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MIGRATION - judicial review - Migration Review Tribunal - visa grant criteria - application by Tribunal of departmental policy - erroneously narrow construction of visa grant criteria in departmental policy - misconstruction of visa grant criterion by Migration Review Tribunal - jurisdictional error - privative clause - principles governing application of privative clause - requirement for reconciliation of privative clause and limitations and conditions under Act - misapplication of visa grant criteria constituting jurisdictional error - Business Skills (Residence) (Class BH) visa) - visa grant criterion - `direct ... and continuous involvement in the management of ... business' - `... making decisions that affected the overall direction and performance of ... business' - appeal allowed - certiorari and mandamus issued

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168 (8 August 2003)
Last Updated: 11 August 2003


FEDERAL COURT OF AUSTRALIA


Lobo v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 168


MIGRATION - judicial review - Migration Review Tribunal - visa grant criteria - application by Tribunal of departmental policy - erroneously narrow construction of visa grant criteria in departmental policy - misconstruction of visa grant criterion by Migration Review Tribunal - jurisdictional error - privative clause - principles governing application of privative clause - requirement for reconciliation of privative clause and limitations and conditions under Act - misapplication of visa grant criteria constituting jurisdictional error - Business Skills (Residence) (Class BH) visa) - visa grant criterion - `direct ... and continuous involvement in the management of ... business' - `... making decisions that affected the overall direction and performance of ... business' - appeal allowed - certiorari and mandamus issued

Migration Act 1958 (Cth) s 29, s 474

Migration Regulations 1994 reg 2.01, reg 2.02, reg 2.03(1) and (2)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 applied

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 cited

Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 24 discussed

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 cited

R v Murray; Ex parte Proctor (1949) 77 CLR 387 cited

R v Metal Trades Employees Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 cited

Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 cited

Craig v South Australia (1995) 184 CLR 163 cited

Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265 cited

Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 cited

Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 cited

Sinclair v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 571 cited

Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 followed

SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121 cited

SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 49 cited

Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60 cited

Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 cited

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129 cited

JOYCE LOBO AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N285 OF 2003

FRENCH, SACKVILLE AND HELY JJ

8 AUGUST 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N285 OF 2003




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
JOYCE LOBO, PHILIP ANDREW LOBO, REENA LOBO, RITISHKA LOBO

APPELLANTS


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
FRENCH, SACKVILLE AND HELY JJ


DATE OF ORDER:
8 AUGUST 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of Gyles J made on 6 March 2003 are set aside.

3. An order is made in the nature of certiorari directed to the Migration Review Tribunal quashing its decision given on 6 November 2002 affirming the decision of the Respondent's delegate to refuse the Appellants' visa application.

4. An order is made in the nature of mandamus directed to the Migration Review Tribunal to rehear and determine the Appellants' application for review according to law.

5. The Respondent is to pay the Appellants' costs of the appeal and of the application.

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
N285 OF 2003




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
JOYCE LOBO, PHILIP ANDREW LOBO, REENA LOBO, RITISHKA LOBO

APPELLANTS


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
FRENCH, SACKVILLE AND HELY JJ


DATE:
8 AUGUST 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

Introduction

1 Joyce Lobo is an Indian national who first entered Australia on 30 September 1996 on a short-stay tourist visa valid until 30 December 1996. In November 1996 she was granted a bridging visa valid for stay until 8 April 1997 when she was issued with a temporary business entry visa that was valid for stay until 8 November 2001. On 2 April 2001 she was granted a further bridging visa.

2 The proceedings which have led to the present appeal originate in Mrs Lobo's application for a Business Skills (Residence) (Class BH) visa on 30 August 1999. The subclass of visa, Class BH for which she applied, was subclass 845 (Established Business in Australia). Her husband, Mr Philip Lobo, and their daughters, Reena and Ritishka, were included in the application as secondary visa applicants. The application was refused by a delegate of the Minister for Immigration and Ethnic Affairs on 8 March 2001. Mrs Lobo and her family applied to the Migration Review Tribunal (`the Tribunal') on 14 March 2001 for review of the decision. On 6 November 2002, the Tribunal affirmed the decision.

3 Mrs Lobo and her husband and children then applied to the Court pursuant to s 39B of the Judiciary Act 1903 (Cth). They sought a writ of certiorari to quash the decision of the Tribunal, mandamus directed to the Tribunal to hear and determine their application according to law and prohibition directed to the Minister preventing him or his agents or delegates from acting upon or giving effect to the decision. Other relief was sought which is not material for present purposes.

4 After a hearing on 27 and 28 February 2003 Gyles J ordered, on 6 March 2003, that the application be dismissed and the appellants pay the respondent's costs excluding the costs of 28 February. Mrs Lobo and her family now appeal against that decision.

5 Gyles J, at first instance, found that the Tribunal had erred in applying a departmental policy to the visa application which was narrower in terms than the relevant criterion which it should have applied. His Honour held, however, that relief was not available because of the operation of the privative clause s 474 of the Migration Act. The appeal against his Honour's decision raises a question about the application of the privative clause to the misconstruction of criteria for the grant of visas under the Act. The Court is also invited by counsel for the Minister to hold that a Full Court decision delivered since the judgment of Gyles J, and to contrary effect, was plainly wrong.

