle, meant the applicant “had no choice but to dispose of her ownership interest in these businesses”.

[9]    At the hearing before the Tribunal, the applicants’ representative submitted that the requirement prescribed by cl.890.221 of Schedule 2 to the Regulations only needed to be satisfied “up to the point of application”, that historically what is now known as the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs had applied the criterion flexibly by allowing applicants to switch between businesses; there are circumstances where a downturn occurs or there is economic hardship, and an applicant may exit the business; that, in those circumstances, an applicant would be deprived of meeting the requirements despite having held an ownership interest for 2 years; and that it would be unreasonable or unfair to applicants because it would require them to have a shareholding for more than 2 years. The agent further submitted there was an inconsistency between cl.890.211 and cl.890.221.

[10]    The Tribunal disagreed with the applicants’ agent’s submission that the relevant date for assessing the satisfaction of cl.890.211 is that of the primary decision. The Tribunal said s.349 of the Act provides that the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision; and that, when reviewing a decision, the Tribunal conducts a “de-novo re-exercise of the primary decision-making power” [The quote is taken from the judgment of Poudyal v MIMIA [2005] FMCA 265 at [40]]. The Tribunal quoted a passage from the judgment of Bryant CFM (as her Honour then was) in Shaikh v Minister for Immigration that “the time of decision is an ambulatory concept depending on the person (or Tribunal) exercising the power at the time of decision”, and concluded:

The Tribunal considers it well established that when reviewing a decision to refuse to grant a visa, it is the time of the Tribunal’s decision, and not the delegate’s, at which the Tribunal must assess whether the applicant satisfied the criteria for the grant of the visa.

[11]    The Tribunal also considered the grounds on which the delegate refused to grant the Business visa and, after noting the applicant had provided additional evidence, concluded the evidence before it indicated that at the time of application NAADCO met the definition of main business in cl.890.211. The Tribunal concluded as follows:

The applicant however has now disposed of her shareholding in NAADCO. As the applicant does not continue to have an ownership interest in business relied on to meet the requirements of cl.890.211, the Tribunal finds that the applicant dos [sic – does] not continue to satisfy cl.890.211 and is therefore unable to meet cl.890.221 at the time of this decision.

21    As noted, the AAT affirmed the delegate’s decision on 23 January 2018.

THE FEDERAL CIRCUIT COURT

22    Before the FCCA, the appellants relied on the following grounds:

1.    The Tribunal erred in finding that the “time of decision” for the purposes of Regulation 890.22 of the Migration Regulations 1994 was the time of the decision of the Tribunal, and ought to have found that the “time of decision”, on the proper interpretation of the regulations, was the time of the original decision to grant or refuse a visa.

2.    The Tribunal erred in the construction of Regulations 890.211, 890.22 and 890.221, and failed to apply the principles in Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.

3.    The Tribunal erred by taking into consideration an irrelevant matter, namely the applicant’s disposal of her shareholding subsequent to the original decision.

23    In a carefully reasoned decision, the primary judge rejected each of these grounds.

24    As to the first ground, the primary judge proceeded on the basis that cl 890.22 was not a heading and was intended to have effect. As noted above, cl 890.22 provides: “Criteria to be satisfied at time of decision”. His Honour stated at J[28]:

The first matter to note is that cl.890.22 of Schedule 2 to the Regulations is not a heading. It is intended to have effect. It is directed to the subclauses that appear below it. It requires that the matters appearing in those subclauses be satisfied “at time of decision”.

25    His Honour concluded that the “decision” referred to in cl 890.22 was “a decision to grant or not to grant the Business visa, being the class of visa in relation to the granting of which cl.890.221 of Schedule 2 to the Regulations is a criterion”: J[30].

26    His Honour concluded that the decision-maker of such a decision was the Minister or a delegate making a decision under s 65(1) of the Act, or the Tribunal on review of a Part-5 reviewable decision: J[34]. The Tribunal’s decision making power includes the making of a decision affirming or varying the reviewable decision or setting aside the reviewable decision and substituting a new one: J[32], [33].

