FEDERAL COURT OF AUSTRALIA Braganza v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 170 MIGRATION – whether MRT inflexibly applied departmental policy and failed to give real and genuine consideration to the merits of the appellant's case – MRT correctly understood the role of policy in decision-making process - MRT's decision not affected by an error of law - no need to consider whether jurisdictional error Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), Pt 5, s 474 Migration Regulations 1994 (Cth), reg 1.03, Sch 2 sub-class 806 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 not followed Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 cited SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43 cited Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 cited Khan v Minister for Immigration, Local Government and Ethnic Affairs, Gummow J, 11 December 1987, unreported cited Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 cited Rendell v Release on Licence Board (1987) 10 NSWLR 449 cited Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 cited British Oxygen Co Ltd v Minister of Technology [1971] AC 610 cited Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 cited Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 cited Bruce v Cole (1998) 45 NSWLR 163 cited Flentjar v Repatriation Commission (1997) 48 ALD 1 cited BRAGANZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 449 of 2003 FRENCH, SACKVILLE & HELY JJ SYDNEY 8 AUGUST 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 449 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER BRAGANZA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: FRENCH, SACKVILLE & HELY JJ DATE OF ORDER: 8 AUGUST 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 449 OF 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER BRAGANZA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: FRENCH, SACKVILLE & HELY JJ DATE: 8 AUGUST 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE APPEAL 1 This is an appeal from a judgment of a Judge of this Court (Braganza v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1542) dismissing an application seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Migration Review Tribunal ("MRT") handed down on 24 April 2002. The MRT affirmed a decision of a delegate of the respondent ("the Minister") refusing to grant the appellant a Family (Residence) (Class AO) visa. 2 The appellant challenged the MRT's decision on five grounds. His Honour rejected three of the grounds, but held that * the MRT had failed to give proper, genuine and realistic consideration to the merits of the appellant's application; and · the MRT's decision was affected by an error of law because he could not be satisfied that the MRT had not "slavishly" followed terms of Migration Series Instruction ("MSI") 205, a policy statement produced by the Department of Immigration and Multicultural and Indigenous Affairs. 3 Nonetheless, his Honour refused to grant relief because he considered that s 474(1) of the Migration Act 1958 (Cth) ("Migration Act"), the so-called privative clause, rendered the MRT's decision immune from review in the absence of a showing of bad faith on the part of the MRT. In reaching this conclusion, his Honour followed the decision of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. 4 Section 474 of the Migration Act relevantly provides as follows: "(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. (2) In this section: 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)…". 5 After the primary Judge delivered judgment, the High Court decided Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. In that case it was held (at 45 [76]) that the expression "decision…made under this Act" in s 474(2) of the Migration Act must be read "so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the [Migration Act]. Although the joint judgment in Plaintiff S157/2002 did not expressly refer to NAAV v Minister, later decisions have accepted that it is no longer good law: see SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43, at 51 [33], and cases cited there; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 at [60]. 6 The appellant seeks to uphold the primary Judge's holding that the MRT's decision was affected by an error of law, but contends that in the light of Plaintiff S157/2002 the MRT had acted in excess of its jurisdiction. Accordingly, the appellant says that the appeal should be allowed and that he should be granted an order quashing the decision of the MRT and directing it to rehear the matter according to law. 7 The Minister has filed a notice of contention claiming that the primary Judge had been in error in finding that the Court could not be satisfied that the MRT had not slavishly followed the terms of MSI 205 and in making the findings upon which that finding was based. 8 The issues said to be presented by the appeal are whether: (i) the primary Judge correctly held that the MRT had failed to give proper, genuine and realistic consideration to the merits of the appellant's case and had slavishly followed the terms of MSI 205; (ii) if so, whether the MRT had committed a jurisdictional error, or had acted in excess of jurisdiction, such as to warrant the grant of relief notwithstanding the terms of s 474 of the Migration Act. BACKGROUND 9 The appellant is a citizen of India. He entered Australia on 8 February 1998. At that time he was a permanent resident of New Zealand. 