FEDERAL COURT OF AUSTRALIA

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1 FEDERAL COURT OF AUSTRALIA Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 IMMIGRATION Application for Subclass 155 (Five Year Resident Return) Visa refused Tribunal found applicant did not satisfy legislative requirements whether jurisdictional error or error of law occurred WORDS AND PHRASES - Whether Tribunal erred in construction of the term compelling reasons for the absence Administrative Decisions (Judicial Review) Act 1997 (Cth), s. 5 Judiciary Act 1903 (Cth), s. 39B Migration Act 1958 (Cth), Part 2, Division 3 and Part 5, Division 3 Migration Regulations 1994 (Cth), Schedule 2, subclause (3A)(b)(i) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Australian Gas Light Co. v Valuer-General (1940) 40 SR (NSW) 126 referred to Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645 distinguished Bozanich v Minister for Immigration and Multicultural Affairs [2002] FCA 81 considered Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183 referred to Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 referred to Craig v South Australia (1995) 184 CLR 163 referred to Hope v Bathurst City Council (1980) 144 CLR 1 referred to House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 referred to Ji v Minister for Immigration and Multicultural Affairs [2001] FCA 904 referred to McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 distinguished Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 referred to NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 referred to Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 referred to Re Drake and the Minister for Immigration and Ethnic Affairs (No. 2) ( ) 2 ALD 634; 11 FLR 203 referred to

2 - 2 - Re Ruddock & Ors; Ex parte Reyes (2000) 177 ALR 484 referred to Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cohen ( ) 177 ALR 473 referred to Tumelty v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 139 considered LORENZO PADUANO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL VID 741 of 2004 CRENNAN J 10 MARCH 2005 MELBOURNE

3 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION VICTORIA DISTRICT REGISTRY VID 741 OF 2004 BETWEEN: AND: LORENZO PADUANO APPLICANT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JUDGE: MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT CRENNAN J DATE OF ORDER: 10 MARCH 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Application allowed. 2. Order that the Tribunal s decision made on 18 May 2004 be set aside and further order that the matter be remitted to the Tribunal, differently constituted, for determination in accordance with the law. 3. First Respondent pay the applicant s costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

4 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION VICTORIA DISTRICT REGISTRY VID 741 OF 2004 BETWEEN: AND: LORENZO PADUANO APPLICANT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JUDGE: MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT CRENNAN J DATE: 10 MARCH 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant applies under s 39B of the Judiciary Act 1903 (Cth) ( Judiciary Act ) and/or s 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) ( ADJR legislation ) to review the decision of the Migration Review Tribunal ( the Tribunal ) dated 18 May 2004, affirming a decision of the first respondent s delegate that the applicant is not entitled to the grant of a Return (Residence) (Class BB) visa. Facts 2 The applicant is an 81 year old citizen of Italy. He is a widower whose only child, a daughter, is an Australian citizen living in Australia with her husband and children. 3 The applicant migrated to Australia in 1959, accompanied by his wife and daughter. His wife suffered an ectopic pregnancy on the voyage to Australia, the long-term sequela of which was a depressive illness after an hysterectomy. As a permanent resident, the applicant worked and paid taxes in Australia for thirteen years. In 1972, as a result of the continuing depressive illness of the applicant s wife, the family returned to Italy where there was greater family support.

