Sarabia v Minister for Immigration
[2017] FCCA 2642
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARABIA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2642 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister refusing to grant a 573 visa to the Applicant (as secondary Applicant on his wife’s application for a 573 visa) because a Medical Officer of the Commonwealth had assessed that he did not meet the health requirements of a 573 visa due to severe kidney dysfunction and that as a result he would require healthcare or community services which would likely result in a significant cost to the Australian community – Administrative Appeals Tribunal in its Decision Record refers to an incorrect and inapplicable Legislative Instrument and erroneously mischaracterized that Legislative Instrument as specifying the 573 visa – such error not jurisdictional in nature because no different result caused by the error and the principle that a mistaken assertion of a relevant power or an incorrect assumption about that source of power did not necessarily invalidate an administrative decision applied in the circumstances of this case – not jurisdictional error and in any event relief would be refused on discretionary grounds because the result would have to be the same if remitted to the Administrative Appeals Tribunal because of the uncontentious medical condition of the Applicant and also his wife no longer holding a 573 visa or was an applicant for the same as she now held a Skilled visa – no jurisdictional error disclosed – application for jurisdictional review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359AA, 476 Constitution (Cth), s.75 |
| Cases cited: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 |
| Applicant: | MARLOU SARABIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 461 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 February 2017 |
| Date of Last Submission: | 21 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms A Douglas-Baker |
| Solicitors for the Respondents: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 2 March 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 461 of 2016
| MARLOU SARABIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of the Philippines aged 42 years, having been born on 7 December 1974.
By Application filed in this Court on 2 March 2016 the Applicant seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 2 February 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 July 2014 refusing to grant to him a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.
Background
As at 5 December 2012 cl.1222 of Sch.1 to the Migration Regulations 1994 (Cth) (Regulations) provided for a class of visas known as Student (Temporary) (Class TU) visas. Clause 1222(4) provided for a subclass known as “573 Higher Education Sector visas” (573 visa).
On 5 December 2012 the wife of the Applicant applied as primary applicant for a 573 visa and the Applicant applied for a 573 visa as a member of his wife’s family unit. He was thereby the secondary applicant on his wife’s application. The criteria for the grant of a 573 visa were set out in Subclass 573 in Sch.2 to the Regulations.
I note here that the evidence establishes the following:
a)that on the wife’s part her 573 visa application of 5 December 2012 was successful and she was granted a 573 visa on 16 July 2013 which ceased on 31 March 2015 and that her proposed course of study was for the degree of Bachelor of Nursing at the University of Western Sydney;
b)that the Applicant intended to stay temporarily in Australia for 2 years and 6 months;
c)that the Applicant was a citizen of the Philippines; and
d)that subsequent to the cessation of her 573 visa, the wife of the Applicant was granted a Temporary Work (Skilled) (Subclass 457) visa (Skilled visa) on 18 May 2015.
The Applicant, at the time of decision, had to satisfy the requirements of cls.573.321 to 573.332 and in particular cl.573.323 which required that he satisfy Public Interest Criterion 4005 (PIC 4005) in Sch.4 of the Regulations which concerns the medical condition of an applicant for a visa.
PIC 4005 relevantly provided as follows:
4005(1) The applicant:
(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:
(i) must undertake any medical assessment specified in the instrument; and
(ii)must be assessed by the person specified in the instrument;
unless a Medical Officer of the Commonwealth decides otherwise; and
(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and
(a) is free from tuberculosis; and
(b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and
(c)is free from a disease or condition in relation to which:
(i)a person who has it would be likely to:
(A) require health care or community services; or
(B) meet the medical criteria for the provision of a community service; during the period described in subclause (2); and
(ii) the provision of the health care or community services would be likely to:
(A) result in a significant cost to the Australian community in the areas of health care and community services; or
(B) prejudice the access of an Australian citizen or permanent resident to health care or community services; regardless of whether the health care or community services will actually be used in connection with the applicant; and
(emphasis supplied)
Unfortunately, the Applicant suffers from severe kidney dysfunction. As part of the processing of his 573 visa application the Applicant provided to the Department of the Minister a medical report dated 4 March 2014 from his treating specialist nephrologist (i.e. kidney specialist) at Concord Repatriation General Hospital which stated:
Mr Sarabia has been a patient of the renal unit at CRGH since August 2013. He currently is seen in outpatients and in the unit at least monthly for the ongoing management of his end stage kidney failure, requiring lifelong kidney replacement therapy. He is currently receiving haemodialysis at the satellite unit at Concord Hospital 3 times per week.
