Lay v Minister for Immigration and Border Protection
[2014] FCA 919
•21 August 2014
FEDERAL COURT OF AUSTRALIA
Lay v Minister for Immigration and Border Protection [2014] FCA 919
Citation: Lay v Minister for Immigration and Border Protection [2014] FCA 919 Appeal from: Lay & Anor v Minister Immigration & Anor [2014] FCCA 923 Parties: CHREP LAY v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 314 of 2014 Judge: BROMBERG J Date of judgment: 21 August 2014 Catchwords: MIGRATION – appeal from dismissal of application for judicial review – whether primary judge failed to identify jurisdictional error in decision of Migration Review Tribunal – construction of subclause 461.213(b)(ii) of the Migration Regulations 1994 (Cth) – whether the Tribunal needed to consider each of the criteria in subclause 461.213(b)(ii) in circumstances where it had determined that one of those criteria had not been satisfied – no error found – appeal dismissed. Legislation: Migration Regulations 1994 (Cth) subclause 461.213(b)(ii) Cases cited: Lay & Anor v Minister for Immigration & Anor [2014] FCCA 923 Date of hearing: 21 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 314 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CHREP LAY
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
21 AUGUST 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 314 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: CHREP LAY
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
21 AUGUST 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Circuit Court of Australia published as Lay & Anor v Minister for Immigration & Anor [2014] FCCA 923. By that judgment, a judge of the Federal Circuit Court (the primary judge) dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 6 May 2013 to refuse to grant the appellant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Visa (the visa). The Tribunal’s decision affirmed a decision of a delegate of the first respondent dated 4 July 2014 denying the appellant the visa. She applied for the visa in Australia on 26 April 2012.
The appellant appeared this morning. She made an application for the adjournment of her appeal. I rejected that application for reasons already given this morning. The appellant made no substantive submissions in support of her appeal.
In order to be granted the visa, the appellant had to meet a range of criteria. Relevantly, she needed to satisfy subclause 461.213(b)(ii) of Schedule 2 of the Migration Regulations 1994 (Cth) (Migration Regulations). At the relevant time, that subclause was as follows:
461.21 Criteria to be satisfied at time of application
…461.213 If the application is made in Australia, the applicant:
(a)is the holder of a substantive temporary visa other than a Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) visa; or
(b) does not hold a substantive visa and:
(i)immediately before ceasing to hold such a visa was the holder of a substantive temporary visa other than a Subclass 426 visa; and
(ii)satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.
Schedule 3 criteria 3002, 3003, 3004 and 3005 are found in Schedule 3 of the Migration Regulations. Relevantly to this appeal, criterion 3002 required the following:
3002The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001 (2)).
The delegate determined that the appellant was unable to satisfy criterion 3002 of Schedule 3, and therefore subclause 461.213(b)(ii), because she had made her visa application more than 12 months after the “relevant day”, being the day when her most recent substantive visa had ceased to have effect. The appellant’s most recent substantive visa was a tourist visa that ceased to have effect on 6 January 2010. The delegate did not make any assessment of the other criteria specified in subclause 461.213(b)(ii).
On 20 July 2012, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing on 5 March 2013. The appellant was represented by a migration agent at that hearing. On 6 May 2013, the Tribunal affirmed the delegate’s decision not to grant the appellant the visa.
On 11 June 2013, the appellant made an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The hearing of that application took place on 5 March 2014.
The task of the primary judge in dealing with the judicial review application was to determine whether the Tribunal’s decision was affected by jurisdictional error.
By a decision dated 16 May 2014, the primary judge determined that the Tribunal had not erred in its review of the delegate’s decision, and dismissed the appellant’s application.
On 6 June 2014, the appellant appealed the dismissal of her application for judicial review. The appellant relied on one ground of review, which was expressed in the Notice of Appeal in the following terms:
1.Both the Federal Circuit Court judge and the Tribunal erred when both said at paragraph 44 of the judgment as follows:
“The Tribunal correctly dealt with this issue. As clause 461.213(b)(ii) required all of the schedule 3 criteria to be satisfied, it was not necessary to consider the criteria in clauses 3003, 3004 or 3005 of schedule 3 of the Regulations once it was apparent that the first applicant did not satisfy the criteria in clauses 3002. This ground is not made out.”
