Sapkota v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGES: KENNY, GREENWOOD, TRACEY, PERRAM AND ROBERTSON JJ DATE: 1 DECEMBER 2014 PLACE: MELBOURNE

Introduction 1 This appeal concerns the correct construction of 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 1994 (Cth) (the Regulations). 2 That criterion is relevantly in the following terms: 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; … … 3 Other central provisions are rr 2.03(1) and 2.03(2) of the Regulations, which provide as follows: 2.03(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) … the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; … 2.03(2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion. 4 It is common ground that the appellant, a citizen of Nepal, had previously made an application for a visa when she did not hold a substantive visa. The factual history is set out more fully below. 5 The appeal is from orders made by the Federal Circuit Court of Australia on 27 June 2014 dismissing an application for judicial review of the decision of the Migration Review Tribunal (the Tribunal) dated 24 July 2013 by which the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant a Student (Temporary) (Class TU) visa. 6 The appellant's notice of appeal, as amended, was in the following terms: 1. The Federal Circuit Court erred in not finding that the decision of the second respondent dated 24 July 2013 was affected by jurisdictional error because, in making that decision, the second respondent misconstrued and misapplied cl 573.211 in Schedule 2 and cl 3005 in Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations). Particulars In its decision, the second respondent found that the appellant did not satisfy the visa criterion in cl 573.211 of Schedule 2 to the Regulations. In support of this finding, the second respondent found that the appellant did not satisfy the "criterion" in cl 3005 of Schedule 3 to the Regulations. The appellant satisfied the "criterion" in cl 3005 of Schedule 3 to the Regulations because she had not previously been granted a visa on the basis of the satisfaction of any of the "criteria" set out in Schedule 3. In finding otherwise, the Tribunal misconstrued and misapplied cl 573.211 in Schedule 2 and cl 3005 in Schedule 3 to the Regulations. 7 The Minister consented to the appellant having leave to file and serve an amended notice of appeal in this form. Because the appellant's grounds of appeal had not been put to the Federal Circuit Court the appellant required leave to raise these grounds in this Court. The Minister did not oppose that leave. Indeed the grounds sought to be raised by the appellant substantially overlapped with a notice of contention filed by the Minister. In these circumstances the Court granted the appellant the leave she sought upon the basis that it was expedient in the interests of justice to do so: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]. 8 Because the correctness of the decision of this Court in Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66; (2013) 136 ALD 226 (Kaur) appeared to be in issue, the present Full Court was constituted by five judges.

The relevant terms of cl 573.211 9 It is convenient to set out the relevant terms of cl 573.211, as follows: 573.21 Criteria to be satisfied at time of application 573.211(1) If the application is made in Australia, the applicant meets the requirements of subclause … (3) … (2) … (3) An applicant meets the requirements of this subclause if: (a) the applicant is not the holder of a substantive visa; and (b) the last substantive visa held by the applicant was: (i) a student visa; … …; and (c) the application is made within 28 days (or within such period specified by Gazette Notice) after: (i) the day when that last substantive visa ceased to be in effect; or …; and (d) the applicant satisfies Schedule 3 criterion 3005.

The facts 10 The Tribunal reviewed the decision made by a delegate of the Minister on 3 April 2013 to refuse to grant the appellant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). 11 The Tribunal found that the appellant's last substantive visa, a subclass 572 visa, had ceased on 15 March 2013 which was four days before the visa application was received on 19 March 2013. 12 The Tribunal also found that the appellant had previously applied for a visa after her last substantive visa ceased and a student visa was granted on the basis of her having satisfied Schedule 3 criterion 3005. The Tribunal explained this further at [15] of its decision to the effect 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 appellant confirmed that she had applied for that visa on 20 May 2010, the day after her student visa ceased on 19 May 2010. 13 On this basis the Tribunal found 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 Regulations and accordingly the appellant did not satisfy criterion 3005 and the requirements of cl 573.211(3)(d). The Tribunal therefore affirmed the decision not to grant the appellant a Student (Temporary) (Class TU) visa.

The submissions of the parties 14 The appellant submitted that, properly construed, the words "this Schedule" in cl 3005 of Schedule 3 refer to Schedule 3. It was only once the true meaning of the words "this Schedule" in cl 3005 had been ascertained that the effect of r 2.03 on cl 3005, as properly construed, fell for consideration. 15 The appellant submitted it was only Schedule 2 which contains prescribed visa criteria: see r 2.03(1). Schedule 3 to the Regulations did not contain prescribed visa criteria. It was only by incorporation into prescribed visa criteria in Schedule 2 that the provisions in Schedule 3 had any bearing on the content of visa criteria. Unlike the provisions in Schedule 2, the provisions in Schedule 3 were not, in and of themselves, visa criteria prescribed for the purposes of s 31 of the Act. The appellant also referred to s 65(1)(a)(ii) of the Act. The former provision states that there are to be prescribed classes of visas and the Regulations may prescribe criteria for a visa or visas of a specified class. The latter provision is to the effect that, relevantly, the Minister is to grant a visa if satisfied that the criteria for it prescribed by the Act or the Regulations have been satisfied. 16 The appellant submitted that the requirements of cl 573.211(3)(d) had been satisfied as the appellant had not been, and could not have been, previously granted a visa on the basis of the satisfaction of any of the criteria set out in Schedule 3. The appellant had previously been granted a visa on the basis of the satisfaction of criteria set out in Schedule 2. She had not, however, previously been granted a visa on the basis of the satisfaction of criteria set out in Schedule 3. 17 The appellant therefore met the requirements of cl 573.211(3) and satisfied the criterion in cl 573.211. In finding otherwise, the Tribunal misconstrued and misapplied cl 573.211 in Schedule 2 and cl 3005 in Schedule 3 to the Regulations. The Tribunal's decision was therefore affected by jurisdictional error. 18 The appellant submitted that the observations in Kaur about the construction of cl 3005 were obiter dicta and did not appear to have been the subject of detailed argument. In the circumstances, the present Full Court was entitled to form its own view about the proper construction of cl 3005. Alternatively, if the observations in Kaur formed part of the ratio decidendi in that case, the appellant submitted that those observations were plainly wrong and should not be followed. 19 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. 20 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. 21 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". 22 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". 23 As to the decision in Kaur, the Minister submitted that the better view was that the Full Court did not hold that the expression "this Schedule" in Schedule 3 criterion 3005 meant "Schedule 2" because in [12] the Full Court acknowledged that Ms Kaur had previously taken advantage of cl 572.211(3) by lodging an application for a student visa after her previous student visa had expired. The Minister submitted that the Full Court's observations in Kaur reflected a recognition that a visa applicant never satisfied a Schedule 3 criterion as a freestanding criterion but that a Schedule 3 criterion was only ever satisfied as a path to, or as a component of, satisfying a Schedule 2 criterion. 24 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 25 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. 26 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. 27 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. 28 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. 29 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. 30 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. 31 In the context of cl 573.211(3), we accept the Minister's submission that cl 3005 is effectively a matter of drafting technique to avoid repetition. 32 We see no inconsistency between what we have held to be the correct construction of cl 573.211(3)(d) and what was said by the Full Court in Kaur. As in that case, criterion 3005 precluded the visa applicant, here the appellant, from taking advantage of the provisions of Schedule 2 (including cl 572.211) a second time.

Conclusion 33 Although we would hold that the Tribunal's decision was not affected by jurisdictional error for reasons which differ from those of the primary judge, the appropriate order is that the appeal should be dismissed, with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Greenwood, Tracey, Perram and Robertson.