10 On or about 5 November 1998, the appellant lodged an application for a Family (Residence) (Class AO) visa. He claimed to be a "special need relative" of his sister, Mrs Jeanne Fernandez, his visa nominator. The ground on which the appellant was said to be a "special need relative" was that the visa nominator required her brother's assistance to care for their ailing mother, Mrs Sybil Enid Braganza. It appears that Mrs Braganza is a citizen of India who had lodged an application for permanent residency on 6 August 1998 on aged parent grounds. That application had been refused by the Minister's delegate on 17 November 2000. At the date of the MRT's decision in the present case, Mrs Braganza's application for review of the adverse decision affecting her had not been completed. 11 The MRT dealt with the application under sub-class 806 of Schedule 2 to the Migration Regulations 1994 (Cth). At the relevant time, cl 806.21 of the Migration Regulations specified criteria for the grant of a sub-class 806 visa. The criteria included a requirement that, at the time of the application, the appellant be a "special need relative" of another person who was a "settled Australian permanent resident": cl 806.213. The criteria also had to be satisfied at the date the MRT made its decision: cl 806.221. 12 The relevant definitions were contained in the Migration Regulations, reg 1.03, as follows: "'special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) welfare, hospital, nursing or community services in Australia;" "'settled' in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period". (Emphasis added.) 13 The expression "reasonable period" in the definition of "settled" was not defined. MSI 205, however, provided as follows (par 7.4): "Regulation 1.03 defines 'settled' as meaning lawfully resident in Australia for a reasonable period. Under policy, it can be said that in normal circumstances, two years is considered to be a reasonable period but there may be exceptions and the facts of each case must be considered on a reasonable basis." 14 The appellant made written submissions to the MRT addressing (inter alia) the question of whether the nominator was a "settled" permanent Australian resident. The submissions were supported by a statutory declaration by the nominator which gave reasons why she should be regarded as "settled", notwithstanding that she had not been lawfully resident in Australia for at least two years at the time of the application. The nominator's evidence was to the effect that both she and her husband were in paid employment; they owned household goods and a car; one of their children was attending a private college and the other a high school; the nominator had bank accounts and had filed a tax return; she had strong family ties in Australia through her aunt and two first cousins (all Australian citizens); the nominator and her husband were shortly "going in for a place of [their] own"; and she would qualify for Australian citizenship in February 2002. 15 The application for review by the MRT was lodged on 11 October 1999. It was accompanied by an application for waiver of the lodgement fee. The MRT refused this application. The appellant sought judicial review of this decision. The application failed at first instance but succeeded on appeal. On 28 March 2001, the Full Court remitted the matter to the MRT for determination according to law. the mrt's reasons 16 The MRT recorded that it was bound by the Migration Act and the Migration Regulations. The MRT observed, with reference to MSIs, that it was required "to have regard to policy and apply it unless there are cogent reasons for departing from policy". 17 The MRT recounted the appellant's circumstances and noted his claim that he and his sister, the nominator, provided their mother with physical, psychological and emotional care. It referred to the nominator's statutory declaration and, in particular, to her statement that she was married with two children, that she was unable to provide her mother with full time care because of her various duties and that her brother had provided the additional assistance required by her mother. The MRT also summarised the medical evidence supporting the claim that Mrs Braganza had a long term or permanent need for assistance. The MRT did not consider it necessary to examine the medical evidence in detail since it was not in issue that the nominator's mother had a prolonged illness. 18 The MRT recorded (at [16]) that the appellant had addressed in his submissions the Departmental interpretation of the expression "reasonable period" in the definition of "settled" in reg 1.03. The MRT summarised the appellant's submission as follows: "He claims…that if the sponsor can demonstrate that they are well established in Australia they may be able to sponsor their relation after a short period of time. He states that the nominator and her family are economically and financially stable, as both the nominator and her husband are employed. Tax file returns, bond, and FDS statements were provided as evidence." 