FEDERAL COURT OF AUSTRALIA

Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 433

MIGRATION – Close Ties visa – whether reg 832.212(4)(a) requires visa applicant to hold no visa upon turning 18 – or at some time prior to turning 18 – appeal – from decision of MRT – error of fact acknowledged by respondent – whether Tribunal erred in law by misconstruing migration regulations – applicable to grant of visa – whether error in law amounted to jurisdictional error in light of Plaintiff S157/2002 – whether Tribunal erred in application of Policy Advice Manual 3.

Migration Act 1958 (Cth) ss 4, 5, 30, 37, 72, 73, 31S, 47

Acts Interpretation Act 1901 (Cth) ss 15AA, 46

Judiciary Act 1993 (Cth) s 39B

Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd [1959] AC 589 applied

R v Arkwright (1848) 12 QB 960 cited

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 cited

Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 391 referred to

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 not followed

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 applied

Craig v South Australia (1995) 184 CLR 163 considered

Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 considered

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 cited

Ali v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 144 cited

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24 considered

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 considered

WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48 referred to

NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 cited

NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 cited

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 distinguished

NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266 distinguished

Grant v Repatriation Commission (1999) 57 ALD 1 cited

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 cited

Benjamin v Repatriation Commission (2001) 34 AAR 270 cited

LAURA RUYKYS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 239 of 2002

MANSFIELD J

9 MAY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The decision of the Migration Review Tribunal given on 26 September 2002 is set aside.

2.                  The application to the Migration Review Tribunal to review the decision of a delegate of the respondent not to grant the applicant a Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa be remitted to the Migration Review Tribunal for rehearing or further hearing according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Laura Ruykys (Ms Ruykys) is now 20.  She has lived in Australia since she was eight years old, in the care of relatives, and has completed her primary and secondary schooling in Australia.  She now wants to be allowed to stay in Australia.  The issue on this application is whether the decision of the Migration Review Tribunal (the Tribunal) given on 26 September 2002 refusing her permission to stay in Australia should be set aside.  For the reasons set out hereunder, I propose to order that the Tribunal’s decision should be set aside, and to remit to the Tribunal for rehearing the application that it review the decision of the delegate of the respondent of 22 February 2002 refusing the application of Ms Ruykys that she be entitled to remain permanently in Australia.

the primary facts

2                     The primary facts are not in dispute.

3                     Ms Ruykys was born in Estonia on 21 September 1983.  She recalls she was mostly cared for by her maternal grandmother.  In 1990 the family moved to Israel.  They took up Israeli citizenship, so Ms Ruykys is an Israeli citizen.

4                     In 1991, Irena and Glenn Forrester (the Forresters), Australian citizens, visited Ms Ruykys’ family in Israel.  Irena Forrester is a relative of Ms Ruykys’ father.  Arrangements were made for Ms Ruykys to return to Australia with the Forresters.  She entered Australia on 17 October 1991 on a visitor visa valid to 20 April 1992.  As a result of a request made by her parents on 16 February 1992 that she be educated in Australia in the care and guardianship of the Forresters, an application was made for a student visa.  It was granted on 19 August 1992, valid to 15 January 1997.  Ms Ruykys’ student visa has been extended from time to time.  It expired on 15 March 2002.  She wants to stay in Australia.  She says she has no real attachment to her parents, as she believes they did not want her, and that she has a strong parent-child relationship with the Forresters.

5                     In fact, her parents in 1994 sought to have Ms Ruykys return to Israel.  Their application was heard in the Family Court of Australia.  On 9 March 1995, after a contested hearing, the Family Court ordered that the Forresters have the guardianship and custody of Ms Ruykys.  The Forresters were directed to keep her parents informed about her school progress, and to take her to counselling “in an attempt to establish a relationship between Ms Ruykys and her parents”.  Her parents were restrained from removing Ms Ruykys from Australia, but were given leave to apply for access to her.  On 20 October 1995, the Full Court of the Family Court dismissed an appeal from those orders.

