Commonwealth Legal Convention Paper

Commonwealth Legal Convention Paper The Collision of Law and Policy: Department of Immigration and Citizenship s Administrative Decision-Making Powers and the Law THE MIGRATION PROGRAM Australia is a land of immigrants this is readily accepted. Yet few appreciate the economic and demographic significance of the Migration Program to Australia. Parliament has entrusted the Department of Immigration and Citizenship (the Department) with the authority to exercise decision-making powers in respect of migration law and policy. It has a monopoly and is omnipotent in respect of its extensive decision-making powers 1. As such the Department has the responsibility for the administration of the legislative scheme and the Government s policy under the direction of the Minister. The Department manages, administers and provides advice on migration and humanitarian policy, border control and security, Australian citizenship, multicultural affairs and settlement services. It manages the permanent and temporary entry of people into Australia. It enforces migration law and policy. It raises considerable administered revenue from visa application and related charges. The Department manages, administers and provides advice on migration and settlement related matters and determines who, when and how non-citizens may enter and/or remain in Australia. It monitors non-citizens while they are in Australia and (where necessary) detects, detains and deports. The merits review bodies also fall within the ambit of the Department. The Department also directly regulates the Migration Advice Industry which includes both lawyer and non-lawyer migration agents. THE ROLE OF POLICY Policy gives effect to the legislative framework which contains in excess of 3,000 pages. It is underpinned by layers of regulation. There are over 140 visa categories and 7 bridging visas. As the regulatory scheme has become more complex and ever-changing, so has the Department s extensive policy framework which gives effect to the Migration Program. These policy documents contain detailed and extensive guidelines to Decision-Makers on all aspects of the legislative and regulatory schemes. As an authority given a statutory... discretion [it] is generally entitled to adopt a policy (or lay down rules or adopt guidelines) governing the exercise of that discretion 2. In Minister for Immigration, Local Government and Ethnic Affairs v Grey 3, the Court accepted that a regulatory framework such as the Migration Act 1958 ( the Act ) allows for policy guidelines in the exercise of decision-making discretions and stated: 1 The terms monopoly and omnipotent were used by Andrew Metcalfe, Secretary of the Department, in one of his speeches following the Palmer & Comrie Reports in respect of the activities of the Department. 2 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 815, page 92]. 3 Re Becker v Minister for Immigration and Ethnic Affairs [1977] 1 ALD 158 at 161-162; Drake v Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 at 589-590; Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 at 636; Tang v Minister for Immigration and Ethnic Affairs [1986] 67 ALR 177;

2 Policies or guidelines will be developed by the Executive at either or both Ministerial or Departmental levels to govern [their] application. This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decisions are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purpose and requirements, express or implied of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. The policies must be sufficiently flexible to allow individual cases to be considered on their own merits 4. Policy guidelines should read as guidelines. They should contain their own waiver rule within them, or to be capable of being put to one side where individuals argue against their application to their own cases 5. It is a well established principle in Immigration Law that policy should not be applied strictly as if it were law 6. At one extreme, the Decision-Maker is required to invite comment on why the general guidance rule should not be applied 7. In some contexts, the Decision-Maker has to be prepared to entertain argument on the merits of the guidance rule itself 8. Other cases have said that a Decision-Maker should be prepared to listen to a person who seeks to show that his or her case is exceptional and should not be brought within the rule. 9 In the writer s view, there is a collision of law and policy in this area. Departmental policy guidelines are so extensive that they result in a Decision-Maker acting on a policy. Administrative law accepts that: It is not necessary to show that the Third Party intended to dictate. It is enough that the authority feels itself compelled to act in accordance with the other s assumed wishes. 10 In "Federal Administrative Law" 11 Christopher Enright makes the following observations: However: "Obviously the effect of applying a policy is to narrow or retract the discretion because by applying the policy the decision-maker foregoes or forestalls some of the choices which otherwise would be open to her or him under the discretion". 12 and Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [paragraph 5, 140, page 310]. 4 Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [page 311]. 5 Ibid. 6 Narv & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89 at [18]. 7 Ibid; and Re Port of London Authority v Ex Parte Kynoch Limited [1990] 1 KB 176 at 184. 8 Ibid; and Stringer v Minister for Housing and Local Government [1970] 1 WLR 1281 at 1298. 9 Minister for Immigration and Ethnic Affairs v Tagle [1983] 48 ALR 566. 10 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 810, page 89]. 11 Federal Administrative Law by Christopher Enright (The Federation Press 2001) [at page 444]. 12 Ibid [paragraph 29.63].

