Auro v Minister for Immigration and Citizenship & Anor [2008] HCATrans 248 (18 June 2008)

Last Updated: 30 June 2008

[2008] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B3 of 2008

B e t w e e n -

MARGARET AURO

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW ACJ
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 18 JUNE 2008, AT 11.38 AM

Copyright in the High Court of Australia

MR L. BOCCABELLA: I appear for the applicant, your Honours. (instructed by AJ Torbey)

MR P.G. BICKFORD: Your Honours, I appear for the respondent. (instructed by Clayton Utz)

GUMMOW ACJ: Yes. There is a submitting appearance for the second respondent which is the Migration Review Tribunal. Yes, Mr Boccabella.

MR BOCCABELLA: Your Honours, it is trite fact, of course, that judicial review in the form of the prerogative writs is not about merit review, but it is about making sure that the primary decision-maker has the opportunity to get it right. In cases such as these, of course, the issues are not just procedural, they are substantive because ultimately what the Tribunal officer did was that he did something that he was not meant to do. He behaved unreasonably. Here the Tribunal officer making decisions about fee waiver acts as a gatekeeper for merit review. If the gatekeeper fails in his proper duty and makes an error, then, of course, the applicant will be denied merit review. Your Honours, merit review, of course, was the last - - -

GUMMOW ACJ: What is the actual decision at stake here, the administrative decision?

MR BOCCABELLA: The decision is to refuse a fee waiver. If one goes to tab 1 of the applicant’s folder, your Honour, which is the small folder.

GUMMOW ACJ: How much is involved in the fee waiver?

MR BOCCABELLA: $1,400, your Honour. If I could take your Honour to tab 1, briefly, in the small folder.

GUMMOW ACJ: Yes.

MR BOCCABELLA: In Regulation 4.13(4) you can see there that the Tribunal officer, appropriately delegated, of course:

may determine that the fee on an application . . . should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.

That is the decision. As your Honours can see, that officer acts - - -

GUMMOW ACJ: The case then has to be that the decision not to waive was so unreasonable that no reasonable registrar could have come to it?

MR BOCCABELLA: Yes, that is the case, your Honour. Let me turn to the facts, your Honours. At page 31, in fact, in two places in her Honour’s judgment, at lines 10 to 16:

the facts before the Tribunal pointed to the appellant being of very limited financial means, and a person for whom payment of the prescribed fee would cause severe financial hardship.

Then, at page 29, indeed, she repeats that at line 25.

GUMMOW ACJ: What is the critical passage in the decision of the Tribunal?

MR BOCCABELLA: It is on page 7 of the record. In effect, it is not the Tribunal itself. It is set out in the federal magistrate’s decision. As your Honours can see, it is very sparse. There are in fact no findings of fact at page 7, and here it is:

After carefully considering all the available information –

and the officer here makes a positive finding, not that you have not satisfied the onus or there is not enough material, he says at lines 28 or 29 –

I am of the opinion that payment of the fee has not caused nor is it likely to cause you severe financial hardship.

KIEFEL J: But it is clear in what follows that it is an insufficiency of evidence decision, is it not?

MR BOCCABELLA: No. If I could persuade you on this circumstance, your Honour, the inference seems to be that he was following some sort of formula, but her Honour Justice Collier had no difficulty in concluding on the material that indeed the – the material was not supplemented, but on the material before the decision-maker she would suffer sever financial hardship.

KIEFEL J: It is often a characteristic of these cases, though, that what is put forward by an applicant for waiver are general assertions and the difficulty that registrars have is in obtaining sufficient evidence to see whether or not that can be made out and that is really what occurred here, is it not?

MR BOCCABELLA: I submit not. If I could perhaps try and persuade you in this sense, and obviously we do not have the full record here and it is not appropriate that we have the full record, but there were forms supplied. The applicant said, “I just had no money”. I mean, there is no inference that could be drawn from any of the material that she was anything other than penniless and that is really what - - -

KIEFEL J: Was there anything, apart from general assertions, though, about her state of impecuniosity?

MR BOCCABELLA: No. There was bank account details provided, how much was in the account. On the relevant day there was $1. She was receiving a special benefit. The special benefit requirement, one does not get it unless one is in severe financial hardship. All of that material was before the decision-maker. It was not as if there were general assertions and that is why her Honour made those findings and, indeed, made them twice. Could I take you to page 29. At lines 25 to 28 she says:

and indeed in my view it appears that the appellant was in fact in such financial circumstances that the payment of the fee would cause her severe financial hardship –

although she went on to say –

the fact remains that review of decisions of the Tribunal is limited to questions of jurisdictional error, and not review of the merits –

Nothing was supplemented, of course, at judicial review stage. Her Honour Justice Collier had the full file which had the forms she filled in, the bank statement, the evidence that she had no money, et cetera. Your Honours, this is not my contention that the decision-maker got it wrong, this is her Honour at the Federal Court looking at the material as a whole. She says that twice. Her Honour says on two occasions, in effect, “I have got no doubt that the payment of the fee will cause severe financial hardship.” Really, merit review is illusory if the gatekeeper closes the gate without giving proper consideration to the matter.

