FEDERAL COURT OF AUSTRALIA Su v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 655 MIGRATION - Appeal from Federal Magistrates Court decision dismissing application for judicial review of Migration Review Tribunal (MRT) decision - refusal of Temporary Business (Class UC) Subclass 457 visa where appellant not in possession of substantive visa when visa application lodged - whether appellant not in possession of substantive visa for 'factors beyond his control' - whether MRT committed jurisdictional error by mechanically applying Migration Series Instruction 374 - appeal allowed Migration Act 1958 (Cth) s 5, 359A Migration Regulations 1994 Schedule 3, criterion 3004 Migration Series Instructions 374 Susaki v Minister for Immigration & Multicultural Affairs [1999] FCA 196 cited PIN LIANG SU & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 357 OF 2005 HELY J 24 MAY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 357 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PIN LIANG SU XIN QUIONG SU APPELLANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 24 MAY 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be upheld. 2. The orders made by Lloyd-Jones FM on 24 February 2005 be set aside. 3. The decision made by the MRT on 21 July 2004 be set aside. 4. The matter be remitted to the MRT for determination according to law. 5. The Minister pay the appellant's costs of the proceedings in the Federal Magistrates Court, and of the appeal to this Court. 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 NSD 357 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PIN LIANG SU XIN QUIONG SU APPELLANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE: 24 MAY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants are husband and wife, who are citizens of the People's Republic of China. It is convenient to refer to the first appellant as 'the appellant'. 2 The appellant entered Australia on 28 December 2000 travelling on a Temporary Business (Class UC) Subclass 457 visa. That visa is a 'substantive visa' as defined in s 5 of the Migration Act 1958 (Cth) ('the Act'), however, it ceased on 11 December 2002. The visa was stamped in the appellant's passport, and was shown as expiring on that date. 3 On 23 December 2002 the appellant lodged an application for an Employer Nomination (Residence) (Class BW) visa and was granted a bridging visa. That visa application did not proceed, as on 27 December 2002 the appellant left his employment upon which his employer nomination was based. The application was ultimately refused on 10 March 2003. 4 Under cover of a letter dated 19 February 2003, the appellant again applied for a Temporary Business (Class UC) Subclass 457 visa. The appellant was not then the holder of a substantive visa, hence (pursuant to Schedule 2, cl 457.211(d) of the Migration Regulations ('the Regulations')) one of the primary criteria to be met at the time of the application was that the appellant satisfy Schedule 3, criterion 3004 of the Regulations. Criterion 3004 in Schedule 3 is satisfied if (inter alia) the Minister is satisfied that: '(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and (d) there are compelling reasons for granting the visa …' (emphasis added) 5 The visa application did not address the issue of the appellant's reasons for lodging the application when he was not the holder of a substantive visa. In response to a request made by the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA') for information on that question, by letter dated 28 March 2003 the appellant's migration agent (Phillip Au of Phillip Au & Associates) advised: 'At the time of application the Visa Applicant was not a holder of a substantive visa because of factors beyond the applicant's control. As the Applicant is not familiar with all the procedures and specific details of migration law, he misunderstood the period of effect and condition of his visa. The Applicant was unaware of his visa status but acted expeditiously when he first became aware of his unlawful status.' 6 The appellant failed to satisfy the Minister's delegate that he met the requirements of criterion 3004(c), hence the visa application was refused. The delegate said that the mere fact that the appellant claims to have misunderstood the 'period of effect and condition of this visa' does not on its own constitute factors beyond his control. An agency agreement between an applicant and their migration agent operates such that the agent is taken to be acting as the applicant, hence a failure on the part of the agent to look after the appellant's best interests did not constitute a factor beyond the appellant's control. The MRT proceedings 7 An application for review of that decision was made to the Migration Review Tribunal ('the MRT'). By now Mr Peter Bollard, a solicitor and migration agent, was acting as the appellant's adviser. In response to an invitation issued by the MRT pursuant to s 359A of the Act, Mr Bollard advised the MRT on 10 May 2004 as follows: '(a) We are instructed by the applicant that he ceased to be the holder of a substantive visa due to confusion on his part about when the existing Subclass 457 visa held by him expired. (b) In this regard the applicant instructs us that he believed that he had until 28 December 2002 to lodge his application. (c) You will note that an application for a Subclass 856 visa was lodged on 23 December 2002 and he was granted a Bridging Visa C on that date. (d) The application for a Subclass 457 visa was lodged on 20 February 2003.' 