6                     On 7 February 2002, Ms Ruykys applied for a Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa under the Migration Act 1958 (Cth) (the Act).  It is described by the respondent as an application to remain permanently in Australia on the ground of her close ties in Australia.  I shall call it the Close Ties visa.  Ms Ruykys was then 18 years old, and her substantive student visa was to expire several weeks later.

the relevant criteria

7                     The criteria relevant to the present application for the grant of the Close Ties visa are those required to be satisfied at the time of the application.  They are set out in Sch 2 to the Migration Regulations.  They include cl 832.211 which relevantly provides:

“(1)     The applicant meets the requirements of subclause (2) or (3).

(2)               An applicant meets the requirements of this subclause if the applicant:

(a)               is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; or

(b)               is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa.”

It was not suggested Ms Ruykys fell within subcl 832.211(3).  It is accepted that she fell within subcl 832.211(2) as she held a substantive visa, namely her student visa, at the time of her application for the Close Ties visa.

8                     Clause 832.212 also prescribes criteria to be satisfied at the time of the application for the Close Ties visa.  It provides:

(1)               If the applicant meets the requirements in subclause 832.211(2), the applicant meets the requirements of subclause (2), (4) or (5).

(2)               A person meets the requirements of this subclause if he or she last entered Australia before 1 January 1975.

[Subclause 832.212(3) was omitted by SR 62 of 2000, with effect from 1 July 2000.]

(4)       An applicant meets the requirement of this subclause if the applicant:

(a)               has turned 18; and

(b)               ceased to hold an entry permit or a substantive visa before turning 18; and

(c)                before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.

(5)       An applicant meets the requirements of this subclause if he or she satisfies:

(a)               Schedule 3 criterion 3002; and

(b)               The criteria set out in Subdivision 151.21.”

9                     Ms Ruykys did not seek to bring herself within subcl 832.212(2).  On this application she contended that she came within subcl 832.212(4).

THE TRIBUNAL’S REASONS

10                  Ms Ruykys has turned 18.  Before turning 18, she appears to have spent the greater part of the period the respondent regards as her formative years in Australia.  The respondent’s delegate, and the Tribunal, did not specifically so find, as each took the view that she did not meet the criterion in subcl 832.212(4)(b).  However, counsel for the respondent did not submit that the criterion in subcl 832.212(4)(c) is an obstacle to the grant of the Close Ties visa, and on the material before the Court it seems pretty clear that it will be satisfied.  As the review application to the Tribunal is to be remitted for its fresh consideration, it will have to specifically address that factual issue.

11                  The delegate of the respondent concluded that Ms Ruykys did not meet the criterion in subcl 832.212(4)(b) as she had not ceased to hold an entry permit or a substantive visa before turning 18.  It is clear that it so concluded upon the basis that Ms Ruykys had held an entry permit or a substantive visa since she first entered Australia on 17 October 1991.

12                  The Tribunal’s reasons for not being satisfied the criterion in subcl 832.212(4)(b) of Sch 2 to the Regulations was met are contained in the following passage:

“Subclause 832.212(4)(b) requires the applicant to have ceased to hold an entry permit or a substantive visa before turning 18.  The Tribunal notes that the visa applicant’s movements data indicate she held bridging visas on 4 occasions before she turned 18.  The definition of ‘substantive visa’ in s 5 of the Act specifically excludes bridging visas.  The Tribunal has referred to policy in PAM3 with respect to determination as to whether the visa applicant meets subparagraph (4)(b).  The PAM3 overview in relation to clause 832.212(4) states as follows:  ‘This is meant to allow persons who initially entered Australia with their family unit and, through no fault of their own, remianed [sic] in Australia after becoming unlawful, to obtain permanent residency, provided thay [sic] are no longer a part of, nor reside with, the family unit with which they first entered Australia’.

