Montero v MIBP
[2014] FCCA 946
•9 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONTERO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 946 |
| Catchwords: 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 |
| 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
The application is dismissed.
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
On 23 June 2011 the Department of Immigration and Border Protection (Department)[1] received by post an application from the applicant for an Employer Nomination (Residence) (Class BW) visa (Employer Nomination visa). The application was sent to the Department by the applicant’s employer who posted it on 20 June 2011.
[1] The Department was then named Department of Immigration and Citizenship.
To have been entitled to an Employer Nomination visa, the applicant had to satisfy a number of criteria. One criterion was that the applicant held a substantive visa on the day he applied for the Employer Nomination visa. On 20 June 2011, being the day on which the applicant’s employer posted the application, the applicant held a (Subclass 572) Vocational Education and Training visa (572 visa). That visa, however, expired at the end of 20 June 2011. The applicant, therefore, did not hold a substantive visa on 23 June 2011 when the Department received his application for an Employer Nomination visa.
The applicant’s not holding a substantive visa on the day he applied for the Employer Nomination visa was not necessarily fatal to his being granted the visa. Paragraph 2 of cl.857.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provided that if an applicant did not hold a substantive visa at the time he or she applied for an Employer Nomination visa, the applicant had to satisfy the criteria specified in clauses 3001, 3003, and 3004 of Schedule 3 to the Regulations.
Two criteria specified in cl.3004 are relevant to the case before me. The first is that specified in paragraph (c) of cl.3004, namely, that “the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control”. And the second is that specified in paragraph (e)(ii) of cl.3004, namely, “the applicant has complied substantially with . . . the conditions that apply or applied to . . . the last of any substantive visas held by the applicant”. Only one of the conditions that attached to the 572 visa is relevant to the case before me; and that is the condition that prevented the applicant from working more than a prescribed number of hours.
On an application for review of a decision of a delegate of the first respondent (Minister), the second respondent (Tribunal) was not satisfied the applicant met the criteria specified in cl.3004(c) or cl.3004(e)(ii) of Schedule 3 to the Regulations. The Tribunal therefore affirmed the delegate’s decision not to grant the applicant an Employer Nomination visa on 26 April 2013.
In this application for judicial review, the applicant claims the Tribunal made jurisdictional errors in concluding the applicant did not satisfy the two criteria. The applicant contends that:
a)although the Tribunal identified the correct interpretation of the expression “because of factors beyond the applicant’s control”, its concluding in the circumstances of this case that that criterion was not satisfied manifests an erroneous understanding of the expression; and
b)the Tribunal misconstrued the expression “complied substantially” in cl.3004(e)(ii) as requiring that the applicant had to comply substantially with each of the conditions; the correct construction, the applicant submits, is that cl.3004(e)(ii) only requires that the applicant comply substantially with all conditions considered as a whole.
Ground 1 - incorrect construction of cl.3004(c)
The facts against which the Tribunal considered whether the applicant satisfied cl.3004(c) are briefly set out in the Tribunal’s reasons for decision:[2]
The applicant claimed he submitted all his documents to the employer who prepared the 857 application for lodgement. He advised the employer of his visa expiry deadline several times. The agent submissions suggested delays occurred with the nomination application which postponed the lodgement of the visa application until 20 June. The agent submitted the visa application was sent on 20 June by express post on the understanding it would be compliant.
[2] CB153, [13]
This short summary was based on evidence from the applicant’s employer and the applicant. In a letter dated 20 January 2012 to the Department the employer stated:[3]
We confirm that the lodgment of this 857 application was under our control. We, as the sponsor, were assisting Mr Montero with the visa application process. Mr Montero informed us of his visa expiry date. During the application process, we experienced delays with the Nomination side of the application which in turn caused delays in lodging the visa application. The application was posted via express post to the Department on 20 June 2011, the day of the deadline and before the visa had expired.
[3] CB70
And the evidence the applicant gave, as recorded by the Tribunal, included the following:[4]
The applicant said he reminded the administration manager a number of times that his visa was due to expire on 20 June 2011. It was beyond his control as the employer was lodging the application. . . . He gave his documents to the employer about 3 months before the visa expiry. . . . He was not sure why the employer lodged the application late. . . .
