BASRA v Minister for Immigration
[2017] FCCA 1302
•16 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASRA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1302 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether the refusal by a delegate to grant the Applicant a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa was a single decision or two decisions – held the first delegate recorded two separate decisions – no jurisdictional error –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(9), 30, 31, 45, 46, 47, 65, 67, 195. Migration Regulations 1994 (Cth), cl.1214C(3)(a), sch.2 801.221. |
| Cases cited: Manga v Minister for Immigration & Anor [2017] FCCA 1082 Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 |
| Applicant: | KARAN BASRA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2476 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 14 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2476 of 2015
| KARAN BASRA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In these proceedings the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 9 April 2014 which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant to the Applicant a Partner (Residence) (Class BS) Subclass 801 visa (‘the visa’). The Tribunal found that it did not have jurisdiction to review the decision of the delegate.
The Applicant seeks writs of certiorari and mandamus together with costs.
The grounds of the application as contained in the amended application filed 28 February 2017 are as follows:-
“1. The Tribunal engaged in jurisdictional error by misunderstanding the applicable law and, as a consequence, constructively failing to exercise its jurisdiction.
Particulars
a) The Tribunal erred by finding that the decision of the First Respondent's delegate, dated 4 September 2013, and/or the decision of the previously constituted Tribunal, dated 9 April 2014, was not affected by jurisdictional error in relation to both the Subclass 820 and Subclass 801 visa.
b) On 4 September 2013 the delegate of the First Respondent refused the Applicant's application for a Subclass 820 and Subclass 801 visa.
ba) On 9 April 2014, the Tribunal affirmed the delegate's decision.
c) On 12 August 2014, following advice from the Department's Refugee Law, Framework and Training Section (Legal Framework Branch), a delegate of the First Respondent made a new decision in relation to the Subclass 801 visa, noting that the decision dated 4 September 2013 had been affected by jurisdictional error.
d) The Tribunal erred in failing to find that the decision dated 4 September 2013 and/or that dated 9 April 2014 was affected by jurisdictional error and was therefore “a decision that lacks legal foundation and is properly regarded, in law, as no decision at all” (see Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11).
e) The Tribunal erred by finding that:
i) The decision of the delegate dated 4 September 2013 and/or that dated 9 April 2014 was a validly made decision;
ii) It was therefore unable to make a finding that the decision dated 4 September 2013 and/or that of 9 April 2014, in relation to both the Subclass 820 and Subclass 801 visas was void; and
iii) It did not therefore have jurisdiction to consider whether the Applicant met the criteria for the grant of the Subclass 820 visa.
iv) That it did not have jurisdiction to set aside the Department’s and/or the Tribunal’s decision not to grant a Subclass 820 or Subclass 801 visa on 4 September 2013 and 9 April 2014 respectively or consider the Applicant’s applications for both the Subclass 820 and 801 visas.
v) That the Department's and/or Tribunal's decision to refuse the Subclass 820 visa had been finally determined under s.5(9) of the Migration Act 19 58 (Cth) (Act).
2. Further, the Tribunal erred in finding that the Applicant had only purported to apply for review of the Subclass 801 visa in circumstances where the Applicant indicated on the application form that he wanted review of a visa refusal for visa “Subclass 820” and where the Applicant required redetermination of the Subclass 820 visa to have any prospects of being granted a Subclass 801 visa.
3. Alternatively, that finding of the Tribunal was unreasonable or irrational for those reasons.”
The Respondent seeks the application be dismissed with costs payable on the basis that no jurisdictional error attends the decision of the Tribunal.
The principal question raised by these proceedings as posed and argued by Counsel for the Applicant is, Can two visas be refused by a single decision under s.65 of the Migration Act 1958 (Cth) (‘the Act’)? That of course assumes that a singular decision was made. The Minister argues that there were in fact two decisions with respect to two applications, one for a subclass 820 visa and the other for a subclass 801 visa.
History
The Applicant is a citizen of India who arrived in Australia on 19 May 2008 as the holder of a Student Subclass 573 visa. The Applicant was granted two subsequent student visas on 23 August 2010 and 14 October 2011. The last of these visas expired on 5 December 2012.
