Babicci v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1645
MIGRATION – application for constitutional writs – Migration Review Tribunal refused to grant a Partner (Provisional) (Class UF) visa – whether Tribunal erred in its construction of the phrase "compelling circumstances" – whether Tribunal committed jurisdictional error
ERIC RICHARD BABICCI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND THE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA NSD 890 OF 2004
MOORE J 16 DECEMBER 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 890 OF 2004
BETWEEN:
ERIC RICHARD BABICCI APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:
MOORE J
DATE OF ORDER:
16 DECEMBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 890 OF 2004
BETWEEN:
ERIC RICHARD BABICCI APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:
MOORE J
DATE:
16 DECEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
This judgment concerns an application for constitutional writs in relation to a decision of the Migration Review Tribunal ("the Tribunal"). The applicant's spouse, for convenience referred to as "the visa applicant", applied for a Partner (Provisional) (Class UF) visa on 21 May 2002. On 15 August 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application. The applicant lodged an application for review of that decision with the Tribunal on 4 November 2002, and on 3 May 2004 the Tribunal affirmed the decision of the delegate and refused to grant a visa to the visa applicant. On 31 May 2004, the applicant filed an application for judicial review of that decision in this Court. The second respondent should not be a party: see s 479 of the Migration Act 1958 (Cth) ("the Act").
Background
The following summary is taken from the Tribunal's reasons for decision. The applicant had been married twice before marrying the visa applicant. Both of these prior marriages resulted in successful sponsorship applications. The applicant and his first spouse were married for 12 months and divorced in 1992. In November 1993 the applicant married for the second time. His wife was a Filipino woman who is the visa applicant's sister. In June 1999 the visa applicant came to Australia to visit her sister. The applicant's second marriage ended in November 2000 and the couple divorced on 18 February 2002. In about October 2000 the applicant and the visa applicant began their spousal relationship. In June 2000 the visa applicant was put in immigration…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Babicci v MIMIA [2004] FCA 1645
Case
[2004] FCA 1645
Decision Date
CaseChat Overview and Summary
Babicci v MIMIA is an Australian Federal Court case concerning a judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The applicant, Babicci, sought review of the Tribunal's decision to affirm the delegate's refusal of a visa application made by his spouse, the visa applicant. The primary legal issue before the Court was whether the Tribunal had erred in its interpretation of the term "compelling" within the context of the Migration Regulations 1994, specifically in relation to the exercise of the Minister's discretion to approve a visa sponsorship despite regulatory restrictions.
The Court found that the Tribunal had misinterpreted the term "compelling" by treating it as a present participle rather than an adjective. The Court clarified that the term should be understood in the sense of evoking interest or attention in a powerfully irresistible way, such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant. Despite this error, the Court held that it did not amount to jurisdictional error, as the Tribunal's approach was consistent with the regulatory intent. The Court dismissed the application for judicial review and ordered that the applicant pay the costs of the first respondent.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the first respondent's costs.
Background
Background to the litigation
This judgment concerns an application for constitutional writs in relation to a decision of the Migration Review Tribunal ("the Tribunal"). The applicant's spouse, for convenience referred to as "the visa applicant", applied for a Partner (Provisional) (Class UF) visa on 21 May 2002. On 15 August 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application. The applicant lodged an application for review of that decision with the Tribunal on 4 November 2002, and on 3 May 2004 the Tribunal affirmed the decision of the delegate and refused to grant a visa to the visa applicant. On 31 May 2004, the applicant filed an application for judicial review of that decision in this Court. The second respondent should not be a party: see s 479 of the Migration Act 1958 (Cth) ("the Act").Background The following summary is taken from the Tribunal's reasons for decision. The applicant had been married twice before marrying the visa applicant. Both of these prior marriages resulted in successful sponsorship applications. The applicant and his first spouse were married for 12 months and divorced in 1992. In November 1993 the applicant married for the second time. His wife was a Filipino woman who is the visa applicant's sister. In June 1999 the visa applicant came to Australia to visit her sister. The applicant's second marriage ended in November 2000 and the couple divorced on 18 February 2002. In about October 2000 the applicant and the visa applicant began