Wu v Minister for Immigration

[2016] FCCA 290

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 290

Catchwords:
MIGRATION – Partner (Provisional)(Class UF) visa – applicant had separately sponsored two previous wives prior to 1996 – whether applicant’s application to sponsor a third wife was affected by regulation 1.20J of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.20J, cl.309.222 of sch.2

Applicant: EUGENE WU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 740 of 2015

Judgment of: Judge Smith

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 15 February 2016

REPRESENTATION

Solicitor for the Applicant: Mr R. Turner, Turner Coulson Immigration Lawyers

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 740 of 2015

EUGENE WU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings raise a short issue concerning the number of times that a person may sponsor a person, as their spouse, in an application for a visa. The applicant, Mr Wu, is an Australian citizen whose wife, Ms Fu, is a national of China. On 17 April 2013 Ms Fu applied for a Partner (Provisional)(Class UF) visa on the basis of the relationship with Mr Wu. Mr Wu sponsored her in that application. Mr Wu had previously sponsored two former wives in their applications for visas. His first wife obtained permanent residency in 1981 and his second wife obtained permanent residency in 1991.

2. It was a criterion for the grant of the visa that Mr Wu’s sponsorship of Ms Fu be approved by the Minister and still be in force: Migration Regulations 1994 (Cth) sch.2 cl.309.222. However, reg.1.20J(1) of the Regulations provided that the Minister must not approve the sponsorship of an applicant unless the Minister is satisfied that:

   (a)not more than 1 other person has been granted a relevant permission as:

   (i)the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; …

3. Subregulation 1.20J(1A) provided that “relevant permission” means:

   (a)in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)-a visa; and

   (b)in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997-permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

4. The visas referred to in sub-reg.(1AA) included a Partner (Provisional)(Class UF) visa.

5. Ms Fu’s representative submitted in support of the visa application that the limitation in reg.1.20J refers only to “relevant permissions” granted after 1 November 1996. He pointed out that that was the date upon which that provision came into force. He argued that, for that reason, Mr Fu’s sponsorship was valid because his previous wives had been granted permission to stay in Australia prior to November 1996. The delegate did not accept that submission and found that reg.1.20J applied to the previous sponsorships. For that reason he found that Ms Fu did not satisfy the relevant criteria and so refused to grant her a visa.

6. Mr Wu applied to the Migration Review Tribunal (as it was then called[1]) for review of the delegate’s decision. In support of that application he repeated the submission that he had made to the Department in respect of the operation of reg.1.20J.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

7. The Tribunal did not accept that submission. It found that the words “an application for a visa” in sub-reg.1.20J(1A) referred in the present case to the visa application under review. As that application was made after 1 July 1997, “relevant permission” in reg.1.20J meant a permission (other than a visa or entry permit) granted under the Migration Act 1958 (Cth) to remain indefinitely in Australia, a visa, or an entry permit. As Mr Wu’s previous wives had both been granted visas with his sponsorship, it found that his sponsorship of Ms Fu must not be approved. It went on to consider whether there were compelling circumstances not to apply the limitation but found that there were not. Accordingly, the Tribunal affirmed the decision of the delegate to refuse to grant Ms Fu a visa.

Consideration

1. Mr Wu now seeks judicial review of the Tribunal’s decision. He relies on the same argument that failed before both the delegate and the Tribunal. In brief, his argument is that the term “relevant permission” had no meaning prior to 1 November 1996 and thus any sponsorship, visa or entry permit approved or made prior to 1 November 1996 are not “relevant permissions” and therefore not caught by reg.1.20J. That argument misunderstands the regulation.

2. Subregulation 1.20J(1A) defines the term “relevant permission” for the purposes of sub-reg.1.20J(1). That subregulation restricts the approval of sponsorships in respect of current applications by reference to past events. Those past events include the grant of a “relevant permission”. The definition in sub-reg.1.20J(1A) contains two parts depending on when “an application for a visa” is made. The words “an application for a visa” refer to the relevant current visa application in question. As the Tribunal noted, there is reference throughout reg.1.20J to “an application for a visa”. For example, sub-reg.1.20J(1AA) provides that the regulation applies “in relation to an application for” a number of classes of visa. Thus, the only sensible meaning of sub-reg.1.20J(1A) is that the periods referred to in paras.(a) and (b) qualify the application for a visa that it is currently under consideration. For that reason, the fact that Mr Wu’s first two wives were granted visas prior to 1 November 1996 did not mean that the regulation had no operation in respect of Mr Wu’s sponsorship of those wives. What mattered was that Ms Fu’s application had been made after 1 November 1996.

3. That conclusion is fortified by the history of the regulation. When it was first introduced, reg.1.20J prevented the Minister from approving a citizen’s sponsorship of a non-citizen’s visa application unless the Minister was satisfied that “not more than 1 other person has been granted a visa as the spouse…” (Emphasis added). However, prior to September 1994 a person was given permission to enter Australia by the grant of an entry permit rather than the grant of a visa. In light of that, the restriction in the original version of reg.1.20J did not apply to everyone who had arrived in Australia on a sponsorship from his or her spouse. The regulation was amended with effect from 1 July 1997 so that the restriction applied more broadly where there had been the grant of a visa or other permission such as entry permits. The fact that the definition of “relevant permission” has two components depending upon the time of application can be explained by the apparent desire not to make those later amendments retrospective.

4. For those reasons, on its proper construction, reg.1.20J was engaged by the grants of visas to Mr Wu’s first two wives and, subject to satisfaction of compelling circumstances, prevented the Minister from approving his sponsorship of Ms Fu in relation to her visa application. The Tribunal was correct to arrive at the same conclusion and this application must be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 15 February 2016