Minister for Immigration v HENSCHEL and Anor
[2013] FCCA 584
•11 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MINISTER FOR IMMIGRATION v HENSCHEL & ANOR | [2013] FCCA 584 |
| Catchwords: MIGRATION – Review application by Minister of decision of Migration Review Tribunal to uphold review of decision of delegate – whether jurisdictional error – application granted. |
| Legislation: Migration Act 1958, s.476 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v State of South Australia [1995] HCA 58 |
| Applicant: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| First Respondent: | WESLEY HENSCHEL |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 302 of 2012 |
| Judgment of: | Judge Lindsay |
| Hearing date: | 11 June 2013 |
| Date of Last Submission: | 11 June 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 11 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | Sparke Helmore |
| Respondent: | No appearance |
ORDERS
The applicant have leave to amend ground one of the Application filed on 4 December 2012 by substituting the word “applicant” for the words “first respondent”.
A writ of certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal dated 31 October 2012.
A writ of mandamus issue directed to the Migration Review Tribunal requiring it to re-determine the application made to it for review of the decision of a delegate of the applicant dated 14 June 2012 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 302 of 2012
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Applicant
And
| WESLEY HENSCHEL |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 for orders by way of certiorari and mandamus in relation to a decision of the Migration Review Tribunal (“the Tribunal”) which remitted a decision of a delegate not to grant the first respondent a subclause 802 visa with a direction that as part of the remittal that the applicant met the criteria for the grant of that visa, and in particular met the criteria described in clause 802.214 of Schedule 2 of the Migration Regulations 1994. That was amongst the criteria in respect of which the direction was given on the remittal.
This Court has the same jurisdiction as the High Court of Australia has under s.75(v) of the Commonwealth Constitution, but only in relation to “migration decisions”. That expression is the subject of some very precise definition under the Act, and essentially, with some exceptions that do not matter for present purposes, it means a privative clause decision, or a purported privative clause decision, and a decision of the Tribunal clearly falls into that category. But, since the High Court of Australia decision of Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, I will only make the order of review that is sought if I am satisfied that the Tribunal’s decision has been vitiated by jurisdictional error.
Jurisdictional error is a concept best explained in a number of High Court cases, in particular by the High Court of Australia in Craig v State of South Australia [1995] HCA 58.
The applicant is an American citizen; his mother lives with his stepfather in Australia. It looks as if he has, since the mother’s departure from the United States, been in the care of a paternal grandparent. He completed the American equivalent year 12 in 2010, and then undertook what the Tribunal came to describe as a “gap year” in education, and ultimately the application for this visa was made on 4 December 2002. The application was for a subclause 8.02 visa.
There are a number of primary criteria to be satisfied. The focus of this application relates to one of those primary criteria, and it is 802.214. The applicant has turned 18, which is why that clause is applicable. He is not engaged to be married, nor he does not have a spouse or a de facto partner, and has never had a spouse or de factor partner, and he is not engaged in full-time work. So he satisfies (a) and (b), but the other part of this primary criteria that had to be satisfied at the time of application was that he has since turning 18, or within six months, or a reasonable time after completing the equivalent of year 12 of the Australia school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Sub-paragraph (2) of 802.214 does not apply to the circumstances of this visa applicant.
In my view, there is nothing ambiguous about the requirement of sub rule 1(c). As the applicant’s outline of submission puts it at paragraph 7 there are two alternative requirements. Either the applicant has, since turning 18, been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification, or he has, within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study.
So the alternatives relate to whether the applicant has been in study since turning 18, or within a reasonable period of completing that equivalent. There does not seem to be any difficulty in understanding the requirement of the clause. The way in which the subclause is structured is explicated by Smith FM in the decision of Wake v Minister of Immigration and Citizenship (2010) FMCA272.
The Tribunal found that the equivalent of year 12 in the United States had been finished by the applicant in July 2010, so the first of the two alternatives was not applicable. The applicant on his own case had not been undertaking a course of full-time study since turning 18. The question then was did he satisfy the second alternative, which was that he either within six months, or a reasonable time after completing year 10 in America in 2010, had been undertaking a full-time course of study. That was the task that was before the Tribunal, and that was the issue it had to confront, that was the question it had to ask itself.
In attempting to address itself to the question it completely misunderstood its obligation. It asked entirely the wrong question. The question it asked itself was premised on asking whether if the applicant were now to embark upon such a course of study it could be categorised as an embarkation which had been undertaken within a reasonable time after completing the year 12 equivalent in 2010 in the American school system. So, much of the Tribunal’s decision making is about identifying the personal circumstances, and personal decision making of the applicant, and his family circumstances, some explanation, or perhaps even it might be categorised as some excuse, for his not having undertaken a course of study.
This was to overlook altogether the requirement of the subclause which was that the applicant is then undertaking a fulltime course of study as described. The subsidiary enquiry (if he has been) is whether it had been undertaken within the appropriate temporal limits. But that is not what the Tribunal asked itself at all; it went about the exercise of discovering, or discussing, whether proper reason, or proper excuse, existed for the delay in the commencement of the study such that it could be described as within a reasonable time after the conclusion of the year 12 equivalent in the United States in 2010.
That was an erroneous understanding of its obligations under that part of the Regulations. It was a primary criteria; the decision making made its way into the direction that Tribunal made when remitting the matter to the delegate. It remitted it upon the basis that the applicant had met that specific criteria. This kind of fundamental misapprehension of the task set by the criteria in this instance is clearly, in my view, not an error within jurisdiction. It is the kind of jurisdictional error which falls within the category described in the classic formulation of jurisdictional error to be found in Craig v South Australia, and in particular at the passage set forth on page 6, paragraph 24 of the Minister’s outline of submission. For those reasons, in my view, the applicant is entitled to the relief sought.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lindsay
Associate:
Date: 24 June 2013
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