[4] CB152, [5]
Tribunal’s decision and reasoning
The Tribunal referred to the following passage from the decision of Smith FM in Su & Ors v Minister for Immigration & Anor:[5]
The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision. . . .
[I]t is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.
[5] [2007] FMCA 318 at [17]-[18]
The Tribunal did not accept it was beyond the applicant’s control to lodge the application for an Employer Nomination visa before his 572 visa had expired; it considered “it was within the applicant’s control to lodge his own visa application within time or to ensure that the application was lodged prior to his visa expiry”.[6] The reasons for the Tribunal’s conclusion appear to be the following:[7]
a)The applicant was educated, and speaks and understands English.
b)The applicant has been in Australia since 2009.
c)The applicant had sought sponsorship from his employer a year before his 572 visa expired and provided paperwork to his employer three months before it expired and reminded his employer of the expiry date of his 572 visa.
d)The applicant “was aware of his visa status, when his visa expired, his visa options and paperwork required”.
[6] CB154, [15]
[7] CB154, [15]
The Tribunal also said:[8]
The tribunal considers it was within his control to lodge his application himself and his decision to let the employer lodge the application was a choice made within his control.
[8] CB154, [15]
Parties’ submissions
The applicant submits the Tribunal committed a jurisdictional error because it failed to consider from a practical or realistic sense whether the event that prevented the applicant from being the holder of a visa at the time he applied for the Employer Nomination visa, namely, the applicant’s employer not lodging the application for such visa by 20 June 2011, was beyond the control of the applicant. The Tribunal had instead applied a theoretical or impractical approach. The applicant relies on his having repeatedly reminded his employer about the date on which his visa was to expire; and on the fact that an Employer Nomination visa was a type of visa for which an applicant could only have applied with the assistance of the employer. The Minister, on the other hand, submits that the applicant’s claim goes no higher than expressing disagreement with the Tribunal’s conclusion, which, the Minister submits, was a finding of fact wholly within the jurisdiction of the Tribunal.
Did the Tribunal misconstrue or misapply the words “beyond the control of a person”?
The applicant does not submit that the Tribunal in terms said that the question whether the applicant’s not holding a valid visa was due to matters beyond his control was to be determined on a theoretical or impractical basis. The Tribunal did refer to the passage from the reasons of Smith FM in Su which required that that question be determined in a practical or realistic sense. Rather, the applicant submits that, having regard to the material that was before the Tribunal, and its reasoning, the Tribunal’s conclusion that the applicant’s not holding a visa at the time of the application was not due to factors beyond his control was not one that was reasonably open to it; and the Tribunal must therefore have arrived at that conclusion by applying an incorrect construction of the expression “beyond the control of a person” as expounded by Smith FM in Su.
This kind of reasoning has been applied to invalidate decisions made in the exercise of a statutory power conditioned on the repository of the power being “satisfied” of the existence or non-existence of specified facts or matters. The classical exposition of such reasoning, and when it may be applied in that context, is that given by Dixon J (as his Honour then was) in Avon Downs Pty Limited v The Federal Commissioner of Taxation:[9]
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough if you can see that in some way he must have failed in the discharge of his exact function according to law.
[9] (1949) 78 CLR 353 at 360, [13]
A statement of the ground and reasoning as it may apply to the Tribunal was provided by Greenwood J in SZDTZ v Minister for Immigration and Citizenship:[10]
A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
[10] [2007] FCA 1824 at [32]. This passage was set out with approval by McKerracher J in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [101]
In my opinion, although the Tribunal referred to Smith FM’s exposition in Su of the expression “beyond the control of a person”, the Tribunal did not apply it. The principal matter on which I base my opinion is the Tribunal’s failure to refer to, or otherwise indicate it considered, the fact that the applicant could not have applied for an Employer Nomination visa without the co-operation of his employer; and that the applicant, although he could urge, he could not direct his employer to do what it had to do to enable the applicant to apply for an Employer Nomination visa before the applicant’s 572 visa expired. In that regard, cl.857.213(a) of Schedule 2 to the Regulations, as it stood on the day the Tribunal made its decision (26 April 2013), required that as at the day on which the applicant applied for an Employer Nomination visa he must have “been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer”.[11] Had the Tribunal correctly understood Smith FM’s exposition in Su of “beyond the control of a person”, the Tribunal would have considered whether some act on the part of the applicant’s employer was a necessary condition to the applicant’s being in a position to lodge an Employer Nomination visa while the applicant held a 572 visa and, if so, whether his employer’s performing such act was within the control of the applicant.
