Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 (6 March 2003)

Last Updated: 6 March 2003

FEDERAL COURT OF AUSTRALIA

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 144

MIGRATION - visa subclass 845 - business visa - Migration Review Tribunal - constructive failure to exercise jurisdiction - whether privative clause decision

ADMINISTRATIVE LAW - Tribunal's use of Departmental policy - inconsistency between legislation and policy - constructive failure to exercise jurisdiction - privative clause

COURTS - precedent - alleged inconsistency between prior Full Court decision not overruled and later High Court decision - position of single judge

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 Sch 2

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, 195 ALR 24 considered

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, 195 ALR 1 considered

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 193 ALR 449 followed

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 cited

NAGT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 319 cited

R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 cited

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 cited

Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417 cited

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Akpata [2002] HCA 34; (2002) 191 ALR 283 cited

Zines, "Constitutional Aspects of Judicial Review of Administrative Action" (1998) 1 Constitutional Law & Policy Review 50

JOYCE LOBO, PHILIP ANDREW LOBO, REENA LOBO and RITISHKA LOBO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1283 OF 2002

GYLES J

SYDNEY

6 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1283 OF 2002

BETWEEN:	JOYCE LOBO, PHILIP ANDREW LOBO, REENA LOBO and RITISHKA LOBO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	6 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicants are to pay the costs of the respondent excluding costs of 28 February 2003.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1283 OF 2002

BETWEEN:	JOYCE LOBO, PHILIP ANDREW LOBO, REENA LOBO and RITISHKA LOBO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	6 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Migration Review Tribunal ("the Tribunal"). The primary visa applicant, Joyce Lobo, arrived in Australia on 30 September 1996. The applicant Philip Lobo is her husband, and the applicants Reena and Ritishka Lobo are her daughters. After a history which it is unnecessary to recite, the primary applicant made application for a Business Skills (Residence) (Class BH) visa pursuant to the Migration Act 1958 (Cth) ("the Act") on 30 August 1999, the requirements for which are set out in Sch 2 to the Migration Regulations 1994 ("the Regulations"). It was directed at Sub-class 845 (Established Business in Australia). The business in question was City Professionals Pty Limited, which conducted an information technology business based in Sydney. The application was rejected by a delegate of the respondent Minister on 8 March 2001, on the basis that, at the relevant time, the assets of the business were insufficient to satisfy one of the necessary criteria. On 14 March 2001 the applicants applied for review of that decision by the Tribunal.

2 The Tribunal, by a decision of 6 November 2002, affirmed the decision to refuse the visa, but on the basis that the applicant had failed to establish another criterion, namely, that provided for by cl 845.216 to Sch 2 of the Regulations, which is in the following terms:

"In the 12 months immediately preceding the making of the application, the applicant, as the owner of an interest in a main business or main businesses in Australia, maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses."

3 It is relevant to know that another criterion which had to be met was that the applicant was in Australia for nine out of the twelve months preceding the date of the application for the visa. In essence, the Tribunal found that management of the business and decision-making in relation to it was in the hands of the husband of the primary applicant, and that the description of the primary applicant as a managing director of the company and the evidence given as to her involvement in the company was, in effect, manufactured because the husband could not be the applicant as he could not satisfy the criterion which required him to have been in Australia for nine of the previous twelve months prior to the application.

4 It is submitted for the applicants that the decision-making process of the Tribunal was fatally flawed because it was based upon policy guidelines interpreting the statutory criterion rather than the criterion itself.

5 The relevant portion of the policy guideline ("the Policy") is as follows:

"3.5.1 The policy intention of this criterion overall is to establish whether the applicant has the ability to manage and operate a main business successfully.

3.5.2 Under policy, it requires the applicant to demonstrate that

* they have exercised responsibility within the main business(es) in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure;

* such responsibility has been exercised on a continuous (as opposed to on an occasional) basis; and

* their skills have been fundamental to, or have exerted direct influence on, the operation of the main business(es).

3.5.3 The success (or otherwise) of the business(es) is not a relevant factor in assessing this criterion. Rather, if an applicant satisfies this criterion in respect of a failed or declining business, this should be considered in assessing whether the applicant `has overall had a successful business career'."

6 It is submitted that the manner in which the Tribunal ultimately expressed its opinion indicates that it had regard to the Policy rather than the statutory criterion. Counsel for the applicants referred in particular to the Tribunal's conclusion:

"46. In the light of the evidence provided, the Tribunal is not satisfied that in the 12 months preceding the application the primary visa applicant has exercised responsibility within the main business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure on a continuous basis, nor that her skills have been fundamental to, or have exerted direct influence on, the operation of the main business. The Tribunal is satisfied that it is the primary visa applicant's spouse who has been responsible for making decision, for employees and for expenditure and that it is her spouse who has set the direction of the company. As such the Tribunal finds that the primary visa applicant does not meet clause 845.216."