5 - 2-4 In 1977, the applicant s daughter married an Italian, had children and lived in Italy. The applicant and his late wife always lived with her and her family. In 1996 the applicant s daughter and her family returned to Australia where they have lived since. 5 In 1997 the applicant and his wife, who has since died, returned to Australia to resume living with their daughter. Applicant s claim before the Tribunal 6 The substance of the applicant s claim before the Tribunal was that the applicant had personal ties with Australia which are of benefit to Australia and that his absence from Australia for a period of some 25 years had been for compelling reasons and he therefore qualified for the grant of a visa. 7 The main question for the Tribunal was whether it was satisfied the applicant fell within the criteria for the grant of a subclass 155 Five Year Resident Return Visa ( subclass 155 visa ) set out in Schedule 2 to the Migration Regulations 1994 ( the Regulations ), made pursuant to the Migration Act 1958 (Cth) ( the Act ) and particularly whether the applicant fell within the criteria in subcl (3A). Although the Tribunal also considered whether the applicant satisfied the criteria under subcl 157, its decision on that aspect is not challenged in this application. Applicable law 8 Section 29 of the Act enables the Minister to grant a non-citizen a visa to remain in Australia. The Act provides for various classes of visas (subss 31(1) and (2)) and the Regulations may prescribe criteria for visas of a specified class (subs 31(3)). Visas of a specified class may only be granted in specified circumstances (subs 40(1)). The Minister is required to reach a state of satisfaction before the grant of a visa (s 65) and the Minister may delegate powers under the Act (s 496). Under s 338 the Tribunal was empowered to review certain decisions and had a power and duty under s 349(2) to affirm, vary or set aside the delegate s decision on the basis of its satisfaction or non-satisfaction in respect of the relevant criteria. 9 Regulation 2.01 prescribes classes of visas for the purposes of s 31 of the Act, reg 2.01 prescribes subclasses which are set out in Schedule 2 to the Regulations and Schedule 2

6 - 3 - contains the criteria applicable to classes of visas (reg 2.03). The criteria for a subclass 155 visa is to be found in subcl which relevantly provides: (3A) The applicant meets the requirements of this subclause if the applicant is in Australia, and the Minister is satisfied that the applicant: (a) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and (b) has not been absent from Australia for a continuous period of 5 years or more since: (i) the date of grant of the applicant s most recent permanent visa, unless there are compelling reasons for the absence; or (ii) the date on which the applicant ceased to be a citizen, unless there are compelling reasons for the absence. (emphasis added). The Tribunal s reasoning 10 The Tribunal accepted that the applicant had substantial personal ties to Australia and that the ties were of benefit to Australia for the purposes of subcl (3A)(a) set out above. 11 The Tribunal then turned to consider whether the applicant came within subcl (3A)(b)(i), subcl (3A)(b)(ii) not being applicable to the applicant. 12 In determining the application, the Tribunal dealt with three matters. 13 First it considered para of Migration Series Instructions ( MSI ) produced by the Department of Immigration and Multicultural and Indigenous Affairs ( the Department ), specifically MSI 356, which provides as follows: This is a strong test of the reasons for a person s absence. Some examples of compelling reasons include, but are not limited to: severe illness or death of an overseas family member; the applicant or the applicant s accompanying family members have had acute medical conditions requiring treatment and preventing travel; the applicant has been involved in legal proceedings such as sale of property, custody, or contractual obligations and the timing was beyond the applicant s control; or the applicant has been caught up in a natural disaster, political uprising or other similar event beyond their control. 14 The Tribunal noted a further aspect of the Department s policy before proceeding to its decision. Para of MSI 356 provides:

7 - 4 - Policy does not require the applicant to show compelling reasons for the initial 5 year absence from Australia, however, they must show compelling reasons for any further absence from Australia. The Tribunal correctly noted that its task in accordance with that policy was to assess whether the applicant had compelling reasons for (his) absence from Australia between 1977 and After the Tribunal noted that the applicant s absence from Australia did not fall within any of the examples set out in MSI 356, it recognised that the applicant first left Australia because of the physical traumas suffered by the applicant s spouse which had an impact upon her long-term psychological and emotional well-being, but went on to note that the reasons for not returning to Australia earlier were that the applicant and his spouse were psychologically dependent upon and needed to remain with their daughter and her family and that in addition, the visa applicant and his spouse had provided invaluable assistance in the care of their three grandchildren while their daughter and son-in-law worked. The evidence of psychological dependence included the fact that the applicant and his late spouse had never lived apart from their only daughter, with whom they resided in Italy continuously, including residing with her after the date of her marriage in 1977 until her departure to Australia in Having found the applicant did not fall within any of the examples contained in MSI 356, the Tribunal then considered whether there were cogent reasons for the Tribunal to depart from the policy guideline MSI 356 by reference to the comments of Brennan J (as he then was) in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) ( ) 2 ALD 634; 11 FLR 203 ( Drake s case ). In undertaking this task, the Tribunal referred to the express wording of the subclause, evidence of cultural norms and Tumelty v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 139 ( Tumelty ). In Tumelty s case a Federal Magistrate found a Tribunal had not made a jurisdictional error when construing compelling reasons for the absence in the same subclause, as requiring an element of lack of complete control over the events. 17 Secondly, the Tribunal made reference to Bozanich v Minister for Immigration and Multicultural Affairs [2002] FCA 81 ( Bozanich ) which concerned a subclass 820 spouse visa, and criteria at subcl (d)(ii):