19 The MRT noted that a hearing had been held at which oral evidence had been given by the appellant and the nominator. The MRT recorded, without providing any further details, that it had received documentary evidence including the appellant's submission and the statutory declaration prepared by the nominator. 20 The MRT identified the issue before it as whether or not the nominator was "settled" in Australia at the date of the application, within the definition in reg 1.03. The reasoning of the MRT on this point is as follows (at [32]): "The meaning of the word 'settled' is not defined in the regulations…. MSI 205 defines 'settled' as meaning lawfully resident in Australia for a reasonable period. What is a 'reasonable period' is not defined. Under policy, it can be said that in normal circumstances two years is considered to be a reasonable period before an Australian resident can lodge an application for permanent residence for another person but that there may be exceptions and the facts of each review must be considered. The Tribunal finds that the particular facts in this review are that the visa applicant is caring for an ailing parent but that there is another member of the family unit who has cared for the parent in the past and still performs some of these functions. On the facts as provided by the visa applicant there appears to be no cogent reason why, in this review, the Tribunal should waive the requirement that the nominator be resident in Australia for a 'reasonable period'. A period of nine months falls far short of the period that Departmental policy envisages as reasonable. Consideration of the specific facts and circumstances of the review do not reveal facts such as would justify departure from Departmental policy. The Tribunal is mindful of the fact that Departmental policy is not binding on the Tribunal. The Tribunal has noted the comments of Brennan J in Re Drake [and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634] with respect to the precise part which government policy should ordinarily play in the determinations of the Tribunal. His Honour's view was to the effect that it is a matter for the Tribunal itself to determine the part which policy plays in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. Further, His Honour was of the view that there are powerful considerations in favour of a Minister adopting a guiding policy, among other considerations, because adoption of a policy diminishes inconsistencies in decision-making which might otherwise appear. In light of these comments as well as the specific facts in this review the Tribunal is of the view that the decision of the delegate is the correct and preferable decision." 21 The MRT concluded for these reasons that at the date of the visa application the appellant had not qualified as a special need relative of another person, being a "settled" Australian permanent resident. 22 We should add that had the MRT found in favour of the appellant on this question, other issues would have arisen for consideration. It would have been necessary for the appellant to show, for example, that he satisfied the definition of "special need relative" notwithstanding Mrs Braganza's status in Australia. It is not entirely obvious that a permanent Australian resident (the appellant's sister) can be said to have a "permanent or long-term need for assistance" because of prolonged illness affecting a member of her family unit (Mrs Braganza), if the family member is not herself a permanent resident of Australia but merely has an unresolved pending claim for residency. The MRT did not advert to this question, perhaps because it did not need to do so in view of its conclusion that the nominator was not a "settled" permanent Australian resident. the primary judgment 23 The primary Judge first rejected three of the five arguments advanced by the appellant. Since these have not been pursued on the appeal, it is not necessary to say anything more about them. 24 His Honour then considered whether the MRT had applied the policy stated in MSI 205"as a rule" and whether it had considered the facts of the particular case. He pointed out that [32] of the MRT's reasons makes no specific reference to the nominator's evidence which, in his Honour's view, was obviously intended to demonstrate that she should be regarded as a "settled" permanent Australian resident notwithstanding that she had been a permanent resident of Australia for only nine months. His Honour continued as follows: "The question which arises is whether the generalised references to 'the facts' indicates that the MRT actually carried out the task of considering the merits of the case by determining whether those facts were sufficient to show 'cogent reasons' why the ordinary two year rule should not apply to Mrs Fernandez. What was required of the MRT was for it to give 'proper, genuine and realistic consideration' to the merits of the application and to be ready in a proper case to depart from the policy; per Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs (Gummow J, 11 December 1987, unreported) at 11-12, quoted and approved by Hill J in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98. … In my view, the reasoning of the MRT does not indicate that it gave proper, genuine and realistic consideration within the test stated by Gummow J. To do so, it would have been necessary for the MRT to reveal some analysis of the facts relied upon by the applicant. I do not think that this view is based upon an over-zealous reading of [32]. The only reference to the specific facts of the case is to facts which do not bear upon the question of whether Mrs Fernandez's period of residency was sufficient. Accordingly, I cannot be satisfied that the two other references, in generalised terms, indicate that the MRT gave the requisite degree of attention to the merits. In my opinion, the reasoning of the MRT is not saved by the reference at [16] to some of the matters which were contained in Mrs Fernandez's statutory declaration. This is because there is nothing in that paragraph or in paragraph [32] to indicate that the MRT analysed those facts in a way which would satisfy the test stated by Gummow J. For the same reason, the MRT's decision is not saved by the reference in par [29] to the list of items which were before it. It follows in my view that the decision was affected by an error of law because I cannot be satisfied that the MRT did not slavishly follow the terms of MSI 205 by giving insufficient attention to the merits of the case." 25 The primary Judge concluded, however, on the authority of NAAV v Minister,that s 474(1) of the Migration Act rendered the MRT's decision immune from review on the ground that the MRT had failed to give proper, genuine and realistic consideration to the merits of the decision or had slavishly adhered to the terms of MSI 205. reasoning 26 The appellant submitted that the primary Judge had been correct in holding both that the MRT had inflexibly applied departmental policy and had failed to give real and genuine consideration to the merits of the appellant's case. Dr Griffiths, who appeared with Dr Kirk for the appellant, contended that the MRT had simply failed to carry out the task entrusted to it by the Migration Act. In particular, it had not addressed the evidence supporting the appellant's contention that there were good reasons for departing from the prima facie position stated in MSI 205, namely that in normal circumstances two years permanent residence is considered to be a "reasonable period" for the purposes of the definition of "settled" in reg 1.03. The MRT had not "engage[d]" with the merits of the appellant's case. In effect, it had uncritically applied departmental policy, rather than assess the individual circumstances of the case. 27 Dr Griffiths did not suggest that MSI 205 was drafted on the basis of an erroneous construction of the definition of "settled" in reg 1.03. However he relied on authority supporting the proposition that the inflexible application of policy by a decision-maker can be characterised as a jurisdictional error: Rendell v Release on Licence Board (1987) 10 NSWLR 449; Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, at 418, per Gibbs CJ; British Oxygen Co Ltd v Minister of Technology [1971] AC 610, at 624-626, per Lord Reid (referring to the necessity for a "real or genuine exercise of the discretion"). 28 Dr Griffiths recognised that the joint judgment in Plaintiff S157/2002 v Commonwealth contemplates (at 46 [77]) that it may be necessary to engage in a process of "reconciliation" between s 474(1) and other provisions of the Migration Act "to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction." He contended, however, that the MRT's error in this case was jurisdictional in character. This flowed from the MRT's "fundamental" obligation under Part 5 of the Migration Act to review and determine individual cases. Specifically, the MRT was obliged to review an "MRT-reviewable decision" (s 348(1)) and to act according to substantial justice and the merits of the case (s 353(2)(b)). A failure to give real and genuine consideration to the merits of the case contravened the MRT's statutory obligations and amounted to jurisdictional error. 29 The threshold question is whether the MRT can be said to have inflexibly applied departmental policy or failed to give genuine and serious consideration to the merits of the case. 30 It is true that, in certain respects, the MRT's language is somewhat loose. For example, the MRT was in error when it asserted that the word "settled" is not defined in the Migration Regulations. Nor was it accurate for the MRT to characterise the relevant question as whether it should "waive the requirement that the nominator be resident in Australia for a 'reasonable period'". It is also true that the MRT's reasoning on the "reasonable period question" is not spelled out in any detail. But these defects do not demonstrate that the MRT inflexibly applied departmental policy or failed to consider the merits of the case. 31 As Dr Griffiths accepted, the MRT correctly stated, on the authority of Re Drake and Minister for Immigration, that although it was required to have regard to departmental policy, that policy was not binding on it. It was open to the MRT, in the interests of consistency, to apply the departmental policy unless there were cogent reasons for departing from it. Moreover, the MRT fairly summarised the appellant's submission that a finding should be made that the nominator had been lawfully resident in Australia for a "reasonable period" notwithstanding that, at the date of the application for a visa, she had been a permanent resident for only nine months. While Dr Griffiths was reluctant to concede the point, it is clear that the appellant's submission was founded on the evidence contained in the nominator's statutory declaration. 