27    His Honour analysed the text of cl 890.22 in the following way at J[35]:

The next matter to consider is the text of cl.890.22 of Schedule 2 to the Regulations in which “decision” appears, namely, “Criteria to be satisfied at time of [decision]”.

a)    First, there is the object of the clause, “criteria”. By itself it has no meaning; it operates as a placeholder for the matters that appear in the subclauses that appear under cl.890.22. Its purpose is to refer to these matters and apply to them the requirement that they be satisfied at the time of decision.

b)    Second, there is the expression “to be satisfied”. It does not identify the person who must be satisfied; but given the identity of the decision-makers “decision” denotes – the Minister, a delegate of the Minister, or the Tribunal – the person who must be satisfied is the Minister, or a delegate of the Minister, or the Tribunal.

c)    Third, there is the expression “at time of decision”. That identifies the time at which the decision-maker must be satisfied of the matters referred to in the subclauses that appear under cl.890.22. Given that “decision” denotes decisions made by the Minister or a delegate, and decisions made by the Tribunal on review of a decision made by the Minister or by a delegate refusing to grant a Business visa, the time at which the matters referred to in the subclauses that appear under cl.890.22 must be satisfied will depend on the identity of the decision-maker. More specifically, the time at which a Tribunal makes a decision will necessarily be later than the time at which the Minister or delegate makes his or her decision.

28    His Honour held at J[37] that clause 890.221 properly construed had the effect that – whether the decision-maker was the Minister or his delegate or the Tribunal on review – the decision-maker must be satisfied that:

(1)    the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the applicant applied for the Business visa; and

(2)    after the applicant applied for a Business visa the applicant continued to have an ownership interest in at least one such business.

29    As to the second ground, his Honour held at J[43] that the Tribunal did not fail to apply Shi. The Tribunal had stated:

The Tribunal considers it well established that when reviewing a decision to refuse to grant a visa, it is the time of the Tribunal’s decision, and not the delegate’s, at which the Tribunal must assess whether the applicant satisfied the criteria for the grant of the visa.

30    His Honour concluded that this was directed to the particular submission which had been advanced before the Tribunal, namely that cl 890.221 should not be read as requiring that the ownership interest continue beyond the two years required by cl 890.211.

31    His Honour also observed at J[44] that, even if the Tribunal had intended to make some broader proposition, it could not have caused any jurisdictional error because cl 890.221 had to be satisfied at the time the Tribunal made its decision.

32    It necessarily followed from his Honour’s conclusions in relation to the first two grounds that the third ground could not be made out.

THE APPEAL

33    The appellants advanced seven grounds of appeal before this Court. The grounds of appeal were as follows:

1.    The primary judge erred in finding that the proper construction of “decision” as it appears in clause 890.22 of Schedule 2 to the Migration Regulations 1994 was both the decision of the Minister’s delegate pursuant to s 65 of the Migration Act 1958 and also any decision made by the Administrative Appeals Tribunal pursuant to s 349(2) of that Act.

2.    The primary judge ought to have found that “time of decision” for the purposes of clause 890.221 was the time of the decision by the Minister’s delegate.

3.    The primary judge ought to have found that it was open to the Administrative Appeals Tribunal to determine the review having regard only to the circumstances at the time of the decision by the Minister’s delegate.

4.    The primary judge erred in finding that, on the proper construction of clauses 890.22 and 890.221 of Schedule 2 to the Migration Regulations 1994, the first appellant was required to maintain her ownership interest in NAADCO continuously after the decision by the Minister’s delegate and throughout the period of any review of that decision by the Administrative Appeals Tribunal.

5.    The primary judge ought to have found that the second respondent had failed to apply the principles in Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.

6.    The primary judge ought to have found that the decision of the second respondent to affirm the decision not to grant the visas was affected by jurisdictional error.

7.    The primary judge ought to have issued prerogative writs accordingly.

34    Grounds 6 and 7 raise no issue additional to those raised in grounds 1 to 5.

THE APPELLANTS’ SUBMISSIONS

35    The appellants submitted that the primary judge erred in his analysis of Part 5 of the Act.

36    The appellant relied upon the definitions of “decision on a review” and “Part 5-reviewable decision” in s 337 of the Act. These are as follows:

“decision on a review” means any of the following decisions of the Tribunal in relation to an application for a review of a Part 5-reviewable decision:

   (a)    a decision to affirm the Part 5-reviewable decision;

   (b)    a decision to vary the Part 5-reviewale decision;

(c)    a decision under paragraph 349(2)(c) to remit a matter in relation to the Part 5-reviewable decision for reconsideration;

(d)    a decision to set the Part 5-reviewable decision aside and substitute a new decision;

(e)    a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.

Part 5-reviewable decision: see section 338.

37    As anticipated by s 337, the expression “Part 5 – reviewable decision” is extensively defined in s 338. It was submitted that the s 338 definition paralleled the expression “reviewable decision” in other Commonwealth legislation. It was submitted that other provisions in the Act indicated that the word “decision” as used in s 338 refers to the delegate’s decision only. The appellants pointed to s 348(1) which provides that “the Tribunal must review the decision”, and submitted that the relevant decision must be the decision the subject of the Tribunal’s review.