While not entirely clear, what seems to be asserted by this ground of appeal is that both the Tribunal and the primary judge misconstrued subclause 461.213(b)(ii) of the Migration Regulations.
The proper construction of that subclause was raised by the appellant in both the proceeding before the Tribunal and the proceeding before the primary judge. In the course of the former, the appellant’s representative submitted that the Minister’s delegate had not “considered [the] schedule 3 criteria in full.” What seems to have been asserted by that submission is that the Tribunal should have considered all of the criteria listed in subclause 461.213(b)(ii), not just criterion 3002. I take the submission to be contending that such a consideration was required, even though the Tribunal found that criterion 3002 was not satisfied.
The Tribunal dealt with that submission at [39]-[43] of its reasons:
39.The remaining issue is whether the applicant meets the requirements of cl.461.213(b)(ii) at the time of application. To meet cl.461.213(b)(ii), the applicant must satisfy all the Schedule 3 criteria listed, including criteria 3002. Criterion 3002 relevantly requires in this applicant’s circumstances that she have lodged her current visa application within 12 months after the day when her last substantive visa ceased to be in effect.
40The evidence establishes that the applicant’s last substantive visa, the subclass 676 Tourist visa, ceased to be in effect on 6 January 2010. The evidence also establishes that the current visa application was made on 26 April 2012.
41On the basis of the above, the Tribunal finds that the application was not made within 12 months after the last day the applicant had a substantive visa. Accordingly, the Tribunal finds the applicant does not meet Schedule 3 criteria 3002.
42As cl.461.213(b)(ii) requires each of the criteria 3002, 3003, 3004 and 3005 to be met, (Tribunal’s emphasis), the failure of the applicant to satisfy criterion 3002 means, contrary to the submissions of the applicant’s representative, it is unnecessary for the Tribunal to consider the remaining criteria 3003, 3004 and 3005.
43It follows that the Tribunal finds that the criteria in cl.461.213(b)(ii) is not met.
The approach taken by the Tribunal to the construction of subclause 461.213(b)(ii) was one of the six grounds of appeal in the proceeding before the primary judge. The primary judge adopted the same construction of subclause 461.213(b)(ii) as did the Tribunal, determining (at [44]) that, because all of the Schedule 3 criteria listed had to be satisfied, it was not necessary to consider the other criteria listed in subclause 461.213(b)(ii) in circumstances where it had been found that one criterion was not satisfied. Accordingly, the primary judge found that the Tribunal had correctly dealt with the subclause.
It is this approach to subclause 461.213(b)(ii), taken by both the Tribunal and the primary judge, that the appellant’s sole ground of appeal is directed at.
It is clear on a plain reading of the subclause, focusing in particular on the connector “and,” that all of the criteria in subclause 461.213(b)(ii) needed to be satisfied in order for an applicant to qualify for the relevant visa. That is, criteria 3002, 3003, 3004 and 3005 must be satisfied in order for a visa applicant to satisfy the criteria for the Subclass 461 visa. As satisfaction of criterion 3002 is an essential component of the Tribunal being satisfied that the subclause 461.213(b)(ii) criteria has been met, it was unnecessary for the Tribunal to consider criteria 3003, 3004 or 3005. It follows, therefore, that the Tribunal did not fall into error by construing the subclause in the way that it did and declining to consider the additional criteria when it had found that one criterion had not been satisfied. The appellant’s ground of appeal is not made out.
I should add that even if the other criteria specified in subclause 461.213(b)(ii) had to be considered, the failure of the appellant to satisfy criterion 3002, in circumstances where satisfaction of that criterion is a necessary prerequisite to qualify for the visa along with the other criteria listed in the subclause, would have in any case denied the appellant the visa which she sought. It follows, therefore, that even if the Tribunal did have to consider the additional criteria listed in subclause 461.213(b)(ii), the result would have been the same. For that reason, and in the exercise of the Court’s discretion, the relief sought would have been declined.
For those reasons, the appeal must be dismissed. The appellant should pay the costs of the first respondent.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 26 August 2014
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