32 In the key paragraph in the reasons ([32]), the MRT expressly stated that MSI 205 itself contemplated that there could be exceptions to the general rule that, in normal circumstances, two years could be considered a "reasonable period". The MRT gave two reasons for concluding that it should not depart from the general rule stated in the departmental policy. First, the appellant was one of two family members caring for Mrs Braganza. It is implicit in this observation that the MRT considered that, in these circumstances, the case for regarding nine months as a reasonable period of permanent residence was less cogent than if the appellant had been the sole carer for his ailing mother. Secondly, the MRT considered that the facts relied on by the appellant, which the MRT had previously summarised, were insufficient to establish cogent reasons justifying departure from the departmental policy. 33 Leaving aside the two minor errors to which we have referred (on which the appellant placed no reliance), the MRT's reasons showed that it * correctly understood the role of departmental policy in the decision-making process; * asked itself the correct question in terms of the statutory criteria; * considered the facts put forward by the appellant as justifying departure from the departmental policy; and * concluded that those facts did not warrant such a departure. 34 In these circumstances, we do not think it can be said that the MRT slavishly followed the terms of MSI 205. It appreciated that that course was not open to it and specifically considered whether a departure from the terms of the policy was warranted. Nor can it be said that the MRT failed to consider the merits of the appellant's case. It took account of the circumstances put forward by the appellant in determining whether the nominator had been lawfully resident in Australia for a "reasonable period". Its conclusion that she had not been resident for a reasonable period was essentially evaluative in character. 35 The appellant's complaint in substance is that the MRT did not explain in sufficient detail why it considered the facts relied on by the appellant were not sufficiently cogent to justify departing from the general rule stated in MSI 205, that in normal circumstances a period of two years would be reasonable. That of itself is not an error and indeed Dr Griffiths did not suggest otherwise. While there may have been some virtue in the MRT stating the reasons for its evaluation judgment more fully, its failure to do so does not establish that it inflexibly applied departmental policy or that it failed to consider the merits of the appellant's case. 36 On this issue we have reached a different conclusion than that reached by the primary Judge. His Honour said that the MRT's decision was affected by an error of law because he could not be satisfied that the MRT had not slavishly followed the terms of MSI 205. However, with respect, the issue was not whether the Minister could satisfy his Honour that the MRT had not inflexibly applied MSI 205. Rather it was whether the applicant could satisfy the Court that the MRT had inflexibly applied the Departmental policy. It may have been for this reason that his Honour concluded that, subject to the effect of s 474(1) of the Migration Act, the MRT had erred in law. 37 In view of the conclusion we have reached, there is no need to consider whether an inflexible application of Departmental policy, or a failure to give proper, genuine and realistic consideration to the merits of the application, would have constituted a jurisdictional error in the sense identified in S157/2002 v Commonwealth: cf Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 at [42]ff. Nor is it necessary to consider whether, as the appellant's submissions seem to assume, a failure to give proper, genuine and realistic consideration to the merits of an application is an independent basis for imputing jurisdictional error to a decision-maker: cf Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426; Bruce v Cole (1998) 45 NSWLR 163, at 185, per Spigelman CJ; Flentjar v Repatriation Commission, (1997) 48 ALD 1. Conclusion 38 The appeal must be dismissed. The appellant must pay the Minister's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Sackville & Hely. Associate: Dated: 8 August 2003 Counsel for the Appellant: J Griffiths SC with JK Kirk Counsel for the Respondent: R Bromwich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 2003 Date of Judgment: 8 August 2003