Montero v MIBP

Case [2014] FCCA 946


FEDERAL CIRCUIT COURT OF AUSTRALIA

MONTERO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 946

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (MRT) – cl.3004(c) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) – meaning of “factors beyond the applicant’s control” – whether MRT misconstrued that expression or misapplied correct construction of that expression.

MIGRATION – Application for review of decision of MRT – cl.3004(e)(ii) of Schedule 8 to the Regulations - meaning of “applicant has complied substantially with . . . the conditions that apply or applied to . . . the last of any substantive visas held by the applicant” – whether that expression means the applicant must substantially comply with each condition attached to a visa, or whether it means substantial compliance with the conditions attached to the visa taken as a whole.

MIGRATION – Relief – whether relief should be granted where the MRT made a jurisdictional error in relation to an element of the review before it but made no jurisdictional error in relation to another element of the review before it which was dispositive against the applicant’s being granted a visa.

Legislation:

Migration Legislation Amendment Regulation 2012 (No.1) (Cth), cl.8104

Migration Regulations 1994 (Cth), r.1.03
Schedule 2, cll.857.211(2), 857.213(a)
Schedule 3, cll.3004(c), 3004(e), 3004(e)(ii)
Schedule 8, cl.8104

Avon Downs Pty Limited v The Federal Commissioner of Taxation (1949) 78 CLR 353
Chen v Minister for Immigration & Anor [2011] FMCA 177
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Musapeta v Minister for Immigration & Anor [2007] FMCA 729
Peng v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 63
Singh v Minister for Immigration & Anor [2012] FMCA 1126
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Tamang v Minister for Immigration & Anor [2013] FCCA 450
Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229
VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261
Applicant: RENEE SORENIO MONTERO
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1147 of 2013
Judgment of: Judge Manousaridis
Hearing date: 3 February 2014
Delivered at: Sydney
Delivered on: 9 May 2014

REPRESENTATION

Counsel for the Applicant: Ms Patterson
Solicitors for the Applicant: Fragomen
Counsel for the Respondents: Mr Reilly
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application is dismissed.

  2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1147 of 2013

RENEE SORENIO MONTERO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 23 June 2011 the Department of Immigration and Border Protection (Department)[1] received by post…

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AGLC
Montero v Minister for Immigration & Anor [2014] FCCA 946
Case
[2014] FCCA 946
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Migration Review Tribunal (MRT). The applicant, Montero, sought to challenge the MRT's decision to affirm the refusal of a visa. The Minister for Immigration and Border Protection was the respondent.

The court was required to determine several legal issues. Firstly, it had to consider the meaning of "factors beyond the applicant’s control" as stipulated in clause 3004(c) of Schedule 8 to the Migration Regulations 1994 (Cth), and whether the MRT had misconstrued or misapplied this expression. Secondly, the court had to interpret clause 3004(e)(ii) of Schedule 8, specifically whether "applicant has complied substantially with . . . the conditions that apply or applied to . . . the last of any substantive visas held by the applicant" meant substantial compliance with each individual condition or substantial compliance with the conditions collectively. Finally, the court considered whether relief should be granted when the MRT had made a jurisdictional error in relation to one aspect of its review, but another, dispositive ground of its decision was free from jurisdictional error.

The court reasoned that if a tribunal's decision is affirmed on multiple grounds, and only one of those grounds is affected by jurisdictional error, relief will generally be withheld if at least one other ground was not affected by jurisdictional error and was considered independently of the flawed ground. Applying this principle, the court found that the MRT's consideration of the applicant's compliance with visa conditions was separate from its consideration of clause 3004(c). Therefore, despite finding a jurisdictional error in relation to clause 3004(c), the court determined that no relief should be granted because another ground of the MRT's decision was not affected by jurisdictional error and was dispositive against the applicant.

Consequently, the court ordered that the application be dismissed and that the applicant pay the Minister's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Minister relied on passages from the reasons of judgment of McKerracher J in SZOOR v Minister for Immigration and Citizenship[32] in which his Honour referred to a number of cases which considered the withholding of relief where the Court finds the Tribunal made a jurisdictional error. Of some relevance is the following passage from the reasons for judgment of Gray J in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs:[33]There have been numerous cases in which decisions of tribunals under the Migration Act have been upheld, notwithstanding error apparent in the tribunals’ reasons, because those reasons also disclose that there is another basis on which the tribunal concerned found against the person applying for a visa. Recent examples include NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 at [17], VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [24].[32] [2012] FCAFC 58 at [95]-[102], Reeves J agreeing (at [114])[33] [2005] FCAFC 1 at [23] The question whether, and if so when, a court can or should withhold relief where it has found the Tribunal made a jurisdictional error was considered in some detail by Rares J in Tran v Minister for Immigration & Multicultural Affairs.[34] The end result of his Honour’s analysis was that if there are two or more grounds on which the Tribunal upheld the decision of the delegate, and one, but not all of those grounds was infected with jurisdictional error, relief will be withheld if any one of the grounds on which the Tribunal affirmed the delegate’s decision was not affected by jurisdictional error, and the Tribunal’s consideration of that ground was undertaken entirely separately from the consideration of the ground infected with jurisdictional error.[35][34] [2006] FCA 1229[35] That is my interpretation of the effect of what his Honour said at [79] Applying this principle to the circumstances of this case, I am of the opinion that the Tribunal’s consideration of whether the applicant satisfied condition 8104 while he held a 572 visa was entirely separate from its consideration of whether the applicant satisfied cl.3004(c) of Schedule 3 to the Regulations. Accordingly, I do not propose to grant any relief in relation to the jurisdictional error I found the Tribunal made in relation to cl.3004(c). I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.