Statutory Framework - The Grant and Refusal of Business Visas

6 The Minister is empowered by s 29 of the Migration Act to grant a non-citizen permission, to be known as a visa, to do either or both of the following:

`(a) travel to and enter Australia;
(b) remain in Australia.'

Visas may be permanent or temporary (s 30). There are various classes of visas some specified in the Act itself and others prescribed by regulation (s 31(1) and (2)). The criteria for visas of specified classes may be prescribed by regulation (s 31(3)). The Act does not itself specify the class of business visas although it does provide for their cancellation in ss 134-137.

7 Generally speaking a non-citizen who wants a visa must apply for a visa of a particular class (s 45). An application for a visa will be valid if, and only if, it is for a visa of a class specified in the application and, under the Regulations, is taken to have been validly made (s 46(1) and (2)). The Regulations may prescribe criteria to be satisfied for an application for a visa of a specified class to be a valid application (s 46(3)). The Minister is obliged to consider a valid application for a visa (s 47).

8 Section 65 relevantly for present purposes provides:

`65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted),500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.'


Section 65(2) is not relevant for present purposes. There is an obligation on the Minister to notify the applicant of a decision to grant or refuse a visa (s 66(1)). The notification of a decision to refuse an application for a visa, where the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, must specify that criterion (s 66(2)(a)).

9 The Migration Regulations 1994 prescribe classes of visas for the purposes of s 31 of the Act. Thus Regulation 2.01 provides:

`2.01 For the purposes of section 31 of the Act, the prescribed classes of visas are:
(a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and

(b) the following classes:

(i) transitional (permanent); and

(ii) transitional (temporary).'

Regulation 2.02 applies to subclasses thus:

`2.02(1) Schedule 2 is divided into Parts each identified by the word "Subclass" followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.

(2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa.'

10 The criteria applicable to classes of visa are provided for in reg 2.03, the relevant parts of which are as follows:

`2.03(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or

(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

(2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion.'

Regulation 2.03(3) is not relevant for present purposes.

11 At the time Mrs Lobo made her application Schedule 1 to the Migration Regulations provided for the grant of a Business Skills (Residence) (Class BH) visa. Schedule 2 to the Regulations defined a number of subclasses including subclass 845 (Established Business in Australia). The only subclass in respect of which any claim was advanced before the Tribunal was subclass 845 (Established Business in Australia). The Tribunal found no evidence to suggest that the visa applicants met key criteria for any of the other subclasses and there has been no submission to the contrary in this Court.

12 Schedule 2 of the Regulations sets out a number of criteria for the grant of subclass 845 (Established Business in Australia) visas. Item 845.2 in the Second Schedule requires that the primary criteria for the grant of the visa must be satisfied by at least one member of a family unit. The members of the family unit who are also applicants for a visa in that subclass need only satisfy secondary criteria.

13 The first of the criteria to be satisfied is that the applicant holds a temporary substantive visa (subject to certain immaterial exceptions). The second criterion, at 845.212, is that the applicant has been in Australia as the holder of the temporary substantive visa for at least nine months during the period of twelve months immediately preceding the making of the application. Subsequent criteria relate to the applicant's involvement with an established business and its value. Relevantly for present purposes, these items are:

`845.213 The applicant:
(a) has had an ownership interest in 1 or more established main businesses in Australia for the period of 18 months immediately preceding the making of the application; and

(b) continues to have an interest of that kind.

...

845.216 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.

845.217 The applicant has overall had a successful business career...'


Other criteria to be satisfied at the time of decision include the applicant's score on the business skills point test (845.222) and satisfaction of public interest criteria (845.223).

Statutory Framework - The Privative Clause

14 Critical to the outcome of the present case is the operation of s 474 of the Migration Act enacted by the Migration Legislation Amendment (Judicial Review) Act (No 134 of 2001). As a result of that amendment the Migration Act creates a class of decision called a `privative clause decision' which is defined in s 474(2) thus:

`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), other than a decision referred to in subsection (4) or (5).'

The term `decision' is defined broadly in s 474(3) and includes a reference to the grant or refusal of a visa. It also includes a decision on review of a decision. The operative subsection of s 474 is subs (1) which provides:

`474(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.'


The Tribunal's Reasons for Decision

15 In its reasons for decision, the Tribunal referred to the evidence advanced by and on behalf of Mrs Lobo. In her application under the heading `Your overall business career' Mrs Lobo was asked when she first became involved as an owner or part owner of a business or as a senior executive employee in a business. She specified 1 October 1996. She was asked to provide details of her overall business career. The name of the business upon which she relied for this purpose was `City Professionals Pty Ltd'. Her period of involvement in it was said to date from 1 October 1996 up to the present. Asked to describe her specific management responsibilities she wrote:

`Leads a team of 4 professionals who have strong IT consulting background. Liaises with clients who have need for on-site training - co-ordinates & schedules training courses.'
16 In an attachment to the application the following appeared:

`Major Business Activities of City Professionals Pty Ltd
Major business activities comprise of on-site IT training of software applications (eg M.S. office suite, Lotus notes, M.S. windows etc) In house development of IT course materials. Consultancy services relating to software, hardware and any other IT related matters.