3 "A policy says that some possible exercises of the discretion will be made and the rest will not be made. Policy is thus, in a practical sense, reforming the discretion. It is also contrary to the terms of the statute which confers the discretion on the official. In this sense, it is akin to interpretation. Interpretation decides which of several possible meanings a provision has; policy decides which of several possible applications a discretion can have. For this reason, this aspect of policy involves forming law". 13 Mr Enright goes on to discuss the issue of the legality and the use of the policy to exercise discretion: "First, adopting the policy is not inherently illegal provided that it does not excessively confine the discretion. If, therefore, the overall effect of the policy is to narrow the discretion too much, e.g. if the policy is too detailed on a vital point, there is a failure to make the decision properly." 14 Mr Enright goes on to distinguish circumstances where adopting a policy may be inherently illegal: "Second, a policy must not conflict with the provisions of the statute authorising the discretion. Third, a policy encapsulates criteria or purposes by which to exercise the discretion. It must, therefore, conform to the extended ultra vires stipulation for relevant criteria and proper purpose and it must not be unreasonable". 15 Mr Enright concludes: "Fourth, a policy which is discriminatory where there is no justification for the discrimination is unreasonable." 16 Yet, with the Department we have an administrative law system which has elevated guidelines to assume the status of a provision in a statute [which] is arguably unreasonable as it breaches the rule against fettering 17 : The rule against acting under dictation applies to discretionary functions whether legislative or administrative. 18 As stated by Hill J 19 : There can be no challenge to a Decision merely because the Decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines... However, a Decision- Maker does not slavishly follow a policy and disregard the particular circumstances of a case. As stated by Gummow J 20 : 13 Ibid [paragraph 29.64]. 14 Ibid [paragraph 29.70 at page 446]. 15 Ibid [paragraphs 29.71 and 29.72 at page 446]. 16 Ibid [paragraph 29.73 at page 447]. 17 Conyngham v Minister for Immigration and Ethnic Affairs [1986] 68 ALR 423; Minister for Immigration and Ethnic Affairs v Conyngham [1986] 68 ALR 4441; and General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 1140, page 1333]. 18 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 811, page 90]. 19 See Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] 33 FCR 87 at 98. 20 See Khan v Minister for Immigration and Ethnic Affairs Unreported, Federal Court, Gummow J, December 1987.

4... What was required of the Decision-Maker, in respect of each of the applications, was that in considering all relevant material placed before him, to give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy. The rule against fettering As previously mentioned, elevating guidelines to the status of the provision in a statute breaches the rule against fettering 21 : The rule against acting under dictation applies to discretionary functions whether legislative or administrative. 22 Bodies exercising a discretion should treat their self-imposed policies or rules as obiter dicta, persuasive, distinguishable and reversible rather than as statutory sections binding without exception or the possibility of reversal. The former is a legitimate exercise of discretion, the latter an impermissible fetter. 23 In considering the operation of the principles of responsible Government, consideration must be had of the decision-making powers made in the exercise of a statutory discretion which is circumscribed by Government policy. In Judicial Review of Administrative Action 24, the authors considered the rule that those exercising statutory discretionary power must never place fetters upon the factors they can properly consider when exercising it in individual cases. Broadly stated, this means that the merits of each case must be considered to prevent bureaucrats from transforming statutory discretions into de facto rules. 25 The Administrative Decisions (Judicial Review) Act 1977 at section 5(2)(f) reproduces the common law rule against fettering. It states that an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case is an improper exercise of power and allows for review of that exercise. As Australia s Immigration Laws have become more complex and extensive, so have the Department s policy guidelines which govern the exercise of discretion. They are bulky, in-house manuals whose legal status could never be regarded as more than guidance material, but which operate as de facto rule-books 26. The level of specificity in some instances is such that it encourages a Decision-Maker to apply a preconceived opinion about a particular case 27. The current legislation consists of astonishingly detailed and rigid rules for the bureaucracy, combined with the older-style broad discretionary powers of intervention in the case of the Minister 28. 21 Conyngham v Minister for Immigration and Ethnic Affairs [1986] 68 ALR 423; Minister for Immigration and Ethnic Affairs v Conyngham [1986] 68 ALR 4441; and General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 1140, page 1333]. 22 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 811, page 90]. 23 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 820, page 95]. 24 Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [at paragraph 5.120, page 305]. 25 Ibid. 26 Ibid. 27 Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [at paragraph 5.120, page 309].