their spousal relationship. In June 2000 the visa applicant was put in immigration detention for 3 days as her substantive visa (subclass 686) had expired. She returned to the Philippines on 21 July 2001. The applicant went to the Philippines in April 2002, married the visa applicant on 6 May 2002 and returned to Australia on 8 May 2002. On 21 May 2002 the visa applicant lodged her application for a Partner (Provisional) (Class UF) (subclass 309) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), which included her daughter. On 11 June 2002 the visa applicant's daughter gave birth to a son. An amended sponsorship form was lodged which included the child. The visa application was refused on 15 August 2002 because the visa applicant did not satisfy cl 309.222 of schedule 2 of the Migration Regulations 1994 ("the Regulations"). The delegate was not satisfied there were compelling circumstances affecting the sponsor which would allow the delegate to waive reg 1.20J(1) of the Regulations.The Tribunal's decision In its reasons for decision, the Tribunal referred to the relevant regulations and sections of the Procedures Advice Manual ("the Manual"). It then set out the evidence advanced on behalf of the applicant and summarised the evidence the applicant had given at a hearing on 24 March 2004. The Tribunal set out reg 1.20J as in force at that time:(1)Subject to subregulations (2) and (3), the Minister must not approve: (a) the sponsorship of an applicant for: (i) a Spouse (Provisional) (Class UF) visa, a Partner (Provisional) (Class UF) visa or a Prospective Marriage (Temporary) (Class TO) visa, as the spouse or prospective spouse of the sponsor; or (ii) an Interdependency (Provisional) (Class UG) visa or a Partner (Provisional) (Class UF) visa, as a person in an interdependent relationship with the sponsor; or (b) the nomination of an applicant for an Extended Eligibility (Temporary) (Class TK) visa or a Partner (Temporary) (Class UK) visa as the spouse of, or as a person in an interdependent relationship with, the nominator; unless the Minister is satisfied that:(c) not more than 1 other person has been granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, the sponsor or nominator on the basis of a sponsorship or nomination; and(d) if another person has been granted a relevant permission in the circumstances referred to in paragraph (c) — not less than 5 years has passed since the date of making the application for that relevant permission; and(e) if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission. (1A) In subregulation (1): relevant permission means:(a) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and (b) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit. (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.(3)Subject to subregulation (4), this regulation applies in relation to an application for a visa made on or after 1 November 1996. (4)This regulation does not apply in relation to an application by a person who: (a) was the holder of a Subclass 300 visa that was granted on the basis of an application for a Prospective Marriage (Temporary) (Class TO) visa that was made before 1 November 1996; and(b) has applied for an Extended Eligibility (Temporary) (Class TK) visa; and(c) is seeking to remain permanently in Australia on the basis of the person's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Prospective Marriage (Temporary) (Class TO) visa. (Emphasis added)It can be seen that reg 1.20J(2) empowers the Minister to approve the sponsorship even though reg 1.20J(1) has not been satisfied. The Minister could do so if the Minister was satisfied, relevantly, there were compelling circumstances affecting the sponsor. Approval of the sponsorship was necessary because a criterion for the visa was that, at the time of the application, the applicant was sponsored and, at the time of the decision, the Minister had approved the sponsorship.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
MOORE J
The visa application was refused on 15 August 2002 because the visa applicant did not satisfy cl 309.222 of schedule 2 of the Migration Regulations 1994 ("the Regulations"). The delegate was not satisfied there were compelling circumstances affecting the sponsor which would allow the delegate to waive reg 1.20J(1) of the Regulations.The Tribunal's decision In its reasons for decision, the Tribunal referred to the relevant regulations and sections of the Procedures Advice Manual ("the Manual"). It then set out the evidence advanced on behalf of the applicant and summarised the evidence the applicant had given at a hearing on 24 March 2004. The Tribunal set out reg 1.20J as in force at that time:(1)Subject to subregulations (2) and (3), the Minister must not approve: (a) the sponsorship of an applicant for: (i) a Spouse (Provisional) (Class UF) visa, a Partner (Provisional) (Class UF) visa or a Prospective Marriage (Temporary) (Class TO) visa, as the spouse or prospective spouse of the sponsor; or (ii) an Interdependency (Provisional) (Class UG) visa or a Partner (Provisional) (Class UF) visa, as a person in an interdependent relationship with the sponsor; or (b) the nomination of an applicant for an Extended Eligibility (Temporary) (Class TK) visa or a Partner (Temporary) (Class UK) visa as the spouse of, or as a person in an interdependent relationship with, the nominator; unless the Minister is