Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: considered
In relation to the first ground of appeal, in summary the appellant submitted the following: &#8226; in relation to the reason of the decision-maker that the appellant did not provide any evidence of her partner's financial situation: o all the evidence before the decision-maker indicated that the appellant was estranged from her partner and that her partner was not giving her any financial support at all o the delegate, when making the decision to refuse the visa, noted that the appellant advised at interview that she received no financial assistance from her partner, and that the appellant's partner also admitted that he did not financially support the appellant o there was evidence from Centrelink that the Special Benefit paid to the appellant was income tested and only payable to non-residents in circumstances where they have proven extreme hardship and/or have been abandoned by their resident spouse o her partner's financial situation was an irrelevant consideration in circumstances where there was no evidence that the partner had supplied any money to the appellant. &#8226; in relation to the reason of the decision-maker that the appellant had not submitted 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: o irrespective of the decision-maker's policy of requiring applicants to provide, inter alia , bank statements for the last six months, it does not follow that the failure to provide such bank statements can be a relevant consideration unless the decision-maker concludes that the appellant is attempting to mislead the decision-maker o where the only evidence is that the appellant is receiving a Special Benefit and has no money in her bank account, then the failure to provide bank statements for the last six months is an irrelevant consideration. It is not possible for the decision-maker to then conclude that the payment of the fee had not caused nor was likely to cause severe financial hardship o where the appellant does not have a credit card, the failure to provide a credit card statement could not lead to the conclusion that the payment of the fee had not caused nor was likely to cause severe financial hardship o the appellant did provide evidence of rent paid in that she provided her tenancy agreement which set the rent for her premises at $135 per week o in relation to whether the appellant had "any expenses beyond regular living expenses", the uncontested evidence is that the appellant was receiving a Special Benefit of $512 per fortnight, and that she had provided a breakdown of her expenses which left no money available for other expenses. &#8226; in relation to the reason of the decision-maker concerning the indication by the appellant that she intended to start work on 18 December 2004: o the evidence indicated that the appellant was a low-skilled worker o her letter to the Tribunal stated "I will start working on18/12/04 with Ford Recruitment..." o the only inference that could be drawn from that statement was that she had approached a recruitment agency and could be offered work o the possibility of obtaining low skilled work in the future cannot be a relevant consideration to determine if the payment of $1,400 in one lump sum could cause severe hardship to the appellant. &#8226; the Tribunal failed to perform its statutory function under reg 4.13(4) Migration Regulations and as a result its decision was in excess of jurisdiction because: o once an application for a fee waiver is made the decision maker has to make a decision on whether reg 4.13(4) applies o the decision maker here made no factual findings on which to base the decision o the Tribunal made no adverse finding of credit o the facts before the Tribunal were that the appellant had a bank account with $1.00, was on a Special Benefit, and was not receiving support from her partner o it was accepted by the Department that the appellant was living under proven extreme hardship and/had been abandoned by her resident spouse o there was no evidence supporting a different conclusion. &#8226; the decision was unreasonable in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 223-234 &#8226; the power to waive the filing fee is given to the "Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar". There is no evidence that the Tribunal member was duly authorised. 22 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). 30 Fourth, 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 in Australia: Andary v Minister for Immigration &amp; Multicultural Affairs [2003] FCAFC 211 at [28] . (I note further with respect to this point that the High Court refused leave to appeal from the decision in Andary [2003] FCAFC 211: Andary v Minister for Immigration and Multicultural Affairs [2004] HCA Trans 242). In any event, the finding of the Federal Magistrate that the decision of the Tribunal delegate was one open to him in the circumstances (at [25]) demonstrates that, in the view of Jarrett FM, the decision was not "unreasonable". Given that in my view the Tribunal has taken into account relevant considerations in reaching its decision, and has made its decision based on findings supported by probative material, I am not persuaded that his Honour was incorrect.