Minister for Immigration v BAKKER

[2014] FCCA 755

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINISTER FOR IMMIGRATION v BAKKER & ORS [2014] FCCA 755

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application of reg.4.12 of the Migration Regulations 1994 (Cth) with respect to joint applications – application of cl.155.212(3)(b) of Sch.2 – writs issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.4.12, cl.155.212 of Sch.2

Applicant: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: INGER BAKKER

Second Respondent: TIRZA ALBERTS

Third Respondent: LEONIE ALBERTS

Fourth Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1170 of 2013

Judgment of: Judge Whelan

Hearing date: 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Melbourne

Delivered on: 1 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Smith

Solicitors for the Applicant: Sparke Helmore

Counsel for the First Respondent: No appearance

Counsel for the Second Respondent:

Counsel for the Third Respondent:

Counsel for the Fourth Respondent:

No appearance

No appearance

No appearance

ORDERS

1. The name of the Applicant be amended to “Minister for Immigration and Border Protection”.

2. A writ of certiorari issue directed to the Fourth Respondent quashing the decision of the Fourth Respondent dated 24 June 2013.

3. A writ of mandamus issue directed to the Fourth Respondent requiring it to re-determine the application made to it for review of the decision of the Applicant dated 5 April 2012 according to law.

4. A direction that, in re-determining the application for review that was made to it on 13 May 2012, the Fourth Respondent:

   (a)Must review the decision of a delegate of the Applicant not to grant DANIEL WILLIAM CORNELIS ALBERTS the visa that he sought; and

   (b)Must not review the decision of a delegate of the Applicant not to grant TIETJE DE BOER the visa that she sought on the basis that the Fourth Respondent had no jurisdiction to review the decision of a delegate of the Applicant with respect to the refusal to grant a visa to TIETJE DE BOER.

5. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1170 of 2013

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Applicant

And

INGER BAKKER

First Respondent

TIRZA ALBERTS

Second Respondent

LEONIE ALBERTS

Third Respondent

MIGRATION REVIEW TRIBUNAL

Fourth Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. I have taken the opportunity to read the Applicant’s Outline of Submissions.[1] I have also read the Application[2] and the material that is in the Court Book,[3] and I note that none of the Respondents, INGER BAKKER, TIRZA ALBERTS, LEONIE ALBERTS and the MIGRATION REVIEW TRIBUNAL (“the Tribunal”) (collectively “the Respondents”) have indicated that they wish to be heard with respect to this matter and are prepared to submit to any orders that the Court might make, subject only to the question of costs. I also note, in that respect, that the Applicant is not seeking an order for costs in these proceedings. Having said that, I think that the matter can be dealt with as follows.

   [1] Applicant’s Outline of Submissions filed 18 March 2014.

   [2] Amended Application filed 6 November 2013.

   [3] Court Book filed 1 October 2013.

2. The Applicant raises two issues which go to the jurisdiction of the Tribunal in its review of a decision by the Delegate to not grant the visa applicants either a Resident Return subclass 155 or subclass 157 visa. The applicants for review before the Tribunal were the children of the visa applicants.

3. On 5 April 2012, the same Delegate made two separate decisions with respect to the visa applicants. The applicants had made separate visa applications, albeit they relied on the same grounds, and submitted a jointly signed statement in support of their applications.

   
   

   The application for review lodged by the three children resident in Australia, set out in Part E of their application,[4] details of the visa applicants, being both Mr DANIEL WILLIAM CORNELIS ALBERTS (“Mr Alberts”), the father, named as visa applicant 1, and Mrs

   
   

   TIETJE DE BOER (“Mrs De Boer”), the mother, named as visa applicant 2.

   [4] Court Book filed 1 October 2013, at pp.81-82

4. As the Applicant has put in submissions, reg.4.12 of the

   
   Migration Regulations

   1994 (Cth) (“the Regulations”) sets out that a combined application to the Tribunal can only be made under certain circumstances. Those circumstances are set out in the Regulations as contained under the heading ‘Combined applications for Tribunal review’.[5]

   [5] Migration Regulations 1994 (Cth), reg.4.12.

5. It is clear that, in this case, one of the preconditions that could not have been met by the applicants was that they had had a combined primary application and that such a primary application was permitted by either Schedule 1 or regs.2.08, 2.08A or 2.08B of the Regulations.