5 In Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] 139, CLR 54 at 61-62, Barwick CJ, and at 87 Murphy J, were of the view that vesting of a discretion in an official did not give him a power to ignore or depart from Government policy. Mason J conceded that the officer would have regard to any relevant Government policy, however this did not mean that he could abdicate his responsibility for making a Decision by merely acting on a discretion given to him by the Minister. 29 Policy must be consistent with statute It is therefore clear that, while public servants may be required to exercise their discretion in accordance with Governmental policy direction and take Governmental policy into account, the Decision-Maker cannot abdicate the responsibility to make fair and reasonable decisions. In this respect, Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (Number 2) (1979) 2 ALD 634, at 640-641 stated: [A] policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purposes for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute... Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases... His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative... That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a discretion between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. It is not denied that having guidance, rules or policies may assist Decision-Makers in determining applications. For example, as there are no prescribed criteria in the Migration Regulations 1994 (the Regulations) in regard to the requirements to be met in Regulation 1.20(1) of Division 1.4 of Part 1 of the Regulations as to the approval of a person as a Sponsor for a Specialist Entry Visa, Decision- Makers are reliant on criteria detailed in policy to guide them regarding approval. One criterion currently prescribed in policy is that the relevant person has sufficient capacity to meet the financial obligations that he or she would be subject to under Regulation 1.20(2)(b)(ii). In these circumstances, policy is clearly of assistance. However, overly prescriptive guidelines can serve to apply Government policy without considering factors that a Decision-Maker is bound to consider, including the proper merits of the case. A case in point is the Department s policy guidelines relating to the Subclass 442 Occupational Trainee Visa ( Subclass 442 Visa ). Regulation 442.223(a) states that the occupational training that is proposed: (i) (ii) is workplace-based; and will give the applicant additional or enhanced skills that the applicant will be able to utilise in the applicant s employment... 28 Ibid [page 306]. 29 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] 139 CLR 54 at 83; and General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 2524, page 352].

6 Procedure Advice Manual 3 ( PAM3 ) Schedule 2 (Visa 442) contains the Department s policy guidelines in regard to assessing Subclass 442 Nominations. Paragraph 7 provides elaborately detailed guidelines as to what constitutes occupational training which include: 7.1 The training must be a training program. 7.2 Skills audit and training needs analysis. 7.3 The extent of supervision. 7.4 Structured training. 7.5 Assessment of learning outcomes. 7.6 The training must be workplace-based. 7.7 Training must add to/enhance skills: Assessment of skills and training needs. Where training appears to be at a lower level than the applicant s current skills. Nurses wishing to train in Aged Care. Nurses wishing to gain registration in Australia. The duration and nature of the training. 7.8 Guide to appropriate lengths for training programs. Under the Guide to Appropriate Lengths for Training Programs Table at paragraph 7.8 (the Table), policy provides rigorous conditions of eligibility to undertake a training program based on the Australian Standard Classification of Occupations ( ASCO ) level of training program normally required for that position which, together with the ASCO entry requirement, contains detailed guidance as to what is the appropriate length of workplace-based training. The Comments column in the Table is equally prescriptive. For example, in regard to ASCO Level 4 training programs for tradespersons and related workers it states: Programs of between 3-6 months may be appropriate. Under the Comments table, it provides a specific example and states: eg an overseas automotive electrician may elect to undertake a 3 month training program in adjusting engine control systems. I am aware of instances where highly meritorious Subclass 442 Nominations by both major Australian corporations and State Government Departments have either been refused or have been approved only after extensive submissions and documentation were provided including to the upper echelons of the Department. In these cases, Decision-Makers applied the elaborately detailed policy guidelines rigorously and based on the relatively arbitrary Table. Further, they required extensive documentation in accordance with the guidelines. When the matter was escalated to Canberra, regrettably a similar attitude of rigorous application of inflexible Departmental policy was applied.