8 - 5 - the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 18 The Tribunal in this case noted Bozanich s case: In Bozanich the Court considered a decision of the Tribunal to refuse the applicant a subclass 820 visa on the basis that the Tribunal was not satisfied that there were compelling reasons for not applying criterion 3001 of Schedule 3 of the Regulations. The Court did not specifically comment on the definition of compelling, but stated that: The Tribunal accepted that the word compelling should be taken in its ordinary meaning denoting the use of force towards a particular course of action, the circumstances surrounding which are usually involuntary and usually involuntary (sic) and generated by a necessity. The Tribunal observes that the Court appeared to accept that the ordinary meaning of the word compelling incorporates an involuntary element. The Tribunal overstated what the court accepted by its use of the phrase usually involuntary. 19 The Tribunal then noted a series of Tribunal decisions to which it was referred, involving the same subclause and stated that, each applicant s reasons for absence fell within one of the examples in the abovementioned Departmental instructions: see Girolamo [2001] MRTA 3264; Caligiore [2003] MRTA 2368; Messina [2002] MRTA 3433 and Termine [2003] MRTA Thirdly, the Tribunal referred to a number of dictionaries as follows: Neither the concept of compelling reasons for absence nor the term compelling is defined in the legislation. According to the Macquarie Dictionary, compelling means demanding attention or interest whilst the term compel means to force or drive, especially to a course of action. The visa applicant s migration agent has submitted that the Tribunal should also have regard to other various dictionary definitions of the term compelling which define it to mean tending to demand action or to convince (Webster s Legal Dictionary) and constrain, force; bring about by force, drive forcibly; rousing strong interest or attention or feeling of admiration (Oxford Concise English Dictionary). The Tribunal s decision 21 In deciding whether to affirm, vary or set aside the delegate s decision, the Tribunal stated:

9 - 6 - The Tribunal has no doubt that throughout the visa applicant s 25 year absence from Australia he and his spouse had a deep and sincere commitment to their family. Nor does the Tribunal doubt the love and commitment the visa applicant s daughter and family feel for the visa applicant and that refusal of the resident return visa involves an element of hardship for all concerned, particularly given the visa applicant s age and the fact that he is now a widower. However, the Tribunal notes that it must assess whether the visa applicant had compelling reasons for the absence beyond 5 years, not whether there were compelling reasons for the visa applicant s initial departure from Australia or whether there are compelling reasons for the visa applicant to remain in Australia at the time of the Tribunal s decision. The Tribunal has had regard to the cultural norms applicable to the visa applicant s circumstances and the extent to which they dictate his past decisions in relation to his family. Whilst the visa applicant s desire to do the best for his family is completely understandable and demonstrates his commitment to his family, it is also a very normal and common human desire. In addition, the Tribunal observes that the evidence indicates that the visa applicant s intention was and is to remain with his daughter and her family, wherever they reside. Again, whilst the Tribunal finds this very understandable given the visa applicant s age and personal circumstances, in the circumstances of this case the Tribunal is not satisfied that the reasons put forward are compelling in the sense that they demand or rouse strong attention, interest or admiration or that they tend to demand action. Accordingly, the Tribunal is not satisfied that the reasons submitted on the visa applicant s behalf give rise to compelling reasons for his absence from Australia beyond a period of 5 years, having regard to the ordinary or common meaning of the word compelling. (emphasis added) Grounds of review 22 The applicant obtained leave, which was unopposed, to join the Tribunal as a respondent. The Tribunal subsequently informed the Court that it would abide by any orders made by the Court, save as to costs. The application, which was amended without opposition, identified 4 grounds to support the application for judicial review. 23 It was alleged that the Tribunal exceeded its jurisdiction, or committed jurisdictional error which was particularised as follows: i) ii) The Tribunal erred in the construction and application of cl (3A)(b)(i) in Schedule 2 to the Migration Regulations by wrongly holding that the Tribunal was to disregard any matters occurring within 5 years of the date of departure by the applicant from Australia; The Tribunal erred in its construction and application of the phrase compelling reasons for the absence in cl (3A)(b)(i) in that: (1) it required the applicant to demonstrate an involuntary element ;

