Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561 (23 July 2018)

Last Updated: 1 August 2018

Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561 (23 July 2018)

Division: GENERAL DIVISION

File Number: 2018/2736

Re: Nima Azizi

APPLICANT

And Minister for Home Affairs

RESPONDENT

DECISION

Tribunal: Deputy President Rayment QC

Date: 23 July 2018

Date of written reasons: 23 July 2018

Place: Sydney

The reviewable decision is set aside and the matter is remitted to the respondent for consideration of the application for a visa with the direction that the discretion to refuse Dr Azizi’s application for a visa on character grounds is to be exercised in his favour.

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Deputy President Rayment QC

Catchwords

MIGRATION – application for bridging visa – visa refused – applicant found by delegate not to pass character test – previous Tribunal decision found that applicant passed the character test – no circumstances relating to the applicant had changed since previous decision – delegate failed to treat previous Tribunal decision as normative – previous decision to be followed for consistency – no remaining issues to consider – reviewable decision set aside and remitted with the direction that the discretion to refuse applicant’s application for a visa on character grounds is to be exercised in his favour

Legislation

Migration Act 1958 (Cth), s 501

Cases

Azizi and Minister for Immigration and Border Protection [2018] AATA 669

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Scott and the Commissioner for Superannuation (1986) 9 ALD 491

Singh (Migration) [2017] AATA 850

Secondary Materials

Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed, 2013)

REASONS FOR DECISION

Deputy President Rayment QC


23 July 2018

1. In this matter, a decision was made in this Tribunal by Senior Member McGrowdie between the present applicant, Dr Nima Azizi and the Minister for Immigration and Border Protection, the predecessor Minister to the present Minister for Home Affairs. The reviewable decision related to an application for a Skilled-Independent (Permanent) (Class SI) visa and reasons for decision were published on 23 March this year under the reference [2018] AATA 669. Senior Member McGrowdie who heard the matter formed the view that the correct or preferable decision to be made in the case of Dr Azizi was that he passed the character test in section 501 of the Migration Act 1958 (Cth) and the contrary decision of a delegate was set aside. The decision which the Senior Member gave followed a hearing in this Tribunal which extended over three days and on the face of his decision, nothing is apparent other than that no error of fact or law was made in the reasons published.
2. After 23 March, while, one assumes the department was further considering Dr Azizi’s application for the visa, an application was made by Dr Azizi for a Bridging E (Class WE) visa which a delegate refused on character grounds and the application for review of that decision came on for hearing before me today.
3. A question has arisen as a preliminary point before me whether the decision on the issue decided by Senior Member McGrowdie ought to be treated as normative. Such a question is of great significance in this Tribunal and indeed relates in my understanding to one of the reasons for its establishment.
4. Some remarks were made by Brennan J, the first President of this Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (another predecessor of the Minister who is the respondent in this case) which is reported at 2 ALD 634 in the context of a decision in relation to questions of deportation which are similar to those which arise in the present proceedings in some respects.
5. Brennan J gave consideration to the question of possible inconsistency of decision making in respect to deportation issues. His Honour said at page 639 of the report:

When such a power is conferred upon more than one decision-maker, a tendency to inconsistency in making decisions may appear. There may be differences in the estimates made as to the risk of recidivism although, where experience in calculating such risks is comparable, variations will be a function of the known facts. Decisions will not appear to be inconsistent on that account, if the facts of each case are examined. But to some degree, each decision-maker will vary from another in his perception of Australia's interests, the effect of offending conduct, and the effect of a decision, one way or another, upon those interests. These are not generally matters of logical proof or evidentiary demonstration. After allowing for the variations in the facts of particular cases, the degree of inconsistency in decision-making will depend upon the extent of the disparity in the respective decision-makers’ perceptions of Australia's best interests and the way in which those interests are affected.
The creation of a jurisdiction in this Tribunal to review the decisions of the Minister, and the statutory requirement that the Tribunal be constituted by a presidential member sitting alone, results in the appointment of a number of presidential members to decide the cases brought to the Tribunal from decisions of the Minister under ss 12 and 13 of the Migration Act. The procedural advantages which the Tribunal enjoys in the production and testing of evidence frequently result in the Tribunal's findings of fact (including its estimation of the risks of recidivism) being different from the findings of the Minister, and that is an intended consequence of the vesting of the jurisdiction in the Tribunal. But the possibility of a presidential member of the Tribunal attributing to a particular kind of offending conduct a gravity different from the gravity attributed to the same conduct by another presidential member, or by the Minister, adds to the prospect of inconsistency in decision-making. In the deportation jurisdiction, the Tribunal (unlike the Tribunals of some countries) cannot be constituted by members drawn from a constant panel whose standards and values may provide a constant reference point for decisions. The Minister and each presidential member may perceive Australia's interests differently and may differ in their perception of the way in which offending conduct adversely affects those interests. Such differences will lead to inconsistency in making decisions.
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.

