21 May 2007
Key Points:
Decision-makers must apply the correct test, not only asking but answering the right question. Care must be taken to avoid relying on policy rather than the words of the legislation, to avoid using short-hand for the legal test where there may be subtle differences between the two, and to ensure that all relevant considerations are canvassed.
One of the most common errors giving rise to jurisdictional error is when the decision-maker asks the wrong question or uses loose language to express the test that is being applied. Once the entire case is identified, it is vital that the decision-maker asks the correct legal question when making a decision.
Focus on the words of the statute
The High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53 provides a useful reminder that a decision-maker must focus on the words of the statute when making a decision. In QAAH, the question under section 36 of the Migration Act 1958 (Cth) was whether QAAH, the applicant for a protection visa, was "a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" [emphasis added]. In this case, the decision-maker (the Refugee Review Tribunal) applied the right test, using the language of the Act, but the Full Court of the Federal Court put its own gloss on the language of the statute, relying upon the Refugees Convention and the Refugees Protocol.
QAAH had been granted a three year temporary protection visa in 2000. In 2003, he applied for a permanent visa. His application was rejected by a delegate, and the RRT affirmed that decision, coming to the conclusion that QAAH did not have a well-founded fear of persecution. QAAH unsuccessfully sought judicial review of the RRT’s decision. For Justice Dowsett, the question of whether Australia "has protection obligations" depended upon whether, at the time of the RRT’s decision, the applicant had a well-founded fear of persecution for a Convention reason.
A majority of the Full Court of the Federal Court allowed the appeal, considering that, as QAAH had held a temporary protection visa, the Minister had the onus of showing that there were substantial, effective and durable changes in circumstances which resulted in the Convention ceasing to apply to the protection visa applicant pursuant to art 1C(5) of the Convention (ie. circumstances giving rise to refugee status had ceased to exist). According to this view, the recognition of QAAH as a refugee for the purposes of the temporary visa had a continuing operation until the Convention ceased to apply pursuant to Article 1C(5).
The High Court allowed the appeal, and rejected the approach of the Full Court of the Federal Court. The High Court emphasised that it is the words of the Act which need to be construed. Although the Convention might inform the construction of the Act and the Regulations, the Convention had not been incorporated into domestic law. As the Court said, "[i]t is the law of Australia which must first be identified".
Under the Act, a visa subsists until it expires. Once a visa expires, the holder must make a fresh application for another visa, otherwise that person would have no entitlement to remain in Australia. On that fresh application, the question to be considered by the decision-maker is whether the applicant "is a person to whom Australia has (not, it may be observed, ‘in the past had, or owed’) protection obligations under the Convention". The High Court held that the approach of the majority of the Full Court of the Federal Court, which placed the onus on the Minister to prove changes of a substantial, effective and durable kind, failed to give effect to the Act.
In NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54, a majority of the court reinforced its observations in QAAH.
Relevant and irrelevant considerations
Applying the right test requires considering relevant considerations under the legislation without considering any irrelevant considerations. The question of relevant/irrelevant considerations is addressed in two recent cases.
In Minister for Immigration and Multicultural Affairs v Nystrom (2006) 230 ALR 370; [2006] HCA 50, Mr Nystrom’s Transitional (Permanent) Visa was cancelled by the Minister under section 501 of the Migration Act as he had a substantial criminal record.
Mr Nystrom challenged the decision on the basis that the Minister had not considered the fact that he also held an absorbed person visa by operation of law.
Section 501F(3) of the Act provided that, if the person holds another visa that is not, inter alia, a protection visa, then the Minister is taken to have decided to cancel the other visa. However, Mr Nystrom argued that the failure to consider the other visa amounted to a failure to take into account a relevant consideration.
The Full Court of the Federal Court found the existence of a mandatory relevant consideration, holding that it was jurisdictional error for the Minister not to identify and consider the fact that Mr Nystrom held an absorbed person visa that would be directly affected by section 501F(3).
The High Court held that there was no failure to take into account a relevant consideration. Justices Heydon and Crennan (with Chief Justice Gleeson agreeing) did so on the basis that there was no consideration relevant to
Mr Nystrom’s absorbed person visa which was not relevant to and considered when the Minister cancelled his Transitional (Permanent) Visa, while Justices Gummow and Hayne did so on the basis that the terms of section 501F(3) were incompatible with such a requirement to take into account the other visa.
