Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 693 | Case summary | Zoe

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Zhang v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 693

Federal Court of Australia|2005-05-31|Before: Ryan J

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Source facts

Court

Federal Court of Australia

Decision date

2005-05-31

Before

Ryan J

Source

Original judgment source is linked above.

Judgment (51 paragraphs)

[1]

Introduction 1 There is before the Court an amended application for review under s 39B of the Judiciary Act 1903 (Cth)and s 475A of the Migration Act 1958 (Cth)("the Act") of a decision of the Migration Review Tribunal ("the Tribunal") dated 7 April 2004 affirming a decision of a delegate of the second respondent ("the Minister") not to grant the applicant a Temporary Business Entry (Class UC) subclass 457 business visa.

[2]

Background Facts 2 The applicant is a national of the Peoples Republic of China. He entered Australia on a subclass 560 student visa on 7 June 2000. The applicant obtained a second subclass 560 student visa on 16 November 2000 and a third subclass 560 visa on 22 June 2001. On 28 February 2002, the applicant obtained a subclass 572 student visa ("the fourth student visa"). On 30 July 2002 the applicant applied for a subclass 457 business visa ("the business visa") on the ground that he would be employed by Shanghai & Australia Pty Ltd as a customer service manager. On the same day the applicant was granted a bridging visa on the basis of that application. 3 On 7 August 2002 a delegate of the Minister decided to cancel the applicant's business visa because the applicant did not have the necessary skills for the nominated position and so did not satisfy paragraphs (d) or (e) of sub-subcl 457.223(4) of Sch 2 of the Migration Regulations (made under the Act) ("the Regulations"). The reasons for that decision made no reference to any of the applicant's student visas. 4 On 20 August 2002 the applicant's fourth student visa was cancelled on the ground that he had breached condition 8202 of his visa by failing to attend sufficient classes to satisfy the 80% attendance rate required by the condition. The applicant did not seek review by the Tribunal of that decision. 5 On 21 August 2002 the applicant applied to the Tribunal for review of the delegate's decision of 7 August 2002 to refuse the applicant a business visa. On 8 July 2003 the applicant and his solicitor, Mr Michael Raleigh, attended a hearing before the Tribunal and gave oral evidence. On 23 July 2003 the Tribunal made a decision to remit the applicant's application for a business visa to the Minister's Department for reconsideration with a direction that the visa applicant meets the criteria of subcl 457.223 of Sch 2 to the Regulations. In particular, the Tribunal found that the applicant had demonstrated relevant personal attributes and necessary skills for the nominated employment. The Tribunal did not consider whether the business visa application had been affected by non-compliance with the conditions of his fourth student visa. There was no appeal from that decision of the Tribunal. 6 On or shortly before 26 September 2003 a delegate of the Minister made a decision to refuse the applicant a business visa on the basis that the applicant had not complied with reg 2.43(2)(b) or subcl 457.221. On 13 October 2003 the applicant applied to the Tribunal for review of that decision. On 29 March 2004 the applicant and his solicitor gave oral evidence at a hearing before the Tribunal and on 7 April 2004 the Tribunal affirmed the delegate's decision not to grant the applicant a business visa. 7 On 5 May 2004 the applicant filed an application to this Court seeking review of both; (a) the delegate's decision of 20 August 2002 to cancel the applicant's fourth student visa; and (b) the Tribunal's decision of 7 April 2004 which affirmed the delegate's decision of 26 September 2004 to refuse the applicant a business visa. 8 On 26 November 2004 the applicant filed an amended application in which he sought an order in the nature of certiorari quashing or setting aside the decision of the first respondent dated 20 August 2002 cancelling the applicant's fourth student visa. However, the amended application does not specify any grounds in support of such an order, and deletes a previous allegation that the decision of 20 August 2002 had been made in breach of the rules of natural justice. The applicant's Contentions of Fact and Law do not advance any further claim in respect of the delegate's decision of 20 August 2002 to cancel the applicant's student visa. 9 In the circumstances, the matter has proceeded on the understanding that the applicant has abandoned his claim for review of the delegate's decision of 20 August 2002 to cancel the fourth student visa. Accordingly, the applicant's contentions have dealt only with what were asserted to be errors infecting the Tribunal's decision of 7 April 2004.

