Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Bui
[2022] FedCFamC2G 242
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Bui [2022] FedCFamC2G 242
File number(s): SYG 2316 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 6 April 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – whether Tribunal failed to consider all criterion – whether there was jurisdictional error – jurisdictional error made out – no appearance by respondent – Hearing continued pursuant to r 13.06(1)(e). Legislation: Migration Act 1958 (Cth) ss 65, 359
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 13.06
Migration Regulations 1994 (Cth) reg 2.03AA, 4.15
Cases cited: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of last submission/s: 5 April 2022 Date of hearing: 5 April 2022 Place: Parramatta Counsel for the Applicant: Mr Bevan SC and Ms Hooper Counsel for the Respondent: There was no appearance on behalf of the respondents
Table of Corrections 7 April 2022 In paragraph 5 “s 359” has been replaced with “s 349”. ORDERS
SYG 2316 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Applicant
AND: THI VAN BUI
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The application be heard pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth).
2.An order that the decision of the Administrative Appeals Tribunal be quashed.
3.A writ of mandamus directed to the Administrative Appeals Tribunal requiring it to determine the first respondent’s application according to law.
4.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
This is an application by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the applicant”) against a decision of the Administrative Appeals Tribunal (“the Tribunal”) to set aside the decision of the applicant, to not grant the applicant a Partner (Temporary) (Class UK) visa (“Partner visa”), and remit the Partner visa for reconsideration with the direction that the respondent meets the criteria for a Subclass 820 visa.
Upon receiving new evidence, the Tribunal was satisfied that the respondent met the Public Interest Criterion 4001 as required by reg 2.03AA of the Migration Regulations 1994 (Cth) (“the Regulations”).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is short, being less than one page and only seven paragraphs. The entirety of the Tribunal decision is reproduced below:
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 15 February 2017. The delegate refused to grant the visa on 25 February 2021.
2. The delegate made the decision on the basis that evidence relevant to Public Interest Criterion 2001, as required by regulation 2.03AA under the Migration Regulations 1994 (the Regulations) of a statement from an appropriate authority on any criminal history was not provided to satisfy a criterion for the grant of the visa.
3. On 3 June 2021 the Tribunal received a Certificate of Criminal Records from the Social Republic of Vietnam in the name of the applicant dated 17 May 2021.
4. On 10 July 2021 the Tribunal received a National Police Certificate from the Australian Federal Police in the name of the applicant dated 30 June 2021.
5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.
6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
DECISION
7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa: cl.820.223 of Schedule 2 to the Regulations.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicant submitted that the Tribunal exceeded its jurisdiction in making its decision to remit the respondent’s visa application for reconsideration with the directions that it gave.
The Tribunal acted under s 349(2)(c) of the Migration Act 1958 (Cth) (“the Act”) which provides that, in a matter such as this one (see; reg 4.15(1)(a)), that the Tribunal may remit a matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations.
Regulation 4.15(1)(b) states that a permissible direction is “that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit”.
Counsel for the applicant submitted that as the respondent was not an applicant for the visa referred to in subclause 820.211(5), paragraphs (a) and (b) of cl 820.223(1) were applicable. This required the respondent to meet all of the seven public interest criteria specified and also had to meet reg 2.03AA of the Regulations. The respondent was required to meet all of the criteria prescribed for the grant of the visa: (see; s 65(1)(b) of the Act, and for the Tribunal on review s 349(1) of the Act).
Counsel for the applicant submitted that the effect of the Tribunal’s findings and reasoning was that the respondent’s provision of the Australian and Vietnamese police clearance certificates supported a conclusion that the respondent met reg 2.03AA(2) of the Regulations, but which the Tribunal then applied to the criterion. The Tribunal did not make any findings with respect to any other public interest criteria. Clause 820.223 required an applicant to meet a number of public interest criteria, not just the one, and each of those criteria concerns a discrete subject or topic. Thus, the Tribunal could not have reached, and expressly did not purport to reach, the requisite state of satisfaction that each of the public interest criterion were met so as to satisfy cl 820.223.
Counsel for the applicant submitted that the absence of the required state of satisfaction as to all of the public interest criteria meant that cl 820.224 could not be met. The Tribunal’s decision was not one authorised by the Act or the Regulations and so the Tribunal exceeded its decision-making authority conferred by statute, thus being affected by jurisdictional error: (see; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [19]).
Counsel for the applicant submitted that the Tribunal should have found that reg 2.03AA(2) of the Regulations were met and remitted the matter for reconsideration in accordance with the direction to that effect, thus allowing a delegate to address the balance of the visa criteria, including all of the specified public interest criteria. Satisfaction of reg 2.03AA(2) does not itself satisfy public interest criterion 4001, although it may in addition inform the assessment of whether public interest criterion 4001 is met: (see; “character test” in 4001; s 501(6) of the Act; KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666 at [46]).
THE RESPONDENT’S SUBMISSIONS
The respondent did not appear at the Hearing. The Court was satisfied that the respondent was or should have be aware of the time date and place of the hearing.
Notwithstanding Court orders, the respondent did not file any submissions or any response to the orders sought by the applicant. In the circumstances, Counsel for the applicant submitted that the matter should proceed under rule 13.06(1)(e) ) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth). The Court was also of the view that this was appropriate.
CONSIDERATION AND CONCLUSION
This matter involves a relatively small issue, in that the Tribunal failed to consider the balance of the criteria required in order for the visa sought to be granted. The Tribunal in fact did not do so. In the Court’s view, this involved a clear error of law such that the relief sought by the applicant should be granted. The Court agrees with the submissions placed before it by the applicant, set out above.
In the circumstances, the Court will to allow the application and order matter to be remitted to the Tribunal to be dealt with according to law. The Court notes that quite properly, no order as to costs is sought by the applicant.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 6 April 2022
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