On 19 December 2012, the Applicant married Ms April Yaranon.
On 4 February 2013, the Applicant applied for:-
a)a Partner (Temporary)(Class UK)(Subclass 820) visa (the 820 visa); and
b)a Partner (Residence)(Class BS)(Subclass 801) visa (the 801 visa);
(collectively, ‘the visas’).
The Applicant applied for the visas on the basis of his marriage to his sponsor, Ms Yaranon.
At this point, it is useful to consider the relevant legislation.
The legislation
Section 30 of the Act sets out the kinds of visas the Minister may grant a non-citizen. Section 30 of the Act is as follows:-
“MIGRATION ACT 1958 - SECT 30
Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.”
The 801 visa is a permanent visa under s.30(1) of the Act and the 820 visa is a temporary visa under s.30(2) of the Act.
Section 31 of the Act separately provides for classes of visas. Section 31(3) provides that the Migration Regulations 1994 (Cth) (‘the Regulations’) may prescribe criteria for a visa or visas of a specified class. Schedule 1 to the Regulations prescribes criteria for visa classes. The criterion for the 820 visa is:-
“Application must be made at the same time and place as an application for a Partner (Residence)(Class BS) visa.”[1]
[1] Clause 1214C(3)(a) of the Regulations.
At the time of the Applicant’s application, (Class BS) contained only one subclass, subclass 801. The criteria for the 801 visa is set out in Schedule 2 to the Regulations. The Applicant is required to meet cl.801.221 of sch. 2 to the Regulations at the time of decision. Each of the criteria specified under the subclauses of cl.801.221 require the Applicant to be a holder of, or to have been the holder of, a Subclass 820 visa.
Section 45 of the Act provides that “a non-citizen who wants a visa must apply for a visa of a particular class”. Section 47 of the Act provides that the Minister “is to consider a valid application for a visa”.
Section 46(1) of the Act defines a valid visa application as one that “is valid if, and only if”:
“a) it is for a visa of a class specified in the application; and
b) it satisfies the criteria and requirements prescribed under this section; and
ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
c) any fees payable in respect of it under the regulations have been paid; and
d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth
…
e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth
…”
Subsections 46(3) and (4) of the Act provide that:
“(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made.
…”.
Section 65(1) of the Act provides:
“(1) Subject to section 84 and 86, after considering a valid application for a visa, the Minister:
(a) If satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by s 40 (circumstances where granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas) 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
(v) is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
Section 67 of the Act also provides:
“(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to grant a visa;
(b) a decision to refuse to grant a visa.”
The First Delegate Decision
As stated earlier in these reasons, on 4 February 2013, the Applicant applied to the First Respondent for a combined Class UK (Partner-Temporary) (Subclass 820) and Class BS (Partner-Residence) (Subclass 801) visa. On 4 September 2013, a delegate of the Minister refused to grant the Subclass 820 visa and the Subclass 801 visa (‘the First Delegate's decision’).
The First Delegate found that, as the Applicant was unable to meet the time of decision criteria for the Subclass 820 visa, the Applicant “did not meet the prescribed criteria for the grant of a Partner (Temporary) (Class UK) Subclass 820 and Partner (Permanent) (Class BS) Subclass 801 visa”. The delegate “therefore refuse[d] the application lodged on 4 February 2013”.
The Applicant applied to the Tribunal for review of the First Delegate Decision to refuse to grant him the 820 visa, and on 9 April 2014, the Tribunal affirmed the First Delegate Decision. As the Tribunal found that the Applicant did not meet the relevant Sch.2 criteria for the grant of the 820 visa, it went on to consider whether there were compelling reasons for not applying the criteria. It found that there were no such grounds.
The Second Delegate Decision
On 21 July 2014, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant’s migration agent advising that it had identified an error in respect of the First Delegate Decision to refuse to grant the 801 visa and that the decision was affected by jurisdictional error. The Department requested permission to make the decision again. Permission was granted on 27 July 2014.
