Sadat v Minister for Immigration

[2017] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADAT v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1748

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider whether the applicant was a member of the family unit – jurisdictional error – orders for writs of certiorari and mandamus to be issued.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), regs.1.03, 105A, 1.12(2A) of Pt.1, cll.573.21, 573.22, 573.322 of Sch.2

Applicant: MD. ARABI SADAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1970 of 2016

Judgment of: Judge Smith

Hearing date: 11 July 2017

Date of Last Submission: 11 July 2017

Delivered at: Sydney

Delivered on: 11 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S. He, Mills Oakley

ORDERS

1. A writ of certiorari issue quashing the decision of the second respondent dated 29 June 2016.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 21 July 2015 according to law.

3. The first respondent pay the applicant’s costs as agreed or as assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1970 of 2016

MD. ARABI SADAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) given on 29 June 2016.  The decision was to affirm a decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (class TU) visa.  In arriving at its decision, the Tribunal wrongly acted on the basis that the applicant, who is under 18, was required to be a dependent child of his mother or third party, who originally applied for the Student visa application.

2. On 4 June 2015, a Mr Iqbal applied for a Student (Temporary) (class TU) higher education sector subclass 573 visa.  He was married to a Ms Ferdousi whose son, Arabi Sadat, is the applicant in these proceedings.  The visa applicant included his wife and her son in his visa application.  I will refer to the son as the applicant, for ease of reference.

3. In order for the son to be granted a visa, he had to satisfy, amongst other things, the requirements of cl.573.322 of the Migration Regulations 1994 (Cth) (Regulations).  In other words, he had to be a member of the family unit of a person, relevantly, who satisfies or has satisfied, the primary criteria in sub-divisions 573.21 and 573.22. That is, he had to be a member of the family unit of Mr Iqbal.

4. At the time of the visa application, it appears that the applicant was living with his mother and with Mr Iqbal, although his father regularly saw him as well.  At some time after the visa application, the relationship between the applicant’s father and the applicant’s mother deteriorated and the applicant came to live, on a permanent basis, with his father.  In the meantime, a delegate of the Minister had made a decision on 21 July 2015 to refuse to grant Mr Iqbal a visa and, consequently, also refused to grant the applicant a visa.

5. Mr Iqbal and his wife both made applications for review of the delegate’s decision, but did not include the applicant in that application.  In those circumstances, an application to the Tribunal was made for the applicant by his father.  The applicant and his father attended a hearing conducted by the Tribunal, and at that hearing the applicant’s father gave evidence that he was the sole provider for the applicant.

6. On 29 June 2016, the Tribunal gave its decision to affirm the decision of the delegate.  The key issue for the Tribunal was whether the applicant was a member of the family unit of the original applicant, namely Mr Iqbal.  The critical reasoning in its decision was found at [11] and [12] of its reasons:

   11.In order to be a dependent child, the child must meet the definition of dependent under r.1.05A. This requires that the child is wholly or substantially reliant on the other person (here, either the mother or third party) to meet the child's basic needs for food, clothing and shelter, and that reliance is greater than his reliance on any other person. The requirement to be a member of the family unit applies at both the time of application and time of decision (under various clauses within sch.2 Part 573).

   12.At hearing the applicant's father gave evidence that the relationship between the applicant, his mother, and a third party who originally applied for the student visa application had broken down. The applicant's father also gave evidence that he is the sole provider for the applicant. Based on this evidence the Tribunal cannot find the child is a dependent child of his mother or the third party who originally applied to the student visa application.

7. The definition of “member of the family unit” was relevantly found in sub-reg.1.12(2A) which provided that:

   A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:

   (a)a spouse or de facto partner of the holder; or

   (b)a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18.

8. A “dependent child” is defined for the purpose of the regulations by reg.1.03 as follows:

   dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child or who:

   (a)has not turned 18; or

(b)has turned 18 and:

(i) is dependent on that person; or

(ii) is incapacitated for work due to the total or partial loss of the child's bodily or mental functions.

1. As can be seen from [11] of the Tribunal’s reasons, the Tribunal acted on the basis that in order to be a “dependent child”, the child must meet the definition of a dependent under reg.1.05A.  In my view, there was no support for that construction of the definition of a dependent child and the Tribunal was distracted by the use of the word dependent in sub-reg.1.12(2A)(b).

2. The solicitor for the Minister, who appeared at the hearing today, argued that the requirement that a dependent child satisfy the requirements of reg.1.05A, although not appearing expressly in sub-paragraph (a) of the definition of dependent child in reg.1.03, is implicit in that definition.  She said that to read the definition of dependent child in respect of a person who has not turned 18, as not requiring dependency as defined by reg.1.05A, would be contrary to the purpose of the Regulations read as a whole, and would lead to the result where a child no longer dependent on a visa applicant, or living with a visa applicant, would be entitled to a visa, regardless of that circumstance.

3. In my view, that argument is insufficient to warrant the construction pressed by the Minister and the one applied by the Tribunal.  First of all, the plain words of the definition of “dependent child” suggest that there is no requirement of dependency in respect of a person who has not turned 18.  That is because there are two alternate ways in which a person can be a dependent child. The first, is that the person has not turned 18 and the second, that they have turned 18.  Only the second of these is qualified.  The qualification includes an express qualification that the person is dependent on the other person.  The absence of that qualification in respect of a child who has not turned 18 suggests that there ought not to be any implication of such a requirement.

4. Secondly, the suggestion that the purpose of the Regulations would be contrary to the construction is not made out.  There is nothing in the Regulations and, in particular, in the criteria found in cl.573 as a whole, or in cl.573.322 in particular, that makes it clear that a purpose of the criteria is to ensure that only children who satisfy the requirements of dependency found in reg.1.05A are eligible for the grant of a visa.  Indeed, the plain terms of the definition of “member of family unit” and “dependent child” suggest otherwise, and that a broad view has been taken of a family unit in respect of members of that family unit who are under 18.  It is only where the member is over 18 where a narrower view is taken.

5. For those reasons, I cannot see any purpose in any Regulation to which I have been taken, which suggests that the plain meaning of the words ought not to be the proper construction of the Regulation.  For those reasons, it is not necessary, on a proper construction of cl.573.322 and the definitions of “member of a family unit” and “dependent child” that a child who has not turned 18 also meets the definition of dependent within reg.1.05A as a consequence, the Tribunal erred when it acted on the construction of the term “dependent child” which required otherwise, and in so acting, it distracted itself from the correct question to be asked in reviewing the decision of the delegate and so it failed to exercise its jurisdiction.  For those reasons, its decision must be set aside and it must be ordered to complete its review according to law.

6. I note that the error that I have found in the Tribunal’s decision was not the subject of the application as filed on behalf of the applicant;  however, it appeared from argument that the solicitor who appeared for the Minister was well able to deal with the point and her submissions were cogent and well-formed.  Further, the grounds set out in the application do not themselves disclose any arguable jurisdictional error in the Tribunal’s decision, and for that reason it is unnecessary to consider them for the purposes of this judgment.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     31 July 2017