I understand that a request has been made for a urinalysis report: this request is redundant, as Mr Sarabia does not produce appreciable amounts of urine due to the kidney failure.
(emphasis supplied)
On 5 June 2014 a Medical Officer of the Commonwealth medically assessed (MOC Assessment) the Applicant for the purposes of PIC 4005 and found as follows:
The applicant has been assessed against Public Interest Criterion (PIC) 4005 for the period of 10 months.
The applicant does not satisfy sub-paragraph PIC 4005(1)(c)(ii)(A) in Schedule 4 to the Migration Regulations.
The applicant is a 39 year old person with:
- Advanced chronic renal disease
The applicant is currently receiving haemodialysis three times a week. A person with a condition of this form and severity is likely to require ongoing renal replacement therapy. This condition is likely to be Permanent.
I consider that a hypothetical person with this disease or condition, at the same severity as the applicant, would be likely to require health care or community services during the period specified above.
These services would be likely to include:
Medical services
Pharmaceuticals
Provision of these health care and/or community services would be likely to result in a significant cost to the Australian community in the areas of health care and/or community services.
(emphasis supplied)
On 10 June 2014 a copy of the MOC Assessment was provided to the Applicant via email. The email advised that the Applicant had been assessed by a Medical Officer of the Commonwealth as not meeting PIC 4005(1)(c)(ii)(A). The Applicant was given 28 days to provide any response but he does not appear to have done so.
Decision of Delegate
By her Decision Record of 22 July 2014 the Delegate refused to grant to the Applicant a 573 visa because he had not satisfied PIC 4005 as required by cl.573.323. She stated in part as follows:
You have been evaluated by a Medical Officer of the Commonwealth (MOC) and have been assessed as not meeting the health requirement for the grant of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.
On 10/06/2014 an email was sent asking you for your response to the adverse health assessment results, to date, no response has been received.
The criteria in the subclass 573 visa regulations that you did not satisfy are set out at the end of this decision record.
Also attached to the Decision Record was a document headed “Criteria in the Migration Regulations Not Satisfied” which contained the text of cl.573.323 and PIC 4005.
Tribunal Decision
The Applicant applied to the Tribunal on 8 August 2014 for a merits review of the Delegate’s decision and gave to the Tribunal a copy of the Decision Record (including the attachment referred to in the preceding paragraph) of the Delegate.
At the Tribunal hearing on 2 February 2016 the Applicant (with his wife) gave evidence and presented documents, including a further medical report from his treating nephrologist dated 27 January 2016 in the following terms:
Mr Sarabia has been a patient of the renal unit at CRGH since August 2013. He currently is seen in outpatients at least second monthly for the ongoing management of his end stage kidney failure, requiring lifelong kidney replacement therapy. He has been trained and continues to self-dialyse at home, with the support of his wife.
Mr Sarabia is otherwise doing well. He is active, compliant with medication and diet, and dialyses without issue.
(emphasis supplied)
In [6] of its Decision Record the Tribunal identified that the issue to be determined was whether the Applicant satisfied PIC 4005. It then referred to the MOC Assessment and correctly noted at [13] of its Decision Record that reg.2.25A(1) and (3) of the Regulations required that the Minister, in determining whether the criteria for the grant of a visa had been satisfied, seek the opinion of a MOC on whether a visa applicant met the requirements of, relevantly here, PIC 4005(1)(a) to (c) and required the Tribunal to also take the MOC Assessment to be correct for the purposes of deciding whether a person meets a requirement or satisfies a criteria.