On 12 August 2014, the delegate wrote to the Applicant notifying him that his application for the 801 visa had been again refused. The delegate determined that as the 820 visa application had been refused, the Applicant did not meet the requirements of sub-cls.801.221(2), (2A), (3), (4), (5) or (6) of the Regulations. Those subsections relevantly require the Applicant to be the holder of a Subclass 820 visa. Further, the delegate determined that the Applicant did not meet the requirements of sub-cl.8. The Second Delegate did not reconsider the Applicant’s application for a Subclass 820 visa.
The Tribunal
On 29 August 2014, the Applicant applied for review of the Second Delegate’s refusal to grant him the 801 visa. The Applicant sought review of the Second Delegate's decision in the Tribunal. In response to the question “What decision do you want reviewed?” the Applicant indicated the refusal of a visa, being visa class “BS” and subclass “820”. The Tribunal considered, as set out in its Statement of Decision and Reasons (‘the Decision Record’) that despite the above response from the Applicant, it was apparent that he intended on seeking review of the decision to refuse the subclass 801 visa, the only subclass of the BS class. The Tribunal also found as set out in paragraphs 12 and 13 of the Decision Record:-
“Further, the Department’s Decision Record and notification letter, which indicate that a Partner (Residence) (Class BS) (Subclass 801) visa application had been refused on 12 August 2014 were provided with the review application. The notification letter indicates that the Department identified that the applicant was not correctly notified of the decision in respect of the Subclass 801 visa application, and further, a new decision to refuse the Subclass 801 visa was made because the original Subclass 801 decision was affected by jurisdictional error.
The Tribunal has taken into account all of the evidence before it and finds that the applicant has sought review of the Department’s decision to refuse the grant of a Subclass 801 visa.”
The Applicant attended a hearing before the Tribunal on 28 May 2015 to give evidence and present arguments and was represented by a migration agent. At the hearing before the Tribunal, the Applicant conceded that he was not, and had never been, the holder of an 820 visa.
On 13 October 2015, the Tribunal affirmed the Second Delegate Decision refusing to grant the Applicant an 801 visa.
The Tribunal considered the Applicant’s submission that the Tribunal could and ought consider the Applicant’s application for both the 820 and 801 visas. However, the Tribunal did not accept that it had jurisdiction to review the Department’s decision to refuse the grant of the 820 visa. The Tribunal found that the 820 visa was a separate visa class to the 801 visa, and that the decision of the delegate to refuse the 820 visa was a separate decision to the delegate’s decision to refuse the 801 visa, which was the subject of the Tribunal’s review. Further, the Tribunal noted that the Applicant had previously sought review of the Department’s decision to refuse the 820 visa and that decision was affirmed by the Tribunal on 9 April 2014. The Tribunal further determined that, as the Applicant was not the holder of a Subclass 820 visa at the time of the decision, and had not previously held the 820 visa, he could not satisfy the requirements of cl.801.221(1) and therefore did not satisfy the criteria for the grant of the subclass 801 visa, the subject of its review.
Consideration
The Applicant contends that, because the Department conceded that there had been jurisdictional error with respect to the First Delegate Decision, the Tribunal should have set aside not only the refusal to grant the 801 visa, but also reviewed the First Delegate Decision in so far as it related to the 820 visa. The Applicant submits that the Tribunal erred in finding that it did not have jurisdiction to review the First Delegate Decision to refuse to grant the Applicant the 820 visa, and in finding that the matter had been finally determined within the meaning of s 5.(9) of the Act.[2]
[2] Submissions filed by the First Respondent on 7 March 2017 at [28].
The Applicant’s argument is premised on the application for both the 801 and 820 visas being treated as a singular application and, consequently, the First Delegate Decision was a “singular decision” or “one composite decision”. This characterisation, is said to arise by reason of matters of form, namely:
a)the fact that the Applicant ticked a single box on a single application form;
b)the use of a single “instrument” (i.e. letter) to communicate both refusals;
c)a reference therein to “this decision”; and
d)the giving of reasons for both refusals in a single decision record.[3]
[3] Submissions filed by the Applicant on 28 February at [13]-[14].