7 In the case of a State Government Department, it first had 7 Nomination Applications refused. It was then advised to withdraw the resubmitted Applications (which contained further detailed information about the nature and extent of the workplace-based training) as otherwise these would also be refused. This State Government Department was advised that under the current visa program available there are no further opportunities for the nominees to extend their stay. In this case, there were clear and unequivocal merits to these Nomination Applications, but regrettably no will by the Department to interpret its policy flexibly. It is cases such as this which motivated me to prepare this paper. What weight should be given to policy? While these extensive guidelines, manuals and other forms of soft law are widely used by the Department, there has been little examination of what weight should be given to policies. Policy serves to guide Decision-Makers in the exercise of discretionary powers within the context of the relevant regulatory framework. However, there is a lack of Parliamentary accountability for Departmental policy, although in principle a Minister is responsible for both Departmental policy and the Minister s own policy. Decision-Makers must respond to the circumstances of the case, with reference to the terminology of the policy, the legislation, previous relevant cases and an assessment of the likely administrative consequences of the decision 30. It is accepted that Decision-Makers apply administrative policies strictly, however the: Non-fettering principle requires that inflexible fetters are not placed at the matters to be considered when exercising a discretion. The Decision-Maker is to consider the merits of the case and be ready to depart from the policy. 31 Whilst the Australian courts have emphasised that the Decision-Maker must hear arguments for an exception 32, a review of the Departmental policy guidelines rarely make reference to a Decision- Maker s discretion to depart from the application of policy. Therefore, there is a real risk that the Decision-Maker shuts his eyes to an application 33. These overly prescriptive policy guidelines arguably put the Decision-Maker under undue influence, because the repository of power has been virtually handed over to someone else and become their cipher. This is evident from a review of Departmental policies which though they seek to shape the application of discretionary power show that they are not flexible. In the case of the Employer Nomination Scheme, Subclass 856, Subclass 857 and Subclass 121 Visas, there are many examples where the Departmental policy guidelines are extensive including in regard to the interpretation of exceptional circumstances for age and English language grounds. For example, under Regulation 856.213(c)(ii), if the Applicant is 45 years or older, exceptional circumstances must apply. Departmental policy provides rigorous conditions of eligibility which apply as the age group moves further from 45, namely 45-49, 50-54, 55-59, 60 and over. The grading of degrees of exceptional circumstances according to arbitrary age brackets over the age of 45 as noted in PAM3 is policy only, yet these policies are slavishly followed as if they are law. 30 Tribunals and administrative policies: Does the high or low policy distinction help? by Andrew Edgar [from [2009] 16 AJ Admin L, 143 at page 154]. 31 Ibid. 32 Ibid. 33 Lord Reid s Classis Statement in British Oxygen Co Limited v Minister of Technology [1971] AC 610 at 625.

8 This point was highlighted in the MRT decision of V05/06685 [2006] MRTA 263 (10 May 2006), which review involved a decision to refuse an employer nominated visa where the Applicant was 63 at the time of visa lodgement. In finding that the applicant met "exceptional circumstances", the MRT noted: This policy is designed on the basis that more rigorous conditions of eligibility apply as age groups move further from age 45, thus age groups of 45-49, 50-54, 55-59, 60 or over. The gradings by age, however, are not encompassed in the legislation. The regulations do not differentiate between age groups over 45 years, and the regulations do not anticipate that there are degrees of exceptional according to how far the Applicant is in terms of years from age 45. Policy is therefore narrower than regulations allow. Following Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168, having regard to policy which goes beyond the legislation is liable to be jurisdictional error. The Tribunal does not follow the policy advice in this case. (my emphasis) Policy guidelines which do not accord with the law are beyond power. Similarly, Regulation 5.19(2)(h) requires that the nominated position corresponds to the occupation in the Legislative Instrument. In the case of (say) a Residential Care Officer, Australian Standard Classification of Occupations ( ASCO ) Code 3421-15, PAM3 provides guidance to decision-makers on matching a nominated position to an ASCO occupation. At paragraph 13.2 of PAM3: Div 5.3/reg5.19, it states: To assess regulation 5.19(2)(h)(i), officers must establish the exact nature of the work to be performed in the nominated position and then match the nominated position to an occupation in ASCO... The exact nature of the work to be performed in the nominated position can be established by examining the duties/tasks of the position and the skill/qualification requirements of the position. Although the job title and/or ASCO classification provided by the employer on the form 785 can also be indicative, officers should be wary of giving too much weight to these; if they seem to conflict with the duties and skills/qualifications provided by the employer, it is the duties and skills/qualifications that should be given the greatest weight in matching the nominated position to an ASCO occupation. (my emphasis) The policy guidelines recognise that the ASCO is a useful, though imprecise tool for aligning duties and/or tasks that will be carried out by an applicant in the nominated position. Paragraph 13.3 of the PAM states: ASCO is a useful tool for aligning duties/tasks with an occupational classification, though it provides an indicative rather than a definite list of common tasks for each of the occupations it lists... ASCO does not always precisely describe all occupations. The duties/tasks for some nominated positions may be a compilation of duties/tasks from several ASCO occupations. In such cases, the ASCO occupation that most closely aligns with the duties/tasks of the nominated position should be allocated to the position. (my emphasis) There is guidance to decision-makers on how the nominated position should be appropriately classified where a nominated position appears to be a combination of a number of ASCO occupations. An example might be a draftsperson in a commercial architectural firm who also manages the project fit-out. Tasks undertaken might be 40% draftsman duties, 30% client contact duties and 30% project management duties. Such an occupation should be described as an architectural draftsperson.