38    The appellants submitted that the powers of the Tribunal on review provided by s 349 of the Act, which include the power to “vary”, “set aside” and “substitute” a decision, reveal that the Tribunal alters the effect of the Minister’s decision, rather than making a decision itself. It was said that this leads to the conclusion that the term “decision” as used in cl 890.22 could only refer, or should at least be interpreted as referring, to a decision made by a delegate under s 65(1) of the Act.

39    In summary, the appellants submitted that:

(1)    the word “decision” in the words “890.22 - Criteria to be satisfied at time of decision” must refer to the delegate’s decision and not the Tribunal’s decision on review;

(2)    cl 890.211 required a visa applicant to have held an ownership interest in the business “for at least 2 years” immediately before the application; and

(3)    this “temporal limitation” in cl 890.211 supported a conclusion that the hurdle set by cl 890.221 was “a period of two years, and the time for a delegate to make a decision, not some indefinite period extending through reviews and appeals into the future”.

40    In addition to submitting that the word “decision” in the phrase “time of decision” in cl 890.22 was a reference to the delegate’s decision and not also the Tribunal’s decision, the appellant relied on Shi v Migration Agents Registration Authority (2008) 235 CLR 286 to submit that the Tribunal could or should only consider the material as it was when the decision was before the delegate.

CONSIDERATION

41    Although there are seven grounds of appeal, the central issue is whether cl 890.221 provides a criterion which must be satisfied when the Tribunal makes its decision on review, or whether it is sufficient that the relevant visa applicant held the necessary ownership interest at the time of the delegate’s decision.

42    As noted earlier, the primary judge stated that the words “Criteria to be satisfied at time of decision” did not constitute a heading. Although neither party referred to this line of authority, it should be noted that Courts have approached the construction of analogous provisions of Schedule 2 to the Regulations on the basis that those words are a heading. This was the approach of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 at [15], [17], [26] (French CJ, Gummow and Crennan JJ). It was the approach of the Full Court of this Court in Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121 at [2] (Dowsett J); at [8], [21] (Robertson J); at [41], [50]-[52] (Griffiths J). It was the approach of Katzmann J in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 at [21]. It is not clear that, in any of those cases, any party contended that the relevant words were not a heading.

43    In Berenguel, a “time of application” criterion required the visa applicant to have “vocational English” or “competent English”. Regulation 1.15B provided that a person had “vocational English” if the applicant satisfied the Minister that he or she had achieved a certain International English Language Testing System test score “conducted not more than 2 years before the day on which the application was lodged”.

44    The applicant lodged his application form on 21 April 2008, crossing the box “You have booked an English language test – provide details” and identified the “Date of booking” as 10 May 2008. The applicant undertook the test and obtained a satisfactory result. He provided the result to the department on 7 June 2008.

45    On 12 December 2008, a delegate refused the application on the basis that the applicant had not provided a test result conducted not more than 2 years before the application.

46    The High Court explained at [15] the significance of the heading:

… By virtue of s 13(1)(a) of the Legislative Instruments Act 2003 (Cth), where enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) applies to the instrument “as if it were an Act and as if each provision of the legislative instrument were a section of an Act”. The Migration Regulations fall within the definition of “a legislative instrument” in ss 5 and 6 of the Legislative Instruments Act. This will attract to them the application of s 13 of that Act. The headings of the Parts, Divisions and Subdivisions into which an Act is divided are deemed to be part of the Act [Acts Interpretation Act, s 13(1)]. Every schedule to an Act is deemed to be part of it [Acts Interpretation Act, s 13(2)]. So Sched 2 to the Migration Regulations is “part of” those regulations. Thus, the criteria designations appearing as headings, not otherwise defined, in Sched 2 may be taken as “part of” the Migration Regulations. There is no provision otherwise giving substantive operation to the headings in which the designations appear. Nor are they otherwise defined.

47    The High Court proceeded to reason as follows. First, it noted that the purpose of cl 885.213 was to ensure that, when the Minister decided the application, the applicant had demonstrated recent competency in the English language: at [24].

48    Secondly, it stated that it “does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application”: at [24].

49    The High Court then stated:

[25]    The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.

[26]    Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:

The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. (emphasis added)

Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.

50    The last sentence of [25] and the second to fourth sentences of [26] might be read as denying a “direct operation” of the heading. However, the High Court did not proceed on the basis that the heading had no effect. It construed the relevant provision by reference to the statutory context as a whole. This was also the approach of the Full Court in Waensila.