10 - 7 - (2) it construed the clause as imposing a test higher than that required by a correct reading of the provision. iii) The Tribunal erred in applying paragraph of MSI 356: (1) in circumstances where the policy did not accurately reflect cl (3A)(b)(i); (2) alternatively as if the examples given in it were determinative of the circumstances in which compelling reasons would exist unless the applicant could show cogent reasons for departing from it. iv) The Tribunal failed to take into account a relevant consideration namely the reason why the applicant had departed Australia. Grounds (i) and (iv) Applicant s submissions 24 It was submitted for the applicant that the Tribunal erred in its construction and application of subcl (3A)(b)(i) by wrongly holding the Tribunal was to disregard any matters within 5 years of the date of departure by the applicant from Australia; alternatively, it was submitted reasons for departure are relevant considerations when assessing whether reasons for a period of absence are compelling. First Respondent s submission 25 It was submitted that the Tribunal explicitly considered the matters and accepted the reasons put forward for departure as part of the overall case of the applicant. Grounds (ii) and (iii) Applicant s submissions 26 These grounds covered the more significant points on this application for review. It was argued for the applicant that the Tribunal misunderstood the authorities upon which it relied particularly Bozanich. It was also submitted that the Tribunal erred in its construction of the phrase compelling reasons for the absence. First, this was said to occur because the Tribunal construed the phrase as requiring some involuntary (or unavoidable) response to the circumstance of compulsion; secondly, it was said to occur because the Tribunal applied para of MSI 356 as though it exhausted examples of compelling reasons for the absence and thirdly, it was said to occur because the Tribunal imposed a higher test than the express words of the subclause required.

11 There was no contention on behalf of the applicant that there was no evidence to justify the making of the decision. Nor was it contended that the Tribunal improperly exercised power because the decision was so unreasonable that no reasonable person could have so exercised the power. Nor was it argued that the Tribunal s decision that it was not satisfied that the applicant satisfied the legislative requirements was a decision in respect of a jurisdictional fact and amenable to judicial review if wrong. First Respondent s submission 28 The first respondent s counsel submitted the Tribunal was undertaking an evaluative task and doing no more than applying a correct legal test to the facts and accordingly the decision was free of jurisdictional error. In particular, it was submitted that the Tribunal did not require the applicant to demonstrate an involuntary requirement to satisfy the legislative requirement, compelling reasons for the absence. Further, it was submitted the question of whether the Tribunal was satisfied that there were compelling reasons for the absence was ultimately a simple question of fact committed to the Tribunal: Re Ruddock & Ors; Ex parte Reyes (2000) 177 ALR 484 at [15]; Ji v Minister for Immigration and Multicultural Affairs [2001] FCA 904 at [3]. Counsel also relied on McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 ( McNamara ) and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645 ( Babicci ). Consideration 29 Turning first to the grounds given greater prominence in the course of submissions, the main question for me under grounds (ii) and (iii) is whether the Tribunal committed any error in construing subcl (3A)(b)(i) and whether any such error, if it occurred, constituted reviewable error. 30 In construing compelling reasons for the absence as reasons that demand or rouse strong attention, interest or admiration or that... tend to demand action, the Tribunal stated that its construction turned on its understanding of the ordinary or common meaning of the word compelling. No jurisdictional error or error of law arises out of the Tribunal treating MSI 356 as policy or policy guidelines when they are more correctly described merely as guidelines. Nor does any jurisdictional error or error of law arise out of the Tribunal misunderstanding, as it did, Bozanich s case: Re Minister for Immigration and Multicultural