The Applicant submits that, as that singular decision which the Department was obliged to revisit involved the refusal of an 801 visa and an 820 visa, it meant that, in revisiting that decision, the Department had to make a fresh decision regarding both visas. That is to say, it was erroneous for the Department to treat the singular decision as jurisdictionally flawed in respect of one visa but, on the other hand, treat the decision as jurisdictionally flawless in respect of the other. The singular decision was either made in excess of jurisdiction or it was not.[4]
[4] Submissions filed by the Applicant on 28 February at [17].
The First Respondent submits that the statutory framework unequivocally points to a consideration of separate visa applications relating to individual visas. The First Respondent submits this is so because:-
a)First, the Act refers throughout to “applications” for “visas”6 or to “an application” or “a valid application” for “a visa”. Similarly, it refers throughout to “a decision to grant or refuse to grant a visa”, Nowhere does the language appear to contemplate that there may be a singular application for, or decision in respect of, multiple visa applications.
b)Second, even where the two classes of visa could be applied for in the same way, other validity criteria might differ. This would necessarily result in the possibility that a “singular application” would satisfy the validity criteria for some but not all of the visas applied for. But the “singular application” could not be both valid and invalid. It would simply be invalid, for failing to satisfy all of the prescribed criteria regardless of whether it related to the criteria of one or other of the visas. As a result, the Minister would not be empowered to consider the application insofar as it related to a visa for which all validity criteria were satisfied. It may be comfortably inferred that Parliament did not intend such a consequence.
c)Third, s 65 contemplates a single “[d]ecision to grant or refuse to grant visa”. The entire premise of s 65 is based on the decision-maker reaching a state of satisfaction in relation to criteria which applies to a particular visa. The Applicant’s construction would lead to the absurd consequence that where a visa application relates to multiple visas, the decision-maker could not reach a state of satisfaction under s 65 until the criteria had been satisfied in relation to both visas. By way of example, and bearing in mind that the criteria for the grant of a Subclass 820 visa is that it is made at the same time and place as a Subclass 801 visa, should the Minister grant a Subclass 820 visa he is ordinarily required to wait two years before proceeding to determine the application for a Subclass 801 visa. On the Applicant’s construction, this would be practically, impossible. Further, s 67 of the Act does not contemplate that a single decision might both be to grant and refuse multiple visas.
d)Fourth, at every stage, the statutory scheme for review of decisions provides for different rules depending on factors that may differ across visa classes. For this to be compatible with the notion of a “singular decision” upon a “singular application” for multiple visas, Part 5 of the Act would need to tell the Tribunal which rules to apply in cases where a single application relates to two different classes of visa. It makes no attempt to do this.[5]
[5] Submissions filed by the Applicant on 28 February at [31].
The First Respondent submits that as a consequence of the above the only view that can be arrived at is that the Minister makes two separate decisions:
a)should the Minister refuse the Subclass 820 then he may immediately proceed to refuse the Subclass 801 visa, as in fact happened in the present case. Then, as a matter of convenience both for himself and for the Applicant, the Minister may record his reasons for these two related decisions in the same Decision Record.
b)should the Minister grant the Subclass 820 visa then he can (and it is implicit in the scheme that, if necessary to enable compliance with the criteria, he will) wait two years before proceeding to determine the application for the Subclass 801 visa.[6]
[6] Submissions filed by the First Respondent on 7 March 2017 at [35].
The Court accepts these submissions of the First Respondent. The Court finds also that the Tribunal was correct to conclude that the Applicant actually intended to seek review of the 801 visa only. The Tribunal had made a decision in respect of the 820 visa on 9 April 2014. Accordingly as the First Respondent submits, the Tribunal was functus officio in relation to that decision.
The Applicant’s submission that the Tribunal’s decision was unreasonable or irrational is not supported by the evidence.