8 A hearing was held by the MRT on 23 June 2004. The appellant attended the hearing giving evidence through the medium of an interpreter and in the presence of his adviser. At that hearing the appellant's evidence was that he did not apply for the present visa while he still had his previous 457 visa because he did not then understand that he had to apply earlier. The following exchange appears at p 10-12 of the MRT transcript: 'Q. 037 (Member): So, did you understand that there was a requirement for you to, to apply for this Visa, this 457 Visa before your previous 457 Visa expires? A. (Interpreter): I understand now! Q. 038 (Member): Yeah! So, why, why didn't you apply, then? Why did you wait 'til after your previous Visa expired before you applied for this Visa? A. (Interpreter): I understand now but before I applied I did not understand. I only realised after I spoke to this Agent, and the Solicitor. But before that I did not understand. Q. 039 (Member): So, you did not understand when you had the previous Representative? You understand now that you've got a new Representative! But before, with your previous Representative, you didn't understand that you had to apply earlier? A. (Interpreter): Yes! Q.040 (Member): Mmm! So, you're saying that your previous Representative, really, didn't explain, to you, what was required? A. (Interpreter): Yes! Q.041 (Member): Mmm! Were there any other reasons? For example, are you aware whether, for example, the Department gave you the wrong information? A. (Interpreter): No, there isn't! Q. 042 (Member): Yeah! So, yeah, you're not! The main reason is that your previous Representative did not give you, didn't tell you that you had to apply earlier? A. (Interpreter): That's correct! Q. 043 (Member): OK! Now, well, I'll have to consider that, whether that constitutes "factors beyond your control". A. (Interpreter): Another thing I did not understand was at the 1st December 2002, the date of the, the date of entry, and the date of approval. I got confused about those two dates. It was my confusion! Q. 044 (Member): So, what, you, you, you mentioned a date of December 2002. What, what, what's the significance of that date? A. (Interpreter): That was the date of the Visa Approval. Q. 045 (Member): Year! The date, are you talking about the 11th, what date is it, the 11 December, is that the right date? A. (Interpreter): 11th. Q. 046 (Member): Yeah! The 11th December 2002 was the date your previous Visa, your previous 457 Visa finished? A. (Interpreter): Yes! The thing that I was confused is about this date, and the other date.' The following exchange between the MRT Member and the appellant's adviser appears at p 16-18 of the MRT transcript: 'A. (Advisor): Sir, just one issue, earlier on. Mr Su mentioned about the confusion of the dates. Earlier on, I overheard, I heard that he said the date of the entry. Q. 064 (Member): Yeah! A. (Advisor): So, the fact that the previous Agent didn't explain, he was under the impression that on the 28 December year 2000 that was the date he entered Australia. Q. 065 (Member): Mmm! A. (Advisor): And, he took to mean that was the date the Visa would be valid for two years. Q. 066 (Member): Mmm! A. (Advisor): And, that is part of the problem. Q. 067 (Member): Mmm! Is he saying, the Representative advised him that or the Department? A. (Advisor): No! He himself … Q. 068 (Member): Thought it was for two years? A. (Advisor): … Thought that was for two years. Even when the Representative was telling him that as long it's within two years that was OK! So, that was the explanation. My understand is that because over the last few weeks, I have been sitting down with Mr Su, and talked about, you know, the issues that were involved. Q. 069 (Member): Mmm! A. (Advisor): He indicated to me that he didn't understand until I explained, to him, the crucial date, it's, really, the date of the grant of the Visa. Q. 070 (Member): Yeah! Well, the date of expiry of the Visa. A. (Advisor): Exactly! So that the expiry date corresponds to the grant of the Visa, which was on the 11th December, and it expired on the 11th December 2000 after the date of grant. Also …' At p 18-19 of the MRT transcript the following further exchange between the MRT Member and the appellant appears: 'Q. 071 (Member): So, you thought you had two years from the day you entered Australia? Is that correct? You thought you had two years? A. (Interpreter): Yes! Q. 072 (Member): So, you thought you had up 'til 28th December 2002? A. (Interpreter): Yes! Q. 073 (Member): Yeah! OK! And, of course, you applied for your Permanent Visa on the 23rd December 2002, didn't