KIEFEL J: The matters that the registrar listed as not having been provided, the evidence that was considered necessary, the federal magistrate I think pointed out that they were matters specifically required by the application form itself.

MR BOCCABELLA: But only by policy, not by statute. Nowhere in any of this material has it been required by statute. In some cases it may be relevant.

KIEFEL J: But if it is not provided, that might influence the decision-maker, if it is specifically requested and not provided.

MR BOCCABELLA: In a specific case that may be the case, but you still have to look at the overall totality. An unemployed person with $1 in their bank account is penniless. You do not need to show credit card statements to show that. There is no evidence she had any credit cards. There is no suggestion that she had any form of income. That was the material there. In some ways it may in fact be, when it comes to argument, if this matter is granted special leave, an indicia of the unreasonableness that a formula was used rather than looking at the particular circumstances of this case. Somebody with no money not able to marshal $1,400 loses her rights of appeal and, your Honours, in this type of jurisdiction that can have an enormous impact and it is important that these decisions be done properly.

Incidentally, your Honours, of course there is no point getting into the debate as whether they are jurisdictional facts or not, but the jurisdiction to waive the fee, of course, can only occur once the decision-maker is satisfied that it will cause financial hardship. The matters that the Federal Court was considering was - - -

GUMMOW ACJ: The relevant jurisdictional fact is the presence of the satisfaction.

MR BOCCABELLA: That is right. It is permissible for a court to delve into those facts, in my submission, otherwise the officer does not have jurisdiction. What is incongruous in this case is the Federal Court itself having made the finding that it would cause financial hardship and then goes on to say that that is a matter for the Tribunal. There is no findings of credit. The decision was all made on the papers. So, in those circumstances, your Honours, where the facts enable a judge to say it will definitely cause financial hardship, in what circumstances could a decision-maker come up with a different view? There is no suggestion that this person has any assets whatsoever. The fact that the decision-maker actually made that specific finding is the error.

KIEFEL J: Justice Collier also agreed with the view taken by the federal magistrate, did she not?

MR BOCCABELLA: That seems incongruous.

KIEFEL J: That is the difficulty, really, that you have with her reasoning, is it not?

MR BOCCABELLA: I submit the difficulty with that is just caused by the hiatus about the unreasonableness issue. If I take you to page 28 of the record and the difficulty will be that if your Honours do not grant special leave, obviously submissions would be made around Australia that there are now two cases where the High Court has refused special leave on the unreasonableness point.

GUMMOW ACJ: We have said on various occasions, various judges have said, that Wednesbury unreasonableness could give rise to jurisdictional error.

MR BOCCABELLA: Your Honour even said that in the special leave application. You said that in - - -

GUMMOW ACJ: You have to show us, and I do not understand – what there is any cogitation about the point in lower courts, really, but you have to show here that you could make out a Wednesbury unreasonableness point in this case.

MR BOCCABELLA: Firstly, could I develop that argument here by first of all going to page 28 and paragraph 30 where, I submit, the courts were distracted by this unreasonableness issue where her Honour said this:

I agree with the submission of Mr Bickford that it is yet to be established whether a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error –

quoting Andary. In other words, whether, perhaps, we like it or not, the lower courts are saying there is a doubt about unreasonableness and where there is a doubt – his Honour Sir Gerard Brennan in Kioa identified the powerful forces of the subconscious mind, obviously is only talking about the matter of bias, not this, but - - -

KIEFEL J: Yes, but even accepting that, Mr Boccabella, the federal magistrate considered each of the requirements for evidence that the registrar had found to be missing and said that all of them were proper and relevant to coming to the decision and in their absence the refusal was made out. How do you overcome that?

MR BOCCABELLA: He made this peculiar statement in paragraph 30 on page 13 which, in the circumstances of this case, in my view also demonstrates the failure to apply the right test:

Having regard to those matters, I am not satisfied in this case that even if the decision of the Tribunal officer can be characterised as perverse, jurisdictional error has [not] been made out.