The Applicant’s reliance on the dissenting judgment of Hayne J in Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 is misconceived. The statutory scheme therein considered is wholly distinguishable, it relating to the personal exercise of power of the Minister under s.195A of the Act.
The Applicant did apply for two separate visas when he completed his Form 47SP. The statutory scheme that then operated is with some clarity canvassed by Judge Jones in Manga v Minister for Immigration & Anor [2017] FCCA 1082 at paragraphs 58-63 (‘Manga’) which is useful to set out here:-
“58. Although the criteria prescribed in the Regulations require that an application for the temporary Subclass 820 visa be made at the same time and place as the application for the permanent Subclass 801 visa, it does not follow that both visas can be held at the same time. In fact, they cannot. The Subclass 820 visa can only be granted to, and held by, an Applicant first and then, in specified circumstances or after a period of time, the Subclass 801 visa may be granted to an Applicant. Once the Applicant is granted a Subclass 801 visa, the Subclass 820 visa ceases to have effect: cl.820.5 of the Regulations.
59. I am satisfied that the prescribed criteria in the Regulations envisage the grant of the two visas, by two separate decisions, having regard to differing criteria.
60. The question then becomes, is a different conclusion warranted where a decision is made to refuse to grant a visa because the decision maker is not satisfied that the Applicant meets the relevant criteria. In my opinion, it does not, for the following reasons.
61. Firstly, confronted with a completed form that, by its format, requires the making of two applications for two different visas, a decision maker must proceed firstly to decide whether he/she is satisfied that the Applicant meets the criteria applicable to the grant of a Subclass 820 temporary visa. Those criteria apply only to the Subclass 820 visa and are different to the criteria applicable to the Subclass 801 visa. Where the delegate is not satisfied that the Applicant meets the Subclass 820 visa criteria, as occurred when the first delegate considered the application for the Subclass 820 visa, the delegate must refuse to grant that visa. That refusal is one decision. A decision regarding the Subclass 801 permanent visa cannot be made until the decision maker performs his/her statutory duty in respect of the decision to grant or to refuse to grant the Subclass 820 visa.
62. The fact that it follows, because of the criteria for the grant of the Subclass 801 visa, that a decision to refuse to grant the Subclass 820 visa will inevitably result in the criteria for the Subclass 801 visa not being met is, in my opinion, irrelevant. It still remains the case that the decision maker, having made a decision to refuse to grant the Subclass 820 visa, proceeds to make a decision whether or not to grant or to refuse to grant the Subclass 801 visa. That is what the decision maker is required to do under s.65 of the Act.
63. An applicant aggrieved by the first decision to refuse to grant him a Subclass 820 visa may seek a merits, or indeed a judicial review, in which case a decision maker will reconsider the decision whether to grant the Subclass 820 visa. It would be at odds with the process of the review if the person or Court undertaking the review considers a single decision about the refusal of the two visas. It can only consider the first decision because, if the Applicant is successful on review, the basis for refusing the Subclass 801 visa falls away. If, on review, the Applicant satisfies the criteria for the Subclass 820 visa, it is apparent that a decision about the Subclass 801 visa cannot be made at the same time because of the particular criteria applicable to the Subclass 801 visa, which is that in specified circumstances or after a period of time, the Subclass 801 visa may be granted to an Applicant.”
The Applicant drew the Court’s attention to the decision in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 which had also been provided to Judge Jones in Manga. I concur with Her Honour’s view stated at paragraph 74 of Manga as to the relevance of this decision to the statutory scheme under consideration both here and in Manga:-
“74. I have not, with respect, found this decision of assistance in determining these proceedings. It seems to me that Plaintiff S4/2014 was concerned with the improper exercise of the Minister’s power under s.195A of the Act and that, consequently, the invalidity of the grant of one visa tainted the other visa. In Plaintiff S4/2014, the Court noted at [5] that:
… It was not disputed that the Minister granted the seven-day visa for the purpose of engaging the prohibition on making a valid application for any visa other than another temporary safe haven visa.”
No jurisdictional error attends the decision of the Tribunal. The Application shall be dismissed and costs will follow.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 June 2017
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