MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS
Hossain v Minister for Immigration and Border Protection
[2018] HCA 34
15 August 2018
S1/2018
ORDER
The appeal is dismissed with costs.
On appeal from the Federal Court of Australia
Representation
G O'L Reynolds SC with B M Zipser and D P Hume for the appellant (instructed by Mooney & Kennedy Solicitors)
C J Horan QC with T Reilly for the first respondent (instructed by Sparke Helmore Lawyers)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hossain v Minister for Immigration and Border Protection
Migration – Partner visa – Criteria prescribed for grant of visa – Where Minister for Immigration and Border Protection must refuse to grant visa if not satisfied that criteria prescribed for grant of visa met – Where delegate of Minister refused to grant visa – Review of decision by Administrative Appeals Tribunal – Where Tribunal not satisfied that visa application made within 28 days or that there were compelling reasons for not applying that criterion – Where Tribunal also not satisfied that visa applicant did not have outstanding debts to the Commonwealth or that appropriate arrangements had been made for payment of debts – Where Tribunal made error of law by assessing whether compelling reasons existed as at time of visa application instead of as at time of Tribunal's decision – Whether error of law in relation to one criterion was jurisdictional error where another criterion was not met.
Words and phrases – "compelling reasons", "discretion to refuse relief", "error of law", "error of law on the face of the record", "fundamental error", "independent basis", "jurisdictional error", "materiality", "non-jurisdictional error", "reasonably and on a correct understanding and application of the applicable law", "residual discretion", "satisfied", "void", "voidable".
KIEFEL CJ, GAGELER AND KEANE JJ. The Federal Circuit Court[1], exercising "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution" conferred on it under s 77(i) of the Constitution by s 476(1) of the Migration Act 1958 (Cth), made an order in the nature of certiorari, setting aside a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant a visa, and an order in the nature of mandamus, remitting the subject matter of that decision to the Tribunal for redetermination. The Federal Circuit Court made those orders consequent on finding a jurisdictional error constituted by an error of law in the reasoning of the Tribunal which led to the decision.
[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
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Case
[2018] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Hossain against a decision of the Minister for Immigration and Border Protection, which had been affirmed by the Administrative Appeals Tribunal. The dispute concerned Mr Hossain's application for a Partner (Temporary) (Class UK) visa. The Minister's delegate had refused the visa, and the Tribunal subsequently affirmed this refusal.
The primary legal issue before the High Court was whether an error of law made by the Tribunal in assessing one criterion for the visa was a jurisdictional error, particularly when another criterion for the visa had not been met. Specifically, the Tribunal had erred by assessing whether compelling reasons existed for not applying certain Schedule 3 criteria as at the time of the visa application, rather than at the time of the Tribunal's own decision. The Tribunal also found that Mr Hossain had not satisfied a public interest criterion requiring him to have no outstanding debts to the Commonwealth or to have made appropriate payment arrangements.
The High Court, upholding the Minister's notice of contention, found that the error of law made by the Tribunal was not a jurisdictional error. This was because the error was not material; it was neither a fundamental error nor an error that could have affected the Tribunal's ultimate decision. The Tribunal had independently failed to be satisfied that Mr Hossain met the criterion regarding outstanding debts to the Commonwealth. Therefore, the error concerning the "compelling reasons" was not a jurisdictional error, and the appeal was dismissed.
Orders
Orders of the court
The appeal is dismissed with costs.
Background
Background to the litigation
The Minister filed a notice of contention alleging that the decision of the Full Court should be upheld on the basis that the error of law by the Tribunal was not "jurisdictional" because the Tribunal's decision was not affected by the error. In the alternative, the Minister said that the Full Court should have withheld the exercise of its discretion to grant relief because the error did not affect the Tribunal's decision. The notice of contention should be upheld on the first ground: the error of law was not material because it was neither a fundamental error nor an error that could have affected the Tribunal's decision. The lack of materiality meant that the error was not a jurisdictional error. The appeal must be dismissed.Background and legislative provisions The appellant is a citizen of Bangladesh. He came to Australia in May 2003, holding a student visa. That visa expired on 7 November 2005. In the meantime, the appellant had applied for a protection visa, which was refused. After exhausting all available applications and appeals, the appellant was unsuccessful. He attempted to make another application for a protection visa in 2008, but it was deemed invalid. Between September 2008 and January 2013, the appellant was in Australia as an unlawful non-citizen. In January 2013, the appellant made another application for a protection visa. This application was refused by a delegate of the Minister, which refusal was affirmed by the Refugee Review Tribunal. Subsequent requests for ministerial consideration were refused. In 2010, the appellant met the woman who, in 2013, became his de facto partner. In May 2015, he applied for a Partner (Temporary) (Class UK) visa. A delegate of the Minister refused that application. The appellant sought review of the decision by the Tribunal. In order to be granted a visa, the appellant had to satisfy the decision maker that he satisfied requirements including the "criteria ... prescribed by ... the regulations"[44]. The two relevant criteria were prescribed by cll 820.211 and 820.223 of Sched 2 to the Migration Regulations 1994 (Cth).[44]Migration Act 1958 (Cth), s 65(1)(a)(ii). First, cl 820.211(1)(b) relevantly provided that an applicant was required to meet the requirements of various sub-clauses. Clause 820.211(2)(d)(ii) required an applicant who is not the holder of a substantive visa and did not enter Australia holding a diplomatic visa or special purpose visa to satisfy criteria 3001, 3003 and 3004 in Sched 3 to the Migration Regulations, unless the decision maker is satisfied that there are compelling reasons for not applying those criteria. As the appellant was not the holder of a substantive visa, a diplomatic visa, or a special purpose visa, he was required by criterion 3001 to lodge his application for a visa within 28 days after the "relevant day". If he failed to do so, the appellant could only satisfy the criteria in cl 820.211 if, by cl 820.211(2)(d)(ii), the decision maker "is satisfied that there are compelling reasons for not applying [the Sched 3] criteria".
Secondly, cl 820.223(1)(a) of Sched 2 to the Migration Regulations required that an applicant must satisfy various public interest criteria. One of those, public interest criterion 4004, contained in Sched 4 to the Migration Regulations, provided as follows:"The applicant does not have outstanding debts to the Commonwealth unless the [decision maker] is satisfied that appropriate arrangements have been made for payment."The decisions belowThe Tribunal The Tribunal affirmed the decision of the delegate of the Minister not to grant a visa to the appellant. Two reasons were given, respectively relating to the relevant criteria set out above. First, the Tribunal found that the last day that the appellant held a substantive visa was 7 November 2005, when his student visa expired. That was the "relevant day" for criterion 3001. The Tribunal therefore concluded that the application for a partner visa, made in May 2015, was made more than 28 days after the relevant day. The Tribunal then turned to whether there were any "compelling reasons" not to apply criterion 3001. The Tribunal held that the compelling reasons must exist at the time of the application. After considering all the circumstances at that time, including the appellant's immigration history, many aspects of his relationship with his partner and her children, and his and his partner's medical evidence, the Tribunal concluded that it was not satisfied that there were compelling reasons not to apply criterion 3001. The second reason given by the Tribunal for affirming the decision of the delegate of the Minister was that the appellant had not satisfied public interest criterion 4004. In oral evidence before the Tribunal, the appellant confirmed that he had an outstanding debt to the Commonwealth following his visa applications and applications for judicial review. He said that he intended to repay the debt but had not made any arrangements to do so. The appellant's representative suggested that the appellant was waiting for a "final bill", and that the appellant would make arrangements to repay the debt when all bills were combined. However, in circumstances where the first debt accrued more than a decade earlier, the Tribunal did not accept that the appellant had any intention to repay the debt. The Tribunal also observed that "some days after the [appellant] attended the hearing, he has not presented any evidence that he has made the repayments or that he had made any arrangements to repay the debt". The Tribunal's decision was delivered on 25 February 2016. In May 2016, the appellant repaid his debt to the Commonwealth.The Federal Circuit Court and the Full Court of the Federal Court In the Federal Circuit Court, as in the Full Court of the Federal Court and in this Court, it was common ground that the Tribunal had made an error of law in relation to criterion 3001 by considering whether compelling circumstances existed at the time of the application. The Tribunal erred because it should have considered whether compelling circumstances existed at the time of its decision.