The difficulty is that the case is all over the place. Roncevich is an unfortunate example for the magistrate to pick. His Honour Justice Kirby gave one judgment. The other four Justices in that case did not adopt that approach at all. With the deepest respect, his Honour - - -

KIEFEL J: What do you say about paragraph 25 of the federal magistrate’s decision?

MR BOCCABELLA: It does not sit with paragraph 30, that is the difficulty, and it was not an onus of proof case, because - - -

KIEFEL J: It was probably unnecessary for the federal magistrate to go on after paragraph 25. That is really the conclusion, is it not?

MR BOCCABELLA: But except that by putting in paragraph 30 he seems to be accepting that there is some perversity to this, and, of course, it was not an onus of proof case. If the officer had said, “Look, I am not satisfied on the onus. There is just not enough material for me to decide”, well, then, it would have been a different case. What we have here, your Honours, is the officer actually saying, “I am of the opinion that the payment has not caused nor is it likely to cause severe financial hardship.” So, he has made a positive finding. Onus of proof is not a good word in administrative circumstances, but there is no doubt that there is an evidentiary onus, so to speak. Somebody has to meet that.

The difficulty is that he appears to have applied a formula and not looked at the circumstances as provided as a whole and that is the unreasonableness. His Honour would not have need to have gone to say, look, even if all this was perverse, there is no Wednesbury unreasonableness. That is the difficulty with this case, that this focus on, you have to meet our bureaucratic hoops, if you do not meet our bureaucratic hoops, we conclude you do not suffer financial hardship. That cannot be the law.

The decision-maker unfortunately has to deal with people who applying by themselves without assistance may present a mishmash of material that may or may not be suitable but, nevertheless, they have to deal with what they have. A federal judge says, “Look, on my view of it all, the applicant is suffering financial hardship”. I mean, that is really the key to it, in my submission. Therefore, your Honour Justice Gummow, as you asked me before, answering your question, where is the unreasonableness here, well, the unreasonableness, I submit, is in her Honour Justice Collier’s conclusion.

I need to mention just a couple of brief things. There is some suggestion in the material that, look, the whole point of a spouse visa is to have a spousal relationship and that has obviously failed, therefore you cannot succeed, but it has been part of the Australian family reunion policy
for decades on a bipartisan basis and indeed it is in the regulations – I can take you to it, if your Honours need to – but where there is an issue of a marriage, the marriage has broken up and there is an Australian citizen involved, it is a ground to get a spouse visa, that the marriage is estranged when the mother has to look after the child, the Australian citizen child.

In other words, the mother of an Australian citizen child who looks after that child will not be deported. So there is no merit issue here adverse to the applicant which is important to point out because that is the position. I summarise, your Honours, by saying that one Federal Court, and by inference also the Federal Magistrate’s Court and the way that it was determined, has come to the conclusion that unreasonableness may not be available. The Full Federal Court in Andary expressed similar views.

GUMMOW ACJ: That was in 2003.

MR BOCCABELLA: Yes, but relied upon in 2007, regrettably. The difficulty will be that if this is refused, it may continue, the error that unreasonableness may not be a ground. Classically, the common law moves incrementally. If this matter were to get leave, the Court would have the facts before it and apply the unreasonableness in this test to those facts and restore the ground of unreasonableness to its proper role in judicial review in Australia.

Your Honours, if I could just perhaps remind you all that the standards that administrative officers have to adopt throughout Australia, in the Commonwealth sense, are really decided by this Court. If the decisions are made on a rough enough basis without looking at the true position, as defined, then the standards are lower than what they should be and that is why I submit it is incumbent on this Court to reset those standards, reaffirm that Wednesbury unreasonableness is available and it is to be applied on the basis of specific facts on each case.

GUMMOW ACJ: Thank you. We will take a short adjournment to consider what course we will take.

AT 11.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.05 PM:

GUMMOW ACJ: We do not need to call on you, Mr Bickford.

Authorities in this Court, to which reference will be made below, indicate that Wednesbury unreasonableness, if made out, will establish jurisdictional error. However, an appeal to this Court would enjoy no prospects of success. There is no reason to doubt the correctness of the conclusion reached in the courts below that no jurisdictional error was demonstrated in this matter. In particular, it was not shown that the decision of the Tribunal officer – that the officer was not satisfied of the matters referred to in regulation 4.13 of the Migration Regulations 1994 (Cth) – was so unreasonable that no reasonable decision-maker could have reached it. See Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 74 to 75, [66] and [69]; East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; (2007) 239 ALR 50 at 68, [80].

Special leave is refused with costs.

The Court will adjourn to 10.15 am on Tuesday, 29 July at Canberra.

AT 12.07 PM THE MATTER WAS CONCLUDED