HOSSAIN v Minister for Immigration
[2016] FCCA 1729
•11 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1729 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner Residence (Class VS) visa – Partner (Temporary) (Class UK) visa – whether the Tribunal failed to consider compelling reasons at the time of the decision – whether the Tribunal incorrectly characterised the scope of the power it exercised – whether the errors made by the Tribunal constitute jurisdictional error – jurisdictional error found – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.4, 65, 476. Migration Regulations 1994, Schedule 2, cls.820.211, 820.223. |
| Cases cited: Craig v South Australia (1995) 184 CLR 163. Menon v Minister for Immigration [2016] FCCA 1708. Waensila v The Minister of Immigration and Border Protection [2016] FCAFC 32. |
| Applicant: | SORWAR HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 685 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 11 July 2016 |
| Date of Last Submission: | 11 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 25 February 2016.
A writ of mandamus is issued requiring the Administrative Appeals Tribunal to determine the review application for a Partner (Temporary) (Class UK) visa before it according to law.
The First Respondent pay the costs of the Applicant fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 685 of 2016
| SORWAR HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The applicant is a citizen of Bangladesh and had to meet the criteria under cl.820.211(2), (5), (6), (7), (8) or (9) of the Migration Regulations 1994. The delegate found that the applicant did not satisfy subclauses (5), (6), (7), (8), (9) of cl.820.211 as the applicant’s circumstances did not fall within those provisions.
Subclause (2) of cl.820.211 identifies criteria that must be met under cl.820.211(2)(d)(ii) referring to criteria in schedules 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The delegate found that the applicant did not satisfy the criteria under schedule 3001, which required the applicant to have made the application for the visa within 28 days after the last relevant date and, accordingly, proceeded to consider whether there were compelling reasons.
The delegate was not satisfied that the reasons put forward by the applicant were compelling, and concluded that there were no compelling reasons to waive the schedule 3 requirement. It was in those circumstances that the delegate found that the applicant did not meet the criteria for the grant of a Partner Residence (Class VS) subclass 801 visa.
Clause 820.211 relevantly provides:
820.21--Criteria to be satisfied at time of application
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Clause 820.223 provides relevantly as follows:
820.223
(1) The applicant:
(a) subject to subclause (2)--satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
(2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.211(5) .
The applicant applied for review of the delegate’s decision on 3 January 2016. The Tribunal turned to the same consideration as the delegate having found that the application had not been lodged within the 28 days of the relevant day, and turned to consider whether there were compelling reasons in accordance with cl.820.211(2)(d)(ii).
Relevantly the Tribunal made apparent that it had confined itself by reference in para.16 to a consideration of compelling reasons at the time of the application. The Tribunal found that there were no compelling reasons and that the applicant did not meet cl.820.211(2)(d)(ii). The Tribunal also referred to the public interest criterion (PIC) 4004 which related to outstanding debts to the Commonwealth.
The Tribunal noted that to the date of the decision seven days after the applicant attended the hearing, the applicant had not presented any evidence that he has made the repayments or that he has made any arrangements for repayment of the debt. Accordingly, the Tribunal found it was not satisfied on the evidence before it that appropriate arrangements had been made for repayment of the applicant’s outstanding debt to the Commonwealth.
The Tribunal found that the applicant did not meet PIC 4004 for the purpose of cl.820.223. It was in those circumstances that the Tribunal said relevantly:
“For the reasons above the applicant does not satisfy the criteria for the grant of the visa”.
The amended application provides as follows:
1. The Tribunal misdirected itself in relation to the criteria for the visa as set out in the legislation.
Particulars
The Tribunal misinterpreted cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 by considering that the criteria in Schedule 3 must be applied to the Applicant unless it was satisfied that compelling reasons existed at the time of the visa application for not applying those criteria. The correct interpretation was that the Minister could take into account circumstances which came into existence after the date of application in deciding whether to apply the Schedule 3 criteria.
2. The Tribunal, in paragraph 19 of its decision, effectively stated that the nature and quality of an applicant’s relationship with the sponsor cannot be a matter of circumstance which a decision-maker may take into account in deciding whether there are “compelling reasons” within the meaning of clause 820.211(2)(d)(ii). This approach to the construction of clause 820.211(2)(d)(ii) is wrong. The Tribunal thereby expressly excluded from its consideration a matter which it was not entitled to expressly exclude, being information concerning the nature and quality of the applicant’s relationship with the sponsor.
I note that this is a case where the applicant’s representative had submitted to the Tribunal that compelling reasons had to be considered at the time of decision. I accept that the amended application raises the error by the Tribunal in failing to consider compelling circumstances at the time of the decision. The question that arises first in this case is whether the character of the error made by the Tribunal in confining itself to compelling reasons at the time of application is properly described as a jurisdictional error.
Mr Reilly of counsel, on behalf of the Minister, submits that the nature of the error in the present case should not be characterised as a jurisdictional error in light of the independent finding made by the Tribunal in relation to the PIC 4004. The first respondent submits that the findings of fact on PIC 4004 were open to the Tribunal in that regard and was an independent finding made by the Tribunal in respect of an essential criterion for the grant of the visa.
This Court dealt with an almost identical argument in Menon v Minister for Immigration [2016] FCCA 1708 and found that the nature of the error in that case was a jurisdictional error. That case also involved a finding in relation to the PIC 4004 and, as a matter of discretion in that case, the Court granted relief because it was not satisfied by the respondent that the grant of relief would be of no utility.
In the present case it is common ground that the debt to the Commonwealth has, in fact, been paid in May 2016. Mr Reilly helpfully took the Court back to the statutory regime in relation to s.65 of the Migration Act 1958 and the criteria that needs to be the subject of satisfactory findings for the grant of a visa. I have taken into account the object of the Act under s.4 and the statutory scheme for the grant of the Partner (Temporary) (Class UK) visa.