you? A. (Interpreter): Yes! Q. 074 (Member): OK! Well, I'll take that into consideration, as well. Although, really, there's always an expectation that you should make sure that you are aware of the conditions of your Visa or any Visas that you apply for! Normally, what we're looking for under this condition is that, maybe, the Department gave you wrong information and or that you were, somehow, physically unable to apply because you were in Hospital. A. (Interpreter): Yeah! I did not know. I'd handed everything to my Agent, then. Q. 075 (Member): Mmm! Mmm! Well, as I've said, I'll, I'll, certainly, will take, very seriously, the reasons you gave.' The MRT's decision 9 One of the documents which was before the MRT was a document referred to by the MRT as the Migration Series Instructions ('MSI'), which the MRT said contained 'relevant policy guidelines'. The MRT said that it was required to have regard to policy and apply it unless there are cogent reasons for departing from policy. In its statement of decision and reasons the MRT said: '20. Paragraph (c) of criterion 3004 requires that the visa applicant is not the holder of a substantive visa (at the time of application) because of factors beyond his control. MSI-374 provides the following relevant policy guidelines: 6.5.9 "Factors beyond the applicant's control" – This phrase should be given its natural meaning and considered against all relevant circumstances of the applicant. 6.5.10.1The test is whether the applicant became a person to whom 3003 or 3004 applies as a consequence of a circumstance or circumstances which were external to the person and over which he had no control. … 6.5.25 Cases arise where applicants advise that their agent or lawyer was responsible for them not making their application prior to their substantive visa ceasing, for example because the agent failed to submit the application in time. 6.5.26 In law, an agency agreement between an applicant and their lawyer or migration agent operates such that the agent (ie the lawyer or migration agent) will be taken to be acting as the applicant. 6.5.27 Failure by the agent or lawyer to look after the applicant's best interests may be grounds for the applicant to take legal action against their agent, but would not normally be grounds (on its own) for finding that the applicant became an illegal entrant or a person in Australia without a substantive visa due to factors beyond their control.' (emphasis added) 10 I was informed by counsel for both parties that MSI's are not directions given by the Minister under s 499 of the Act. An MSI is in the nature of a departmental handbook intended to aid in the decision-making process. Clearly enough, a decision as to whether the appellant was not the holder of a substantive visa when he applied for the visa in question because of factors beyond his control is a factual question, which requires neither the consideration of 'policy' nor the exercise of a discretion. 11 The MRT made the following 'findings' on the issue of whether the fact that the appellant was not the holder of a substantive visa on 19 February 2003 was because of factors beyond the appellant's control. I describe them as 'findings' because they are merely a recitation of the appellant's claims (or some of them), although both counsel were inclined to accept in submissions that the MRT was proceeding on the basis that the appellant's claims in this respect accorded with or should be assumed to accord with the facts: '21. The visa applicant told the Department that his visa expired less than 28 days before he lodged his application for a Subclass 856 (Residence) visa (to which criterion 3004 is also relevant). He claimed that he was not aware of all the procedures and specific details of migration law and misunderstood the requirements of his visa. The visa applicant told the Tribunal that he had not understood the requirement to apply for the visa before his previous visa expired and he had not been informed of this requirement by his then representative.' 12 It should be noted that the MRT does not make any specific finding on whether the appellant was dependent upon his original migration agent for advice, or whether he relied upon that agent to keep him informed of necessary deadlines. In fairness to the MRT, it should be observed that matters of dependency or reliance were not referred to in the letter sent by the former adviser to DIMIA, or by the letter sent by Mr Bollard to the MRT. However, at the MRT hearing the appellant apparently needed the services of an interpreter, and at p 19 of the MRT transcript, in the passage quoted above, the appellant said 'I'd handed everything to my Agent, then'. 13 Having made the 'finding' set out in [11] above, the MRT expressed its conclusion as follows: 'However, as is set out in paragraph 6.5.27 above, bad or no advice by an applicant's representative is not on its own grounds for finding that the visa applicant did not have a substantive visa at the time of application because of factors beyond his control. In the absence of other factors, the Tribunal is unable to make such a finding. The visa applicant therefore does not meet the requirements of criterion 3004. Given this and earlier findings, it follows that the visa applicant does not meet clause 457.211 of the Regulations.' 