Management Responsibilities of the Managing Director

The Managing Director leads a team of three professionals and one secretary who have a strong IT consulting background and proven track record and who understand the importance of quality and efficiency in the IT consulting industry. She handles the day to day operations of the company. She liaises with major clients who have a need for on-site training and consultancy services. She co-ordinates and schedules the courses and looks after the overall administration of the office.'

This material was referred to in par 10 of the Tribunal's reasons for decision.

17 In addition, in support of the application, migration agents acting for Mrs Lobo wrote a letter including the following paragraph:

`845.216 Direct and Continuous Involvement
In the last twelve months immediately preceding the application, the applicant has as the owner of interests in City Professionals Pty Ltd; maintained direct and continuous involvement in the management of that business from day to day and in making decisions that affected the overall direction and performance of that business. (See Attachments concerning employee and financial records such as attachment 14). Further evidence of direct and continuous involvement will be provided upon request.'

It was also noted in the migration agent's letter that throughout the period of twelve months immediately preceding the application, City Professionals Pty Ltd had employed four full-time staff. These were not members of the applicant's family and were each Australian citizens.

18 In reviewing other evidence, the Tribunal noted that Mr Lobo had travelled extensively during the year under review to conclude a deal for the dismantling and selling of a German refinery as scrap which was said to have earned a substantial amount for the company.

19 Mrs Lobo provided a brochure setting out a profile of the company which included a letter from its President, her husband Philip Lobo. A profile of Mr Lobo was provided. He was described in the brochure as "the man behind the doors of our [the company's] success'. Mrs Lobo was not mentioned in the brochure. Employment declarations in 1998 and 1999 listed him as contact person. A sublease for the company's premises, said to commence on 14 August 1998 and terminate on 13 August 2000, listed Mr Lobo as sublessee and was evidently signed by him.

20 On 22 March 2000, a delegate of the Minister visited the premises of the business and interviewed Mr Lobo as Mrs Lobo was not present at the time. The Tribunal observed that Mr Lobo had business cards at the office but Mrs Lobo did not. He evidently told the delegate that he took care of all the accounts. His wife said that she made all the staff arrangements, decisions on property leases and set the direction of the company. The delegate attended the Castlereagh Street premises of the company and interviewed two members of staff. The delegate concluded that the true principal of the business was Mr Lobo and not Mrs Lobo.

21 Mrs Lobo provided further information to the Tribunal on 15 August 2001 including reference to the company's valuation. On 2 October 2002, the Tribunal convened a hearing at which Mr and Mrs Lobo both gave evidence. The reason for the delay in the hearing does not appear from the record. Mrs Lobo said that she and her husband had arrived in Australia in October 1996 and had invested $100,000 in the company. It was initially called Lobo Investments Pty Ltd but its name was changed in 1997. She became a director from 17 July 1998. It was necessary for a managing director to have been in Australia for nine months and her husband had been overseas for a considerable time. Before that she had just assisted in the business.

22 The company was said to provide consultancy services to companies and education institutions. It was developing computer software. It had developed a CD Rom which had been sold to the Gold Coast TAFE and other universities in Queensland. This CD Rom held information for prospective students and replaced existing brochures. Mrs Lobo told the Tribunal that the CD Rom was better than providing documents in PDF format from the university's website because it did not require the institution to do the paperwork. Her company had sold about 3,000 of the CD Roms, including 1,000 disks to the Gold Coast TAFE. She could not remember how much Gold Coast TAFE had paid for the disks. She said the software was in a very early stage and the company had not earned very much from it to that point.

23 The Tribunal was told the company had four staff, two software developers, a receptionist and a marketing person. Mrs Lobo was asked what her responsibilities were. She told the Tribunal that she was responsible for preparing invoices. Her spouse would provide consultancy services and she would prepare a report at his direction. She would supervise staff attendance and both she and Mr Lobo would interview staff. She did banking and purchased stationery. She was also responsible for petty cash and following up on payments. She screened calls and diverted them to the relevant staff member. She said her spouse was responsible for bringing in business. He had researched the CD Rom idea and thought the company could diversify. He had decided to change the name of the company. They set the employees' pay rates together. She did not know very much when she started as managing director of the company but she had learned from her husband.

24 Mrs Lobo was asked about the sale of the refinery in Germany with which her husband had been involved. She said that deal had been the company's main source of revenue in the 1998 financial year. It had been undertaken before she had become managing director. She told the Tribunal she had become managing director because the managing director needed to be in Australia for more than nine months. Before that she had always been assisting her husband in the business. She attended the office and saw to the administration and banking.

25 Mrs Lobo did not know about the brochure for the company which had been provided to the Department. The Tribunal made the point that the brochure was printed under the company's new name and that the name change had happened when Mrs Lobo, according to her evidence, had become managing director. She said she had started from scratch. Her husband had been tense and busy at the time and may have forgotten to tell her about it. When the delegate had visited the office she had not been there because her daughter had been unwell and she had gone home to check on her. She did not have business cards because Mr Lobo had forgotten about them. He had given her a lot of training, she had always been assisting him. As evidence of her involvement in the company from day to day, Mrs Lobo provided uncertified copies of a National Mutual Deed of Adoption dated 10 September 1998 and National Mutual Plan details dated 22 March 1999 signed by her and her husband as directors. There was also an uncertified copy of a GIO Workers' Compensation Proposal covering the period 1 July 1998 to 30 June 1999 signed by her and uncertified copies of letters to the Westpac Bank regarding the direct payment of pay cheques for employees. She also provided a copy of an undated sublease which she said had initially been signed by her husband. She said he had then told her about it and she had said that as managing director she should sign it. A new version of the sublease was prepared and she had signed it on the same day. She said that she could not exactly recall when she had signed the sublease but it was after the company had moved into its premises in 1998.

