rr 1.13A & 2.90 and ss 140L & 140M interpreted

Section 140L(1)(a)(ii) of the Migration Act 1958 (Cth) provided that the regulations may prescribe "other circumstances in which the Minister may take one or more of the actions mentioned in section 140M".

Section 140M(1)(a) and (d) provided that if regulations are prescribed under section 140L, the Minister may (or must) "[cancel] the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs" and "[bar] the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2)".

Regulation 2.90(2) of the Migration Regulations 1994 (Cth) provided that, for s 140L(1)(a)(ii), an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Tribunal.

Regulation 1.13A(1) provided as follows at the relevant time:

1.13A Meaning of adverse information

(1)    Adverse information is any adverse information relevant to a person’s suitability as:

(a)    an approved sponsor; or

(b)    a nominator (within the meaning of regulation 5.19); or

(c)    a maker of a nomination in accordance with a labour agreement;

and includes information that the person, or a person associated with the person:

(d)     has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or

(e)     has, to the satisfaction of a competent authority, acted in contravention of such a law; or

(f)    has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or

(g)    is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or

(h)    has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.

Reg 1.13A(1) was subsequently amended to read as follows:

1.13A    Meaning of adverse information

(1)    Adverse information about a person is any adverse information relevant to the person’s suitability as:

(a)    an approved sponsor; or

(b)    a nominator (within the meaning of regulation 5.19).

(2)    Without limiting subregulation (1), adverse information about a person includes information that the person:

(a)    has contravened a law of the Commonwealth, a State or a Territory; or

(b)    is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or

(c)    has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or

(d)    has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or

(e)    has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.

...

(3)    The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Is it implicit in r 2.90(2) that this provision will only be satisfied if the information in question is false or misleading in a material particular?

Question 2: Is it necessarily the case that, "if the false or misleading information was provided so as to misdirect the decision-maker in respect of an element or issue relating to the granting of a visa by the sponsor, it would more strongly impel the decision-maker to take substantive action than would a less significant falsity"?

Question 3: Does r 2.90(3)(a) indicate that all false or misleading information provided must be taken into account?

Question 4: If the answer to Question 1 is 'no', is a threshold of materiality nevertheless implied in r 2.90(3)(a)?

Question 5: If the answer to Question 4 is 'yes', is difficult to see how the appropriateness of a nominee for a position for the purposes of r 5.19 and the veracity of the process by which that position was offered are immaterial for the purpose of r 2.90(3)(a)?

Question 6: If the answer to Question 5 is 'no' and the Tribunal proceeded on an erroneous interpretation of r 2.90(3)(a), is it "difficult to ascertain how such an error could, itself, be material"?

Question 7: For the purposes of exercising the discretion under s 140M(1) in relation to the Applicant's approved sponsorship status, was the Minister obliged to be reasonably satisfied or satisfied that the provision of false or misleading information had occurred?

Question 8: Can it be said that "legal unreasonableness, in the administrative law sense, generally founds a remedy in relation to the exercise of discretionary power" and that the "cognate principle which applies in relation to the valid formulation of the statutorily prescribed state of mind is that a state of mind which is formed illogically or irrationality is not one which satisfies the statutory requirement"?

Question 8: If the answer to Question 8 is 'yes', may there may "some debate as to the extent to which concepts of illogicality and irrationality differ from legal unreasonableness"?

Question 9: "The Tribunal is to undertake a review and it is not obliged to make enquiries on its own behalf other than obvious enquiries about a critical fact, the existence of which is easily ascertained". In ascertaining whether the Tribunal failed to make an obvious enquiries about a critical fact the existence of which is easily ascertained, is it relevant that the Applicant "was legally represented at all stages by experienced lawyers/migration agents"?

Question 10: "In ascertaining whether the Tribunal failed to make an obvious enquiries about a critical fact the existence of which is easily ascertained, is it relevant that the Applicant "was far from an impecunious party with little or no understanding of the processes involved, and those advising it were acutely aware of the issues to be determined by the Tribunal"?

Question 11: Can it be said that "if on any occasion in the course of its deliberative process the Tribunal reaches a conclusion that certain evidence of a party or witness is to be disbelieved, it is obliged to undertake a further hearing"?

Question 12: Is the Tribunal "obliged to contact people who have provided statements and ask them whether they are true"?

Question 13: Can it be said that, "in order for information to be “adverse information”, it must fall within the categories identified in sub-paragraphs (d) to (h) of the definition and that is to be achieved by reading the words, “and includes” as “means and includes”"? In other words, were the matters in r 1.13A(1)(d)-(h) exhaustive or exclusive?

Question 14: Is an investigation into a person or a person being subject to disciplinary action or legal proceedings necessarily adverse information within the meaning of r 1.13A(1)(g)?

Question 15: Is the fact that a person was the subject of administrative action for a possible contravention of a law necessarily adverse to the person in question necessarily adverse information within the meaning of r 1.13A(1)(f)?

Question 16: If the answer to Questions 14 and 15 are 'no', can similar comments be made about rr 1.13A(1)(d),1.13A(1)(e) and 1.13A(1)(h)?

Question 17: Can it be said that the alteration in the text of the definition of 'adverse information' in r 1.13A(1) indicated that the legislature intended to change its meaning, with the result that the matters in the iteration of r 1.13A(1)(d)-(h) applicable to this case were exhaustive or exclusive?

Question 18: Can the explanatory statement issued by the Minister which accompanied the suite of amendments which included the amendment of r 1.13A inform the meaning of the previous iteration of the provision, namely the one applicable here?

Question 19: If the answer to Questions 13 and 17 are 'no', does the time limitation in the previous iteration of r 1.13A(3), namely the one applicable here, also apply to the other types of adverse information not exemplified in r 1.13A(1)(d)-(h)?

Question 20: Can it be said that "executive action or decisions against a person amounts to “adverse information”, even if the facts undermining [underpinning?] that action might also be taken to meet the definition"?

The FCA answered those questions as follows: