Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant visa applicant a Child (Migrant) (Class AH) visa – whether Tribunal’s construction of clauses 101.213(1)(c) and/or 101.221(2)(b) unfair or misconstrued having regard to purpose of the regulation – use of perfect continuous tense in regulation – no reviewable error – application dismissed.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the applicant be granted an extension of time in which to file her application up to and including 19 March 2014.
The application, as amended, be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY
SYG 691 of 2014
SYLVIA OPOKU-WARE
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), dated 7 November 2013, MRT case number 1218726, affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the visa applicant, Mr Richard Dwomoh, a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth). It should be noted Mrs Sylvia Opoku-Ware, the applicant (review applicant) in the proceeding before the Court, is the mother of the visa applicant.
The Tribunal’s decision…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Opoku-Ware v MIBP [2015] FCCA 1638
Case
[2015] FCCA 1638
Decision Date
CaseChat Overview and Summary
The applicant, Opoku-Ware, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a Child (Migrant) (Class AH) visa. The application was heard by Lloyd-Jones J in the Federal Court of Australia.
The central legal issue before the court was whether the MRT had erred in its construction of clauses 101.213(1)(c) and 101.221(2)(b) of the Migration Regulations. The applicant contended that a literal interpretation of these clauses, particularly the use of the present perfect continuous tense in clause 101.213(1)(c), would lead to unfairness and absurdity, and was inconsistent with the purpose of the regulation, which she argued was to facilitate migration for children genuinely dependent on their parents.
Lloyd-Jones J considered the grammatical construction of the relevant clauses. Clause 101.213(1)(c) required the applicant to have "been undertaking" further full-time studies, a phrase in the present perfect continuous tense. Clause 101.221(2)(b) stipulated that for applicants over 18 at the time of application, they must "continue to satisfy the criterion in clause 101.213" at the time of the decision. The court accepted the Minister's submission that the present perfect continuous tense, in the absence of further contextual words indicating a cessation of the action, describes an action that has commenced and remains ongoing. The judge reasoned that the word "continues" in clause 101.221(2)(b) further reinforced the requirement that the applicant must still be undertaking studies at the time of the decision. To interpret the clauses otherwise, the court found, would permit applicants to cease meeting the dependency criteria immediately after lodging their application, which would be inconsistent with the purpose of the visa subclass.
The court ordered that the applicant be granted an extension of time to file her application, but ultimately dismissed the application as amended. The applicant was also ordered to pay the first respondent's costs.
Orders
Orders of the court
1. Pursuant to s.477(2) of the Migration Act 1958 (Cth), the applicant be granted an extension of time in which to file her application up to and including 19 March 2014.
2. The application, as amended, be dismissed.
3. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Clause 101.221(2)(b) relevantly stated that at the time of decision:(2) In the case of an applicant who had turned 18 at the time of application: ...(b) the applicant continues to satisfy the criterion in clause 101.213. The applicant’s contention, broadly put, is that these provisions should not be given their ordinary grammatical meaning, because to do so would result in obvious unfairness and absurdity, which would be inconsistent with the purpose of the criteria. The applicant contends this purpose is to “provide a migration option for offshore children who are genuinely still dependent on their parents”. I first turn to the tense of the phrase “has been undertaking” found in cl.101.213(1)(c). This phrase is constructed in the present perfect continuous tense, a tense which, as submitted by the Minister, is used to describe an action that has already commenced and remains ongoing. In limited circumstances I accept that the present perfect continuous tense can be used to describe an action that has stopped (though the action itself may be unfinished), however, when the tense is used in this context there is a result or effect therefrom that is expressly noted. For example, the statement “it has been raining, so the ground is wet” is framed in the present perfect continuous. This statement can be read in a number of ways, either that:a)The rain is still ongoing; orb)The rain has recently stopped; orc)The rain has recently stopped, but may start again soon.The connection is contingent on the second part of the statement appearing therein, being that “the ground is wet”, to support the basis that the tense may be used to describe an action that has stopped. Having regard to the above, there are no word or words present in cl.101.213(1)(c) to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of further full-time studies, that has recently stopped. In the extant matter, in the case of and applicant “who has turned 18 at the time of the application, the clause requires that the applicant continue to satisfy that criterion at the “time of decision” (see [73] above). In cl.101.221(2)(b) the verb used is “continues” which is written in the present tense. Accordingly, on this construction, it must be the case that the applicant is still undertaking studies at the time of the decision in respect of the visa. Further, as accepted by the applicant, this subclass of visa is intended to provide a migration path for children who are genuinely dependent. The nature and extent of such dependence is addressed in the visa’s criteria. I accept the Minister’s submission that it would be inconsistent to read the requirement in cl.101.213, when read together with cl.101.221, to apply at any time other than at the time of the decision. If that were the case, a visa applicant could also marry a partner, move in with them and cease studying immediately after lodging a visa application yet still be entitled to the visa.