MENON v Minister for Immigration
[2016] FCCA 1708
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENON v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1708 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – whether the Tribunal incorrectly characterised the power it was exercising – whether the Tribunal misconstrued the limits of its jurisdiction – whether the Tribunal erred in finding no compelling reasons – whether the decision to affirm the delegate’s decision was inevitable – whether no useful result could ensure from the grant of relief – application granted. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulation 1994, Sch.2, cls.820.211, 820.223 |
| Cases cited: Pokharel v Minister for Immigration and Border Protection & Anor [2016] FCAFC 34 |
| Applicant: | SANDEEP MENON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 362 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 7 July 2016 |
| Date of Last Submission: | 7 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the First Respondent: | Mr D Hughes |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
A writ of certiorari is issued calling up the record of the Administrative Appeals Tribunal decision and quashing the decision made on 4 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 according to law.
The first respondent pay the applicant’s costs fixed in the sum of $1360.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 362 of 2016
| SANDEEP MENON |
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 made on 4 February 2016 affirming the decision of the delegate not to grant the applicant a Partner (Temporary) (Class UK) visa.
The Tribunal found that the applicant did not hold a substantive visa at the time that he applied for his partner visa in June 2013 and it was in those circumstances the Tribunal found that the applicant did not meet the criteria under cl.820.211(c)(i). Accordingly, the Tribunal identified that it was required to consider whether the applicant satisfied schedule 3 criterion 3001 for the purpose of cl.820.211(d)(ii). In that regard, the Tribunal made the type of error that was identified in Waensila v Minister for Immigration and Border Protection & Anor [2016] FCAFC 32 at 60: that it is an incorrect characterisation of the nature of the power because the Tribunal failed to consider compelling reasons at the time of decision.
In this case, the Tribunal also went on to consider whether there was a further independent ground which applied because of the criteria under cl.820.223 which was relevant at the time of decision. Those criteria referred to the public interest criterion relevantly including 4004.
The public interest criterion (PIC) 4004 provides as follows:
The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.
What the Tribunal found in the present case was that the applicant confirmed to the Tribunal that he had to pay the costs associated with his other applications and that he said that although he had made some payments, because of his limited income, he had not paid the debt and has not made an arrangement to repay.
In the present case, the hearing occurred on 4 February 2016 and the decision of the Tribunal was made on the same date. The Tribunal referred to the fact that the applicant presented no evidence of having paid the debt and his oral evidence confirmed to the Tribunal that at least some of the debt remains outstanding. It was in those circumstances, where the Tribunal found that the applicant had presented no evidence of having made appropriate arrangements for payment, that the Tribunal found that it was not satisfied the applicant meets PIC 4004. Accordingly, the Tribunal found “for the reasons above” the applicant does not satisfy the criteria for the grant of a visa and affirmed the decision of the delegate.
The grounds in the application identify an alleged error in relation to the criteria under schedule 3. The grounds are sufficient to identify an issue of the kind identified in Waensila supra. Mr Hughes, counsel for the first respondent, contended that in the circumstances of the present case the adverse finding made in relation to PIC 4004 meant that the error in the present case should not be characterised as a jurisdictional error or, alternatively, that if it were so characterised, relief should be refused because of the factual findings made in relation to PIC 4004. Mr Hughes relied upon the decision in Pokharel v Minister for Immigration and Border Protection & Anor [2016] FCAFC 34 which relevantly provides as follows:
[48] The Tribunal embarked on a review of the delegate’s decision to refuse the grant of a Partner Temporary visa and affirmed that decision. However, the Tribunal’s reasons consistently referred to cl 801.221(2), a provision that is applicable to a Partner Residence visa, not a Partner Temporary visa. The provisions to which the Tribunal ought to have referred are cl 820.211(2) and cl 820.221(1).
[49] While it is apparent that the Tribunal erred by referring to the wrong clause, there are two possible ways of construing that error. The first is that it was a mere clerical error — such an error would not be jurisdictional error. The second is that the Tribunal applied the wrong legislative provision — that would be jurisdictional error.
[50] However, it is unnecessary to decide whether the Tribunal’s error was jurisdictional or non-jurisdictional. That is because the error did not affect the outcome of the application before the Tribunal. The provisions of cl 820.211(2), 820.221(1) and 801.221(2) each contain a requirement that the applicant be the “spouse” of the sponsoring partner. The Tribunal decided that the applicant was never the “spouse” of Ms W as they were never in a “married relationship”, so the outcome of the application would have been the same even if the Tribunal applied the correct provisions, cl 820.211(2) and cl 820.221(1).
[51] The grant of a constitutional writ is discretionary. A Court will not exercise its discretion in favour of granting constitutional writs where the Tribunal’s jurisdictional error made no difference to the outcome of the application under review by the Tribunal: see Re Refugee Review Tribunal; ; Ex parte Aala (2000) 204 CLR 82 at [80] (Gaudron and Gummow JJ), [104] (McHugh J), [133] (Kirby J), [211] (Callinan J); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [87] (Kirby J), [91] (Hayne J). Relief should be refused because, even if the Tribunal applied the incorrect criteria, its factual findings make it inevitable that the decision of the delegate to refuse a Partner Temporary visa would have been affirmed.
The circumstances of that case are clearly distinguishable from the present case. In the decision in Pokharel, there was arguably an error made within jurisdiction. It was in those circumstances that the Court turned to the findings that had been made in relation to the material consideration in that case about whether the applicant was the spouse of the sponsoring partner. It is understandable, in that case, that the reference was made to the factual findings in that case, making it inevitable that the decision to refuse the partner temporary visa would have been affirmed. That is because the erroneous reference to a clause did not give rise to a jurisdictional error.
In the present case, I am satisfied that the failure to understand the requirement to consider compelling circumstances at the time of decision was a misconstruction of the jurisdiction being exercised by the Tribunal due to the incorrect characterisation of the nature of the power that was being exercised. That, on its face, is a jurisdictional error. This enlivens a discretionary consideration as to whether the grant of relief is one in which no useful result could ensue. The Court was taken to the discretionary considerations in relation to a denial of procedural fairness identified in Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 at the same passages as identified in Pokharel. The onus is on the respondent to satisfy the Court where a jurisdictional error is found that no useful result could ensue from the grant of relief. I do not accept the error in the present case should be characterised as not being material and of a jurisdictional kind. The error was a misunderstanding of the statutory powers that the Tribunal was exercising.
PIC 4004 is an obvious consideration in relation to which if relief were granted to the applicant in respect of the jurisdictional error identified, the applicant may be able to meet that criterion at the time of the hearing if relief is granted. I am not satisfied that the respondent has established that no useful result could ensue from the grant of relief in the present case. Further, it may be open to the Tribunal in relation to the consideration of compelling reasons to take into account the steps that have been taken by the applicant to attend to payment of other outstanding costs.
Mr Hughes of counsel sought to argue that the compelling reasons were of a more confined focus. I do not accept that a Tribunal would not be entitled to take into account payment made by the applicant of other debts in respect of the undefined expression compelling reasons. If in fact such evidence was adduced and the applicant had taken steps to attend to payment, clearly the granting of relief in the present case could give rise to a different result. I also take into account that this was a case where the decision of the Tribunal followed immediately upon the hearing.
The Court is not satisfied that a useful result could not ensue from the grant of relief. The correct consideration of compelling reasons by a new Tribunal may find that there were compelling reasons and in doing so may provide the applicant with an opportunity to adduce further evidence in relation to payment or an arrangement under PIC 4004. 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 8 July 2016
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