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Minister for Immigration v Roberts & Anor [2011] FMCA 77 (25 February 2011)

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Minister for Immigration v Roberts & Anor [2011] FMCA 77 (25 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v ROBERTS & ANOR

MIGRATION – Migration Review Tribunal – standard business sponsor – false and misleading information – new legislative regime – whether retrospective.


Baker v R [2004] HCA 45; (2004) 223 CLR 513 (2004); [2004] HCA 45; (2004) 78 ALJR 1483; 210 ALR 1; [2004] HCA 45
Coleman v The Shell Company of Australia Limited (1943) 45 SRNSW 27
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
Maxwell v Murphy (1957) [1957] HCA 7; (1957) 96 CLR 161; (1957) 31 ALJR 143; [1957] ALR 231
Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819

Bennion on Statutory Interpretation, Lexis Nexis, Fifth Edition, 2008

Applicant:
MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:
VENUS INOCENCIA ROBERTS (TRADING AS HALLS CREEK BAKERY)

Second Respondent
MIGRATION REVIEW TRIBUNAL

File Number:
MLG 1512 of 2010

Judgment of:
Riley FM

Hearing date:
8 February 2011

Date of Last Submission:
8 February 2011

Delivered at:
Melbourne

Delivered on:
25 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr Horan

Solicitors for the Applicant:
Australian Government Solicitor

Counsel for the First Respondent:
No appearance

Solicitors for the Respondent:
No appearance

Counsel for the Second Respondent:
No appearance

Solicitors for the Second Respondent:
No appearance

ORDERS

(1) There be an order in the nature of certiorari to bring in to court and quash the decision of the second respondent in matter 1004962 made on 24 September 2010.
(2) There be an order in the nature of mandamus requiring the second respondent to rehear and determine according to law the first respondent’s application for review of the decision of the delegate of the applicant that was made on 31 May 2010.
(3) No order as to costs.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1512 of 2010

MINISTER FOR IMMIGRATION & CITIZENSHIP

Applicant


And


VENUS INOCENCIA ROBERTS (TRADING AS HALLS CREEK BAKERY)

First Respondent


MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application by the Minister for review of a decision of the Migration Review Tribunal.
  2. The first respondent applied for approval as a standard business sponsor under Division 3A of Part 2 of the Migration Act 1958 (“the Act”). That approval was given on 5 August 2008. In the meantime, the first respondent had nominated her brother for the position of cook at her bakery. The nomination was approved and the brother entered Australia on 22 November 2008.
  3. In the course of an audit, it was discovered that the first respondent’s bakery had ceased trading before the brother’s arrival in Australia. The brother had never worked as a cook in the first respondent’s bakery, but had instead found work on a building site.
  4. On investigation, a delegate of the Minister found that the first respondent:
    1. had failed to comply with her sponsorship undertakings in various respects; and
    2. had provided three items of false or misleading information to the Department.
  5. Applying s.140M of the Act, the delegate barred the first respondent for five years:
    1. from sponsoring more people for a subclass 457 business long stay visa under her existing approval as a standard business sponsor; and
    2. from making future applications for approval as a standard business sponsor.
  6. The Tribunal on review noted that the Act and the Migration Regulations 1994 (“the Regulations”) had been relevantly amended with effect on and from 14 September 2009, being a date between the provision of the false or misleading information and the delegate’s decision. The Tribunal considered that it should not take into account the provision of the false or misleading information for reasons which it explained at paragraphs 5 to 10 of its reasons for decision. Those paragraphs are as follows:
  7. The Tribunal went on to vary the delegate’s decision by reducing the period of the bar from five years to three years.
  8. The Minister argued before this court that the Tribunal was in error in not taking into account the false and misleading information. The first respondent did not participate in the proceedings but filed a submitting appearance save as to costs. The second respondent did not appear at all.

Grounds of application

  1. The Minister stated the following as the grounds of his application:

Legislation

  1. The amendments which became effective on 14 September 2009 changed the sponsorship regime by, among other things, replacing sponsorship undertakings with sponsorship obligations, and formulating the consequences of failing to comply with sponsorship obligations.
  2. Since 14 September 2009, s.140K to s.140M of the Act have provided that:
(a) the Minister may:
(b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Section 140L
Regulations may prescribe circumstances in which sponsor may be barred or sponsor's approval cancelled
Circumstances in which the Minister may take action
(1) The regulations may prescribe:
(a) either or both of the following:
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
Circumstances in which the Minister must take action
(a) different kinds of visa (however described); and
Section 140M
Cancelling approval as a sponsor or barring a sponsor
Actions that may be taken in relation to approved sponsors
Action that may be taken in relation to former approved sponsors

12. Also since 14 September 2009, reg. 2.90 has provided that:

Regulation 2.90
Provision of false or misleading information
(1) This regulation applies to a person who is or was:
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Migration Review Tribunal.
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

13. The amendments to the Act were introduced by the Migration Legislation Amendment (Worker Protection) Act 2008. That Act contained transitional provisions in item 45 of Schedule 1 as follows:

(1) This item applies in respect of a person who, immediately before this Schedule commences:
(2) The new law applies to the person, on and after the day on which this Schedule commences, as if the person were approved as a sponsor under section 140E of the new law in relation to the class prescribed by the regulations for standard business sponsors.
(3) The terms specified in the person’s approval as a sponsor under section 140G of the old law continue to apply, on and after the day on which this Schedule commences, to the person.
(4) A term of a kind specified in the person’s approval as a sponsor under section 140G of the old law may be prescribed by the regulations for the purposes of paragraph 140GA(2)(a) of the new law.