51    Without cl 890.22, “890.22 - Criteria to be satisfied at time of decision”, cl 890.221 would fail to achieve the evident statutory objective of identifying that the criteria in cll 890.221 to 890.224 are to be satisfied at the “time of the decision”.

52    Whether the relevant words in cl 890.22 are treated as a heading or as an operative provision, the result in this case would not be different.

53    In relation to other subclasses of visas, courts have held that the time of decision criteria are to be determined by the delegate, or the Tribunal, when exercising the powers of the Minister at the time of decision. In SFLB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1610, Mansfield J considered cl 866.221 which provided primary criteria to be satisfied at the time of the decision. The clause read:

866.22 – Criteria to be satisfied at time of decision

866.221

  (1)    Subclause (2) or (3) is satisfied.

(2)    The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

Note:    Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

 (3)    The Minister is satisfied that:

(a)    the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and

(b)    the applicant mentioned in subclause (2) has been granted a Subclass 866 (Protection) visa.

Note:    see paragraphs 36(2)(b) and (c) of the Act.

54    His Honour observed at [15]:

The primary criteria include criteria to be satisfied at the time of the decision. Clause 866.221 provides that one of the criteria to be satisfied at the time of the decision is that the Minister (and on review the Tribunal) is to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. In my judgment, consistent with the decision in Chan, that criterion requires the Tribunal inter alia to consider whether the appellants met the definition of “refugee” in Art 1A(2) of the Convention at the time of its decision.

55    In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, which also concerned a protection visa, Gummow and Hayne JJ observed at [77] (footnotes omitted, italicised emphasis in original, underlined emphasis added):

When the Tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the Tribunal’s decision, a person to whom Australia owes protection obligations. So much follows from the fact that the Tribunal exercises afresh the powers of the original decision-maker.

56    That understanding of the time of decision criteria also found favour in the Federal Magistrates Court of Australia in relation to a subclass 801 spouse visa: see Shaikh v Minister for Immigration [2004] FMCA 116 at [23] to [28].

57    Clause 890.22 and cl 890.221, read in the context of the statutory scheme as outlined earlier, do not contain the temporal limitation for which the appellants contend. The statutory object is tolerably clear. The visa applicant must, when the application is lodged, hold an ownership interest in an actively operating main business and have held such an interest for at least two years. The applicant must also continue to hold an interest at the time of the relevant decision. There is nothing about the statutory scheme which suggests that a Business Owner visa was intended to be granted to a visa applicant who no longer has a relevant interest in an actively operating main business when the relevant decision is made, be it the decision of the delegate or the Tribunal on review.

58    The contention that the temporal limit should be for at least two years at the time of the application, and whatever further period of time it takes the Minister to make a decision, but not for any review of that decision, does not find support in the text of the provisions or the structure of the Act. I do not read the provisions as indicating a legislative intention to grant a Business Owner visa to a person without an ownership interest in an actively operating main business at the time of the Tribunal’s decision on review, just because that person had held that interest at the time of the delegate’s original decision.

59    The regulations applicable to the visa application in the present case do not indicate that the “criteria to be satisfied at the time of decision” was intended to focus on the time of the delegate’s decision. The primary judge was correct to conclude that “time of decision” means the time at which the relevant decision-maker makes the decision, whether the decision maker is the delegate or the Tribunal on review. The Tribunal in the present case had to be satisfied that the criteria were satisfied at the time of its decision – see also: Pintos v Minister for Immigration & Multicultural Affairs [2001] FCA 1400 at [9] (Katz J).

60    The application of cll 890.211 and 890.221 to the present facts is as follows:

(1)    Clause 890.211 required the Tribunal to be satisfied that, at the time of the visa application, the relevant applicant “has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made”;

(2)    Clause 890.221 required the Tribunal to be satisfied that, at the time of its decision, the relevant applicant “continues” to have a relevant ownership interest;

(3)    Because the applicant had, by the time the Tribunal made its decision, disposed of her ownership interest in the main business which she had relied upon as satisfying cl 890.211, and there not being any argument that some other ownership interest might have been capable of satisfying cl 890.221, she could not on any view satisfy cl 890.221. I express no view about what would have occurred if the first appellant had sought to rely upon a different ownership interest to that relied upon in respect of the time of application criterion.

61    The word “continues” in cl 890.221 requires, as a minimum, that the visa applicant has an “ownership interest” in an actively operating “main business” at the time the relevant decision-maker comes to decide the application. It was common ground that a delegate would have to refuse a visa application if the applicant no longer held an ownership interest at the time of the delegate’s decision. The Tribunal was in the same position.