At [14] of its Decision Record the Tribunal turned to whether or not the MOC Assessment had applied the correct test as stated by Siopis J in Robinson v Minister for Immigration (2005) 148 FCR 182 at 193-194 [43] (Robinson) in the following terms:
[43]…A proper construction of public interest criterion 4005 of the Regulations, requires the MOC to ascertain the form or level of condition suffered by the applicant in question and then to apply the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. It is not the case that the MOC is to proceed to make the assessment at a higher level of generality by reference to a generic form of the condition.
Without expressly saying so, it is clear that the Tribunal accepted the MOC Assessment as complying with the test formulated by Siopis J in Robinson. Accordingly, based on the MOC Assessment the Tribunal found that the Applicant did not satisfy PIC 4005(1)(c) and affirmed the decision of the Delegate under review.
Because it is relevant to the Grounds of attack on the Tribunal decision in this Court I note at this point that the Tribunal:
a)At [12] of its Decision Record erroneously referred to Legislative Instrument IMMI 12/113 as having required the Applicant to undergo a chest X-ray and medical examination for the purposes of PIC 4005 whereas the correct reference should have been to the then operative IMMI 15/144; and
b)At [8] of its Decision Record noted that the wife of the Applicant was no longer the holder of a 573 visa but was the holder of a Skilled visa (see [5(d)] above).
In the result, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a 573 visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Application filed in this Court are as follows:
1.There is an error in paragraph 12 of the MRT decision stating that the applicant is seeking for a temporary visa. According to Legislative Instrument IMMI/12/113, does not specify any visa kinds. The purpose of the Instrument is to specify what Medical Examination must be carried out for each class of persons defined in the instrument and who is to carry out the medical examinations.
2.There’s is lack of due consideration of Robinson v Mimia, as stated in paragraph 14 of the MRT decision. But an opinion must identify the Medical Condition to which the public interest criterion has been applied. And the form or level of the condition supported by the applicant. Which wasn’t applied in my case, during the hearing process.
3.In Paragraph 8 of the MRT decision. Stated my Wife is no longer a holder of a student Visa and is now a holder of a subclass 457. The MRT Review (Invitation for a Hearing at MRT) Just arrived months after my Wife and Sons application for 457 Visa. For this Reason I was not able to apply with them for said Visa.
Consideration of Grounds
Ground 1
At [12] of its Decision Record the Tribunal stated as follows:
In the present case, the temporary visa the applicant is seeking is specified in Legislative Instrument IMMI 12/113. This requires under Column E that persons from the Philippines undergo a chest X-ray and medical examination.
The prefatory words to PIC 4005(1)(aa) required that if the Applicant was a member of a class of persons specified by the Minister in an instrument in writing, then he had to undertake the medical assessment by the person specified by the Minister in that instrument.
The Tribunal at [12] referred to IMMI 12/113 as the applicable instrument but that instrument had in fact been revoked by paragraph 1 of Legislative Instrument IMMI 13/047 of 15 May 2013. The Legislative Instrument which applied at the time of the Tribunal’s decision was IMMI 15/144 which had been registered on 20 November 2015.
Nevertheless, the fact is that there was no relevant difference between the requirements of these two Legislative Instruments. Each of them had the effect of specifying for the purposes of PIC 4005(1)(aa) that a person, such as the Applicant, who was a citizen of the Philippines and intended to stay temporarily in Australia for 2 years and 6 months and was aged over 11 had to undertake a medical examination and have a chest X-ray, both procedures having in fact been undergone by the Applicant. It is true that the inapplicable IMMI 12/113 required a medical examination and X-ray for a temporary stay in Australia for more than 12 months and that IMMI 15/144 required these medical procedures for a temporary stay in Australia for the shortened period of 6 months, but this difference was immaterial in the context where the Applicant intended to stay temporarily in Australia for 2 years and 6 months.