9 Officers should focus on the main tasks/duties to be performed in the position. (my emphasis) In the case Healthcall 34, the Member held that:...it is correct that r.1.20g(2) requires that, if the nominator is, among other things, a standard business sponsor (as in the present case), the tasks of the nominated activity must correspond to the tasks of an occupation specified in a Gazette Notice for the purposes of this subregulation, this is simply a criterion for the approval of the nomination in accordance with r.1.20h. I do not consider that it confines the reference to the position or occupation in relation to which the visa was granted in condition 8107 to the tasks of the nominated activity as submitted by Healthcall s representative. (my emphasis) As the Member found, the criterion for the approval of the nomination in accordance with regulation 1.20H (which is the same as Regulation 5.19(2)(h)(i)), is simply a matter of matching the tasks of the nominated activity to the tasks of an occupation specified in a Legislative Instrument, and to look to paragraph 13 of the PAM for guidance where the nominated occupation contains tasks and duties from a number of ASCO occupations. There is further commentary and guidance provided by the policy guidelines to decision-makers in matching an ASCO occupation to a nominated position in the Subclass 457 Visa scheme. Paragraph 75 of PAM3: Div1.4A relevantly provides that: 75.3 Assessing a case match to ASCO Officers should refer to ASCO, to compare the duty statement provided with the nomination against the task descriptions provided in the occupation level of ASCO. The ASCO task descriptions specify a generally representative list of the primary tasks usually performed in the occupation. 75.5 Part-compliance with ASCO If the nominated position would involve only some of the tasks of an occupation in the legislative instrument, officers should check to see if another occupation more accurately captures the tasks of the role...to be considered a match, a significant majority of tasks of the nomination need to be consistent with a significant majority of tasks normally attributed to a particular occupation (as per the ASCO description). 75.6 Cases where doubts are raised about the claimed tasks Where an officer has doubts that the claimed tasks are the actual tasks that would be performed, they may request additional information from the client to further substantiate the role (eg a position described as manager but is more likely to actually be a supervisor or clerk). Additional documentation that could be requested includes: Duty statement that have or will be provided to the occupation of the position describing the role; Organisation charts that outline the relationship between different persons working in the business; Job advertisements that outline the role; 34 071856077 [2008] MRTA 224 (24 March 2008).