26 Mr Lobo told the Tribunal that his job was to look after programmers. He had a background in marketing, he formulated charts for the employees. He claimed that he took a secondary role in the company.

27 In connection with the brochure, Mr Lobo said he wasn't sure when it had been printed. It had been designed to attract software personnel. It showed the new name of the company. His wife had taken over as managing director when the name of the company changed. The Tribunal observed that she did not appear to be mentioned in the brochure. However her husband thought the brochure may have been directed at his contacts.

28 The Tribunal referred to the fact that Mrs Lobo did not appear to have a business card. Her husband said that she did have business cards. In connection with the sublease, he said that initially he had signed the lease on 14 August 1998. Then a new lease had been prepared and his wife had signed it.

29 In its findings and reasons the Tribunal began by referring to the various subclasses of Business Skills (Residence) (Class BH) visa and identified subclass 845 as the only one relevant to the application before it.

30 The Tribunal referred to the criteria for a subclass 845 visa and in particular cl 845.216 which is set out above. Having quoted cl 845.216 of the Second Schedule in par 38 of its reasons, the Tribunal went on as follows:

`39. In light of this requirement, the Tribunal must assess the responsibilities of the primary visa applicant from 30 August 1998 to 30 August 1999. PAM 3 refers decision-makers to the corresponding PAM3: Sch2Visa127 127.213 guidelines.
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".'

Paragraph 40 then went on:

`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.'

The Tribunal observed that until it had requested further evidence of Mrs Lobo's role in the company during the relevant period all documents relating to staffing and office issues had been signed by her husband. The brochure which was produced when the company's name was changed, which was the same time as Mrs Lobo was said to have become managing director of the company, made no mention of her or of her role. It referred to her husband as `the man behind our success'. The Tribunal did not accept Mr Lobo's explanation that the brochure was directed to his contacts. It found the brochure too professional to be directed to a small category of potential clients or staff. The Tribunal took the absence of any reference to Mrs Lobo as managing director of the company and indeed the absence of any reference to her at all, to strongly indicate that she did not have the role she purported to have.

31 It also considered that the second copy of the sublease which had been produced to it was fabricated and did not accept that it constituted evidence that Mrs Lobo had a managerial role in the company for twelve months preceding the lodgment of the application. Other documentation purporting to be signed by Mrs Lobo was uncertified. Even if the copies produced had been certified, the Tribunal would have had concerns as to when the original documents were in fact created. Having regard to its findings that the second sublease had been fabricated, the Tribunal was not prepared to accord the further document provided any weight in assessing Mrs Lobo's claims to meet cl 845.216. Even if it did, they were either countersigned by her husband or were relatively mundane salary documents. Even in the further documentation provided to the Tribunal Mr Lobo had signed the employees' group certificates. The Tribunal found that the evidence given by Mrs Lobo and her husband at the hearing was contradictory. They had contradicted each other as to who was responsible for changing the name of the company. They had contradicted each other on whether Mrs Lobo had business cards at the time of the delegate's visit. She said she had assisted and learned from her husband, whereas he said that he took a secondary role to her in the business. The Tribunal found that Mr Lobo had a far greater understanding of the product being developed by the company than his wife. She was unable to give details of the product or its use and also stated that she diverted telephone calls to staff and to her husband as appropriate and did not deal with client inquiries herself.

32 Mrs Lobo had said that in order to be a managing director it was necessary to have been in Australia for nine months. The Tribunal correctly observed that this was not a requirement to become a managing director, but it was a requirement in order to meet the criterion in cl 845.212 for the visa being sought. The Tribunal was in doubt that Mrs Lobo was said to have managerial responsibility for the company because her spouse would not satisfy the criterion under cl 845.212. This was not necessarily Mrs Lobo's fault. The Tribunal indeed was far more satisfied with her evidence than that of her husband. She was at least attempting to tell the truth within the limits of what she had claimed, whereas Mr Lobo was clearly directing himself to the requirements of the visa as opposed to the truth of their respective roles. At par 46 the Tribunal said:

`46. In 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, not 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 (sic), 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.'
33 On the basis that Mrs Lobo had not satisfied a mandatory criterion for the visa sought, the Tribunal held it had no option but to affirm the decision under review.

The Reasons for Judgment at First Instance

34 The learned trial judge briefly set out the procedural history of the matter and then referred to the submission made by the Lobos that the Tribunal's decision-making process was fatally flawed because it was based upon policy guidelines interpreting the statutory criterion rather than the criterion itself. His Honour set out the relevant portion of the policy guideline which has been set out above. It was submitted that the way in which the Tribunal ultimately expressed its opinion indicated that it had regard to the policy rather than to the statutory criterion. Counsel had referred to pars 40 and 46 of the Tribunal's reasons.