14 Ultimately, the issue on this appeal reduced to a very narrow question: whether the MRT mechanically applied par 6.5.27 of the MSI to the appellant's claims, rather than the statutory test. Counsel for the Minister accepted that if the MRT's decision was properly characterised as the former, then it addressed the wrong question and thereby committed a jurisdictional error. The Federal Magistrates Court 15 Application was made to the Federal Magistrates Court for judicial review of the MRT's decision. The substantial ground on which review was sought was that the MRT erred in its interpretation of criterion 3004(c) in Schedule 3 of the Regulations in that the MRT considered itself as bound to apply the respondent's policy set out in par 6.5.27 of MSI 374. 16 Federal Magistrate Lloyd-Jones found that the MRT, whilst reproducing the contents of MSI 374, and in particular par 6.5.27, did not apply that provision; rather the MRT reached its conclusion by direct deduction from the terms of criterion 3004(c). The MRT did not, in his Honour's opinion, apply par 6.5.27 of MSI 374, because it was incapable of application in the circumstances of the present case where what was relied upon was the absence of advice, which does not give any basis on which one could reach the view that the appellant's state of ignorance was attributable to factors external to him. That does not necessarily lead to the conclusion that the MRT did not purport to apply par 6.5.27. Decision 17 I respectfully disagree with the conclusion which his Honour reached. In my view, the MRT proceeded upon the basis that the resolution of the issue before it was to be found in and by the application of par 6.5.27 of MSI 374 to the appellant's claims. Early in its statement of decision and reasons the MRT implied it should have regard to and apply the provisions of the MSI unless there are cogent reasons for departing from it. Paragraph 21 of its statement of decision and reasons conveys that the MRT reached its decision because the appellant's claim was grounded on bad or no advice by his adviser. The MRT treats that as sufficient to dispose of the case by reference to agency principles (why otherwise quote par 6.5.26 of MSI 374?) rendering unnecessary a consideration of the more complex factual question of whether bad or no advice in all the circumstances might support a conclusion that factors beyond the appellant's control were the cause of the problem with which he was confronted. 18 There was material before the MRT which raised as an issue whether the appellant relied upon his migration agent to advise him of the cut-off date by which any further visa application was required to be made. This material was both circumstantial, and direct in terms of the assertion that the appellant had 'handed everything' to his migration agent. Whether that material was sufficient to satisfy the MRT of the fact of reliance on advice from the agent, and if so, whether that satisfied criterion 3004(c) were matters for the MRT to determine: cf Susaki v Minister for Immigration & Multicultural Affairs [1999] FCA 196. The MRT did not address those questions because it wrongly regarded par 6.5.27 of MSI 374 as dictating the outcome of the visa application. 19 Counsel for the Minister put an alternative submission that even if the interaction (or lack of it) between the appellant and his migration agent explained the failure to apply for a Class 457 visa up to 28 December 2002, it was incapable of establishing that the appellant was not the holder of a substantive visa on 19 February 2003 due to factors beyond the appellant's control. Counsel submits that there is no satisfactory explanation for the delay after 28 December 2002. In my view, this submission leads nowhere, because from and after 11 December 2002 the appellant ceased to be the holder of a substantive visa, and there was nothing which he could do to overcome that problem. If that situation arose as a result of factors beyond his control, then it did not matter for the purposes of criterion 3004(c) how much time elapsed before he next made application for a substantive visa although delay not satisfactorily explained might be germane to criterion 3004(d). Conclusion 20 I therefore make the following orders: 1. The appeal be upheld. 2. The orders made by Lloyd-Jones FM on 24 February 2005 be set aside. 3. The decision made by the MRT on 21 July 2004 be set aside. 4. The matter be remitted to the MRT for determination according to law. 5. The Minister pay the appellant's costs of the proceedings in the Federal Magistrates Court, and of the appeal to this Court. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 24 May 2005 Counsel for the Appellant: N Poynder Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Phillips Fox Date of Hearing: 4 May 2005 Date of Judgment: 24 May 2005