[27]

Tribunal's decision 20 The Tribunal had before it the Department's case files and the Tribunal's case file which included the applicant's application for a business visa, records of the applicant's previously held student visas and the Department's decision record. The Tribunal also had regard to the material referred to in the delegate's decision. The applicant and his solicitor, Mr Michael Raleigh, gave oral evidence to the Tribunal on 29 March 2004. 21 The applicant's evidence was to the effect that he believed that the delegate had made the wrong decision because he (the applicant) had made a valid application for a subclass 457 visa before his student visa had been cancelled and the cancellation of his student visa had not been canvassed by the delegate in the original decision on the application for a business visa or by the Tribunal upon review of that decision by the delegate. 22 The applicant did not seek review of the cancellation of his fourth student visa on 20 August 2002 as he accepted that he had breached condition 8202 of that student visa. However, the applicant stated that he had failed to attend classes because he had just purchased his first business, an aged care and psychiatric facility in Noble Park and, in order to become a registered licence holder in respect of that facility, he was required to concentrate on his business rather than his studies. 23 The Tribunal held that, to obtain a business visa, an applicant must satisfy all the criteria for the grant of the visa, including those in subdivision 457.22 of the Regulations, in particular, regulation 457.221. As already noted, the Tribunal referred to the wrong version of that sub-regulation. The version to which the Tribunal incorrectly referred was in this form; '457.221 If the application is made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.' The version of subcl 457.221 in force on 30 July 2002 to which the Tribunal should have referred is reproduced at [11] above. 24 The Tribunal then continued in its reasons; '28. In considering whether the visa applicant has complied substantially with the conditions to which the visa he last held was subject, the Tribunal observes that the word "visa" is defined in section 5(1) of the Act to include an "old visa" and the meaning in section 29 of the Act. The definition of a visa does not distinguish between substantive and bridging visas. However, section 76 of the Act states:

[36]

Applicant's submissions 26 Counsel for the applicant submitted that the application raises a narrow issue of construction. It was said that, in reviewing the decision to refuse the applicant a business visa subclass 457, the Tribunal had erred in its application of the relevant law which caused it to identify a wrong issue, to ask itself the wrong question or to reach a mistaken conclusion and the Tribunal's exercise or purported exercise of power was thereby affected. 27 It was contended on behalf of the applicant that the Tribunal had wrongly asked whether there had been substantial compliance with the conditions attached to the applicant's fourth student visa (specifically condition 8202) and not whether the applicant had complied with the conditions of the bridging visa which he had held since 20 August 2002 (a period of some 20 months.) 28 Alternatively, it was said that the Tribunal had misunderstood and misapplied s 76 of the Act in holding that it required it to disregard the bridging visa held by the applicant at the time of decision and the level of compliance with the conditions of that bridging visa, for the purpose of determining whether the applicant satisfied subcl 457.221. 29 Counsel for the applicant submitted that a bridging visa is a visa under the Act; see ss 29 and 37. Nor, it was said, does s 76 mean that a bridging visa is not a visa as suggested by the MSI 350 and concluded by the Tribunal. For the applicant, it was contended that s 76 has a more limited operation. It provides that, where the fact of holding a visa assumes significance, s 76 makes special provision for bridging visas but only in respect of the fact identified. It does not protect bridging visa holders generally from the operation of the Act or Regulations. 30 It was further submitted that s 76(2) does not alter the construction for which the applicant contends. Its prefatory words "to avoid doubt" make clear that s 76(2) is not intended to alter or widen the ambit of s 76(1) and its focus on the fact of holding a bridging visa. 31 It was next contended that the relevant form of subcl 457.221 at the time of the applicant's visa application did not operate upon the fact of an applicant's holding a bridging visa but upon the non-compliance with conditions. 32 Counsel for the applicant also submitted that s 76 provides that the fact that an applicant held a bridging visa does not prevent the grant of a visa or affect his application for a visa. Section 76 does not say that the applicant's compliance with his bridging visa is to be ignored for the purpose of subcl 457.221. Similarly, it was submitted that the operation of subcl 457.221 according to its terms did not mean that the fact that the applicant held a bridging visa affected the application for a business visa. It was not the fact that he held a visa that was material to subcl 457.221; rather it was whether he had failed to comply substantially with the conditions attached to that visa. 33 In the applicant's submission, the construction adopted by the Tribunal leads to bizarre consequences because it requires the Minister to ignore the fact that an applicant has breached the conditions of a bridging visa. In other words, the alternative construction entails that the Minister must disregard compliance with the most recently granted visa even where, as here, that visa has been in force for a considerable period of time (in this case 20 months) and where the conditions attached to it might be extremely significant, for example, those prohibiting the applicant from working or restricting the hours of work (8101, 8184); requiring the applicant to report (8401, 8402), or requiring the applicant to reside at a specified address (8505). 34 For the applicant, it was submitted that compliance with conditions is no less important where the conditions are attached to a bridging visa than where they are to be found in a substantive visa. In support of this argument it was pointed out that subcl 457.221 in its then form did not distinguish between bridging visas and substantive visas. Its focus was on the most recently held visa being the current one, or if none was held at the time of decision, the last visa held by the applicant.