35 His Honour agreed with the submission made on behalf of Mr and Mrs Lobo and their children that the policy was different from the statutory criterion and went beyond it. His Honour said:

`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."
36 His Honour found that the Tribunal had been diverted by the policy into an examination of which person held the principal or dominant role in the company rather than concentrating upon whether Mrs Lobo was involved in the manner required. However counsel for the Minister submitted that, leaving aside the effect of the policy, the findings of fact were enough to show that the statutory criterion was not met. Taking the policy into account did not lead to an operative error. His Honour however found that it was by no means clear that the same decision would have been reached if the Tribunal had concentrated upon the statutory criterion rather than the policy. The Tribunal member apparently accepted that Mr Lobo was overseas for much of the twelve months before the application but did not consider and did not make any finding about the conduct of the business during that period. This could be explained on the basis that the Tribunal was trying to identify one controller of the business. His Honour said:

`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 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.'
His Honour then dealt with the submission made on behalf of the Minister that the conceded error would not ground relief by reason of the operation of s 474 of the Act. Counsel for the Lobos contended that the error being jurisdictional, it did not attract the application of s 474 and relied upon the decisions of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. The Minister contended in answer to that submission that Plaintiff S157 dealt only with an aspect of natural justice or procedural fairness and that the judgment of the majority in Applicants S134 said nothing about the particular issue raised for decision in the case before the learned primary judge. Counsel submitted that the duty of a judge at first instance was to follow the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 which, by majority, gave a wide operation to s 474. His Honour accepted the latter submission.

37 While agreeing that some of the reasoning of the majority in NAAV, reflected in the judgment of von Doussa J, was inconsistent with some of the reasoning in Plaintiff S157, he said that the Justices of the High Court in the latter case were careful to limit the scope of what was decided to the matter before them which involved a breach of natural justice or procedural fairness. And although NAAV had been decided prior to Plaintiff S157 and Applicants S134, it was not overruled or expressly disapproved. In his Honour's opinion therefore, departure from binding Full Court authority was not for a single judge. In his opinion, the decisions in NAAV continued to bind him. His Honour found Plaintiff S157 to provide little concrete assistance in relation to the case before him. He characterised the argument advanced by counsel for the Lobos thus:

`(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.'


On this argument, in his Honour's view, s 474 and like clauses would be virtually devoid of content. Such an approach was inconsistent with R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and the many subsequent decisions of the High Court which followed it.

38 His Honour noted that the examples of jurisdictional error given by the joint judgment in Plaintiff S157 were failure to discharge `imperative duties' or to observe `inviolable limitations or restraints'. The example given of a decision regarded as no decision at all by reason of jurisdictional error was Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. That, his Honour characterised as a very special case involving a failure to follow specific legislative procedural steps resulting in a serious breach of procedural fairness. The decision in Applicants S134 did not solve the problem. The judgment of Gaudron and Kirby JJ relied upon by the applicant, was in the minority. The reference to `jurisdictional error' by the majority in that case did not explain the sense in which that phrase was used.

39 At the end of his reasons his Honour observed that counsel had referred him to some recent remarks by members of Full Courts in dealing with consent orders or concessions by the Minister in particular cases. His Honour said:

`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.'
This was evidently a reference to the decision of the Full Court in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 24 and explains the reference to that decision in the appeal grounds that follow.


Grounds of Appeal

40 The grounds of appeal were as follows:

`1. His Honour erred in his understanding of the application and effect of s474 of the Migration Act 1958 (Cth).
(a) His Honour should have held that s474 of the Migration Act 1958 is not effective to validate the decision made by the MRT where there was a constructive failure by the MRT to exercise its jurisdiction, constituted by the failure of the MRT to apply the statutory criteria that it was required to apply; namely, it failed to apply the criterion provided for by cl 845.261 of Schedule 2 of the Migration Regulations.

(b) His Honour should have held that s474 of the Migration Act 1958 was not effective to oust judicial review of the decision made by the MRT where there was constructive failure of jurisdiction constituted by the failure of the MRT to apply the criterion provided for by cl 845.261 to Schedule 2 of the Migration Regulations.

2. His Honour should have granted an order in the nature of mandamus on the basis that the MRT constructively failed to exercise its jurisdiction.

3. His Honour erred in construing the decision of the Full Court in Zahid v MIMIA [2003] FCAFC 24 as not constituting a decision on point.

4. His Honour erred in not following the decision in Zahid v MIMIA [2003] FCAFC 24.

5. In the alternative, His Honour should have held that the MRT's decision was reviewable because the decision of the MRT involved a breach by it of an inviolable condition upon which its jurisdiction depended; namely, to apply the statutory criteria that it had a duty to apply.'

41 A Notice of Contention was filed on behalf of the Minister. The Court gave leave to the Minister to rely upon that notice. The notice stated:

`The Respondent contends that Gyles J erred in holding that the Migration Review Tribunal fell into error by failing to apply the criterion in cl 845.216 of the Migration Regulations 1994.'
Whether Misconstruction of Visa Grant Criteria under the Migration Act is Amenable to Judicial Review

42 The criterion prescribed for the grant of a subclass 845 visa in cl 845.216 sets out a matter on which the Minister must be satisfied before he can grant such a visa. His satisfaction that the criterion has been satisfied is, by virtue of s 65(1)(b), a necessary condition of his power to grant the visa. If he is satisfied that the criterion has been satisfied and that the other conditions set out in s 65(1)(a) are met, then he has a statutory duty to grant the visa. That is a duty to exercise the power conferred upon him by s 29 of the Act.

