Case: Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93
Outcome: considered
the particular document containing the policy was not part of the appeal papers or before the trial judge, during the course of argument before me, two documents were produced. One was headed 'About Visa 485' and I was informed by counsel for the Minister that its provisions applied as the policy at the time at which the appellant made his original application for a visa. Unhelpfully, it did not set out criteria for the purposes of assessing whether cl 845.216, should be interpreted in any particular way, but, simply referred to another policy for those criteria. The policy in effect for the period 11 May 2005 to 15 June 2005, being the period in which the Tribunal's decision was given, was also produced. It set out, in par 8.1, criteria, for the purposes of cl 845.216, materially identical to those the subject of consideration by a Full Court of this Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93 at 101-102 [30] . The terms of par 8.1 of the policy were: '8.1 The policy intention of this criterion overall is to establish whether the applicant has the ability to manage and operate a main business successfully. Under policy, it requires [sic] 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). 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".' The Full Court held, following a concession by the Minister, that the requirements of the identically worded policy did not correspond to the requirements of the Regulations. The court said (132 FCR at 112 [63]) that: '... the departmental policy ... was narrower than the criterion for a subclass 845 visa set out in cl 845.216 .... The criterion requires satisfaction on the part of the Minister that the applicant for the visa as owner of and interested in a main business "maintain direct and continuous involvement in the management of that business or in 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.' (emphasis added) The trial judge adopted the submission of the Minister that the Tribunal's approach to this issue was not a misconstruction of the requirements of a statutory criterion for the granting of a visa by applying a policy which was narrower than the criterion in cl 845.216, in contrast to Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168 ; (2003) 132 FCR 93. Rather, his Honour, in adopting the Minister's submission, found that it was clear from the Tribunal's decision that it had applied the very words of the enactment (in the passages at [30]-[33] to which I have referred) and that the case was no more than a merits review, as opposed to an error going to jurisdiction. I do not agree. The Tribunal's obligation was to conduct a review of the decision of the delegate (s 348(1)). In performing that review it had power to exercise all of the powers and discretions that were conferred by the Act on the person who made the decision (s 349). And, having made a decision, the Tribunal was obliged to prepare a written statement under s 368(1) which set out: &#8226; the decision of the Tribunal on review; &#8226; its reasons for that decision; &#8226; the findings on any material questions of fact; and &#8226; references to the evidence or any other material on which those findings of fact were based. I am of opinion that the Tribunal did not, in its reasons for decision, set out the evidence or any other material on which the ultimate findings of fact to which it came in relation to cl 845.216 were based. There was nothing in the findings or other material set out in its reasons that enabled it to come to the conclusion that it could not be satisfied on the issue of the appellant's involvement in the business. The Tribunal expressly said that it had considered policy in arriving at its lack of satisfaction that the appellant had met the criteria of cl 845.216. Here, the Tribunal appears to have been misled by its reliance on the unlawful constriction which par 8.1 of the policy sought to put on the proper interpretation of cl 845.216 as held in Lobo v Minister [2003] FCAFC 168 ; (2003) 132 FCR 93. As their Honours held, a want of satisfaction of the criteria set out in the policy would not equate to a want of satisfaction of the criterion in cl 845.216. And an assessment by the Tribunal in which, as it said, it was required to have regard to that policy and apply it unless there were cogent reasons for departing from it, involves jurisdictional error because the Tribunal applied the policy rather than the criteria in cl 845.216 (132 FCR at 112 [63]-[69]. The Tribunal made an error of law in that it did not correctly understand and apply the criteria in cl 845.216. Nor did it give any reasons for its conclusion in that regard. Each was a failure to conduct that part of the review in accordance with law, being a requirement to decide whether or not the appellant met the criteria for cl 845.216. And, this was also a jurisdictional error ( Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR at 112 [64]-[65]). The second argument related to whether or not the appellant met the requirements of Pt 3 of Schedule 7 of the Regulations for the purposes of cl 845.222(1). Under that clause a notice in the Gazette can establish the number of points required for the 'business skills points test' to be satisfied. The notice, for present purposes, required 105 points. It is not in issue that the appellant was entitled to 10 points by reason if his age (being between 50 and 55 years) and was entitled to 60 points because the business with which he was involved, in the 12 months immediately preceding the making of his application, met the criteria specified (in Div 1.4 of Schedule 7 in cl 7170). Accordingly, he had 70 points from those two criteria. He needed another 35 points to satisfy the test in the notice in the Gazette. The Tribunal assessed appellant as being of limited ability in English and gave him 10 points for that item. It then found that it was not satisfied with the estimates of value which the appellant had given for his assets and was not satisfied he had net assets of more than $1.5 million at the hearing, but was satisfied of him having at least $500,000 worth. Accordingly it gave him 5 points for that item. He was thus 20 points short of what he needed to meet the points test.