12 - 9 - Affairs and Ors: Ex parte Cohen (2001) 177 ALR 473. Those mistakes were made on the way to reaching a conclusion. 31 Compel and compelling are words of ordinary meaning and the subclause s expression compelling reasons for the absence falls to be construed by reference to well-established principles. In interpreting a statute or delegated legislation the object of the court is to ascertain the legislative intention as expressed by the words used : Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304. Whilst the construction of a statute is a matter of law, the ordinary or natural meaning of an ordinary English word is generally a question of fact: Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; Re Minister for Immigration and Multicultural Affairs and Ors; Ex parte Cohen (2001) 177 ALR 473 at 481. Resort by courts to dictionaries, to assist in the task of establishing the ordinary or natural meaning of an ordinary word has been well recognised over a long period: see the observations of Jordan CJ in Australian Gas Light Co. v Valuer-General (1940) 40 SR (NSW) 126 at 137, of Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 and of Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 504/505. In the final analysis a court must determine the intention of the legislature and the applicability of ordinary words to specific facts by reference to the meaning of the language and purpose of a particular instrument. 32 A perusal of commonly used dictionaries indicates that the words compel and compelling are ordinary English words which have not one, but several connotations. What they have in common is a semantic debt to the Latin pello/pellere to force, to drive, to stimulate, to rouse, but it is clear beyond dispute that the idea of force common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the force of mental stimuli such as from a compelling argument. The Oxford English Dictionary (2 nd ed.) Vol III gives four definitions for the verb compel ranked from the usual construction to rare : 1. To urge irresistibly, to constrain, oblige, force: a. a person to do a thing; b. a person to or (into) a course of action, etc. 2. a. To take or get by force, to extort; b. To constrain (an action); to bring about by force, constraint or

13 moral necessity; to exalt by rightful claim; to command. 3. To force to come, go, or proceed; to drive forcibly, to force 4. To overpower, constrain. The same dictionary s entry for compelling contains two definitions: a That compels: see verb b Of a person, his words, writings etc, irresistible; demanding attention, respect, etc. (emphasis added) 33 The entry in the Macquarie Dictionary (3 rd ed.) for compelling states: (of a person, writer, actor, etc) demanding attention or interest. (emphasis added) 34 Webster s Legal Dictionary gives examples of the meanings of compelling : that compels: tending to demand action or convince (emphasis added) Webster s Third New International Dictionary (unabridged) 1993 contains the following expanded meanings for compelling : 1. forcing, impelling, driving. 2. demanding respect, honour, or admiration 3. calling for examination, scrutiny, consideration or thought 4. demanding or holding one s attention 5. tending to convince or convert by or as if by forcefulness of evidence (emphasis added) The emphasised entries show the sources for the Tribunal s construction of, or gloss upon, compelling reasons for the absence. The balance, the unemphasised, shows what aspects of the ordinary meaning of compelling the Tribunal has omitted from its construction of, or gloss upon, the legislative expression. 35 The legislative intention to be discerned in the legislature s use of the word compelling in the expression compelling reasons for the absence is not an amalgam of every shade of meaning of compelling to be found as examples of common usage in dictionaries. A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation. 36 The relevant regulations have as their purpose setting out clear criteria for various visas. Clear factual criteria apply for a subclass 155 visa unless the Minister is satisfied there were

14 compelling reasons for the absence of more than 5 years. The instruction in para of MSI 356 is intended to assist in the administration of the subclause, but in its terms it does not purport to construe the delegated legislation which is for the Courts rather than the Executive: Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 183 at [68]. 37 The ordinary meaning of the adjective compelling is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. Compelling in its wide, ordinary meaning means forceful. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that compelling, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that compelling reasons for the absence must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI In McNamara s case, Whitlam J had to consider the same waiver provision which was considered in Bozanich s case, set out in paragraph 17 above, which contained the expression compelling reasons for not applying those criteria. Whitlam J found: Reasons for not applying Sch. 3 criteria may appear compelling to one person and not to another. The adjective compelling does not introduce an objective standard. The waiver decision will always involve a subjective judgment. 39 In Babicci s case Moore J considered the expression compelling circumstances affecting the sponsor or nominator in reg 1.20J(2): Despite subregulation (1), the Minister may approve the sponsorship or nomination of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor or nominator. Moore J decided:... plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship.