satisfied that:(c) not more than 1 other person has been granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, the sponsor or nominator on the basis of a sponsorship or nomination; and(d) if another person has been granted a relevant permission in the circumstances referred to in paragraph (c) — not less than 5 years has passed since the date of making the application for that relevant permission; and(e) if the sponsor or nominator was granted a relevant permission as the spouse or prospective spouse of, or as a person in an interdependent relationship with, another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission. (1A) In subregulation (1): relevant permission means:(a) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and (b) in relation to an application for a visa referred to in paragraph (1) (a) or (b) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit. (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.(3)Subject to subregulation (4), this regulation applies in relation to an application for a visa made on or after 1 November 1996. (4)This regulation does not apply in relation to an application by a person who: (a) was the holder of a Subclass 300 visa that was granted on the basis of an application for a Prospective Marriage (Temporary) (Class TO) visa that was made before 1 November 1996; and(b) has applied for an Extended Eligibility (Temporary) (Class TK) visa; and(c) is seeking to remain permanently in Australia on the basis of the person's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Prospective Marriage (Temporary) (Class TO) visa. (Emphasis added)It can be seen that reg 1.20J(2) empowers the Minister to approve the sponsorship even though reg 1.20J(1) has not been satisfied. The Minister could do so if the Minister was satisfied, relevantly, there were compelling circumstances affecting the sponsor. Approval of the sponsorship was necessary because a criterion for the visa was that, at the time of the application, the applicant was sponsored and, at the time of the decision, the Minister had approved the sponsorship.
Ratio Decidendi
Legal Principle Established
Established by:
MOORE J
Counsel for the Minister also submitted that the Tribunal's treatment of Departmental policy merely suggested that less weight should be given to factors that are normally encountered in daily life, not that no weight should be given to them. Giving them less weight was, in the Minister's submission, what the Tribunal had done. Consideration It can be seen that in the second sentence of [42] and the first sentence of [43] (set out at [8] above), the Tribunal paraphrased the question it was required to address. The way it did so was unexceptionable, though it has merged into the one notion the task of considering whether the sponsorship should be approved with the criterion which requires its approval and which, in the absence of approval, would result in refusal of the visa. That is, it treated the non-approval of the sponsorship as a refusal of the visa. However, counsel for the applicant did not rely on the merging of these elements in arguing that the Tribunal had fallen into jurisdictional error. The focus of the submissions concerned the consequences of adopting the definition of "compelling" as a verb. That is apparent in the last sentence of [42], in which the Tribunal imported into what it perceives to be the test, the defined meaning of "to compel" discussed earlier. That is, it treated "compelling" as a present participle and not an adjective. I am satisfied the Tribunal mistakenly adopted a meaning of "compelling" apt to describe the present participle of the verb "to compel" and did not resort to the meaning the word "compelling" has as an adjective. The question that arises is whether this resulted in jurisdictional error. I am not satisfied that the approach adopted by the Tribunal discloses jurisdictional error. The Tribunal appears to have approached the matter on the basis that somehow it had to be sufficiently moved by the circumstances established by the applicant to exercise the power to waive the prohibition in reg 1.20J(1) in favour of the applicant. It is not entirely clear whether it proceeded on the footing that it might be required to assess its subjective response or reaction to the circumstances. That view might be open because it indicated in the penultimate sentence in [42] that it felt sympathy and compassion for the applicant but that, as indicated in the next sentence, it was not forced or driven to waive the prohibition. The better view, however, is that it was then simply expressing its sympathy towards the applicant (as it had done earlier in its reasons) before moving on to consider whether the material revealed "compelling circumstances" affecting the applicant. The Tribunal's choice of words, whether it was "forced or driven to waive the prohibition", was curious (but understandable because of an earlier decision of the Tribunal in Re David James Shannon (IRT Decision No. W98/00234, 12 January 1999) which adopted that formulation and to which the applicant referred in written submissions submitted to the Tribunal). Nevertheless, it reveals an approach consistent with what is required. That is, the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal. Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), 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.