Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal not to grant Child (Migrant) (Class AH) visas – whether the Tribunal misconstrued or misapplied cl.101.213(1)(c) and/or cl.101.221(2)(b) in Schedule 2 to the Migration Regulations 1994 (Cth) or failed to ask itself the right question.
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 1 March 2016.
A writ in the nature of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review of the decisions of the delegate of the First Respondent made on 9 December 2014.
FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY
SYG 2374 of 2016
MUHAMMAD HUSSAIN
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 March 2016 affirming decisions of a delegate of the First Respondent not to grant Child (Migrant) (Class AH) visas to two of the Applicant’s children. On 11 January 2017 I ordered, by consent, that the Applicant’s wife be appointed his litigation guardian for the purpose of these proceedings.
The Applicant, Mr Hussain, was a citizen of Pakistan who came to Australia in June 2010. He is the father and sponsor of the two visa applicants, Saima Hussain and Zulfiqar Ali Hussain, who are citizens of and resident in Pakistan. They applied for Child (Migrant) (Class AH) visas on 17…
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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Details
AGLC
Hussain v MIBP [2017] FCCA 3247
Case
[2017] FCCA 3247
Decision Date
CaseChat Overview and Summary
This decision concerned an appeal by a visa applicant against a decision by the Minister for Immigration and Border Protection. The dispute centred on the interpretation of visa application criteria relating to the applicant's study status. The matter was heard by Judge Barnes.
The primary legal issue before the court was whether the visa application criteria required the applicant to be continuously undertaking a full-time course of study from the time they turned 18 until the time of the visa decision, or whether a temporary pause or gap in studies was permissible. This involved construing specific clauses of the visa regulations, particularly concerning the use of the present perfect continuous tense and the timing of when the criteria must be satisfied.
Judge Barnes reasoned that the language of the relevant clauses, when read together, did not mandate continuous study without any interruption. The court found that the phrase "has, since turning 18... been undertaking" required an assessment of the applicant's conduct over the period from commencing study until the time of the decision, characterising that conduct as a whole. The court acknowledged that the nature of study is intermittent and that a strict requirement for continuous involvement would be inconsistent with this reality. Therefore, the court concluded that a pause in studies did not necessarily disqualify an applicant, provided that the overall pattern of conduct demonstrated that the applicant had been undertaking relevant study.
The court found that the criteria were intended to apply at the time of the visa decision, not necessarily at the time of application. As a result, the court did not need to determine whether a delay in re-commencing study was reasonable in circumstances where the applicant was not studying at the time of the decision. The appeal was allowed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
As his Honour stated at [84]:That is to say that, at the time of the application (sic), the visa applicant must still be undertaking a full-time course of study. Having regard to the Court’s findings in respect of the use of the present perfect continuous tense, the language of the clauses does not permit an end to the study within the decisional time frame (emphasis added). It appears that the reference to the time of application was intended to refer to the time of decision. Having taken this approach it was not necessary to determine whether in circumstances where a visa applicant was not studying at the time of decision, the delay in re-commencing study was reasonable. Hence Judge Lloyd-Jones did not have to consider whether the principles in Sok would be applicable as the visa applicant had argued. However Opoku-Ware was not considering whether the construction of these criteria allowed for the possibility of a gap or pause in studies in the interim, provided the visa applicant was undertaking studies at the time of the decision. While Judge Lloyd-Jones accepted that it would be inconsistent to read the requirement in cl.101.213 (when read together with cl.101.221) to apply at any time other than at the time of decision (at [79]) and that the construction of the clauses limited the grant of visas of this type to children over the age of 18 who were currently undertaking studies after the completion of year 12 (or its international equivalents) consistent with the purpose of the subclass (at [82]), this does not support a construction that allows for no gaps or pauses in study prior to that time. Opoku-Ware does not stand for the proposition that a visa applicant must be “continuously involved” in study from the time he or she commenced his or her study to satisfy the criteria. Rather, it shows that the action of studying must have commenced by the time of application and that the visa applicant must be studying at the time of the decision. The approach taken in Opoku-Ware does not establish or support the proposition that a “continuous involvement” in study in the interim, without a pause, is required as a matter of construction. In my view, and as the Applicant submitted, the natural meaning of the phrase “has, since turning 18… been undertaking” in cl.101.213(1)(c), both in itself and read with the requirement in cl.101.221(2)(b) that a visa applicant “continues to satisfy” requires a decision-maker considering the criteria at the time of decision to look at the time period from the visa applicant commencing study within cl.101.213(1)(c) until the time of the decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. This will, as Logan J recognised in Liang at [51], necessarily involve examining what the applicant has been doing in that interval. Where the “activity” in question is study, such an enquiry must necessarily have regard to the fact that, of its nature, the activity of study (as distinct, for example, from “enrolment”) is intermittent.