15 Moore J s decision on the meaning of compelling in the subclause he considered is consistent with treating compelling as meaning forceful and therefore convincing. 40 In both McNamara and Babicci, the judges treated the Minister, rather than the applicant, as the implied predicate, that is as the person the legislature intended to be compelled by the compelling reasons or compelling circumstances respectively, reflecting the syntax of the waiver provisions under consideration. 41 The subclause here is somewhat different syntactically. The expression compelling reasons for the absence must, I think refer to the applicant s absence. Whilst the drafting style is one which requires the Minister s satisfaction as to a matter of fact, it seems to me this does not mean the Minster s decision on this aspect involves only a subjective judgment as in McNamara s case. If, as I think is correct, the applicant is the one who must have been compelled by the reasons for his absence, the requirement that the Minister be satisfied in respect of them means that the Minister is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the appellant. Even if I am wrong, and the subclause does not introduce any objective standard, any subjective judgment made by the Minister as to whether the reasons were compelling would still have to be reasonable in the administrative law sense. 42 In its reliance on Bozanich for the mistaken proposition that the ordinary meaning of the word compelling incorporates an involuntary element, in its apparent acceptance of Tumelty which found the subclause required circumstances beyond the applicant s control and in its comparison of the applicant s circumstances with the examples in MSI 356, the Tribunal treated the applicant as the person compelled by the reasons for absence. However, in its ratio decidendi it is not clear to me whether the Tribunal was not satisfied the reasons were compelling, because it was not satisfied the reasons demand or rouse (its) strong attention, interest or admiration or... tend to demand (its) action, ie. to grant the visa despite the applicant s absence for more than 5 years, or whether it meant it was not satisfied the reasons demand or rouse (the applicant s), strong attention, interest or admiration or... tend to demand (the applicant s) action, ie. to remain absent.

16 The Tribunal accepted all of the evidence put forward as the reasons for the absence, namely the psychological dependence of the applicant and his late wife on their only daughter, who grew up, without siblings, with her parents in Australia, during the long depressive illness of the applicant s late wife. Except for a period between 1996 and 1997, when the applicant was finalising his affairs in Italy so he and his late wife could follow their daughter to Australia, he and his late wife had lived with their daughter for over five decades. They had assisted in the care of their grandchildren as they grew up. The Tribunal accepted the psychological dependence arose from the applicant s desire to do the best for his family which the Tribunal described as a very normal and common human desire. 44 Whether the Tribunal treated itself as the person to be compelled or the applicant as the person to be compelled by such reasons, a conclusion by the Tribunal that it could not be satisfied the reasons which it had accepted demand or rouse strong attention, interest or admiration or... tend to demand action does not seem reasonable in an administrative law sense. 45 The first part of the Tribunal s gloss on the legislative expression, that compelling reasons for the absence must demand or rouse strong attention, interest or admiration seems strained, awkward and not especially apposite as shown by an examination of the dictionary entries from which it derives. Moreover, it is not possible to be sure what the Tribunal required to satisfy this aspect as it is not possible to identify how the circumstances accepted by the Tribunal as set out in paragraph 43 above could be found, for example, not to rouse interest. 46 The second and alternative part of the Tribunal s construction, namely that compelling reasons for the absence must tend to demand action is correct and apposite as far as it goes. However, the Tribunal had ascertained compelling in its ordinary meaning means tending to demand action or to convince (emphasis added), but in putting a gloss on the legislative requirement it shortened this ordinary meaning to tending to demand action. This seems to me to omit a significant aspect of the ordinary meaning of compelling. 47 The applicant s counsel did not rely on the unreasonableness of the result as a ground of review but rather argued that the Tribunal s construction of the legislative requirement put a gloss upon or derogated from the express words in the subclause. I agree. However, I do not

