Kumar v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This appeal raises a very short point of interpretation of provisions of Schedule 2 of the Migration Regulations 1994. The applicant, Sundeep Kumar, has been an unlawful non-citizen in this country since the expiry of his subclass 560 visa on 15 March 1997. On 13 July 1998 he signed an application for a Bridging E visa, subclass 050. On 26 September 2000 a delegate of the respondent Minister refused the application as the delegate was not satisfied that the applicant satisfied criterion 050.213 of Schedule 2 of the Migration Regulations. On his application for review to the Migration Review Tribunal, ("the Tribunal"), the decision under review was affirmed, the Tribunal finding that Mr Kumar did not satisfy criterion 050.221. The issue in this proceeding concerns the interrelationship of the two criteria I have mentioned. Both relate to "Primary Criteria" to be satisfied by all applicants for a Subclass 050 Bridging (General) visa. 2 Clause 050.21 of Schedule 2 provided at the relevant time (inter alia): "050.21 Criteria to be satisfied at time of application … 050.213 The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it." 3 Clause 050.22 in turn provides (inter alia): "050.22 Criteria to be met at the time of decision 050.221 The applicant continues to satisfy the criteria set out in clauses 050.211 to 050.214." 4 The short question raised is whether in considering a visa application the Tribunal must make a finding in relation to cl 050.213 and, if it fails to do so, it commits a reviewable error under s 476 of the Migration Act 1958 (Cth) ("the Act"), or whether it is either unnecessary to make a finding, or else it is an inoperative error for such a finding not to be made, if the Tribunal is not satisfied for the purposes of cl 050.221 that at the time of the decision the applicant would abide by the conditions to be imposed on the visa were it to be granted. 5 In the present case it was stated in the Tribunal's reasons: " The Tribunal informed the visa applicant at the hearing that if a decision were made to grant the visa it would impose the following conditions: 8101 The holder must not engage in work in Australia. 8401 The holder must report: (a) at a time or times; and (b) at a place; specified by the Minister for the purpose. 8505 The holder must continue to live at the address specified by the holder before the grant of the visa. 8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder's address." 6 It later indicated that: "[b]ased on the material in the files relating to the failure by the visa applicant in the past to abide by conditions, and after hearing the oral evidence from the visa applicant, the Tribunal is not positively satisfied that at the time of decision the visa applicant would report to the Department at times or places specified in a condition attached to a Bridging visa." 7 It then stated its conclusion in relation to Mr Kumar's satisfying the criteria in the following way: " In view of its findings in relation to whether the visa applicant will abide by conditions at the time of decision, the visa applicant cannot continue to satisfy clauses 050.211 to 050.214, so he does not satisfy clause 050.221. For this reason there is no necessity to make a finding on whether the visa applicant satisfies clause 050.213 at the time of application": emphasis added. Submissions and Conclusions 8 Mr Kumar's case in the present proceeding, as it also was before the Tribunal, is that the Tribunal was required by cl 050.213 to consider and to make findings as to whether, as at 18 September 1998 (being the date of the application), Mr Kumar would abide by such conditions as would be imposed on a visa were it to be granted; that subsequent events could not be taken into account for the purpose; and that the proposed conditions should have been communicated to the visa applicant at the time of the application. 9 The actual burden of this submission as I understand it - it was not enlarged upon by Mr Kumar who is an unrepresented litigant - is that the Tribunal was obliged notionally to find the conditions (if any) that, viewing the matter as at the time of the application, would be imposed on the visa were it to be granted. 10 The respondent's submission is that while the criteria require the Tribunal to "distinguish between circumstances existing at the time of the application and at the time of the decision": Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785 at [38]; the Regulations do not impose a requirement to make separate and sequential findings as to satisfaction of the criteria at both times. Alternatively, if such findings are required to be made, a failure to make a finding as at the time of the application would not constitute a reviewable error of law for the purposes of s 476(1)(e) of the Act as any determination made that was referable to that time would not be a "decision" for the purposes of Part 8 of the Act, it not being one that "effectively disposes of the matter in hand": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335; Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at 519-520. 11 My own view can be stated shortly. It is sufficient to limit what I have to say to the two criteria in question without commenting more generally on the decision-making required by the primary criteria. I would preface what I have to say with the observation that criterion 050.213 has been repealed as from 1 November 2000 and a criterion in like terms has been inserted as one to be satisfied at the time of decision: see cl 050.223. 12 The criteria imposed by cl 050.213 is of a quite distinctive character. It relates to the Minister'sbeing satisfied as to future matters. That satisfaction may remain the same, or may change, between the time of the application and the time of the decision. Whatever the decision arrived at in relation to the time of application, the determination at the time of the decision is necessarily the truly operative one if it is adverse to the applicant. And if it is adverse to an applicant, it is unnecessary in my view for the Tribunal positively to make a finding in relation to the Minister's satisfaction at the time of the application. Such a finding would add nothing to an applicant's understanding of why his or her application was unsuccessful. If it was, in fact, adverse to the applicant it would of itself have resulted in the application failing in any event. If it was favourable to the applicant it would nonetheless have been ineffective, having been supplanted by the later adverse determination at the time of decision. It is, in my view, unsurprising that the criteria have recently been amended in the fashion I have noted. 13 The application will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.