[37]

Contentions of law 35 The Minister agreed that the Tribunal had referred to a wrong form of subcl 457.221 in deciding to affirm the delegate's decision not to grant a business visa to the applicant. However, the Minister contended that, in the circumstances of the Tribunal's decision, the Tribunal's reference to the wrong form of subcl 457.221 did not make any difference to its ultimate decision. 36 Counsel for the Minister contended that the Tribunal had correctly understood that under ss 5(1) and 29 of the Act there is no distinction drawn between substantive and bridging visas. The Tribunal had identified that the effect of s 76 is that the holding of a bridging visa is not the holding of a "visa" for the purposes of reg 457.221. Accordingly, it was said that the Tribunal had correctly regarded the fourth student visa held by the applicant at the time of his application for a business visa as the relevant "visa" for the purposes of subcl 457.221. 37 The construction of s 76 for which the Minister contended, it was said, would inevitably have led the Tribunal to the same ultimate conclusion if it had considered the correct version of subcl 457.221. That version, it was submitted, required the Tribunal to consider the applicant's substantial compliance with the conditions of the "visa (if any) held or last held" by him. Moreover, in light of s 76(2), the holding of a bridging visa could not be "the holding of a visa" for the purposes of the applicant's application for a business visa. The Minister submitted that, as a result, only the applicant's fourth student visa could have been the relevant visa for the Tribunal to consider under subcl 457.221. 38 Counsel for the Minister disputed the applicant's contention that the Tribunal had concluded that "a bridging visa is not a visa" as submitted by the applicant and imputed to the Tribunal a conclusion that the applicant's bridging visa was not the relevant "visa" to be considered for the purposes of subcl 457.221. 39 It was also said that the applicant's submission that subcl 457.221 "directs attention not to the holding of a visa but to non-compliance with conditions" is misconceived. In the Minister's submission, subcl 457.221 directs the Tribunal by clear language to consider an applicant's compliance with the relevant visa "held" by the applicant which entails that the holding of the visa is the threshold consideration. In other words, the decision-maker must first identify the relevant visa "held" by the applicant before considering the question of whether there has been compliance with that visa. According to the Minister, s 76 clearly excludes bridging visas from that threshold consideration, and, in the present case, requires that the applicant's compliance with his bridging visa be ignored for the purposes of subcl 457.221. 40 Counsel for the Minister acknowledged the force of the applicant's contention that the Tribunal's construction of s 76 "leads to bizarre consequences as it means that the Minister must ignore the fact that an applicant has breached the conditions of a bridging visa". However, that was said to be the result of the Tribunal's correct application of s 76 to the form of subcl 457.221 as it stood at the time when the applicant applied for a business visa which has been addressed by subsequent amendments to subcl 457.221. 41 Finally, on behalf of the Minister it was sought to distinguish the observations made obiter by Allsop J in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 at [14] and [15] in which his Honour considered a clause which then contained the following criterion; '560.213 If the application is made within Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.' 42 His Honour suggested, without needing to decide, that in applying such a criterion it might be necessary to consider an applicant's compliance with both a bridging visa and a substantive visa. Counsel for the Minister submitted that his Honour's reasons do not disclose that the effect of s 76 was ever brought to his attention, which would not have been surprising as there was no suggestion in that case of any failure to comply with the relevant bridging or substantive visas as at the date of the Tribunal's decision. Accordingly, it was said, his Honour's obiter observations should not be taken as qualifying the clear words of s 76 of the Act.

[38]

Jurisdictional error and privative clause decisions 43 For the reasons summarised at [36]-[40] above, it was said that the Tribunal's decision had not been affected by any error which could have influenced its ultimate conclusion or denied the applicant the opportunity of a different outcome. Counsel for the Minister contended that the applicant had identified a merely technical error by the Tribunal, and had failed to establish any "practical injustice" (Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR at [37] per Gleeson CJ). Nor, in the Minister's submission, had the applicant shown any "manifest" or "serious" error which would amount to a jurisdictional error so as to deprive the Tribunal's decision of the protection of the privative clause under s 474 of the Act (Plaintiff S157/2002 (2003) 211 CLR 476, at [12], [13] and [18] per Gleeson CJ and at [160] per Callinan J). 44 In this part of the Minister's submission it was said that the High Court has confirmed that the longstanding distinction between jurisdictional and non-jurisdictional error of law is to be maintained in Australia (Lam at [77] per McHugh and Gummow JJ.). An error of law consisting of a misconstruction of, or a failure to address or comply with an express statutory provision, will not always constitute a jurisdictional error, even in the absence of a privative clause. (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [9]-[32]). 45 For the Minister it was contended that, in any event, a jurisdictional error by the Tribunal does not automatically deprive its decision of the protection of the privative clause under s 474. Rather, each case has to be considered individually, bearing in mind that the privative clause needs to be given due weight in the process of statutory reconciliation. (S157 at [33] per Gleeson CJ; see also [69] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.) That involves, according to Counsel for the Minister, considering whether it was a purpose of the legislation that an error of the kind identified should render the decision invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ). Applying that test, the Tribunal's approach was ultimately correct so that the obvious purpose of the legislation would be served by maintaining the protection afforded to the Tribunal's decision as a privative clause decision by s 474 of the Act.