62    It is not necessary for the purposes of this appeal to determine more precisely the meaning of the word “continues” – as to which see: Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 (Allsop J); Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 at [8] to [10] (Goldberg, Finkelstein, Weinberg JJ); Liang v Minister for Immigration and Citizenship (2009) 175 FCR 184 at [35] to [59] (Logan J). It is not necessary, for example, to determine whether cl 890.221 could be satisfied where an applicant had an ownership interest in a main business for at least two years at the time of the visa application, but for some reason did not have continuous ownership between the date of the application and the time of decision. This might occur, for example, because of a disposal and reacquisition of the ownership interest or the cessation of one business and the commencement of another. Those questions do not arise in the present case.

63    In Shi, the Migration Agents Regulation Authority had cancelled a migration agent’s registration. The Tribunal, after considering the facts and circumstances existing at the time of its decision, exercised the power under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to set aside the Authority’s decision and, in substitution, to caution the agent and set certain conditions pursuant to the Act. The Authority challenged the Tribunal’s decision contending that the Tribunal was limited to the facts and circumstances as they existed only at the time of the Authority’s decision. (Section 43(1) of the AAT Act does not apply in the present case; the relevant provision is s 349(2) of the Act.)

64    The High Court observed that the identification of the Tribunal’s task was to be answered by first giving close attention to the relevant provisions: at [25] (Kirby J); at [92] (Hayne and Heydon JJ); at [132] (Kiefel J, with whom Crennan J relevantly agreed).

65    Section 303(1) of the Act provided:

The Migration Agents Registration Authority may:

(a)    cancel the registration of a registered migration agent by removing his or her name from the register;

…

if it becomes satisfied that:

…

(f)    the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

…

(h)    the agent has not complied with the Code of Conduct prescribed under section 314.

66    Section 304A provided:

The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.

Note:    Particulars of cautions are shown on the Register: see section 287.

67    Section 306 provided:

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of a decision by the Migration Agents Registration Authority made under this Division.

68    Section 25(4) of the AAT Act included:

The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

69    Section 43 of the AAT Act included:

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

    (i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

(6)    A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

70    Justices Hayne and Heydon described the Tribunal’s task in the following way (emphasis in original, footnotes omitted):

[96]    In reviewing MARA’s decision to cancel the appellant’s registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.

[97]    MARA’s contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant’s registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal’s task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal in judicial proceedings. But that is not the Tribunal’s task.

[98]    It has long been established that [citing Drake (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J)]:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (emphasis added in original judgment)

And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA. It submitted, however, that the Tribunal had to consider the circumstances “as appear from the record before it as they existed at the time of the decision under review”.

[99]    Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

[100]    The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal [citing Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175 to 176], not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:

A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

But subject to that qualification, the Tribunal’s task is “to do over again” what the original decision-maker did.

[101]    Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA’s argument to the contrary should have been rejected in the courts below.

71    The appellants relied on the following passages of the reasons of Kiefel J (footnotes omitted), which are not relevantly inconsistent with the observations of Hayne and Heydon JJ:

[142]    In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

[143]    Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time

72    Like s 43(1) of the AAT Act, s 349(1) of the Act empowers the Tribunal to “exercise all the powers and discretions” that were conferred on the person who made the decision the subject of the review. On its review, the question is whether the Tribunal is satisfied that the criteria have been met. The legislative scheme does not suggest that the Tribunal’s task is to identify and correct error on the part of the delegate as if conducting a strict appeal in judicial proceedings rather than merits review. The Tribunal’s decision on review is a part of the administrative decision-making process. Except for the purposes of an appeal, the Tribunal’s decision “is taken … to be a decision of the Minister”: s 349(3).

73    The Tribunal conducting merits review “stands in the shoes” of the Minister and is to make the correct or preferable decision, at the time of the Tribunal’s decision, on the material before it: Shi at [96] to [98] (Hayne and Heydon JJ); Kaur v Minister for Immigration & Border Protection [2016] FCA 937 at [5] (Perry J); SZURL v Minister for Immigration and Border Protection [2015] FCA 864 at [5] (Katzmann J); and Minister of Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 45 to 46 (Smithers J).

74    In the present case, the Tribunal had to be satisfied that the first appellant continued to hold an “ownership interest” in a “main business” at the time of its decision: cll 890.22 and 890.221. It could not have been so satisfied because the first appellant held no such interest at the time of the Tribunal’s decision.

CONCLUSION

75    The appeal must be dismissed.

Associate:    

Dated:    25 February 2020