10 Details about what the occupation of the position would do on a typical day; Details of the level of skills, qualifications and experience that would be required by the occupation of the position, as these factors can be an indicator as to the tasks and level of responsibility associated with the occupation. (my emphasis) The wording of the PAM guidelines for Subclass 457 nomination applications confirm that it is the tasks and duties of the position, as well as the skill level at which they are performed, which is relevant in deciding which ASCO occupation most appropriately corresponds to the nominated occupation. In determining the relevant ASCO occupation, decision-makers are directed to request additional information about the tasks and duties and the skill level at which these tasks are to be performed, where relevant. Although it is clear that ASCO is a guide only, there are many cases where there has not been a proper consideration of the nature and responsibilities of the nominated position in determining whether it accorded with an occupation in the Legislative Instrument. In Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116, McInnis FM set aside the decision of the Tribunal and remitted the matter to a differently constituted Tribunal after being satisfied that the Tribunal had erred in law in the manner in which it approached its task. In that case it effectively considered the skill requirements listed in ASCO classification 2231. It had not considered the material. It reached a decision based not simply on the ASCO classification but rather on the criterion set out in subclass 457.223(4)(d) and (e). McInnis FM stated: In considering the operation of clause 457.223(4)(a) which clearly provides that, as set out above, 'the activity in which the applicant proposed to be employed in Australia by a person is the subject of an approved nomination by the employer', I am not satisfied that that means in the circumstances that where the Department by a delegate, as in the present case, in the correspondence dated 11 September 2003 entitled 'Business Nomination Approval' inserts as the occupation 'computing professional', that that insertion automatically provides for the appropriate criteria that must then be determined either by a delegate or on review by the MRT. If it was simply the case that the business nomination approval document inserting the occupation predetermined the ASCO code and in a sense 'locked' the applicant into that category, then it is difficult to see how there is any or any adequate or indeed meaningful process to be undertaken by the MRT in applying the relevant subclauses of clause 457.223. That letter merely indicates a nominated occupation but does not in my view prevent a delegate and/or on review the MRT from properly applying the criteria under subclause 457.223(4)(d) and (e). If the insertion of the occupation in a business nomination approval determined finally the outcome of the visa application, then it is difficult to see how any further consideration of the issue can be undertaken by either the delegate or the MRT. In my view, the responsibility of the delegate and the MRT is to properly consider the subclause and not be bound by the delegate's insertion in the business nomination approval of a specific occupation. Consideration must be given to all the material provided by both the applicant and the sponsoring employer. (my emphasis) In Mariano Magaldi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] MRTA 832 (N03/07303, 1 August 2005), the Tribunal found that the review applicant held the skills to perform the activity of a solid plasterer despite having no relevant formal qualifications required by the ASCO definition. The review applicant had no formal qualifications other than a Diploma in Physical Education but had provided a copy of a wet solid plastering licence issued by the Home Building Service along with a

11 statement of training and work experience. A number of references of work were provided detailing the nature of the work the review applicant was engaged in. One stated that the review applicant was proficient in solid setting and rendering. The review applicant also provided evidence that he had completed a TAFE course and was a licensed plasterer and qualified supervisor. At the hearing, the review applicant s employer advised the Tribunal that the review applicant was a highly skilled solid plasterer. The Tribunal found that the review applicant had the personal attributes and the employment background that are relevant to, and consistent with, the nature of the activity to be performed. The review applicant had further demonstrated to the satisfaction of the Tribunal that he had the skills necessary to perform the activity. The Tribunal disregarded the skill entry level description in the ASCO definition of plasterer and remitted the application to the Department for reconsideration with a direction that the visa applicant met the criterion in clause 457.223(4). In Greater Indian & International Restaurant [2004] MRTA 1307 (3 March 2004), the Tribunal again noted that ASCO is a guide only. In Islam v Minister for Immigration and Multicultural Affairs [2000] FCA 1183, and then later in Mendis v Minister for Immigration and Multicultural Affairs [2002] FCA 437, the court held that:... the provisions of both ASCO versions in my view are intended to only provide guidance as to the classification of occupations for statistical purposes. They do not impose a mandatory requirement on the Minister or his officers to find that employment qualification requirements must be present to qualify for the various job classifications referred to. In Applicant: Poorandokht Faress Principal: Mahdokht Faress (ITR Reference: N94/00986) [1995] IRTA 5232 (3 May 1995), the Tribunal again noted: The ASCO is used as a guide only and the Tribunal will depart from ASCO if there is cogent evidence to suggest this is warranted. 35 Regulation 856.213(c)(ii) requires the applicant to meet the requirements of vocational English. PAM3 in regards to Subclass 856 Visas articulates the policy intention behind requiring ENS visa applicants to have vocational English in the following terms at paragraph 17.1: Clause 856.213(c)(ii) requires all other applicants to have vocational English unless exceptional circumstances apply. This level of English proficiency supports the policy intention that ENS visa applicants be not only highly skilled but also able to transfer their skills to the Australian workforce. This is in addition to the demonstrably better outcomes for migrants with higher levels of English proficiency. These policy objectives are consistent with the Department s intention that ENS visa holders transfer their skills to the Australian workforce. In a consideration as to whether an applicant who does not have vocational English, meets the requirements of exceptional on English language grounds, policy states: Most, or all, of the following should be considered in any assessments of exceptional circumstances for the English requirement: the nature of the work to be performed, and why vocational English is not required to perform all of the duties. For example, a religious worker may be required to work in the language or dialect of the community they are working within 35 See also Applicant: Bharathi Kancherla Principal: Veera Rajendra (ITR Reference: N94/00737) [1995] ITRA 5399 (1 June 1995).