[39]

Resolution of the issues 46 In my view, the apparent conundrum raised by the Tribunal's regard to the applicant's non-compliance with the conditions of his last student visa is to be resolved by concentration on the actual language of subcl 457.221 in the form in which the Tribunal should have considered it. That required determination of whether the applicant had complied "with the conditions to which the visa (if any) had, or last held, by the applicant is or was subject". 47 "Visa" in that phrase, which forms part of a piece of subordinate legislation, is to be taken as having the same meaning as has been ascribed to it by the Act under which the Regulations have been made; see Acts Interpretation Act 1901 (Cth) s 46. 48 "Visa" as defined in s 5(1) of the Act clearly includes a "bridging visa" as well as a "substantive visa" both of which compound expressions are separately defined in the same s 5(1). By defining "visa" standing alone as having the meaning given by s 29, the legislature intended it to comprehend bridging visas allowing the holders to remain in Australia, however temporarily or conditionally. Prima facie, therefore subcl 457.221 required a decision-maker to be satisfied that an applicant had complied substantially with the conditions of any visa, whether substantive or bridging, "held" by the applicant. 49 It is difficult to understand in what circumstances the words "if any" in parenthesis in the previous form of subcl 457.221 could have had effect. For an applicant to have made application in Australia for a business visa, he or she must, presumably, have been the holder of a visa of some sort, either substantive, temporary or bridging. 50 In Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 Allsop J had to consider the application of cl 560 of the Regulations which governed student visas class TC. His Honour noted that cl 560.21 set out the criteria to be satisfied at the time of application. In that sense cl 560.21 corresponded with cl 457.21 applicable to the present applicant. However, subcl 560.213 required this criterion to be satisfied at the time of the application; 'If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.' 51 It will be seen that subcl 560.213 was in terms identical to subcl 457.221 as applicable to the present applicant. However, the present applicant had first to satisfy that criterion, not at the time of application but at the time of the decision whether or not to grant him a business visa. Nevertheless, the need for the applicant in Rao to satisfy, at the time of decision, the criterion in subcl 560.213 was preserved by cl 560.22 which stipulated the criteria to be satisfied at the time of decision. Subclause 560.227 of that clause provided; 'If the application is made in Australia, the applicant continues to satisfy the criterion in clause 560.213.' 52 The effect of that incorporation by reference of subcl 560.213 in subcl 560.277 was described as follows by Allsop J, at [19]-[20]; 'The proper construction of clause 560.227 in its adoption of clause 560.213 is not without difficulty. Three points can be made at once. First, the "criterion in clause 560.213" must be that "the applicant has complied with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject". Secondly, the time of satisfaction now is the time of decision, not the time of application. Thirdly, the word "continues" may cause difficulty.

[44]