The High Court emphasised that the legislation is clear and that it is not appropriate to impose other requirements upon the Minister. Justices Gummow and Hayne stated:
"In its terms, section 501F(3) provides that a decision to cancel a visa where a person fails the character test under section 501 "is taken" to be a decision to cancel any other visa held by the person. There is no room for discretion in the matter. The only exception applies if the other visa is within section 501F(3)(b): namely, a protection visa or a visa specified in the Regulations.
Nothing in the text of section 501 or section 501F provides any support for reading into section 501(2) a requirement to consider the possible effect of section 501F on the respondent. Nor do the extrinsic materials provide any support for this contention. The evident purpose of section 501F, at least in part and as Emmett J indicated in his dissenting judgment, is to ensure that a person who fails the character test is liable to be removed from Australia, not-withstanding any other permission that person might have to remain here."
Justices Heydon and Crennan stated:
"Parliament has left it to the minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.
In these circumstances where Mr Nystrom holds two visas, each of which confers the same substantive rights, in cancelling one the minister is not bound to take into account the "nature" of the other. This is because there was no consideration relevant to Mr Nystrom’s absorbed person visa which was not relevant to and considered when the minister cancelled his transitional (permanent) visa. Thus, there has been no failure to take account of relevant considerations. Section 501F(3) confirms that conclusion."
Permissible considerations
In Saville v Health Care Complaints Commission [2006] NSWCA 298,
Dr Saville applied for judicial review of the Medical Tribunal’s decision to order that Dr Saville not be permitted to practise as a psychotherapist unsupervised, following complaints of inappropriate conduct with a young, female patient.
Dr Saville claimed that the Tribunal had failed to take into account a relevant consideration, being that the Tribunal had not taken into account "the absence of any need for an order precluding the plaintiff from solo general practice", and had taken into account an irrelevant consideration, being whether "there was a need for supervision of the plaintiff in his general medical practice".
The court found that this was really an attempt to challenge the merits of the decision, commenting that the appropriate ground of review would have been manifest unreasonableness (noting that such a ground would have been doomed to fail).
In relation to irrelevant considerations, the court noted that legal error is demonstrated only where a matter is taken into account which the law prohibits. The court stated that most matters taken into account in judicial or quasi-judicial proceedings are permissible considerations.
Asking the right question
With respect to asking the right question, MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 continues the High Court’s approach in Appellant S395; S396 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473.
In Appellant S395; S396, the High Court held that the RRT asked the wrong legal question. The case concerned a homosexual couple claiming fear of persecution in their applications for protection visas. The court held that the RRT made an error of law by not asking the right question, ie. whether there was a well-founded fear of persecution. Instead, the RRT asked whether the men will be persecuted in fact and found that the men would not be persecuted because they were likely to act discreetly.
Appellant S395; S396 was applied in MZWDG, in which MZWDG was found not to satisfy the Tribunal that he faced persecution on return to Burma as he "will not act in such a way as to bring himself to the adverse attention of [the Burmese] authorities". Justice Young expressed concern with the Tribunal’s characterisation of the MZWDG’s likely profile with the Burmese Government as a "low-profile" rather than "high-profile" anti-Government protestor. He stated that there is a "degree of artificiality or stereotyping about the process of categorising an applicant as either ‘high-profile’ or ‘low-profile’ [which] carries with it a risk of obscuring the fundamental question that the Tribunal is required to consider, namely whether an applicant has a well-founded fear of persecution for a Convention reason".
Looking at policy instead of the legislation
Decision-makers must be careful to avoid relying on policy rather than looking to the legislation to identify the correct question, as a policy document may misinterpret or misstate the legislative provision. In Tran v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 536; [2006] FCA 1229 the Federal Court quashed the Tribunal’s decision as the Minister was found to have applied a departmental policy which did not correspond to the requirements of the regulations as it was narrower than the regulations. The Tribunal had made a jurisdictional error in applying the Minister’s policy rather than the criteria in the legislation.
For further information, please contact John Carroll.