   
   

   Apart from the fact that none of those provisions applied to the applicants, there was no joint primary application. It therefore follows that the applicants could not lodge a combined application for review by the Tribunal.

6. I am satisfied, on the basis of the submissions made and the material before me, that on that basis, the Tribunal did not have jurisdiction to review the delegate’s decision not to grant Mrs De Boer the visa that was sought in the original application.

7. The second issue raised by the Applicant relates to the application and interpretation of cl.155.212 of the Regulations as contained in Sch.2. Schedule 2, cl.155.212 of the Regulations requires that applicants for a five-year Resident Return visa meet certain criteria. The Tribunal set out that criteria in summary form at pages 101 to 102 of the

   
   

   Court Book. The Tribunal correctly identified the criteria of cl.155.211 of Sch.2 of the Regulations in finding that Mr Alberts was a former Australian permanent resident and therefore met that criteria.

8. However, sub-cl.155.212(1) of Sch.2 of the Regulations also requires that applicants meet the requirements of either sub-cls.2, 3, 3A or 4 of cl.155.212(1) of Sch.2 of the Regulations. The Tribunal did not refer specifically to sub-cl.155.212(2) of Sch.2 of the Regulations and it is clear that the applicants could not have met the criteria for that clause on the basis of the material that was before the Tribunal. It was also clear that the criteria for sub-cl.155.212(3A) of the Regulations could not, on that material, be met, and nor could the requirements of

   
   

   sub-cl.155.212(4) of the Regulations, which meant that, in order to qualify, the applicants had to meet the requirements of

   
   

   sub-cl.155.212(3) of the Regulations.

9. Sub-clause 155.212(3) of the Regulations requires that the applicant:

   ·Be outside of Australia;

   ·Have substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

   ·Meet the requirements of either sub-cls.155.212(3)(a) or (b) of the Regulations.

10. The Tribunal, in its considerations, defined the issue as whether there were compelling reasons for the applicants’ absence from Australia. That terminology is used in both sub-cls.(3)(a) and (b) of cl.155.212 of Sch.2 of the Regulations. The Tribunal did not consider if the applicants met the other parts of the requirements of those clauses.

11. Sub-clause 155.212(3)(a) of the Regulations required the Tribunal to determine that the applicant had not been absent from Australia for a continuous period of five years or more, immediately before the application, unless there are compelling reasons for the absence,

    
    

    and that the applicant holds a permanent visa or last departed Australia as an Australian permanent resident or last departed Australia as an Australian citizen but had subsequently lost or renounced their Australian citizenship. The Tribunal did not address sub-cl.(3)(a) of cl.155.212 of Sch.2 of the Regulations and it is, therefore, not clear whether it gave any consideration to whether the applicants met that criteria.

12. It would appear, from the decision of the Tribunal, that the Tribunal relied on sub-cl.(3)(b) of cl.155.212 of Sch.2 of the Regulations, and it relied particularly on that part of the sub-clause which referred to there being compelling reasons for the absence of the applicant for periods that totalled more than five years in the period from the date that they last departed Australia as an Australian citizen or Australian permanent resident to the date of the application. However, that sub-clause requires the Tribunal to also consider whether the applicant was an Australian citizen or an Australian permanent resident less than 10 years before the application was made. The Tribunal failed to consider that part of the provision at all. By failing to consider that part of

    
    

    sub-cl.155.212(3)(b) of Sch.2 of the Regulations, I am satisfied that the Tribunal misapplied the criteria and that that constituted jurisdictional error on the part of the Tribunal.

13. I am therefore satisfied that the Applicant is entitled to relief in accordance with the amended application. Taking into account the matters before me, I am satisfied that there should be a writ of certiorari issue directed to the Tribunal quashing the decision of the Tribunal dated 24 June 2013, and that there should also be a writ of mandamus directed to the Tribunal requiring it to re-determine the application made to it for review of the decision of the delegate dated

    
    

    5 April 2012 according to law.

14. I am further satisfied that there should be a direction issued to the Tribunal that, in re-determining the application for review that was made on 13 May 2012, the Tribunal must review the decision of the delegate of the Applicant not to grant Mr Alberts the visa that he sought, and must not review the decision of the delegate of the Applicant not to grant Mrs De Boer the visa that she sought, on the basis that the Tribunal had no jurisdiction to review the delegate’s decision with respect to the applicant Mrs De Boer.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  11 April 2014