43 Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask. In such a case, absent s 474, the Minister's decision would be a nullity. The Minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.

44 The question that then arises is whether, having regard to s 474, misconstruction of the criterion for the grant of a visa has the effect of vitiating the Minister's decision or, in this case, that of the Tribunal.

45 The operation of s 474 was recently considered by the High Court in Plaintiff S157. Propositions emerging from the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in that case may be summarised thus:

1. Parliament cannot give power to any judicial or other body in excess of constitutional power - at [58] citing Dixon J in R v Hickman.

2. Parliament cannot impose limits on the authority of a body with the intention that any excess of that authority means invalidity and at the same time deprive the High Court of authority to restrain the invalid action by prohibition - at [58] citing Hickman.

3. If legislation purports to impose limits on authority and contains a privative clause it is a question of interpretation of the whole legislative instrument whether the transgression of the limits (if bona fide and bearing every appearance of an attempt to pursue the power) necessarily spells invalidity - at [58] citing Hickman.

4. The Hickman principle is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions - at [60].

5. The meaning of a privative clause must be ascertained from its terms and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made its effect will depend entirely on the outcome of its reconciliation with that other provision - at [60].

6. The protection which a privative clause purports to afford will be inapplicable unless the three Hickman provisos are satisfied:

(i) that there has been a bona fide attempt to exercise the power in question;

(ii) that the decision relates to the subject matter of the legislation;

(iii) that the decision is reasonably capable of reference to the power - at [64] read with [62].

7. Section 474 does not effect an implied repeal of all statutory limitations or restraints upon the exercise of the power or the making of a decision under the Act - at [67] and [68].

8. It may be, by reference to the words of s 474, that some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision. That is a matter which can only be determined by reference to the requirement in issue in a particular case - [69].

9. The words `under this Act' in s 474(2) are not apt to refer either to decisions purportedly made under the Act or decisions that might be made under the Act.

10. The expression `decision ... made under this Act' appearing in s 474 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 Act - at [76].

11. An administrative decision which involves jurisdictional error is `regarded, in law, as no decision at all' - at [76].

12. If there has been jurisdictional error because, for example, of a failure to discharge `imperative duties' or to observe `inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as `a decision ... made under this Act' and is, thus not a `privative clause decision' as defined in s 474(2) and (3) of the Act - at [76].

13. Section 474 requires an examination of limitations and restraints found in the Act. There will follow the necessity to determine 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 - at [78].

14. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a `privative clause decision' within s 474(2) of the Act - at [83].

46 In his separate reasons for judgment, Gleeson CJ identified the `essential problem' as that of inconsistency between a statutory provision conferring a limited power and a provision which appears to mean that excess of that power may not be prohibited - [17]. His Honour explained the nature of the problem as one of statutory construction:

`Giving effect to the whole of the statute which confers powers or jurisdiction, or imposes duties, or regulates conduct, and which also contains a privative provision, involves a process of statutory construction described as reconciliation.' [19]
The outcome of the reconciliation process might be that an impugned act would be treated as valid - eg Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 (Brennan J) cited in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 630. But as his Honour said:

`On the other hand it may be that, as in Hickman, the impugned act is not to be treated as if it were valid. In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a "decision" within the meaning of the privative clause. In a case such as the present it may involve a conclusion that a purported decision is not a "decision ... under this Act" so as to attract the protection given by s 474.' [19]

47 There has been a number of adjectives attached, in the authorities, to the kinds of conditions or limitations on power which go to the validity of its exercise notwithstanding purported application to the power of a privative clause. These include `indispensable' - R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399 and `imperative' or `inviolable' - R v Metal Trades Employees Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248. But as Gleeson CJ said:

`To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, an attempt at reconciliation, the outcome will necessarily be influenced by the particular statutory context.' [21]
48 Callinan J took what appears to have been a narrower approach to the availability of the constitutional writs in cases of jurisdictional error. In his Honour's opinion mandamus, prohibition and injunction would lie `... to cure manifest error of jurisdiction whether, in a relevant sense, by a failure to exercise it, or by a clear excess of it and not otherwise, notwithstanding the apparently absolute language of s 474 of the Migration Act - at [160]. His Honour expressed the rule alternatively by saying:

`... the remedies will only lie if there has been a departure from an essential or imperative requirement on the part of the relevant officer or tribunal, or a material failure to comply with what might once have conventionally been described as a mandatory provision.'
49 As the Chief Justice pointed out in his judgment in Plaintiff S157, the case before the Court was concerned with only one kind of challenge, namely a claim of denial of natural justice. In that connection his Honour made what was, with respect, the unsurprising statement that:

`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.'
It is to be noted however that the Court was dealing with a case stated. The substantive questions proposed in the case were whether ss 474 and 486A of the Migration Act were invalid in respect of an application by the plaintiff to the High Court of Australia for relief under s 75(v) of the Constitution.

50 It is true that the judgment did not identify the jurisdictional errors that would avoid the application of s 474 other than the particular case of breach of the rules of natural justice which was the basis of the application underlying the case stated. However the constructional approach which underpinned the Court's finding that s 474 is valid involved propositions of general application which have already been set out and which represent the law with respect to the operation of s 474.