I further note that the Tribunal at [12] of its Decision Record inaptly mischaracterised the effect of IMMI 12/113 as specifying the temporary visas being sought by the Applicant. Nevertheless, neither this mischaracterisation nor the failure of the Tribunal to correctly identify IMMI 15/144 as the applicable instrument constitutes jurisdictional error. The fundamental conclusion expressed at [12] was correct, namely that the Applicant was required to undergo a medical examination and a chest X-ray. The erroneous reference at [12] to IMMI 12/113 is most likely a typographical or clerical error but not one that affected the outcome of the review application. The position here is similar to that considered by the Full Court of the Federal Court of Australia comprised of Buchanan, Perram and Rangiah JJ in Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 (Pokharel) at [48]-[50] where the following was stated:
[48] The Tribunal embarked on a review of the delegate’s decision to refuse the grant of a Partner Temporary visa and affirmed that decision. However, the Tribunal’s reasons consistently referred to cl 801.221(2), a provision that is applicable to a Partner Residence visa, not a Partner Temporary visa. The provisions to which the Tribunal ought to have referred are cl 820.211(2) and cl 820.221(1).
[49] While it is apparent that the Tribunal erred by referring to the wrong clause, there are two possible ways of construing that error. The first is that it was a mere clerical error — such an error would not be jurisdictional error. The second is that the Tribunal applied the wrong legislative provision — that would be jurisdictional error.
[50] However, it is unnecessary to decide whether the Tribunal’s error was jurisdictional or non-jurisdictional. That is because the error did not affect the outcome of the application before the Tribunal. The provisions of cl 820.211(2), 820.221(1) and 801.221(2) each contain a requirement that the applicant be the “spouse” of the sponsoring partner. The Tribunal decided that the applicant was never the “spouse” of Ms W as they were never in a “married relationship”, so the outcome of the application would have been the same even if the Tribunal applied the correct provisions, cl 820.211(2) and cl 820.221(1).
In any event there is a principle that even a mistaken assertion of the source of a relevant power or an incorrect assumption about that source does not necessarily invalidate an administrative decision. This principle is illustrated by the decision of the Full Court of the Federal Court of Australia in Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission [1993] 40 FCR 409. The Australian Securities Commission had mistaken the source of its power in authorising persons to make an application for an order pursuant to s.597 of the Corporations Law: Black CJ at 412 stated the position of the Australian Securities Commission to be as follows:
It was under no statutory obligation to specify the source of the power under which it was acting and no consequence attached to the specification of a source of power that did not in fact exist.
The principle has been more recently confirmed in by French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at 16-17 [34]:
[34]… A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]:
“If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.”
Further, the relief sought by the Applicant is discretionary and as the Full Court in Pokharel said at [51]:
[51] The grant of a constitutional writ is discretionary. A Court will not exercise its discretion in favour of granting constitutional writs where the Tribunal’s jurisdictional error made no difference to the outcome of the application under review by the Tribunal: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [80] (Gaudron and Gummow JJ), [104] (McHugh J), [133] (Kirby J), [211] (Callinan J); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [87] (Kirby J), [91] (Hayne J). Relief should be refused because, even if the Tribunal applied the incorrect criteria, its factual findings make it inevitable that the decision of the delegate to refuse a Partner Temporary visa would have been affirmed.
In my view Ground 1 does not establish jurisdictional error.
Ground 2
This Ground also fails to establish jurisdictional error. The MOC Assessment accorded with the statement of principle of Siopis J in Robinson. It first identified the form and level of the Applicant’s medical condition as being advanced chronic renal disease for which the Applicant was currently receiving haemodialysis three times a week, requiring ongoing renal replacement therapy and that his condition was likely to be permanent. It then applied the statutory criteria established by PIC 4005 by reference to a hypothetical person suffering the medical condition of the Applicant.
The Tribunal was thus entitled to accept the MOC Assessment as valid and required to take it as correct by force of reg.2.25A(3) of the Regulations. Accordingly, this Ground does not establish jurisdictional error.
Ground 3
This Ground also does not establish jurisdictional error. It appears to seek to offer some form of explanation as to why the Applicant had not applied with his wife and son for a 457 visa but this has nothing to do with the decision of the Tribunal under review.
Further Matters
The Minister as a model litigant offered submissions in relation to ss.359AA and 359A of the Act. Obviously whether or not there was a valid and effective MOC Assessment was a jurisdictional fact because a finding in that regard was an essential and critical preliminary step in the Tribunal’s ultimate decision.
The Minister accepted that the Tribunal referred to the MOC Assessment during the hearing on 2 February 2016 but not in such a manner as would meet the Tribunal’s statutory obligations pursuant to s.359AA of the Act and the Tribunal did not write to the Applicant giving clear particulars of the MOC Assessment under s.359A.
