Sapkota v Minister for Immigration and Border Protection

Case [2014] FCAFC 160

FEDERAL COURT OF AUSTRALIA

Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160

Citation: Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160
Appeal from: Sapkota v Minister for Immigration [2014] FCCA 1285
Parties: SRIJANA GURUNG SAPKOTA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number: VID 401 of 2014
Judges: KENNY, GREENWOOD, TRACEY, PERRAM AND ROBERTSON JJ
Date of judgment: 1 December 2014
Catchwords: MIGRATION – whether jurisdictional error on the part of the Migration Review Tribunal – the Tribunal affirmed the decision of the delegate not to grant the appellant a Student (Temporary) (Class TU) visa – the Tribunal held that a visa was previously granted to the appellant on the basis of the satisfaction of the criteria set out in Schedule 3 to the Migration Regulations 1994 (Cth) and accordingly the appellant did not satisfy criterion 3005 and the requirements of cl 573.211(3)(d) – whether the Tribunal misconstrued the words “the applicant satisfies Schedule 3 criterion 3005” within the meaning of cl 573.211(3)(d) of Schedule 2 to the Migration Regulations where Schedule 3 criterion 3005 referred to a visa not having previously been granted to the visa applicant on the basis of the satisfaction of any of the criteria set out in “this Schedule” – whether “this Schedule” meant Schedule 2 or Schedule 3 – whether dicta in Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66; (2013) 136 ALD 226 plainly wrong
Legislation: Migration Act 1958 (Cth) ss 31, 65
Migration Regulations 1994 (Cth) rr 1.03, 2.01, 2.03(1), 2.03(2), Sch 2 cl 573.211(3)(d), Sch 3 cl 3005
Cases cited: Ajinomoto Company Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34; (2008) 166 FCR 530
Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 6; (2014) 85 NSWLR 443
Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66; (2013) 136 ALD 226
Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
Date of hearing: 25 November 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 33
Counsel for the Appellant: Mr R Knowles with Ms K Grinberg (Pro Bono)
Counsel for the First Respondent: Dr S Donaghue QC with Mr N Wood
Solicitor for the First Respondent: Australian Government Solicitor
Solicitor for the Second Respondent: The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 401 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SRIJANA GURUNG SAPKOTA
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

KENNY, GREENWOOD, TRACEY, PERRAM AND ROBERTSON JJ

DATE OF ORDER:

1 DECEMBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders…

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Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160
Case
[2014] FCAFC 160
Decision Date

CaseChat Overview and Summary

In the case of Sapkota v Minister for Immigration and Border Protection, the appellant, Sapkota, sought to appeal against the decision of the Migration Review Tribunal, which had affirmed the decision of the delegate not to grant her a Student (Temporary) (Class TU) visa. The central issue before the court was whether the Migration Review Tribunal had erred in its interpretation of the relevant legislative provisions concerning the granting of student visas. Specifically, the court examined whether the Tribunal had misconstrued the phrase "the applicant satisfies Schedule 3 criterion 3005" as it appeared in clause 573.211(3)(d) of the Migration Regulations 1994 (Cth). The crux of the argument was whether "this Schedule" in Schedule 3 criterion 3005 referred to Schedule 2 or Schedule 3 of the Regulations.

The court delved into the legislative framework, noting that Schedule 3 criterion 3005 stipulated that a visa had not been previously granted to the applicant based on the satisfaction of any criteria set out in "this Schedule." The court considered whether "this Schedule" referred to Schedule 2 or Schedule 3. The Tribunal had concluded that the phrase meant Schedule 2, but the appellant argued for an interpretation that referred to Schedule 3. The court referenced previous judicial decisions, particularly Minister for Immigration and Citizenship v Kaur, to support its analysis. It was noted that the Tribunal's decision in Kaur had clarified that the reference in clause 572.211(3)(d) of Schedule 2 to "this Schedule" should be understood as referring to Schedule 2, not Schedule 3.