51 Two propositions of general importance which may be distilled from the summaries set out above are:

1. the question whether the failure to observe a condition or limitation on a power constitutes jurisdictional error vitiating its exercise is a matter of construction in the light of the whole of the statute including the privative clause;

2. this approach to construction requires no a priori judgment that a condition or limitation under consideration is imperative or inviolable or that failure to observe it is `manifest error'.

52 On the same day that it delivered judgment in Plaintiff S157, the High Court also decided Applicants S134/2002. This case concerned an application for relief by way of prohibition, certiorari, injunction and declaration in respect of decisions of the Refugee Review Tribunal affirming the refusal of the grant of protection visas and of the Minister refusing to exercise his power to make a more favourable decision under s 417 of the Migration Act. Section 474 applied to the proceedings but there was no discussion of it in the judgment of the majority who dismissed the application on the basis that there was no jurisdictional error on the part of the Tribunal or the Minister.

53 In dealing with an argument about the Tribunal's consideration of the criteria for the grant of a protection visa the majority, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said:

`Section 65(1) obliged the minister, and thus the tribunal, to determine their satisfaction as to whether the criteria for the visas sought had been satisfied. Clauses 785.21 and 785.22 posited criteria expressed in disjunctive terms, as indicated earlier in these reasons. There is no obligation imposed by s 65(1) to reach a state of satisfaction (or otherwise) respecting criteria which the prosecutors did not advance. There was no misapplication of the relevant criteria by the tribunal and no jurisdictional error.' [32]
The passage quoted is consistent with the proposition that misapplication of visa grant criteria constitutes jurisdictional error. It certainly does not lie against that proposition. Gaudron and Kirby JJ gave general consideration to the interaction between s 474 and s 65 and concluded:

`In light of the detailed specification in the regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s 65(1) of the Act.' [83]

Their Honours' proposition in that respect is not in conflict with anything said by the majority whose decision on the s 65 point turned on the particular circumstances of the case in which the prosecutors asserted a requirement on the part of the Tribunal to consider criteria which they did not advance.

54 There has recently been a number of decisions of the Full Court which bear upon the question now under consideration.

55 Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 24 was an appeal in respect of a decision of the Migration Review Tribunal affirming the refusal of a Family Residence (Class AO) visa. The primary judge, Sackville J, had dismissed an application for relief under s 39B of the Judiciary Act on the basis that the decision was protected from review by s 474 of the Migration Act as construed by the Full Court in NAAV - Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108. It was ultimately common ground before Sackville J in that case that the Migration Review Tribunal, in considering the criterion for the grant of the visa in cl 806.13 of Schedule 2, had failed to consider whether the applicant was a `remaining relative' of the nominator for the purposes of that clause. There was also no dispute that that error, independently of s 474(1) of the Migration Act, would be regarded as a jurisdictional error as that term was used by the High Court in Craig v South Australia (1995) 184 CLR 163. The judgment of the High Court in Plaintiff S157 had not been given at the time that Sackville J gave his judgment dismissing the application.

56 Mr Zahid appealed to the Full Court. When the matter came on for hearing before the Full Court, the High Court had given judgment in Plaintiff S157. Mr Zahid and the Minister submitted a minute of consent order to the Full Court proposing that the appeal be allowed, that certiorari issue to quash the decision of the Migration Review Tribunal and that the matter be remitted to that Tribunal to be dealt with according to law. The Full Court took the view that it was necessary to make clear in reasons for judgment the basis upon which it made the proposed orders and to make clear in the order the basis upon which the matter was remitted to the Migration Review Tribunal. The Full Court in its reasons for judgment referred to the decision of the primary judge and the fact that he had regarded himself as bound by the construction of s 474 adopted by the majority Judges in NAAV. The Full Court then referred to the decision in Plaintiff S157 and said:

`The error of the MRT was its failure to consider the question whether the present appellant was a `remaining relative' of the nominator for the purposes of cl 806.213 of the Migration Regulations 1994 (Cth). This is the basis on which the parties asked the Court to make the orders sought and on which it is appropriate for the Court to make them.'
In providing reasons for its decision to allow the appeal and to make the orders sought, the Full Court discharged its duty to ensure that those orders, notwithstanding they were consent orders, were within power and appropriate - Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265 (Sackville J); Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 (French J); Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 (Stone J); Sinclair v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 571 (French J). The Court could not have made the orders sought unless satisfied, as it clearly was, that they were not precluded by operation of s 474 of the Act. It is notable that in Zahid the Minister accepted that failure to address a criterion for the grant of a visa constituted jurisdictional error which, in the light of Plaintiff S157, was not protected by s 474. These observations do not involve any view as to the means by which the Court is to be satisfied that a consent order is within power and appropriate.