17 agree that the gloss upon the legislative requirement meant that the Tribunal required the applicant to demonstrate an involuntary element as set out in ground (ii)(1). It is not possible to determine what the Tribunal required. It is only possible to say that its gloss on the legislative requirement does not cover all reasons which could come within the legislative expression. Accordingly, it applied a higher test than the express words required, as set out in ground (ii)(2). 48 It is necessary at this point to acknowledge the submissions made by the first respondent s counsel. I accept, for the purposes of the decision, that the task of applying the subclause to the particular facts is a task committed to the judgment of the Tribunal. In the absence of matters such as, for example, bad faith or unreasonableness or a characterisation of a fact as a jurisdictional fact, there can be no jurisdictional error arising out of a finding of satisfaction in respect of certain facts, if that state of satisfaction were open on the evidence. 49 However, accepting for the purposes of the application that the Tribunal s application of the legislative requirement to a set of facts is a matter committed to it, the antecedent question, is whether the Tribunal s gloss on compelling reasons for the absence (if wrong) revealed an error as to a matter of fact (ie. the meaning of ordinary words), which could not give rise to jurisdictional error or an error as to a matter of law. 50 Although the Tribunal undertook its decision-making conscientiously and has correctly set out the natural meaning of relevant ordinary words as extracted in paragraph 20 above, it has applied the legislative requirements by a reference to a narrow and not entirely apposite construction of the legislative expression. 51 To err in the construction of statutory criteria for the grant of a visa is to err in law: NAGV and NAGW of 2002 v Mininster for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6. To err in the construction of an expression in delegated legislation, which forms part of the criteria for the grant of a visa, is equally to err in law. 52 It is possible that absent the error of construction, the result may have been the opposite of the result complained of, particularly considering the Tribunal s acceptance of certain facts as described in paragraph 43 above. There is authority for the proposition that such a circumstance can give rise to error of law for the purpose of ADJR legislation: Australian

18 Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and 384 per Mason CJ. 53 As a result of an error in construing the legislative expression, the Tribunal asked itself a wrong question: Were the reasons for the absence compelling in that they demand or rouse strong attention, interest or admiration or... tend to demand action? If the Tribunal wished to ask the question posed by the case by reference to the ordinary meaning of compelling, the correct question was: Were the reasons for the absence compelling in that they were forceful? In answering that question, the Tribunal would commit a mistake of law if it put a gloss on forceful so as to exclude reasons for the absence which are forceful in that they involve moral necessity, or are convincing by reason of some forcefulness. This distinguishes this case from Babicci s case (which is distinguishable on other grounds as well) where Moore J found the mistaken adoption of the meaning of a statutory criterion did not result in the Tribunal misunderstanding the question it had to decide. 54 I find the Tribunal made a mistake of law and did not address itself to the question, which the subclause obliged it to ask. I would characterise this as a jurisdictional error for the purposes of s 39B of the Judiciary Act: Craig v South Australia (1995) 184 CLR 163 at 179 per McHugh, Gummow and Hayne JJ and Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 at 340. I would also find the Tribunal committed an error of law for the purpose of ADJR legislation. 55 Ground (ii)(2) of the application for review is made out. It is sufficient for the purposes of the application to grant relief pursuant to s 39 of the Judiciary Act. Grounds (i) and (iv) 56 Whilst it will not affect the result, I do not accept the submissions made on behalf of the applicant on grounds (i) and (iv). In essence, the applicant s counsel submitted that the Tribunal erred in the construction of the relevant subclause by wrongly disregarding matters occurring within 5 years of the date of departure, which was said to also amount to a failure to take into account a relevant consideration. In my view, the respondents counsel was correct to note that the Tribunal had considered the relevant consideration identified for the purposes of that argument. At numerous points in the Reasons for Judgment, the Tribunal described and accepted the evidence that the initial departure from Australia was motivated by a desire to improve the long term ill health of the applicant s wife. Grounds (i) and (iv)

19 were not made out. Conclusion 57 On the basis that ground (ii)(2) of the amended application has been made out, the application for review is successful. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan. Associate: Dated: 10 March 2005 Counsel for the Applicant: Solicitor for the Applicant: Counsel for the Respondents: Solicitor for the Respondents: R M Niall Joseph Italiano W Mosley Clayton Utz Date of Hearing: 14 February 2005 Date of Judgment: 10 March 2005