12 how the applicant might transfer their skills to, or otherwise train, other employees regardless of whether the current staff are from the same, or similar, cultural background as the applicant as this may change due to staff turnover or anti-discrimination concerns the applicant's ability to understand and comply with OH&S requirements, deal with work emergencies, call for emergency assistance, and communicate with emergency workers when they are alone. A certificate of attendance for an OH&S course should only be considered if it includes an assessment of the applicant's understanding of the course material, regardless of whether an interpreter was present or not (this means that attendance at a course is not sufficient evidence of the applicant's level of understanding) the applicant's ability to understand and deal with issues relating to their employment and workplace rights, such as what to do about workplace bullying and harassment) whether the employer made any effort to recruit a suitably qualified person with vocational English. For example, did the employer consider recruiting workers from countries with high levels of English language proficiency? the applicant has worked in the nominated position whilst on a Subclass 457 visa for at least 12 months, and has made a consistent effort to improve their English through a course provider. This can include regular English tuition through educational institutions or private tutors with recognised qualifications in teaching English. Decision-Makers may require an applicant under the ENS who has less than functional English to pay the 2 nd instalment, currently $7,040. While policy provides that there is a discretionary power to waive the IELTS Testing requirement, which is contained in Regulation 1.15B(3)(b) where the Minister has determined that it is not reasonably practicable or not necessary, for the person to be tested using the IELTS test. This is not generally granted in the current climate. As neither the Migration Act nor the Regulations specify the way in which the discretion under Regulation 1.15B(4) is to be exercised, the Department has formulated a policy in relation to the exercise of that discretion 36 which must be consistent with Regulation 1.15B(4) and not unnecessarily restrict it. The policy guidelines in respect of the 1.15B waiver is contained in PAM3: SCH6A-English at paragraph 70.1 which provides, inter alia: Officers should use the relevant discretionary power to decide that IELTS testing is not necessary only if the applicant has submitted evidence that they have the appropriate level of English, such that it would be unnecessary for the applicant to sit an English test. The type of evidence that officers can take into account in relation to a particular level of English language ability can be seen from the table below. In the case of dependent applicants, policy provides at paragraph 70.2 that a functional level of English language ability is accepted if the person: has a degree, diploma or trade qualification that required at least 1 year of full-time study or training and all instruction was conducted in English; completed all their primary education and at least 3 years of secondary education at an educational institution where all instruction was conducted in English; 36 Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 at 1890190 per Pincus J.

13 completed at least 5 years of secondary education at an educational institution where all instruction was conducted in English; achieved an IELTS average band score of at least 4.5 in a test conducted not more than 12 months before lodging their application or at the time of processing the application; or worked for 2 years or more in either Australia, the United Kingdom, Canada, New Zealand, the United States of America or the Republic of Ireland. Otherwise, a dependent applicant who is 18 years or more at the time of application is required to pay a second instalment charge (currently $3,510) if they do not establish that they have functional English in accordance with the policy guidelines. Accordingly: It is now well recognised that most discretionary powers can at least be guided by a predetermined rule, provided, of course, that the guidance rule conforms to the Act s subject matter, scope, purpose and detail. An in-house rule or policy must be lawful. 37 Yet these extensive policies which are meant to be guidance material have in practice come to operate as de facto rule books. The highly prescriptive nature of the policy guidelines, which are astonishingly detailed, are arguably inconsistent with the legislative. Thus, while the Decision-Maker may take relevant Government policy into account when making his decision, as the guidelines have been elevated so as to assume the status of the provision in a statute, it is arguable that they are unreasonable, as they breach the rule against fettering. THE ROLE OF POLICY IN MERITS AND JUDICIAL REVIEW Where the Decision-Maker has taken into account the relevant Government policy in making his decision, a tribunal is not under a statutory power to be bound by that policy. A tribunal may consider Government policy as a relevant factor in the determination of an application for review. The Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the Decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the Decision made conformed with whatever the relevant Government policy might be. 38 Thus the Tribunal is under a duty to decide whether the Decision of the Decision-Maker was the correct or preferable one, and if such Decision, arrived at on the application of declared Government policy, does not appear to the Tribunal to answer this description, then the Tribunal is not only at liberty to decide contrary to such Government policy, but is under a duty to so act. It was said that the question for the determination of the Tribunal was not whether the Decision which the Decision-Maker made was the correct or preferable one on 37 Re Becker v Minister for Immigration and Ethnic Affairs [1977] 1 ALD 158 at 161-162; Drake v Minister for Immigration and Ethnic Affairs [1979] 24 ALR 577 at 589-590; Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 at 636; Tang v Minister for Immigration and Ethnic Affairs [1986] 67 ALR 177; and Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [paragraph 5, 140, page 310]. 38 Drake v Minister for Minister Immigration and Ethnic Affairs [1979] 24 ALR 577 at 590.

