Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
In summary the first respondent submitted the following: &#8226; it is yet to be established whether or not a decision which is unreasonable, in the sense explained in the Wednesbury case, is amenable to review for jurisdictional error in Australia. In any event, the Federal Magistrate was satisfied that the conclusion reached by the Tribunal officer was a view which was reasonably open. This is correct and there is no prospect of Wednesbury unreasonableness, even assuming that Wednesbury unreasonableness does provide a separate ground of review &#8226; the primary submissions of the appellant as to the alleged failure of the Tribunal to take into account a relevant consideration, or taking into account an irrelevant consideration which it was bound not to take into account, is in reality an attack on the merits of the decision. There is no error of law, let alone a jurisdictional error, in making a wrong finding of fact. It is not the function of a court to substitute its own decision for that of the administrator by exercising a discretion that the legislature has vested in the administrator: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 per Mason J at 39-40 &#8226; the evidence of the estranged partner's financial contribution was clearly a relevant consideration in the context in which the decision-maker was making his decision. The appellant had applied for a Partner Visa based upon her de facto relationship with the estranged partner &#8226; it is permissible for the Tribunal to develop a form which sets out the matters it regards as relevant, provided the Court is satisfied that they are not clearly irrelevant &#8226; the task of the Tribunal's delegate on the application of the appellant was to achieve, on the evidence presented by the appellant, a state of satisfaction as to whether the payment of the fee required by the regulations had caused, or was likely to cause, severe financial hardship to the appellant. The findings made by the Tribunal's delegate were not only reasonably open on the evidence presented to him but were findings which he was required to make. The appellant's submission to the contrary is without foundation &#8226; whether the decision is a "good" decision or not is not the point - the question is whether it is officiated as a jurisdictional error &#8226; the facts of this case are not similar to those in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court held that the Tribunal had disregarded documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated &#8226; the evidence of the estranged spouse's financial contribution was clearly a relevant consideration in the context of an application for a Partner Visa based on a de-facto relationship with the estranged spouse &#8226; there is no statutory obligation to notify the appellant in any particular way, and no suggestion that the letter was not sent to the appellant's authorised recipient at the correct address. Although Mr Donohue may have been the "authorised officer" in relation to making the decision within the Regulations, Mr Hajaj was authorised to send the letter containing the decision. Nothing turns on the fact that the name "Manal Hajaj" appeared above "authorised officer" in letter to appellant &#8226; in relation to the form of notification of the Tribunal's decision to the appellant, Mr Bickford relied on the decision of Kiefel J in Sochorova v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 817 where the applicant was before the Tribunal. In that case, although the applicant had previously been represented by solicitors, the hearing was conducted in the presence of the applicant, her brother and an interpreter. The Tribunal attempted to contact the applicant several days after the hearing to inform her of the decision, but was advised by the solicitors that they no longer acted for the applicant, and gave the Tribunal the last known telephone number and address of the applicant. It appears that the Tribunal contacted the applicant's brother by telephone and advised him orally of the decision on 21 August 2001. The applicant claimed that she was not notified of the decision until almost four months later. Kiefel J held that the applicant's brother was not her representative, and that advice to the applicant's brother was not notification to the applicant within the meaning of s 368D of the Migration Act . The applicant was first notified of the decision four months later, when she herself received a copy of the decision of the Tribunal, and that time began to run for an appeal from that point. However her Honour also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, and held that the form of notification did not invalidate the actual decision of the Tribunal itself, because it did not follow either expressly or impliedly from construction of the Migration Act that such a consequence would follow (at [11]) &#8226; the significance of the decision of the Full Court in Braganza [2001] FCA 318 ; 109 FCR 364 is that in that case their Honours held that where an application for review of the Minister's decision and a request for fee waiver are made within the period prescribed by s 347(1) Migration Act , the Tribunal had jurisdiction to consider the application for review provided that the application to set aside the Minister's decision is valid if made within the prescribed period and the fee is eventually paid or paid within a reasonable time after the waiver application is rejected (in particular at 375). 27 Second, principles with respect to relevant considerations are well-known, and include that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision; that the factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring a power or discretion; that not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law; and that the limited role of the court reviewing the exercise of an administrative discretion must constantly be borne in mind, so that generally it is for the decision-maker and not the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power (Mason J in Peko-Wallsend 162 CLR at 39-41). Leaving aside for the moment issues relevant to the validity of the communication of the Tribunal's decision to the appellant (to which I will refer below), in this case the letter dated 28 January 2005 from the Tribunal to the appellant made known its reasons to the appellant for decision as being: &#8226; failure of the appellant to submit enough evidence to support a fee waiver request, for example bank statements for the last six months, any credit card statements, evidence of rent paid and any expenses beyond regular living expenses &#8226; failure of the appellant to provide any evidence of her partner's financial situation &#8226; the indication by the appellant in her correspondence to the Tribunal that she intended to start working on 18 December 2004.