7 Counsel for the respondent draws attention to an earlier paragraph of the reasons in the following terms:

"40. For the reasons which follow, it is clear to the Tribunal that it is the primary visa applicant's spouse who undertook the managerial role of the company for the 12 months preceding the lodgement of the current application. Although the primary visa applicant may have assisted in the business, the Tribunal is not satisfied that she maintained direct and continuous involvement in the management of the business from day to day or maintained direct and continuous involvement in making decisions that affected the overall direction and performance of the business."

However, that paragraph of the reasons commences with the words "For the reasons which follow" and, in my opinion, it is clear that the Tribunal addressed the Policy when coming to its decision. Furthermore, the Tribunal expressly said:

"The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy."

8 I agree with the submission for the applicants that the Policy is different from the statutory criterion, and goes beyond it. The key words in cl 845.216 are "involvement in" which (it is accepted by counsel for the respondent) govern both the reference to management and decision-making. This is linked with the fact that the clause contemplates that an applicant can be the owner of an interest in the business rather than the whole of the business. By contrast, the Policy refers to the applicant having the ability to manage and operate a whole business successfully. So far as cl 3.5.2 of the Policy is concerned, the use of the word "responsibility" in the first two dot points is different from the requirement of "involvement in". There is no basis in the statutory criterion at all for the third dot point.

9 It is clear enough, when the whole of the relevant portion of the reasons of the Tribunal is read, that it was diverted by the Policy into an examination of which person held the principal or dominant role in the company, rather than concentrating upon whether the primary applicant was involved in the manner required. I should say that there was no issue that the primary applicant was a fifty per cent shareholder and owner of the business.

10 Counsel for the respondent submits that, leaving aside the effect of the Policy, the findings of fact are enough to show that the statutory criterion was not met. Taking the Policy into account did not lead to any operative error. Whilst some of the language of the Tribunal decision is consistent with that submission, in my opinion, counsel for the applicants is correct when he submits that it is by no means clear that the same decision would be reached if the decision-maker concentrated upon the statutory criterion rather than the Policy. He pointed out, for example, that the Tribunal member apparently accepted that the husband of the primary applicant was overseas for much of the twelve months prior to the application, but did not consider, and did not make any findings about, the conduct of the business during that period. That is explained because the Tribunal was seeking to find one controller of the business.

11 It may thus be concluded that the Tribunal fell into error in the manner in which it approached its task. It was conceded by counsel for the Minister that if the argument for the applicants prevailed (contrary to his submission) then the error is jurisdictional in the sense that it was a constructive failure to exercise jurisdiction because the Tribunal did not address the statutory criteria and thus would lead to prerogative relief absent s 474 of the [1995] HCA 58; Act (Craig v South Australia (1995) 184 CLR 163 at 179). This concession makes it unnecessary for me to consider whether the error was of fact or law or was within or without jurisdiction.

12 It was submitted for the Minister that that kind of error does not lead to relief because of the operation of s 474 of the Act. Counsel for the applicants disagreed, contending that the contrary was established by the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, 195 ALR 24 ("S157"), confirmed by the judgments in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, 195 ALR 1 ("S134") (particularly per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [15] and per Gaudron and Kirby JJ at [86]-[88]). It is responded on behalf of the Minister that S157 dealt only with an aspect of natural justice or procedural fairness, and that the judgment of the majority in S134 says nothing about the particular issue which is raised for decision here. In those circumstances, it is submitted that the duty of a judge at first instance is to follow the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 193 ALR 449 ("NAAV"), (particularly in relation to Ratumaiwai and NABE) in accordance with NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24] and NAGT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 319 at [26]. I have concluded that the latter submission by counsel for the Minister is correct.

13 I agree that some of the reasoning of Von Doussa J (who gave the pivotal decision) in NAAV is inconsistent with some of the reasoning in the judgments in S157 (see particularly per Gleeson CJ at [35], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [64], and (perhaps) per Callinan J at [162]). However, their Honours were careful to limit the scope of what was decided to the case before them, involving a breach of natural justice or procedural fairness. Gleeson CJ said (at [36]):

"... Here we are concerned with only one kind of challenge, involving a claim of denial of natural justice. A rejection of the Commonwealth's global approach to the operation of s 474 does not mean that the opposite conclusion follows in relation to every possible kind of challenge to a decision."