14 the material before him but whether that Decision was the correct or preferable one on the material before the Tribunal: [1979] 24 ALR at 509. 39 The Minister is politicly responsible to the Parliament for the policy adopted to guide the exercise of this discretionary power. However, as stated by Brennan J in Drake (No 2): It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law the Tribunal is as free as the Minister to apply or not apply that policy. The Tribunal s duty is to make a correct or preferable Decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory functions: [1979] 2 ALD at 642. Brennan J accepted the ability on the part of the Tribunal to disregard Government policy and Departmental policy in a particular case, as it sees fit. The Department s extensive and astonishingly detailed policy guidelines have served to increasingly encourage Decision-Makers to view them as de facto rules, thus encouraging a Decision-Maker to apply a pre-conceived opinion about a particular case 40. As such, Departmental policy when prescriptively applied results in improper self-restraints in decision-making power. In this context Minister for Immigration and Multicultural Affairs v JIA 41, His Honour stated: Without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been pre-judged is one which should be considered afresh in relation to the particular case. Kirby J in JIA stated: However, [the Minister s political position] does not mean that a Minister is at liberty to give into personal biases, idiosyncratic opinions, prejudice against the particular applicant or blanket rules, applied without regard to any specific features of the case in hand. Nor is a Minister at liberty to apply blindly his own, a Departmental, a Party, or even a Government policy which is inconsistent with the assumptions of individual justice and administrative decision-making that are inherent in the grant of the power by the Parliament. 42 The principles of responsible Government require examination of what weight should be given to Departmental policy. This highly codified system of law is now overlaid with an astonishingly detailed and prescriptive policy framework. Over time, this has served to cause a collision of law and policy. Law, of course, must prevail but does it? CONCLUSION Departmental decision-making presents great difficulties in where to draw the line between being guided by Departmental policy in the exercise of discretionary powers within the context of the relevant regulatory framework, and the transformation of these statutory discretions into de facto rules. 39 General Principles of Administrative Law (Third Edition) by E. I. Sykes, D. J. Lanham and R. R. S. Tracey (Butterworths) [paragraph 2519, page 351]. 40 Judicial Review of Administrative Action (Fourth Edition) by Mark Aronson, Bruce Dyer and Matthew Groves (Thomson Reuters) [at paragraph 5.120, page 309]. 41 [2001] 205 CLR 507 at 564. 42 Minister for Immigration and Multicultural Affairs v JIA [2001] 205 CLR 507 at 550.

15 We have moved from a discretion-based legislative scheme to a highly codified and complex legislative and rule-based regulatory framework, underpinned by extensive - and, in the writer s view, excessive policy guidelines. In the process, the ability to consider factors that are relevant to exercising the residual discretion involved in determining appropriate departures from policy have gone by the way. There is a need to allow for policy to retain its own integrity while identifying particular, unusual circumstances that justify departure 43. Otherwise, we will continue to experience a collision of law and policy, where the policy guidelines continue to undercut the administrative decision-making process, as there is not sufficient level of generality to allow for flexibility and adaptability to regulatory context 44. This serves to put further pressures on seeking Ministerial intervention in cases which demand a fair and just result. It also serves to question the role of the bureaucracy in our system of law. Maria Jockel Principal, Russell Kennedy Solicitors Accredited Immigration Law Specialist and Registered Migration Agent 43 Tribunals and administrative policies: Does the high or low policy distinction help? by Andrew Edgar [from [2009] 16 AJ Admin L, 143 at page 155]. 44 Tribunals and administrative policies: Does the high or low policy distinction help? by Andrew Edgar [from [2009] 16 AJ Admin L, 143 at page 156].