[11] The text of cl.857.213 is annexed to the decision of the Tribunal at CB156.
In my opinion, therefore, the applicant has made out ground 1.
Ground 2 - incorrect construction of cl.3004(e)(ii)
The 572 visa the applicant held up to 20 June 2011 was subject to a number of conditions, one of which was condition 8104 of Schedule 8 to the Regulations. Both the Tribunal and the parties assumed that that condition required the holder of a 572 visa not work more than 40 hours every fortnight. That is what the current version of condition 8104 of Schedule 8 provides. That condition, however, only applies to applications for visas made after 26 March 2012 and also to visas which, as at 26 March 2012, were subject to conditions 8104 or 8105 in Schedule 8 as that schedule existed before 26 March 2012. Before 26 March 2012, when Schedule 8 was amended by the Migration Legislation Amendment Regulation 2012 (No. 1) (Cth), condition 8104 prohibited the visa holder from working more than 20 hours a week. In my opinion, however, nothing turns on the Tribunal or the parties having assumed that the applicant’s 572 visa was subject to the condition that the applicant must not work more than 40 hours a fortnight.
The Tribunal found the “applicant worked 38 hours a week at the piggery since 10 June 2009 and finds that he worked in excess of 40 hours in the 15 June 2009 fortnight and was therefore in breach of condition 8104”; and concluded as follows:[12]
Based on the evidence before it the tribunal is not satisfied that the applicant substantially complied with the condition 8104 of his previous student visa and does not meet 3004(e).
Having found that cl.3004(c) and (e) is not satisfied, it is unnecessary for the Tribunal to consider the application of the rest of cl.3004. As the applicant was not the holder of a substantive visa at the time of applicant [sic] and he has not met a Schedule 3 criterion 3004, the Tribunal finds that the applicant does not meet cl.857.211.
[12] CB155, [19]-[20]
Parties’ submissions
The applicant submits the Tribunal erroneously construed “the applicant has complied substantially with . . . the conditions that apply or applied” to mean “the applicant has complied substantially with . . . each of the conditions that apply or applied” (emphasis in original).[13] In other words, the claimed error was the Tribunal’s reading into cl.3004(e) the words “each of”. What the Tribunal should have done was to assess the “visa-holder’s overall compliance with . . . all [of the] conditions of a visa”.[14]
[13] Applicant’s written submissions, [30]
[14] Applicant’s written submissions, [32]
The applicant relies on the following matters in support of these contentions:
a)The prerequisites for reading words into a statutory provision identified by French CJ and Bell J in Minister for Immigration and Citizenship v SZJGV,[15] are not present in the case of cl.3004(e).[16]
b)Construing cl.3004(e) without the words “each of” is itself a sensible and workable construction.[17]
c)To the extent there are authorities which are against the construction the applicant contends for, they are distinguishable or should not be followed.[18]
[15] (2009) 238 CLR 642 at 651-652 ([9])
[16] Applicant’s written submissions, [33]
[17] Applicant’s written submissions, [36]
[18] Applicant’s written submissions, [41], [43]
The Minister, on the other hand, submits that the construction on which the Tribunal relied does not involve the reading of any words into cl.3004(e). And in any event, there are a number of cases which are against the applicant’s construction of cl.3004(e).
Construction of cl.3004(e)
The starting point, and often the end point, of resolving issues of construction is to ascertain the ordinary meaning of the words that are to be construed, in the context of the Act or delegated legislation in which they appear. The relevant words I have to construe are “complied substantially with . . . the conditions”. I start with the word “condition”.