Gaudron, McHugh, Gummow, Kirby and Hayne JJ said (at [78]):

"The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act."

Furthermore, although NAAV had been decided prior to the argument in S157 and S134, that decision was not overruled or expressly disapproved. The decision in S157 is only inconsistent with the decision in NAAV insofar as the case of NAAX is concerned. The decision in S134 is not inconsistent with any part of NAAV. In those circumstances, departure from binding Full Court authority is not, in my opinion, for a single judge. In my opinion, the decisions in NAAV (except that in relation to NAAX) continue to bind me.

14 Even if I allowed myself the luxury of predicting the result of this case in the High Court, it is by no means clear that the approach urged by counsel for the applicants will be upheld. The argument in its baldest form runs as follows:

(a) only jurisdictional error leads to relief under s 39B of the Judiciary Act 1903 (Cth);

(b) s 474 does not protect against jurisdictional error; and

(c) therefore any error which would lead to relief under s 39B absent s 474 will not be protected by s 474.

This reflects the conundrum to which I referred in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 at [29] and [30]. As Professor Zines has pointed out, it renders s 474 and like clauses virtually devoid of content (Zines, "Constitutional Aspects of Judicial Review of Administrative Action" (1998) 1 Constitutional Law & Policy Review 50). In my opinion, that process of reasoning is plainly inconsistent with R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 and the many subsequent decisions of the High Court which have followed it. The concept of constructive failure to exercise jurisdiction was, of course, well known to Dixon J at the time of the decision in Hickman. Twelve years before he (together with Rich and McTiernan JJ) had been the author of probably the most famous explanation of it (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242-243). In my respectful opinion, it is quite clear that Sir Owen Dixon did not have that concept in mind when he referred to excess of jurisdiction in Hickman and the cases which followed it. Rather, he had in mind the concept of "manifest" defect in jurisdiction from the line of authority stemming from Colonial Bank of Australasia Ltd v Willan (1874) LR 5 PC 417 (particularly at 442). Nor is there any hint in the Hickman line of authority that a privative clause framed in terms of a decision would not apply to a decision in fact made by a tribunal notwithstanding that a court may later conclude that the Bott principle applied. No doubt the High Court could overrule the existing line of authority and strike out down a new path with enormous consequences for the relationship between the legislature and the judiciary. It is not likely to have done so by implication. None of the justices in S157 overruled Hickman and the later cases which followed it. It follows from that line of authority that a privative clause such as s 474 will operate to protect against some, but not all, errors which are jurisdictional in the sense that they would otherwise found prerogative relief.

15 S157 provides little concrete assistance in relation to the instant case. Gleeson CJ (at [12], [13] and [18]) referred to the concept of "manifest" defect in jurisdiction, having cited the well-known passage from Colonial Bank of Australasia Ltd v Willan at 442 (a case seen as seminal by Beaumont J in NAAV at [92]-[99]). Callinan J is to similar effect at [152]-[160]. The examples of jurisdictional error given by Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76] are failure to discharge "imperative duties" (citing (inter alia) a passage from Dixon J in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 at 248) or to observe "inviolable limitations or restraints" (citing (inter alia) the same passage from Dixon J in R v Metal Trades and a passage from Mason ACJ and Brennan J in R v Coldham; Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415 at 419, which, in turn, referred to the same passage from Dixon J). The example given of a decision regarded as no decision at all by reason of jurisdictional error was that in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 76 ALJR 598, 187 ALR 117, which was a very special case involving a failure to follow specific legislative procedural steps resulting in a serious breach of procedural fairness. The decision in S134 does not solve the problem. The judgment of Gaudron and Kirby JJ at [86]-[88] is consistent with the submissions for the applicant, but their Honours were in the minority. The reference to "jurisdictional error" by the majority (at [15]) does not explain the sense in which that phrase is used (cf Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Akpata [2002] HCA 34; (2002) 191 ALR 283).

16 However the issue may be played out in the High Court, I cannot distinguish this case from the relevant decisions in NAAV which have not been overruled and which bind me. The application is dismissed. As no special circumstance appears, the applicants are to pay the costs of the respondent excluding the costs of the second day of hearing.

17 I should add that counsel referred me to some recent remarks said to be consistent with the submissions for the applicant by members of Full Courts in dealing with consent orders or concessions by the respondent Minister in particular cases. None of these remarks constituted a decision on the point. Indeed, in one of the instances, it is difficult to discern any occasion for the remarks. I have not taken these remarks into account.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 6 March 2003

Counsel for the Applicants:	D Godwin
Solicitor for the Applicants:	Parish Patience Immigration
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27, 28 February 2003
Date of Judgment:	6 March 2003