Mr Reilly took the Court back to the identification of a jurisdictional error in the Minister for Immigration v Yusuf (2001) 206 CLR 323 at 82 quoting the passage from Craig v South Australia (1995) 184 CLR 163 at 179 that if an administrative tribunal:
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
The High Court in Yusuf identified that the concept of jurisdictional error can be seen to have raised a number of different kinds of error, and said that the list in Craig v South Australia was not exhaustive. What the High Court made clear was the importance of determining whether the error affects the exercise of power in a material way. The Court referred to the decision-maker not having authority make the decision that was made and, accordingly, not having jurisdiction. The reference to “a material way” does not support a confinement to the operative error or any adjectival singular confinement. Rather the issue is whether the exercise of power is affected.
There is a distinction recognised in the authorities between errors within jurisdiction and jurisdictional errors. Under the secular rule of law as entrenched in the Constitution in Australia, lower courts are bound by the principle of stare decisis. That is a most important principle in relation to certainty in the operation of the rule of law. The Full Court in Waensila v The Minister of Immigration and Border Protection [2016] FCAFC 32 found that the failure in that case to take into account compelling reasons at the time of decision was an incorrect characterisation of the nature of the power and, accordingly, a jurisdictional error. The principle in that case is that the failure to take into account compelling reasons at the time of the decision affects the exercise of power by the Tribunal so that the Tribunal did not have authority to make the decision that it made.
Mr Reilly of counsel argued that, because of the independent finding in relation to the PIC 4004, notwithstanding what was said in Waensila supra, the error by the Tribunal in the present case in not considering compelling reasons at the time of decision should not be characterised as a jurisdictional error. The Court was taken to authorities in which reference has been made to the legitimacy of not granting relief in circumstances where there was found to be an independent ground to support an exercise of power, and which independent ground was not affected by the relevant error.
There is scope to argue that some authorities appear to support a proposition that where there are independent grounds to support the exercise of power, an incorrect characterisation of the nature of the power being exercised by the Tribunal should not be treated as a jurisdictional error. Such a change in characterisation does not advance the rule of law and the certainty of principle for application of the doctrine of stare decisis. Those authorities are not consistent with what was said by the High Court of Australia in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [29] as follows:
[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board,20 cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”.21 In this regard, the references that were made in the course of argument to the “unbundling” of a tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.
That principle as to no useful result binds this Court. Further, the jurisdiction conferred by s.75(v) of the Constitution is of fundamental importance to the rule of law and no artificial confinement to the operative error or other singular materiality accords with the principle of construction of this source of jurisdiction.
Moreover, this Court is bound by what was said in the Full Court in Waensila, and to find in the present case a characterisation of the failure of the Tribunal to focus on compelling reasons at the time of decision not being a jurisdictional error would on its face be contrary to the principle articulated by the Full Court. I am not persuaded that the approach adopted by this Court in Menon v Minister for Immigration was wrong in characterising the type of error that has occurred by the Tribunal in the present case as being a jurisdictional error, notwithstanding the separate finding as to non-compliance with PIC 4004 in cl.820.223(1)(a).
Mr Reilly of counsel sought to argue that there could be gleaned an error in this Court’s approach to the discretionary consideration as to the utility of granting relief. It was submitted that this Court had erroneously applied a forward-looking basis in determining whether such relief should be granted. The onus of establishing a want of utility where jurisdictional error is found to exist is upon the party resisting the relief. That onus is a heavy one insofar as what is required is that the Court is satisfied that no useful result could ensue from the grant of relief.
I accept the Minister’s submission that there may well be circumstances where there are other adverse findings that have been made by the Tribunal that persuades the Court that no useful result could ensue from the grant of relief. I further accept that it may not always be appropriate to apply a future-looking test in the Court considering whether a useful result could ensue. I do not accept that the Court in Menon applied only a future-looking test.
What the Court identified in Menon, which is equally applicable to the present case, is that if there had been a finding that there were compelling reasons, the Tribunal might have exercised its powers to grant the applicant further time to meet the public interest criteria 4001 being of a particular kind in relation to the collection of debt that does not relate to the applicant’s characteristics or the safety of the Australian community.
The PIC 4004 is of a different kind to that found in relation to criteria 4001, 4002, 4003, 4007, 4009, which all relate to the applicant and/or his family ties, and can be seen to directly impact on the subject matter of the objects of the Act and the safety of the Australian community. PIC 4004, however, is a criterion of a different kind addressing the recovery of outstanding debts. Whilst the recovery of outstanding debts administratively is of importance and within the scope of the legislative powers, it is of a different nature to the other criteria.
Whether a particular finding of fact is one in a particular case that a Court finds persuasive to withhold the grant of relief is a matter for determination in that particular case. The principle being applied, however, as to whether the grant of relief can be said to be of no utility, is certainly clear. Mr Reilly of counsel submitted that it was not relevant in the present case that there may have been payment of the debt, because PIC 4004 had to be met at the time of decision.
In my opinion, a Court can receive evidence in relation to the utility of granting relief and the fact that, in the present case, the debt has been paid is admissible and goes directly to whether or not discretionary relief should be granted in respect of the jurisdictional error by the Tribunal in the present case. I am not persuaded that it can be said that the grant of relief in the present case could not be the subject of a useful result.
I find that the correct consideration of compelling reasons by a new Tribunal might find that there were compelling reasons and, in doing so, the applicant now would not be met with a denial of a grant of visa because of the PIC 4004, the debt having been paid. Accordingly, the Court is satisfied that the decision of the Tribunal in the present case is affected by jurisdictional error and that, as a matter of discretion, it is appropriate to grant relief.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 20 July 2016
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