The word “condition” is defined in r.1.03 of the Regulations to mean “a condition set out in a clause of Schedule 8, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule”. Schedule 8 deals with “visa conditions”, and sets out a number of clauses, each of which requires or prohibits conduct identified in a clause or otherwise requires a particular state of affairs to exist or not to exist.
As note 1 to Schedule 8 indicates, whether or not any of the clauses in Schedule 8 apply to any particular visa depends on the relevant provision in Schedule 2 to the Regulations. The 572 visa the applicant held was subject to a number of conditions, one of which was condition 8104.[19]
[19] That is apparent from the applicant’s visa at CB22
The next word in the expression “complied substantially with . . . the conditions” to consider is that which immediately qualifies “conditions”, that word being the definite article “the”. That word denotes all conditions that apply to a visa. Hence, the subject of cl.3004(e), so far as the applicant is concerned, is those conditions specified in Schedule 8 that had been made to apply to the applicant’s 572 visa.
I then need to address the expression “complied with”. I do so in isolation from the word “substantially” because “substantially” has no independent meaning; it only qualifies the word “complied” after which it appears. I begin with the words “to comply”. In ordinary usage, “to comply” signifies the act of obeying something or someone, or of conforming to something. The expression “complied with”, therefore, means “obeyed someone or something” or “conformed with something”. If one were to ignore the word “substantially”, for the applicant to have complied with the conditions attached to the applicant’s 572 visa, he will have had to obey or conform with the conditions specified in Schedule 8 that had been made to apply to the applicant’s 572 visa.
The final step in determining the meaning of the words “complied substantially with . . . the conditions” is to consider the meaning the word “substantially” adds to the meaning of “complied . . .with . . . the conditions”. If, as I have found, “complied with” means obedience to or conformity with all the conditions specified in Schedule 8 that apply to a particular class of visa, it must follow that “complied substantially with” means to have substantially obeyed or substantially conformed with all of the conditions specified in Schedule 8 that apply to a particular class of visa. Thus, in order to satisfy cl.3004(e)(ii), the applicant had to satisfy the Tribunal that he had substantially complied with each condition to which his 572 visa was subject, including condition 8104.
My conclusion is supported by a consideration outside the text of cl.3004(e). On the applicant’s construction, it is possible for the Tribunal (or Minister) to find there has been substantial compliance with the conditions attached to a visa, even though an applicant has totally failed to satisfy one criterion, and possibly more than one criterion. That implies that cl.3004(e) confers on the Tribunal and Minister a wide discretion to assign different weight to different conditions. The granting of such discretion, however, is inconsistent with the character of the regulations that prescribe the criteria for the granting of visas. The regulations are detailed, and are drafted with various exceptions and qualifications, all of which manifests an intention on the part of the draftsperson that each criterion and each condition must be complied with according to its terms.
Authorities
Having concluded on the basis of my analysis of the text of cl.3004(e) that it requires an applicant to have substantially complied with all conditions to which the relevant visa was subject, I now consider the authorities to which counsel have referred me. The first is the decision of Hely J in Peng v Minister for Immigration and Multicultural Affairs.[20]
[20] (2000) 105 FCR 63
In Peng the question was whether the applicant “has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject”.[21] The applicant made the following submission:[22]
The applicant submits that the clause [cl.560.213] should not be construed as if it required substantial compliance with each and every condition to which the visa is subject, when, by its terms, all that is required is that there be substantial compliance with the conditions taken as a whole. Thus, for example, if a visa was issued upon four conditions and three were complied with, but one was not complied with at all, a Tribunal of fact could nonetheless conclude that there had been substantial compliance with the conditions, as three out of four were met.
[21] (2000) 105 FCR 63 at 66 ([8]), cl.560.213 of the Regulations
[22] (2000) 105 FCR 63 at 67 ([15]) (emphasis in original)
Hely J rejected this submission:[23]
I do not think that the clause should be construed in this way. A requirement that the applicant shall have complied substantially with the conditions to which a visa is subject, as a matter of ordinary English, conveys that substantial compliance with each of those conditions is required. That view gains some reinforcement from s 116(1)(b) of the Migration Act 1958 (Cth) . . . which recognises the importance of individual visa conditions.
[23] (2000) 105 FCR 63 at 68 ([16])
The next decision is that of Ryan J in Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs[24] where a submission similar to the one in Peng was made in relation to a different clause which also required that “the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject”.[25] His Honour said that the clause “requires substantial compliance with all of the conditions cumulatively to which an applicant’s last visa was subject”.[26]
[24] [2004] FCA 261
[25] [2004] FCA 261 at [4], cl.573.212 of the Regulations
[26] [2004] FCA 261 at [17]
A third authority to which I was referred is the decision of Burnett FM (as his Honour then was) in Chen v Minister for Immigration & Anor.[27] That case concerned cl.572.235 which required that the applicant “has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.[28] The applicant made a submission similar to the submission made in the case before me:[29]
The applicant contends that this clause should be construed to mean that there is a global assessment of substantive compliance with the applicant’s last substantive visa and any subsequent bridging visa: it does not require a consideration of each condition discretely. The applicant contended the assessment did not require a consideration of the substantive compliance with each condition with the effect being that each condition is considered discretely and that it is only upon the cumulative satisfaction of each condition that the applicant can satisfy Condition 8202. He contended the Tribunal was in error in adopting a construction that afforded as a preface to the words “the conditions” the words “each and every” in the context of the visa conditions.
[27] [2011] FMCA 177
[28] [2011] FMCA 177 at [18]
[29] [2011] FMCA 177 at [19]
His Honour rejected the submission:[30]
The language of the clause is not complicated. Its expression is plain and its meaning is readily discernable from a plain reading of the words in their ordinary context. That is, relevantly for this applicant, that the clause requires that the applicant has complied substantially with the conditions that apply or applied to the last substantive visa and to any subsequent bridging visa he held. The clause directs attention to the issue of compliance with each condition of that visa and the subsequent bridging visas. An assessment has to be made as to whether or not there has been substantial compliance with each such condition. On that basis the clause gives rise to a cumulative assessment such that if there is a failure in respect of any one condition the application fails. No global assessment is made.
[30] [2011] FMCA 177 at [20] (emphasis in original)
Three other cases dealt with and rejected a similar submission made in relation to the same clause as was considered in Chen.[31]
[31] Musapeta v Minister for Immigration & Anor [2007] FMCA 729 (Smith FM) at [31]; Singh v Minister for Immigration & Anor [2012] FMCA 1126 (Jarrett FM) at [15]-[18]; Tamang v Minister for Immigration & Anor [2013] FCCA 450 (Judge Hartnett) at [28]
Counsel for the applicant submitted that the clauses that were considered in these cases are materially different from cl.3004(e). In my opinion, the provisions considered in these cases are not materially different from cl.3004(e).
Did the Tribunal misconstrue cl.3004(e)(ii)?
As submitted by the applicant, the Tribunal did review the applicant’s claim on the basis that the applicant had to satisfy the Tribunal that he had substantially complied with each and every condition that was attached to the applicant’s 572 visa. The consequence of that approach was that the Tribunal, having found the applicant did not substantially comply with one of the conditions of his 572 visa, did not have to consider whether the applicant had substantially complied with the other conditions that attached to the 572 visa.
Based on my analysis of the meaning of the words contained in the expression “complied substantially with . . . the conditions”, and the authorities to which I refer above, I am of the opinion that the Tribunal proceeded on the correct construction of cl.3004(e)(ii). Accordingly, ground 2 of the application for review fails.
Conclusion and disposition
I have found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c), but did not make a jurisdictional error in relation to its construction of cl.3004(e)(ii). The Minister submits that the two aspects of the Tribunal’s decision that were challenged by the applicant were independent of each other, and for the applicant to succeed in obtaining an order setting aside the Tribunal’s decision, he has to succeed on both challenges.
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.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 9 May 2014
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