57 In Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116, the Full Court comprising French, von Doussa and Marshall JJ allowed an appeal against the decision of a single judge dismissing an application for certiorari directed to the Migration Review Tribunal affirming a decision not to grant the appellant a family (residence) (class AO) visa. In allowing the appeal, the Full Court held that, in determining whether the appellant met criteria prescribed in subclass 806, the Tribunal had failed to take into account the appellant's presence in Australia from the time when he made his application for the visa. The Court said:

`The failure to do so has the consequence in this case that the Tribunal failed to fulfil the task that was required of it under s 65(1) of the Act. It failed to decide according to law whether it was satisfied that the criteria prescribed by the regulations had been satisfied.' [31]
58 In considering the relationship between s 65 and s 474 the Court referred to the examination of that question undertaken by Gaudron and Kirby JJ in Applicants S134. The Court acknowledged that Gaudron and Kirby JJ had dissented in the result in that case as they considered that the Tribunal was required by s 65(1) to consider all criteria specified for a visa of the kind applied for notwithstanding that no specific claim was made in regard to the particular criterion under which the applicants could succeed had they made their claim. The majority on the other hand, as noted above, had taken the view that the Tribunal was not required by s 65(1), in the case of criteria disjunctively expressed, to reach a state of satisfaction relating to criteria which the applicants did not advance. The Court in Scargill observed:

`However, the exercise of reconciliation undertaken by Gaudron and Kirby JJ at [71]-[83] was that required by Plaintiff S157 and has application to the present case.' [36]
Their Honours' conclusion in respect of the operation of s 65(1) has been referred to above. The reasoning in Scargill based as it is upon the general approach adopted by Gaudron and Kirby JJ has application to the present case.

59 The Court was invited in this case by counsel for the Minister to depart from Scargill on the basis that it was plainly wrong. No error in principle to support that contention was able to be advanced by counsel for the Minister. Indeed it is difficult to reconcile the Minister's position on Scargill with that which he adopted in Zahid. We are respectfully of the view that not only is Scargill not plainly wrong, but that it was correctly decided.

60 SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121 was a case involving refusal of protection visas. No point of misconstruction of the criteria expressly emerged in the case however their Honours did make an observation about the relationship between the High Court decisions in Plaintiff S157 and in Applicants S134 on the one hand and that of the Full Federal Court in NAAV . Their Honours concluded that, following the decisions of the High Court in the two cases mentioned, it was clear that the reasoning of the majority in NAAV was incorrect and that NAAV was no longer binding authority. This was supported by decisions of the Full Court in SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 49 at 17-18, Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60 at [5] and by Scargill. Obiter comments of two members of the Full Court in Koulaxazov v Minister for Immigration for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 to the contrary were said not to be open given the clear terms and effect of the reasoning of the High Court. Their Honours said:

`It is clear from the High Court decisions that the Court's jurisdiction is limited to `jurisdictional errors' (S157 at [76]) and that, in determining whether or not a particular error is a `jurisdictional error', it is necessary to have regard to the whole of the Act, including s 474 (see S157 at [77]-[78]).' [20]
61 In SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129 the Full Court accepted a contention that it is a condition precedent to the exercise of jurisdiction to grant or refuse a visa under s 65(1) of the Migration Act that the Minister must decide if he is satisfied as to each of the matters set out in s 65(1)(a)(i)-(v). Their Honours referred to Applicants S134 and went on:

`Even after undertaking the reconciliation process discussed in Plaintiff S157 the Tribunal's decisions, ..., misconstrue a criterion about which a decision-maker must be satisfied. The decisions are affected by jurisdictional error; they are invalid and cannot be said to be `privative clause decision (sic) within s 474(2) of the Act'.' [47]
62 It follows that if in the present case the Tribunal has failed to apply the relevant criterion for the grant of a subclass 845 visa, that failure will constitute a jurisdictional error and the decision made under it will not be protected by s 474.

Whether the Tribunal Failed to Apply the Criterion in Clause 845.216

63 It was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclass 845 visa set out in cl 845.216 of the Second Schedule to the Migration Regulations. The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business `... 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'. This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance.

64 Having regard to the concession made, a want of satisfaction of the criteria set out in the departmental policy would not equate to a want of satisfaction of the criterion in cl 845.216.

65 It is apparent from the reasons of the Tribunal, particularly pars 39, 40 and 46 set out earlier in these reasons, that the Tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216. In so doing it erred and its error was jurisdictional. It did not address the question which s 65(1) of the Act required it to address.

66 It was submitted on behalf of the Minister under the notice of contention that the facts found by the Tribunal in respect of the Lobos' application excluded the possibility of satisfaction of the criterion in cl 845.216 notwithstanding that the Tribunal did not in terms apply that criterion.

67 It may be the case that if the Tribunal's findings of fact as to Mrs Lobo's involvement in the business were to stand the prospects of her satisfying the visa criteria would not be great. However, the Court cannot exclude the possibility that upon wider consideration of `direct and continuous involvement' in the management of the business, according to the statutory criterion, a different result will be reached. The Court is not satisfied that the grant of the relief sought in this case would be an exercise in futility.

Conclusion

68 For the preceding reasons the appeal will be allowed and certiorari and mandamus will issue. It does not seem necessary in the circumstances to issue a writ of prohibition. The respondent should pay the appellants' costs of the appeal.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 8 August 2003

Counsel for the Appellants:
Mr D Godwin






Solicitor for the Appellants:
Parish Patience Immigration, Lawyers






Counsel for the Respondent:
Mr GR Kennett






Solicitor for the Respondent:
Clayton Utz






Date of Hearing:
4 August 2003






Date of Judgment:
8 August 2003


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