Did the Tribunal misconstrue cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) by not considering the criterion in subcl (b) and subcl (c) having determined the appellant failed to meet subcl (a)?

Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25 (2 March 2022)

Intro:-

This appeal is from a decision of the Federal Circuit Court (as it was then known) delivered in April 2021, which made orders dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal).

Facts:-

The Tribunal had earlier affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant’s (Ms Dait) application for a Student (Subclass 500) (Class TU) Visa.

Ms Dait’s application fell under s 65(1) of the Migration Act 1958 (Cth) (Act), which required the Minister to consider whether he was satisfied that the criteria prescribed by the Migration Regulations 1994 (Cth) (Regulations) had been satisfied. Ms Dait’s visa was cancelled, and that decision was upheld by the Tribunal, on the basis that Ms Dait did not satisfy the Genuine Temporary Entrant criterion in cl 500.212 of Sch 2 of the Regulations.

The Primary Judgment

Ms Dait sought judicial review on two grounds. Ground 1 alleged that the Tribunal failed to comply with the mandatory requirement under s 425 of the Act to “invite” Ms Dait to give evidence and present arguments in relation to the issues arising on review. Ground 2 alleged that the Tribunal misconstrued and misapplied cl 500.212 of the Regulations by considering subcl 500.212(a) of the Regulations, but failing to take into account and deliberate upon the mandatory criteria in respect of subcll 500.212(b) and 500.212(c). The primary judge dismissed both grounds of review.

Relevantly, in respect of Ground 2, the primary judge found that in the circumstances of the case the Tribunal was not required to refer expressly to subcll (b) and (c) in making a determination: PJ [21]. In reaching this conclusion, the primary judge considered himself bound by two decisions of this Court, namely Vidiyala v Minister for Home Affairs [2018] FCA 1973 and Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966: PJ [19].

The relevant provision of the Regulations

Relevantly, cl 500.212 of Sch 2 of the Regulations is in the following terms:

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c) of any other relevant matter.

As is evident from the primary judge’s reasons, cl 500.212 has been the subject of judicial consideration by this Court in a number of recent decisions. Given an understanding of these cases play a critical role in the resolution of the appeal, it is necessary to canvass them in some depth.

Issue:-

a) if a decision-maker is satisfied that a visa should not be granted on the basis that an applicant has failed to satisfy the criterion in subcl (a), must that decision-maker proceed to consider subcll (b) and (c)?

Consideration:-

A review of the authorities

Four cases merit attention in understanding the proper construction of cl 500.212. Each of them is dealt with below chronologically.

Vidiyala v Minister

s might be expected, Vidiyala v Minister for Home Affairs [2018] FCA 1973 concerned an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision by the Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a visa on the ground that the applicant did not meet the requirements in cl 500.212. Relevantly, Perry J held that the Tribunal’s reasons were not infected by jurisdictional error because there was no need for the Tribunal to consider subcl (c) of the Regulations because the applicant did not satisfy subcl (a).

In reaching this conclusion, Perry J made the following remarks in respect of the operation of cl 500.212 (at [28]):-

"It is apparent from the use of the word “and” at the end of subclauses (a) and (b) of clause 500.212 that the appellant had to satisfy the Tribunal that each of the criteria in (a), (b) and (c) were met. It follows that once the Tribunal found that the criterion in subclause (a) was not met, the Tribunal was required to dismiss the visa application irrespective of whether the criteria in subclauses (b) and (c) were met. It follows that the FCC correctly held that the Tribunal was not required to consider the criteria in clause 500.212(b) and (c) before it could lawfully decide to affirm the delegate’s decision to refuse the application."

(Emphasis in original)
.
Her Honour therefore conceptualised cl 500.212 as what might be described as an “entire requirement”, and considered that this entire requirement would not be satisfied where an applicant failed to satisfy either subcl (a) or (b).

Inderjit v Minister

Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217; (2019) 272 FCR 528 also concerned an appeal from a decision of the Federal Circuit Court, upholding a decision by the Tribunal to affirm the Minister’s refusal to grant the applicants visas on the basis that they failed to satisfy cl 500.212.

Relevantly, in addressing the construction of cl 500.212, the Full Court (Rares, Burley and O’Bryan JJ) observed (at 535 [30]–[31]):-

"... if the legislation requires a decision-maker to have regard to more than one criterion or factor in making a decision, but gives no fixed weighting to any of them, then none of the factors has any presumptive or fixed weighting in relation to any or all of the other criteria.

The ultimate issue for decision under cl 500.212 is whether the “applicant is a genuine applicant for entry and stay as a student” because he or she meets each of the criteria in cl 500.212(a), (b) and (c). In considering each of criterion (a) and (b), the decision-maker must have regard to each of the prescribed factors for that criterion (so far as it may apply in the circumstances). The Minister, or decision-maker standing in his or her shoes, after considering a valid application for a visa, must grant it, by force of s 65(1)(a)(ii) of the Act, relevantly here, if he or she is satisfied that the criteria prescribed for the visa in the Act and or Regulations have been satisfied."

(Citation omitted).

It is not apparent that the Full Court in Inderjit was referred to, or considered, the reasoning in Vidiyala. However, the decisions are consistent. Both stand for the general proposition that a “genuine applicant” must satisfy the criteria in subcll (a), (b) and (c). The only difference is that Vidiyala articulates the next logical step in the inquiry; that is, subcll (b) and (c) should only be considered if an applicant fulfils the criterion in subcl (a).

Sanjel v Minister

In Sanjel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1966, one of the grounds of appeal advanced was that the primary judge erred in following the reasoning in Vidiyala.

Justice Thawley found (at [16]) that the Federal Circuit Court was bound to apply Vidiyala, and that his Honour should follow the decision given he was not persuaded it was “plainly wrong”: Sanjel (at [17]–[18]). His Honour also held (at [18]) that the statement of Perry J in Vidiyala at [28] (reproduced above at [10]) was “correct”, noting:

A decision-maker who affirmed a decision not to grant a visa on the basis that paragraph (a) of cl 500.212 had not been met would have exercised the jurisdiction entrusted to him or her and would not have failed to exercise or complete the exercise of jurisdiction entrusted to him or her merely by failing to consider whether the paragraphs (b) and (c) were also not met.
17 Once again, Sanjel reaffirms that the component parts of cl 500.212 must be seen as a combined whole.

Eros v Minister

Finally, cl 500.212 was recently considered by this Court in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. There, the delegate and the Tribunal considered the applicant’s suitability for a visa under subcl (a) and, upon finding that the applicant did not meet the requirement in subcl (a), did not proceed to consider the applicant’s suitability under subcll (b) and (c).

In considering whether the primary judge erred by failing to find that the Tribunal and a delegate of the Minister misconstrued cl 500.212, the Chief Justice stated (at [8]–[9]) that:-

"It is important to focus on the words of cl 500.212. First, the chapeau contains a whole idea or conception: “a genuine applicant for entry and stay as a student”. This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student. The last, emphasised, words were the subject of submissions and debate. They should not be disconnected from the text, structure and purpose of the whole clause.

The expression is followed by the word “because” and a list of various matters in subcll (a)(i)–(iv), (b)(i)–(ii) and (c), to which the decision-maker looks, overall, to come to a state of satisfaction about the contents of the chapeau. A plain reading of cl 500.212 leads to the conclusion that the satisfaction as to whether the applicant is a genuine applicant for entry and stay as a student is reached by reason of the particular criteria in subcll 500.212(a), (b) and (c), and not otherwise.

(Emphasis in original).

While the Chief Justice did not deal with Inderjit, Sanjel or Vidiyala, the above passages reinforce the status of cl 500.212 as a “complete package”.