However, the Minister submits, and I accept, that in this case the requirement that the Tribunal must under s.359A(1)(a) give clear particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision of the Delegate was rendered inapplicable by s.359A(4)(b). This is because the Applicant gave the information comprising the information in the MOC Assessment to the Tribunal by giving the Decision Record of the Delegate to the Tribunal at the time that he lodged his application for review: see [12] above.
Whether information is given by the Applicant within the meaning of s.359A(4)(b) is ultimately a question of fact: Zeng v Minister for Immigration [2016] FCA 627 at [7] per Pagone J. Here the Applicant gave to the Tribunal the Decision Record of the Delegate, including its attachment, in a factual context where it was entirely uncontentious that the Applicant suffered from a major adverse medical condition. The Decision Record of the Delegate first stated that the Applicant had not satisfied cl.573.323 and PIC 4005. It then went on to state the reasons for that non-satisfaction as being that PIC 4005 required an applicant to provide satisfactory results of a medical and X-ray examination but that the Applicant had been evaluated by a Medical Officer of the Commonwealth and assessed as not meeting the health requirement for the grant of a 573 visa. The Decision Record then stated that the criteria for the 573 visa which the Applicant had not satisfied were set out at the end of the Decision Record and attached to the Decision Record were the terms of cl.573.323 and PIC 4005. In these circumstances the existence and substance of the MOA Assessment was “information” that the Applicant “gave” to the Tribunal in accordance with the decision of Sundberg J in Minister for Immigration v Chamnam You [2008] FCA 241 (Chamnam You) and which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 (Brar) at 259 [74].
In Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [34] Perry J said of the exception in s.359A(4)(b) of the Act and of the decisions in Chamnam You and Brar as follows:
[34]……… By virtue of s 359A(4), relevantly the obligation in subs (1) “does not apply to information … (b) that the applicant gave for the purpose of the application for review”. It has been held that this exception is not limited to information that advances the visa applicant’s case or information on which the visa applicant relies in support of the application: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [22] (Sundberg J) (approved in Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240 at 259 [74](the Court)). It is apparent from the reasons of the Tribunal at [12] that Mr Gupta gave a copy of the delegate’s decision to the Tribunal for the purposes of the review and it will be recalled that the delegate’s decision contained the information that the PRISMS report indicated that he had completed the Diploma of Business at iAscend on 19 September 2010 (see also the reasons of the primary judge at [24]). Accordingly, the Court below did not err in finding at [24] that no issue arose as to the application of s 359A of the Act as the information had been given by Mr Gupta to the Tribunal for the purposes of the exception in s 359A(4)(b).
Finally, even if the Tribunal had failed to comply with s.359A of the Act, relief would have been discretionarily refused because such failure would not have deprived the Applicant of the possibility of a different outcome for the reasons that follow below: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 41 [42].
Futility of Relief
This Court under s.476(1) of the Act has the same original jurisdiction as the High Court under paragraph 75(v) of the Constitution and the same principles apply in this Court as apply in the High Court: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
It is clear law that the issue of such writs is discretionary. As McHugh J stated in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 322 [80]:
[80]The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.
(citations omitted and emphasis supplied)
Ms Douglas-Baker, who appeared as Counsel for the Minister, submitted that it would be futile for this Court to grant relief to the Applicant for the following reasons:
a)the Tribunal on any remittal would be bound to accept as correct the MOC Assessment and given the permanency of the Applicant’s adverse medical condition it would be bound on any rehearing to accept as correct the MOC Assessment; and
b)the Applicant would be unable to satisfy the criteria for the grant of a 573 visa in the event that his application for review was remitted to the Tribunal because his wife no longer holds a 573 visa but is now rather the holder of a Skilled visa.
