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 |
| 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…
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- AGLC
- Montero v Minister for Immigration & Anor [2014] FCCA 946
- Case
- [2014] FCCA 946
- Decision Date
CaseChat Overview and Summary
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.