Note: This means that the term may be varied under section 140GA of the new law.

(5) If the person had made an undertaking under section 140H of the old law, then, on and after the day on which this Schedule commences:
(6) However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.

(7) To avoid doubt, the new law applies:

(a) in the case of a partnership – in respect of a partner even if the partner has not made an election under section 140Z of the old law in relation to a sponsorship obligation; and
(b) in the case of an unincorporated association – in respect of a member of the committee of management of the association even if the member has not made an election under section 140ZE of the old law in relation to a sponsorship obligation.

Minister’s contentions

  1. The Minister contended that:
    1. the Tribunal was wrong to have excluded from its consideration the false and misleading statements made by the first respondent to the Department;
    2. reg. 2.90 operates according to its terms, without the need for any application of the transitional provisions; and
    1. applying reg. 2.90 according to its terms does not give an objectionable, retrospective effect to reg. 2.90 or s.140M.
  2. The Minister accepted that an Act will be presumed to not have a retrospective operation unless it clearly says otherwise. A classic statement of the relevant principle is in the judgment of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 161; (1957) 31 ALJR 143; [1957] ALR 231 at 267 where his Honour said:
  3. However, the Minister submitted that the position was not entirely straightforward. For example, in Coleman v The Shell Company of Australia Limited (1943) 45 SRNSW 27, Jordan CJ said at 30 to 31:

As to the first question, it is to be noted that there has been some ambiguity in the use of the word “retrospective.” In some cases, it has been said that it would give a retrospective operation to a statute to treat it as impairing an existing right or obligation or creating a new right or obligation: In re School Board Election for Parish of Pulborough[1]; In re Athlumney.[2] On the other hand, it was said by Buckley L.J in West v Gwynne[3] that an Act is retrospective if it provides that as at a past date the law shall be taken to have been that which it was not. It is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future. Similarly it has been said that an amendment of a section in an Act makes it retrospective in its original form but not retrospective so far as it is new: Ex parte Todd.[4]

Upon a consideration of the authorities, I think that, as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.
  1. That passage was referred to with approval by the High Court in Baker v R [2004] HCA 45; (2004) 223 CLR 513 (2004); [2004] HCA 45; (2004) 78 ALJR 1483; 210 ALR 1; [2004] HCA 45 at [30]. The Minister also relied on the following statement in Bennion on Statutory Interpretation, Lexis Nexis, Fifth Edition, 2008 at page 317, saying that example 97.3 was particularly apposite to the present case:

Consideration

  1. The authorities relied on by the Minister concerned Acts of Parliament. There are various other authorities to the same effect. For example, in La Macchia v Minister for Primary Industry (1986) 72 ALR 23, in the Full Federal Court Toohey J, with whom Bowen CJ agreed, said at page 26:
  2. Similarly, French J, as his Honour then was, said at page 33:
  3. The principle against retrospectivity was perhaps most simply stated by the Full Court of the Supreme Court of Victoria in Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824 where the court said:
  4. While the Parliament can choose to give Acts of Parliament a retrospective operation by clear words to that effect, the prohibition on Commonwealth delegated legislation having a retrospective operation is virtually absolute. Section 12 of the Legislative Instruments Act 2003 provides as follows:

(3) The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

  1. However, the present case does not concern retrospective delegated legislation. That is because reg. 2.90 of the Regulations is not retrospective in any objectionable sense. Rather, in the words of Robertson, reg. 2.90:
  2. By applying reg. 2.90 and being satisfied that an approved business sponsor had provided false or misleading information to the department at any time in the past, the Minister was authorised by s.140M of the Act to bar the sponsor for a period of time from:
    1. sponsoring more people under his or her existing approval; and
    2. making future applications for approval as a sponsor.
  3. Although the sponsor’s existing right to sponsor was thereby limited, it was only limited for prospective sponsorships and prospective approvals. Thus, on ordinary principles, the operation of the legislative scheme was not retrospective. Accordingly, the Tribunal was in error in excluding from its consideration the three instances in which the first respondent gave false and misleading information to the department.
  4. The Minister suggested that, rather than remitting the matter to the Tribunal for reconsideration, it may have been possible for the court to substitute for the Tribunal’s decision the five year bar that the delegate had originally imposed. This suggestion was made on the basis that it appeared that the only reason that the Tribunal did not affirm the five year bar was the view that the Tribunal took of the retrospectivity issue.
  5. It was not unequivocally stated by the Tribunal that it would have affirmed the delegate’s decision but for the view the Tribunal took of the retrospectivity issue. As the Tribunal’s decision is discretionary, and as many factors are taken into account in determining the sanction ultimately imposed, I consider that it would be wrong of this court to reinstate the delegate’s decision. The matter will be remitted to the Tribunal for further consideration according to law.
  6. The applicant in his application did not seek an order for costs. The respondents did not participate in the proceedings. The first respondent did nothing to necessitate the current application. In the circumstances, there will be no order as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riley FM


Date: 25 February 2011

[1] [1892] 3 Ch. 402 at 420-1
[2] [1898] 2 Q.B. 547 at 551-2.
[3] [1911] 2 Ch. 1 at 11-12.
[4] (1887) 19 Q.B.D. 186 at 195.
[5] Antonelli v Secretary State for Trade and Industry [1998] QB 948. See also R v Field, R v Young [2002] EWCA Crim 2913, [2003] 3 All ER 769 at [60] (order under Criminal Justice and Court Services Act 2000 s 28); R (on the application of Wright and others) v Secretary of State for Health and another [2006] EWHC 2886, [2007] 11 All ER 825 at [26].

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