Futility as a Result of MOC Assessment
I accept Ms Douglas-Baker’s submission in this regard. It has never been suggested by the Applicant that the MOC Assessment is erroneous or mistaken and it obviously accords with the medical reports submitted by the Applicant himself. As a matter of law the Tribunal is bound to accept the MOC Assessment as correct. Accordingly, if the matter were remitted to the Tribunal the result would be the same because of the MOC Assessment. Accordingly, remittal “would lack utility”: SZEEU v Minister for Immigration (2006) 150 FCR 214 at 265 per Allsop J (as he then was) and be “an exercise in futility”: Jiang v Minister for Immigration [2007] FCA 907 at [30] per Bennett J.
Wife Now Holding a Skilled Visa
At the hearing the wife of the Applicant confirmed the evidence led by Ms Douglas-Baker that she currently holds a Skilled visa. As noted above at [5(a)] the wife’s 573 visa ceased on 31 March 2015. It was submitted by the Minister that the Tribunal would be bound to again refuse the grant of a 573 visa to the Applicant for the following reasons, which I accept.
If the application for review of the Applicant was remitted by this Court to the Tribunal for redetermination, the Applicant at time of decision would have to satisfy either (a) or (b) of cl.573.322. The wife of the Applicant presently is (and was already at the time of the Tribunal decision) the holder of a Skilled visa and was not the holder of a Subclass 560 or 562 visa, so on remittal the Applicant could not satisfy cl.573.322(a).
573 visas have been repealed as from 1 July 2016 but immediately prior to that repeal cl.573.322 provided as follows:
573.322
The applicant is a member of the family unit of a person (the primary person):
(a)who is the holder of a Subclass 560 or 562 visa and who meets one of the following:
(i) …
(ii) …
(iii) …
(b)who satisfies, or has satisfied, the primary criteria in Subdivisions 573.21 and 573.22 and who meets one of the following:
(i) the primary person is subject to assessment level 1 or 2;
(ia)the primary person is an eligible higher degree student;
(ii)the primary person is undertaking a course of study paid for, wholly or in part, by:
(A) the Commonwealth or the government of a State or Territory; or
(B) the government of a foreign country; or
(C) a multilateral agency;
(iii)the primary person:
(A) will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together, of a duration of 12 months or more; or
(B) has been lawfully in Australia for 12 months or more.
(emphasis supplied)
As may be seen, the prefatory words of cl.573.322(b) required that the Applicant be a member of the family unit of his wife as the primary person “who satisfies, or has satisfied, the primary criteria in Subdivisions 573.21 and 573.22 and who meets one of the following…”. I accept the argument made for the Minister that the Applicant on remittal to the Tribunal would not be able to satisfy cl.573.322(b) because his wife at time of decision would not be a person who satisfied the primary criteria in Subdivisions 573.21 and 573.22. For example, she could not satisfy cl.573.223(1) requiring that she be “a genuine applicant for entry and stay as a student”. The wife of the Applicant is no longer a student at all, but rather the holder of a Skilled visa. Of course, it is literally the case that the wife on her part had previously satisfied the criteria for the 573 visa which she had been granted and held from 16 July 2013 until 31 March 2015. However, the efficacy of her satisfaction of those criteria is now spent and exhausted and could not be utilised by the Applicant to satisfy cl.573.322(b) in circumstances where his wife was not a primary applicant for any class of Student visa provided for by cl.1222 of Sch.1 to the Regulations.
I note that Ms Douglas-Baker had a final fall-back argument based on the fact that the wife of the Applicant now held a Skilled visa and not a 573 visa and was not a student. This argument was to the effect that the Applicant also could not satisfy the further cumulative requirement of 573.322(b)(iii), subparagraphs (i), (ia) and (ii) of cl.573.322(b) being plainly inapplicable.
In relation to this argument the wife as primary person will not be and has not been relevantly granted a visa in relation to a course of study of 12 months or more and so the Applicant could not satisfy cl.573.322(b)(iii)(A). However, Ms Douglas-Baker’s argument requires that cl.573.322(b)(iii)(B) be read as not simply requiring that the wife of the Applicant as the primary person has been lawfully in Australia for 12 months or more, as she has in fact been, but also that during that period she held a 573 visa. I do not have the benefit of a legally informed contradicter of this argument and as an answer to it is not necessary to the disposition of the case I consider that all I need do is simply to record it.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is infected with jurisdictional error and the Application to this Court is to be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 31 October 2017
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