The Chief Justice then went on to consider how the terms of comparable regulations for a previous Subclass 572 (Vocational Education and Training) Visa were construed. Against this backdrop, his Honour observed (at [14]–[15]):-

"The terms and structure of cl 500.212 require a careful treatment of three distinct criteria: the intention concerning length of stay, that is, that there is a genuine intention to stay temporarily: (a); that there is an intention to comply with any visa conditions: (b); and any other matter relevant to the subject matter, scope and purpose of the clause and grant of the underlying visa. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student."

A close reading of cl 500.212

Like any construction inquiry, the Court must begin and end with the statutory text, read in its statutory context and having regard to its apparent purpose: Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ).

The starting point is s 65 of the Act. As Crennan, Bell, Gageler and Keane JJ explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 (at 188–189 [34]):-

"The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or “jurisdictional facts”) - the Minister’s satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister’s non-satisfaction of one or more of those matters."

(Citation omitted).

Hence the section is directed to satisfaction of the existence of the fact identified in the relevant criterion.

The presently relevant criterion, clause 500.212, requires satisfaction of a single state of affairs. It contains one sentence. The conjunction “because” connects the chapeau with subcl (a), implying a relationship of cause and effect: Pearce DC, Statutory Interpretation in Australia (9th ed, LexisNexis Australia, 2019) (at [12.11]). The conjunction “and” also marries subcll (a), (b) and (c), each of which is connected back to the chapeau by the combined conjunctive effect of the terms “because” and “and”. Further, each of subcll (a)(i)‑–(iv) and (b)(i)–(ii) is connected to its parent and, by extension, to the chapeau, by way of a colon or the conjunction “and”. This creates a waterfall effect, brought to a close by the full stop at the end of subcl (c). The combined effect of “because”, “and” and the use of colon unites each composite part of cl 500.212, giving rise to “a whole idea or conception: “a genuine applicant for entry and stay as a student””: Eros (at [8]). This reading is supported by the verb “is” in the chapeau, which encapsulates a single state of being.

In saying this, subcll (a), (b) and (c) nonetheless demand discrete inquiries as a matter of language and can be read and understood in isolation. Accordingly, satisfaction of cl 500.212 requires the cumulative satisfaction of discrete elements. Each of subcll (a), (b) and (c) are integral elements of the criterion. These elements are bookended by conjunctive devices, which reflect the need for the decision-maker to undertake a piecemeal analysis, and for the applicant to satisfy each step in that analysis in order to qualify as “a genuine applicant for entry and stay as a student”. If a decision-maker is not satisfied that an applicant meets subcl (a) or (b) alone, the decision-maker need not continue their inquiry. This is because an adverse finding in relation to either subcl (a) or (b) forecloses any possibility of a favourable outcome.

Reconciling the authorities

In summary, the authorities may be distilled into the following four mutually inclusive propositions:

(1) An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 of the Regulations if they satisfy subcll (a) and (b), in the light of “any other relevant matter” pursuant to subcl (c): Inderjit (at 535 [31]); Eros (at [8]–[9]); Sanjel (at [18]).

(2) Subclauses (a), (b) and (c) address separate matters and require separate analyses: Eros (at [14]–[15]); Vidiyala (at [28]).

(3) It follows that if an applicant fulfils the criterion in subcl (a), a decision-maker must proceed to subcl (b) in order to exercise their jurisdiction properly: Eros (at [22], [30]–[33]).

(4) An applicant is not a genuine applicant for entry and stay as a student if they fail to satisfy subcl (a), regardless of their satisfaction of subcl (b), and vice versa: Sanjel (at [18]); Vidiyala (at [28]). If a decision-maker is satisfied that an applicant does not meet the criterion in either subcl (a) or (b), they need not proceed further. The decision-making process is complete because the applicant has failed to establish an essential element of the “whole idea or conception” contained in cl 500.212: Eros (at [8]).

Conclusion:-

The primary judge neither misconstrued nor misapplied cl 500.212 of Sch 2 of the Regulations. The appeal must be dismissed with costs.

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