6. Consistency of decision-making does not only affect the extent to which one Tribunal member ought in the usual case to follow and apply an existing decision of this Tribunal. A fully considered decision of this Tribunal is to be treated as normative not only by other members of this Tribunal but by government departments and agencies from whose decisions applications for review are brought to this Tribunal. Delegates of the Minister are departmental officers.
7. The Tribunal forms and was intended to form an effective wing of the executive government with power to substitute a relevant decision for that of members of the executive government who are employed as public servants.
8. The matter was considered in this Tribunal in Scott and the Commissioner for Superannuation (1986) 9 ALD 491. The Tribunal on that occasion was a full Tribunal constituted by Deputy President I. R. Thompson and Members Pascoe and Dr Davis. Having referred to a portion of the judgment of Brennan J which I have set out above, the full Tribunal said as follows at page 499 of the report:

Although that was said in relation to a consideration of whether or not it was proper for the Minister to have a policy and to make his decisions by applying that policy, it can properly be applied also to decisions of the Administrative Appeals Tribunal. One effect of the Tribunal's decisions is to establish administrative norms; they enable legislation to be administered consistently. For the Tribunal to make decisions inconsistent with its own previous decisions adversely affects that process. Doubtless, in some instances, where a matter has been decided by the Tribunal without full argument or full consideration and it is necessary for the Tribunal in later proceedings to examine the matter fully, it may then properly reach a conclusion different from the previous decision. In that event, because the later decision is the first made upon a full consideration of the matter, it is clear to administrators that that decision should be followed rather than the previous decision. More rarely there may be instances where, notwithstanding that the Tribunal has reached a decision on a certain matter after full consideration, it is nevertheless manifest that there was an error in the reasoning which led to that decision. To adapt what was said by Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 278 , it is not better that the Tribunal should be persistently wrong than that it should be ultimately right. Nevertheless, where a matter has been decided by the Tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of Australia or the Federal Court which may be relevant, it seems to us that it would be extremely unhelpful for the Tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced are substantially the same as those advanced in the previous case.

9. The matter is also discussed in the current edition of Administrative Appeals Tribunal (4th edition) by Emeritus Professor D.C. Pearce AO, at page 323, where the author, in the course of discussing the two authorities to which I have just referred, says:

Second, and importantly in terms of its position in the administrative structure, the AAT performs a normative or systemic role. Many decisions of the AAT will have the significance of a test case for decision-makers. The ruling on one application may need to be applied to many like cases arising in the course of the agency’s general business. Consistency in treatment of like cases is a hallmark of good administration.

10. The preliminary point which I am asked to consider in this matter is simply resolved on the basis of the principles to which I have referred. Mr Keevers for the respondent has frankly indicated first that since Senior Member McGrowdie’s decision of earlier this year, no circumstances relating to Dr Azizi have changed. In the second place, he has indicated to me that no submission will be made to the effect that the existing decision of Senior Member McGrowdie ought to be departed from in this Tribunal by reason of any matter of fact or law.
11. It is impossible not to observe, although we are not concerned in this Tribunal normally with the reasons for decisions which have been made at the administrative level rather than the decision arrived at itself, the delegate in the present case has failed to treat the decision of Senior Member McGrowdie’s decision as normative. Such an approach tends to be subversive of the process of good government and of process of merits review in this Tribunal, as is indicated in the decisions to which I have referred.
12. The legal effect of the decision under review, unless disturbed here, is that all applications for other visas, including the application which was before the Tribunal in the earlier proceedings, are taken to be refused.
13. In the circumstances of this case, there is no matter remaining for decision in the proceedings. Consistency of decision making relating to Dr Azizi’s character is the only course consistent with the dictates of justice, good administration and good government. I will therefore set the reviewable decision aside.
14. In the ordinary course, this decision would entail that the matter would be remitted to the Department to be reconsidered in the light of this decision and on the basis that Dr Azizi passes the character test, leaving it to the Department to consider any other matters arising in the application for a visa. I was alerted by the applicant to a further matter desired to be put on behalf of the applicant on the basis of a decision made by the acting President of this Tribunal in the year 2017, Logan J, in the matter of Singh (Migration) [2017] AATA 850.
15. Logan J went further in a matter similar to the application before me and referred the matter back for reconsideration with a direction that the discretion to refuse to grant a visa in question should be granted on conditions described by his Honour.
16. Logan J made it clear at [66] in his reasons that the basis on which the orders were made as they were in Singh was that the only material difference between the view of his Honour and that of the delegate was satisfaction with a certain condition to which the grant of the visa was to be subject. That is, it appears that all of the matters dealt with in the conditions nominated by Logan J had been dealt with in materials before the delegate. That being so, since the powers of this Tribunal extended to dealing with any matter which was before the decision-maker and could have been dealt with by him, it was open to this Tribunal to direct the issue of a visa on the conditions nominated by Logan J.
17. I am not in the same position on this review. The notice of intention to consider the refusal of the applicant’s visa application nominated only the character test as the ground of refusal, and did not invite submissions or evidence on any other matter. The decision of the delegate did not deal with or give consideration to any matter other than character arising on the question of grant or refusal of the application.
18. Therefore, I will make what I have described as the usual order. The reviewable decision will be set aside and the matter will be remitted to the respondent for consideration of the application for a visa with the direction that the discretion to refuse Dr Azizi’s application for a visa on character grounds is to be exercised in his favour.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

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Associate

Dated: 23 July 2018

Date of hearing:	23 July 2018
Solicitors for the Applicant:	Mr N Dobbie, Visa Immigration Specialists Australia
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore