Nwachukwu v Minister for Immigration and Anor

[2020] FCCA 3122

FEDERAL CIRCUIT COURT OF AUSTRALIA

NWACHUKWU v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3122

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled Nominated (Permanent) visa (Subclass 190) – whether the review applicant is a member of a family unit of a person who holds a Subclass 190 visa – whether the Tribunal erred in failing to carry out the assessment required by cl 190.311 of the Migration Regulations 1994 (Cth) –whether there is jurisdictional error on behalf of the Tribunal – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 65, 348.

Migration Regulations 1994 (Cth), Sch 2, 190.216, 190.3, 190.311.

Applicant: RUTH IFEANYI NWACHUKWA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: CAG 66 of 2019

Judgment of: Judge Humphreys

Hearing date: 4 November 2020

Date of Last Submission: 4 November 2020

Delivered at: Parramatta

Delivered on: 19 November 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Crawford, Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 66 of 2019

RUTH IFEANYI NWACHUKWU

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The review applicant is a citizen of Nigeria. On 20 February 2017, the applicant’s de facto, Lucky Ayubagbakena Enaboye (the primary applicant) applied for a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). The application included the review applicant as part of the primary applicant’s application on the basis that she was a family member.

2. On 19 December 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the primary applicant his visa on the basis that he did not satisfy the requirements of cl 190.216 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the primary applicant did not meet Public Interest Criterion (“PIC”) 4020. The review applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”) in relation to the primary applicant. The primary applicant was not a party in the review application.

3. In a decision dated 26 August 2019, the Tribunal affirmed the delegate’s decision not to grant the review applicant a Skilled Nominated (Permanent) visa as part of a family unit. The review applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. The Tribunal’s decision is relatively short. At paragraph 4 of its decision, the Tribunal sets out the relevant law. The issue is whether the review applicant is a member of the family unit of another person who holds a substantive visa. Clause 190.311 of the Regulations requires that the applicant be a member of the family unit of a person who holds a Subclass 190 visa granted on the basis of the primary applicant satisfying the criteria for the grant of the visa. A note at cl 190.3 of the Regulations states that all criteria must be satisfied at the time a decision is made on the application.

2. At paragraph 5 of its decision, the Tribunal noted the applicant had not sought to meet the primary criteria for the visa grant and there is no evidence before the Tribunal that she meets the primary criteria. In particular, there is no evidence that the applicant has achieved the qualifying score or the score specified in the invitation to apply. Accordingly, the Tribunal was not satisfied that the applicant met the primary criteria for the grant of the visa.

3. In the visa application, the review applicant was identified as a spouse and a member of a family unit of the primary applicant. However, there was no evidence before the Tribunal that the applicant’s partner, the primary applicant, had been granted and was the holder of a Subclass 190 visa.

4. The Tribunal noted that the primary applicant, the review applicant’s partner, is not the holder of a Subclass 190 visa, and the decision to refuse him that visa is not the subject of any ongoing review. It appeared that the primary applicant could not be granted a Subclass 190 visa unless he made another visa application.

5. It was put to the Tribunal that it should make findings in relation to the application of PIC 4020 to the husband in the present application. The Tribunal did not consider it was able to do that, as the Tribunal found that the spouse of the applicant was not the holder of a subclass 190 Visa and the Tribunal found that the applicant did not meet cl 190.311 of the Regulations. Accordingly, the Tribunal affirmed the decision of the delegate.

Grounds for Judicial Review

1. Grounds of review were filed with the Court on 25 September 2019. Following receipt of the first respondent’s written submissions, further grounds of review were lodged along with a document entitled ‘Reply to the First Respondent’s Outline of Submissions” on 29 October 2020. Objection was taken to the receipt of this document along with the further amended grounds of review by the first respondent on the basis of the lateness of the new material and that it did not assist the Court in its consideration of the matter. Ms Crawford, who appeared for the respondent very properly conceded that she was in a position to argue the matters contained within the new material and it was a matter for the Court to determine.

2. The Court was of the view that given the applicant was unrepresented and there would be no prejudice to the first respondent. Leave was granted to allow the applicant to rely upon the further amended grounds of review and the response document.

3. The grounds of judicial review are now as follows:

   Ground One:

   Clause 190.311 requires the applicant to be a member of the family unit of a person who holds a subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa. A note at cl. 190.3 states that all criteria must be satisfied at the time a decision is made on the application. The Tribunal per member K. Raif erred when she failed to carry out the assessment required by Clause 190.311 aware that the Applicant is a member of the family unit of a person who is the holder of the Subclass 190 visa.

   Particulars:

   1.  The applicant applied on the basis that they could satisfy the secondary criteria for the grant of a Skilled – Nominated (subclass 190) Skilled Nominated (Permanent)(class SN) visa as the member of the family unit of an applicant who met the primary criteria for this visa.

   Clause 190.311 provides:

   The applicant:

   (a)    is a member of the family unit of a person who holds a subclass 190 Visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b)    made a combined application with that person.

   2. The Departmental delegate reached the decision that having considered all the information provided in the application, he is not satisfied that any applicant in the application met, the primary criteria specified in the Migration Regulations for the grant of a Skilled – Nominated (subclass 190) Skilled Nominated (Permanent)(class SN) visa, and therefore the applicant does not meet this criterion.

   3.  Clause 190.311 is an at the time of decision provision, which allows for the grant of a Skilled Visa to Applicants, immediately a decision is made to grant the primary applicant a 190 skilled visa. It is a prescribed criterion that an applicant who appears to have to satisfy secondary criteria only in order to be granted a visa must be a member of the family unit of the person who has to satisfy primary criteria. However, note the following.

   4.  Member of the family unit is defined in regulation 1.12. Pam3: Div 1.2/reg1.12 contains the guidelines on assessing relationship and degree of dependency (if any). Regardless of whether the person who satisfies the primary criteria is an applicant or already holds that class of visa, eligibility of any person to be a family unit member of that person derives from their relationship to that person as (nominal) family head.

   5.  Member K. Raif erred in law when she held that the Applicant is not the family unit of a primary visa applicant because there was no evidence before the Tribunal that the applicant’s partner, the primary applicant, has been granted the visa and that he is a holder of a Subclass 190 visa. Her interpretation flies against the Department’s own Procedure Advice Manual (Pam 3) Guidelines on the issue.

   6.  It is settled departmental procedure for the Department to issue the grant of the Primary Applicant’s visa first, this is then followed shortly thereafter with the issuance of the secondary applicant’s visa in a combined application.

   7. The reason the department adopts this approach is that in a combined application with secondary applicants, the only way a secondary applicant can meet the requirements for the grant of the visa is for the primary applicant to first meet the primary criteria for the grant of the visa and then on the basis of the secondary applicant’s member of family unit relationship with the primary applicant, the secondary applicant can then be issued the same visa and subclause 190.311 deemed met. By virtue of s.67 of the Migration Act , a visa is to be granted by the Minister causing a record of it to be made and generally a visa comes into effect as soon as it is granted by virtue of s.68(1).

   8.  As this is the case, any inquiry on whether a Secondary Applicant meets subclause 190.311, must as of necessity entail an inquiry first and foremost into whether a primary applicant has met the primary criteria as at the date of decision. If this is established in the affirmative, the logical conclusion would be that as at the date of decision, a grant would have been made with respect to the primary applicant. The Tribunal’s next level of inquiry, at this point would then be to ascertain, if the Secondary Applicant is a member of the family unit of this primary applicant who meets the primary criteria.

   9.  Once these are established it follows that subclause 190.311 would have been met as the applicant: will then be a member of the family unit of a person who holds a subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and made a combined application with that person.

   10. In order for the Tribunal to avoid committing a jurisdictional error, subclause 190.311 is not to be given a literal interpretation devoid of context. Section 15AA of the Acts Interpretation Act 1901 (Cth) stipulates that interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

   11.    Migration act provisions are not to be read in isolation with one another. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the “modern approach the statutory interpretation”. That modern approach has subsequently been called “contextualism”. (Barnes Jeffrey ‘Contextualism, The Modern approach to Statutory Interpretation’ [2018] UNSWLaw Jl 37; (2018) 41(4) UNSW Law Journal 1083.)

   12. Subclause 190.311 is to be read together with other relevant section of the Migration Act and relevant policy guidelines, including subclause 190.2 (Primary Criteria). The primary criteria for the grant of a subclass 190 visa must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.

   13.    In adopting an approach that looks at subclass 190.311 in isolation, the member fell into jurisdictional error, as her decision rendered subclause 190.311 otiose and a mere cosmetic surplusage, the practical effect being that a Secondary Applicant in a combined Skilled 190 Visa application in Australia, has no real review rights. This amounts to a denial of the Applicant’s appeal rights.

   Ground Two:

   Member K. Raif erred and constructively failed to exercise the Tribunal’s jurisdiction when she ignored the opportunity to review the decision before her and held that even if the Tribunal were to make a favourable decision in relation to PIC 4020 with respect to the applicant’s husband, he will not be the holder of a 190 visa because there are other criteria that would need to be assessed – for example, health and character – which cannot be assessed in the absence of any ongoing application.

   Particulars:

   1.  the effect of assuming jurisdiction on a merit review application is that the visa application on which a decision was made remains enlivened and ongoing and following the Tribunal’s decision would either be remitted back to the Department, upheld or appealed. At any rate at all material time before a decision is made, the Tribunal is seized of jurisdiction and is duty bound to exercise such jurisdiction and not to abdicate its responsibility.

   2.  Member K. Raif constructively failed to exercise jurisdiction and misdirected herself when she held that it was futile to review the delegate’s decision because there was no ongoing application.

   3.  The Migration Act and Regulations allows for a combined visa application. For most visa classes, Schedule 1 states that applications may be combined where two or more applicants claim to be members of the same family unit. Regulation 2.12E provides in these cases that payment of one visa application charge only is necessary.

   4.  Each person who combines their application with another person is an applicant in their own right and must be considered against the relevant primary criteria and secondary criteria. It is of course possible that more than one person who combined applications on the one form will satisfy primary criteria.

   5.  According to the Procedure Advice Manual (PAM 3) Guidelines Migration > 2020 > 15/10/2020 - > P. 15/10/2020 - >
   GenGuideA - All visas - Visa application procedures. Document ID: LS-1849 “s.14.4, if the visa applied for has secondary as well as primary criteria, each applicant must satisfy either primary criteria or secondary criteria in order to satisfy prescribed criteria for visa grant - see regulation 2.03. In combined applications, at least one applicant must satisfy primary criteria.

   6.  By refusing to ask itself the right question (whether the primary applicant met the requirements of Clause 190.216 as a result of meeting PIC 4020 requirements, so as to be entitled to the grant of a 190 visa and thus making his family members included in the combined application also eligible for a grant of the visa) and ignoring relevant material (the Tribunal refused to take the evidence of the Applicant’s witnesses, on the ground it would be futile to do so) it reached a mistaken conclusion and, the Tribunal’s exercise or purported exercise of power is thereby affected.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented. No Interpreter was requested and the Court was satisfied that the applicant had sufficient English language skills to meaningfully participate in the hearing.

2. The applicant was heavily pregnant and told the Court she was due to give birth in one week.

3. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court books and the first respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper so she could take any notes she wished to.

4. The Court explained that what the Court was undertaking was judicial review and not merits review. If the Court found legal error in the Tribunal’s decision, it could quash the decision and remit the matter back to the Tribunal for further consideration. The Court also explained that the procedure that would be adopted in respect of the conduct of the hearing.

5. When the applicant was asked if she wished to make any oral submissions, she told the Court that she was undertaking a Nursing degree and was currently in her second year of study. The applicant stated that she wished to remain in Australia and to give back to a community that had helped her. The applicant stated that she had made a home in Australia and wanted to stay. The applicant’s husband was currently in Nigeria. The applicant submitted that it is not a safe place.

6. When asked if the applicant had drafted the grounds of the application and particulars, she replied she had been assisted by another person.

7. Following the first respondent’s oral submissions, the applicant was asked if she wished to make any further submissions. The applicant repeated her request to be allowed to remain in Australia to complete her studies.

The First Respondent’s Submissions

1. The legal representative for the first respondent, submitted that the applicant’s amended grounds of judicial review do not identify a jurisdictional error. The applicant’s particulars appear to assert that the Tribunal was required first to consider whether the primary applicant (the review applicant’s husband, Mr Enaboye), met the criteria for the visa ‘despite not being a party to the Tribunal’s review’ and subsequently consider the review applicant’s application. To the extent that this is the substance of the applicant’s ground, it is submitted on behalf of the first respondent that the ground was misconceived.

2. The Tribunal is required to review the decision that is before it: (see

   
   

   s 348 of the Act). The issue for decision before the Tribunal was that the applicant was the member of the family unit of a person that satisfied the primary visa criteria. It is not in dispute that Mr Enaboye’s visa application had been refused. Further, the applicant’s representative at the Tribunal confirmed that they did not want to include the primary applicant in the review.

3. In these circumstances, the Tribunal had no choice but to affirm the decision under review as the applicant did not satisfy cl 190.311 of the Regulations which required the applicant to be a member of the family unit of the person that satisfies the primary criteria. The Tribunal specifically considered if the applicant met the primary criteria for the grant of the visa sought, but concluded that she did not.

4. For the sake of completeness, the applicant’s representative at the Tribunal appeared to have greater concern with the Tribunal, following its decision on 26 August 2019, in that the applicant had understood that they had 14 days to provide further submissions. The Tribunal decision states that the applicant was informed they could have until the end of 25 August 2019 to provide further submissions. The legal representatives for the first respondent submitted there was no evidence to suggest the Tribunal informed the applicant she could have until 26 August 2019 rather than 25 August 2019 as is set out in the Tribunal’s decision. Further, and in any event, the first respondent contends that the submissions could not have impacted on the decision.

Consideration

1. The issue in this matter is relatively confined. In order for the applicant to be granted the visa she sought, she needed to be a member of a family unit where the primary applicant had been granted a Skilled Nominated (Permanent) (Class SN) visa. The applicant’s partner, Mr Enaboye, was not granted such a visa. It was further confirmed that he was not an applicant to the Tribunal for a review of a decision not to grant him such a visa.

2. The applicant’s grounds of judicial review are, as a result, misconceived. The particulars provided, provide an interesting, but regrettably misguided, commentary on the matter. The applicant was given a real appeal right. The applicant’s position was properly considered by the Tribunal with reference to the relevant requirements as set out in the Act and the Regulations in order for her to be granted a visa. There is nothing that amounted to a mere cosmetic surplusage, or a denial of the applicant’s review rights. The Tribunal, at paragraph 5 of its decision, specifically considered whether or not the review applicant would meet the primary criteria for the grant of a visa but determined she did not. The applicant’s husband was not before the Tribunal.

1. In the applicant’s circumstances, the Tribunal followed appropriate procedures, allowed her the opportunity at the hearing to present evidence and arguments and considered her matter in the light of the relevant legislative requirements. There is nothing illogical, irrational or legally unreasonable in the Tribunal’s decision. The conclusion that the Tribunal came to was the correct and only outcome it could reach in all of the circumstances.

2. No jurisdictional error is revealed in either of the applicant’s review grounds. They are, respectfully, in the Court’s view interesting but misguided both as to the grounds and particulars.

3. The application is dismissed. However in making this decision, the Court notes that the applicant is heavily pregnant and due to give birth to her child shortly. The Court would be concerned, particularly in the current pandemic circumstances, if any action were to be taken to remove either the applicant and/or her child to Nigeria in circumstances where it could not be reasonably certain that they are first, both fit to travel and second, would be going to a location where their health and safety from COVID-19 would be of concern. Whilst the Court acknowledges it is not a matter that the Court has jurisdiction over, the Court trusts that the Minister and its Departmental officials would appropriately consider this issue.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 19 November 2020

CORRECTION NOTE:

Paragraph 9 to read: Grounds of review were filed with the Court on 25 September 2019. Following receipt of the first respondent’s written submissions, further grounds of review were lodged along with a document entitled ‘Reply to the First Respondent’s Outline of Submissions” on 29 October 2020.