54 In that case, the substantive visa "last held" was a student visa which had expired on 20 August 1999, the day after the applicant had applied for a further student visa and long before the decision of the Tribunal which was made on 25 July 2001. The Tribunal made elaborate findings of fact in respect of work undertaken by the applicant between 18 April and 31 October 2000, all obviously directed to compliance with the condition attached to the applicant's bridging visa. 55 In the present case, the Tribunal was required to find whether, at the date of its decision the applicant "has complied" with the conditions to which the visa (if any) held … is or was subject. The use of the perfect tense "has complied" to which Allsop J drew attention in the passage from Rao quoted at [53] above suggests that the Tribunal was required to examine compliance extending over a significant period ending, at the latest, at the time of the Tribunal's decision. Unlike that in Rao, the task of construction in the present case is not complicated by an express additional requirement that the applicant "continues to satisfy" the criterion in subcl 457.221. As a result, that subclause has to be construed in the light of its own terms, with the assistance only of such aids to construction as can be gathered from the context supplied by other provisions of the Regulations or the Act. Moreover, the applicant's bridging visa in the present case was apparently not subject to conditions with which he had not complied. Accordingly, the issue between the applicant and the Minister is reduced to one of whether the Tribunal was entitled, as the Regulations then stood, to have regard to the applicant's admitted non-compliance with the conditions attached to the student visa which was the last substantive visa held before the Tribunal made its decision. 56 The word "held" where first appearing in subcl 457.221, although a past participle, directs attention to the time when the decision contemplated by cl 457.22 is made. The word refers to the visa "held" at that time whereas the word where secondly occurring in the phrase "last held" refers to a visa held before the time of making the decision but no longer held at that time. That interpretation is borne out by the concluding words of the subclause "is, or was, subject." The present tense "is subject" refers to the visa held at the time of the decision whereas the expression "was subject" in the past tense qualifies the visa "last held" but no longer held at the time of the decision. 57 That analysis tends to support a distributive reading of the word "visa" which denotes either a visa currently "held" at the time of the decision, or, if no visa answers that description, the visa "last held" before the making of the decision. That is sufficient to point to a "contrary intention" within the meaning of s 23(b) of the Acts Interpretation Act which provides; 'In any Act, unless the contrary intention appears:

[46]

58 If I be correct in considering that resort to the presumption embodied in that subsection is denied by the language of subcl 457.221, the Tribunal could not have had regard to both the bridging visa "held" at the time of its decision and the substantive student visa "last held" before it came to make its decision. A choice had to be made, and, in my opinion, the language of subcl 457.221 in its statutory context compelled regard to be had to the bridging visa. 59 I base that conclusion, first, on the fact that the drafter of the Regulations clearly contemplated that, even at the time of his or her application, an applicant for a business visa might not be the holder of a substantive visa; see subcl 457.221(d) and (e) reproduced at [10] above. It is true that each of those paragraphs directed attention to "the last substantive visa held" but that does not illuminate the choice which I have held had to be made in the application of subcl 457.221 in its previous form. That was a choice between "the visa held" at the time of decision and "the visa last held". 60 In the second place, had the drafter of the previous subcl 457.221 intended to require attention to be given to "the last substantive visa held", there was no shortage of models available in the Act to give effect to that intention; see the definitions of "bridging visa" and "substantive visa" reproduced at [16] and [17] above. As I have just pointed out, the distinct concept of "substantive visa" was used in subcl 457.211(d) and (e) in the same context as, and close proximity to, the former subcl 457.221. 61 I do not regard s 76 of the Act as having precluded consideration, in applying the previous subcl 457.221, of compliance with the conditions attached to a bridging visa. Section 76(1) is negative in terms. It provides that the holding of a bridging visa "does not prevent or affect" an application for, or the grant of, a substantive visa. That means in the relevant respect that, if the holding of a visa is a requirement for the grant of a particular type of substantive visa, that requirement will not be satisfied by the holding of a bridging visa. That is made clear by the exegetical provision in s 76(2) which, as the prefatory words indicate, has been enacted solely "to avoid doubt." It does not add to the reach of subs (1) which in terms says nothing about compliance with the conditions attaching to, as distinct from the holding of, a bridging visa. If the question of compliance with the conditions attaching to a bridging visa is made relevant by another section or a regulation, properly construed, a decision-maker is not enabled by s 76 to disregard that question. For the reasons already explained, I consider that the former subcl 457.221 did make relevant at the time of the decision the question of whether the applicant had substantially complied with the conditions to which his bridging visa was then subject. 62 I am further reinforced in the conclusion to which I have come by the fact that Allsop J in Rao clearly considered that attention could be paid, in the context of a regulation in terms identical to the former subcl 457.221, to compliance with the conditions attached to a bridging visa. Of course, whether a choice had to be made between a bridging visa "held" and a substantive visa "last held" did not arise for resolution in that case. 63 Finally, the later amendment of subcl 457.221 which in its amended form is reproduced at [14] above, indicates an acceptance by the drafter of the new form, and very probably by those concerned with the administration of the Regulations, that there was an ambiguity inherent in the earlier version. The new form of the subclause compelled regard to be had to both the substantive visa "last held" and to any subsequent bridging visa. (I observe parenthetically that if the effect of s 76 were not as I have indicated at [61] above, the new subcl 457.221 would be beyond power as giving an "effect" to a bridging visa which s 76 of the Act would deny). The ambiguity which I consider the new form of subcl 457.221 was framed to overcome was, before the introduction of the new version, to be resolved by directing attention to compliance with the conditions of a bridging visa when one was held at the time of the decision on an application for a business visa.