In its reasoning, the court emphasised that adopting a construction that rendered clause 573.211(3)(d) redundant would be inappropriate. The court also highlighted that the Tribunal's interpretation was consistent with the requirements of the Regulations and did not render the clause otiose. The court concluded that the Tribunal had correctly found that Sapkota did not satisfy clause 573.211(3)(d) because she had previously been granted a visa on the basis of Schedule 3 criterion 3005. Therefore, she could not satisfy the same criterion again. The court dismissed the appeal and ordered that the appellant pay the first respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The relevant paragraphs in Kaur were as follows:[10] The reference to Sch 3 criterion 3005 in cl 572.211(3)(d) is significant. Regulation 2.03(2) provides that if a criterion in Sch 2 refers to a criterion in (inter alia) Sch 3 by number, then that criterion must be satisfied by the applicant “as if it were set out at length in the first-mentioned criterion”. It relevantly provided:3005 A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:(a) this Schedule; or…When criterion 3005 of Sch 3 is interpolated into cl 572.211(3) as required by reg 2.03(2), the reference to “this Schedule” refers to the criterion set out in Sch 2, not the criterion (or criteria) set out elsewhere in Sch 3.The tribunal’s decision… [12] It is important to note that Ms Kaur had previously taken advantage of cl 572.211(3) so that she could be granted a visa on the basis of an application that she had lodged 2 days after her earlier substantive visa (another Student (Temporary) (Class TU) visa) expired. Criterion 3005 precluded Ms Kaur from taking advantage of the provisions of Sch 2 (including cl 572.211) a second time. The Minister agreed that the expression “this Schedule” in Schedule 3 criterion 3005 meant “Schedule 3”. The Minister also agreed that the proper approach to construction was first to construe cl 3005 before applying r 2.03(2) to the effect that that criterion must be satisfied by an applicant as if it were set out at length in Schedule 2. The Minister submitted that a consequence of the appellant’s construction was that no visa applicant could ever fail to meet the requirement in cl 573.211(3)(d) as every visa applicant would be someone who had not previously been granted a visa “on the basis of the satisfaction of any of the criteria set out in” Schedule 3 because, according to the appellant, it was impossible to be granted a visa on that basis. The Minister submitted, however, Schedule 3 criterion 3005 was readily capable of being construed in a way that gave it a sensible operation. Schedule 3 contained “criteria” and the fact that the Regulations were structured in such a way that Schedule 3 criteria were picked up by Schedule 2 criteria in accordance with r 2.03(2) and had legal effect through that mechanism, did not alter the fact that Schedule 3 (including cl 3005 itself) contained “criteria”. Once that was accepted, so the Minister submitted, the circumstances in which a person may be granted a visa “on the basis of the satisfaction of any of the criteria set out in [Schedule 3]” were tolerably clear. Taking the present case as an example, while cl 573.211(3)(d) was in terms a Schedule 2 criterion, it did no violence to the statutory language to conclude that as a person satisfied cl 573.211(3)(d) only because the person “satisfies Schedule 3 criterion 3005”, he or she is properly described as a person who has been granted a visa “on the basis of the satisfaction of” criterion 3005. Once a person had been granted a visa “on the basis of the satisfaction of” criterion 3005, the person could never again satisfy Schedule 3 criterion 3005 because criterion 3005 was itself one of the criteria set out in “this Schedule”.

Ratio Decidendi

Legal Principle Established

The Minister submitted that the Tribunal did not err in finding that the appellant did not satisfy cl 573.211(3)(d). The appellant did not satisfy that requirement because she had previously (on 6 July 2010) been granted a subclass 572 visa on the basis of the satisfaction of Schedule 3 criterion 3005 applied as a criterion by cl 572.211(3)(d).Consideration The Court should not adopt a construction of cl 573.211(3)(d) which makes it otiose: see Ajinomoto Company Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34; (2008) 166 FCR 530 at 552, citing Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 574 per Gummow J, with whom Hill and Cooper JJ agreed. See also Bondi Beachside Pty Ltd v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 6; (2014) 85 NSWLR 443 at [49] per Ward JA, with whom Bathurst CJ and Tobias AJA agreed. Further, since the requirements of cl 573.211(3) are cumulative, the Court should not adopt a construction which would mean that a visa applicant could never meet the requirements of the subclause because, on the appellant’s construction, an applicant could never satisfy Schedule 3 criterion 3005. In our opinion, cl 3005 is itself a criterion set out in the list of additional criteria in Schedule 3: see also the definition in r 1.03 of “Schedule 3 criterion” being a criterion set out in a clause of Schedule 3, and a reference to a Schedule 3 criterion by number being a reference to the criterion set out in the clause so numbered in that Schedule. In our opinion, cl 3005 is not satisfied where a visa has previously been granted to a visa applicant on the basis of the satisfaction of that Schedule 3 criterion that has been picked up by a Schedule 2 criterion. In those circumstances a visa applicant does not meet the requirements of cl 573.211(3) as the applicant, here the appellant, has not satisfied paragraph (d) of that subclause. The reference to “this Schedule” in cl 3005 means Schedule 3. The effect of transposing cl 3005 into cl 573.211(3) is that a visa applicant does not meet the requirements of cl 573.211(3) where the applicant has previously relied on cl 3005. The unchallenged finding of the Tribunal at [15] of its reasons was that the appellant previously applied for a visa as an unlawful non-citizen and the provisions of Schedule 3 were utilised to grant her a substantive visa on 6 July 2010. The primary judge made the same finding at [3] of his reasons in stating that on 6 July 2010 the appellant was granted a subclass 572 visa on the basis of satisfaction of the criteria set out in Schedule 3 of the Regulations. The criteria to be satisfied for the visa in 2010 included Schedule 3 criterion 3005. Thus the appellant had previously relied on criterion 3005 as incorporated into Schedule 2 by cl 573.211(3)(d) when read with r 2.03(2). The effect of cl 573.211(3)(d) is that the appellant could not again satisfy that criterion because she had already done so in 2010.