The Tribunal considers that as the visa applicant has not ever become unlawful while in Australia despite the fact that there have been periods when she ceased to hold substantive visas before turning 18, that the intended meaning of subclause 832.212(4)(b) according to policy cannot be applied favourably to this applicant.  The Tribunal does not consider there is a cogent reason to depart from policy and none has been submitted by the visa applicant or her representative.  The Tribunal therefore finds that the visa applicant fails to meet 832.212(4).”  [Tribunal’s emphasis]

13                  It is now accepted that in fact there was an hiatus in Ms Ruykys’ legal status whilst she has been in Australia.  Her visitor visa expired on 17 April 1992, but she was not granted a student visa until 19 August 1992.  She did not hold a bridging visa in that period.  Neither the delegate nor the Tribunal recognised that hiatus.  That is entirely understandable, as the solicitors for Ms Ruykys erroneously acknowledged to each of them that Ms Ruykys did not cease to hold an entry permit or a substantive visa before turning 18.  They indicated their expectation that the application for the Close Ties visa would therefore be refused.  They indicated they would then request the respondent to exercise his discretion to grant the Close Ties visa “in the public interest, and also in the compassionate circumstances of her case”, presumably under s 315 of the Act.  They understood it was necessary to complete the process of applying for the Close Ties visa before making any such request.  The misconception appears to have arisen because Ms Ruykys’ initial visitor visa was “issued 15 Oct 91 valid until 12 Oct 92” but it was not recognised that the visa was also valid only for a “stay of 06 months” after entry to Australia, so it expired on 17 April 1992.

the issues

14                  The issues addressed on this application are:

(1)          whether the criterion in subcl 832.212(4)(b) required Ms Ruykys to have ceased to hold an entry permit or a substantive visa before and at the time she turned 18 (namely as at 21 September 2001), or simply that she ceased to do so for some period prior to turning 18; and

(2)     if the latter, so that the Tribunal’s decision was based upon an incorrect conclusion that she had “not ever become unlawful”, whether the error on the part of the Tribunal is jurisdictional so that the Court may set it aside in exercise of its powers under s 39B of the Judiciary Act 1903 (Cth).

It is accepted that if subcl 832.212(4)(b) requires Ms Ruykys to have ceased to hold an entry permit or a substantive visa before and at the time she turned 18, then she would not meet the criterion as she held a valid substantive visa, namely a student visa, at that date.

consideration

The first issue

15                  In my judgment, cl 832.212(4)(b) does not require the applicant for a Close Ties visa to have ceased to hold an entry permit or a substantive visa before turning 18 and not to hold an entry permit or a substantive visa at the time of turning 18.

16                  The subclause does not say that.  It uses the words “before turning 18” rather than words such as “before and upon turning 18” or “when the applicant turns 18”.  If it had been intended to say “before and upon turning 18” or “when the applicant turns 18”, it could have been readily expressed.  The word “before” has the ordinary and natural meaning of “in time preceding; previously” or “previously to”:   The Macquarie Concise Dictionary, 2^nd ed 1998 p 79; or “earlier in time; previously, beforehand, in the past”, or “previous to, earlier than (an event, point of time, etc.)”:   The New Shorter Oxford English Dictionary, 1993, p 205.  I do not see any reason to depart from that meaning.  It is the meaning given effect in Maxine Footwear Co Ltd v Canadian Government Merchant Marine Ltd [1959] AC 589, at 603, where the Privy Council considered the meaning of the expression “before and at” a particular time.

17                  Of course, the expression in subcl 832.212(4)(b) must be read in the context in which it appears (cf R v Arkwright (1848) 12 QB 960 at 970).  Sections 15AA and 46 of the Acts Interpretation Act 1901 (Cth) direct the Court to adopt a construction of the provision that would promote the purpose or object underlying the Act and the Regulations.  There is, however, no purpose or object underlying the Act or the Regulations, either generally or in relation to subcl 832.212(4)(b), which points to construing the words “before turning 18” as meaning “before and upon turning 18”.  Counsel for the respondent acknowledged that there is no apparent policy reason why such a construction should be adopted in preference to giving the word “before” its normal meaning.  Indeed, he did not suggest in submissions any reason why, upon turning 18, a person in the position of Ms Ruykys should be eligible under subcl 832.212(4) only if either upon turning 18 or at some time beforehand the person did not have a substantive visa or a bridging visa.  It is not apparent to me why a period of being an unlawful non-citizen as defined in s 14 (whether upon turning 18 or at some time beforehand) should be a criterion for eligibility for a Close Ties visa.  Consequently, I cannot discern a reason from the inclusion of such a criterion for giving the word “before” the refined meaning contended for by the respondent.  Moreover, I do not see any reason why a person in the position of Ms Ruykys should have any greater eligibility for a Close Ties visa under subcl 832.212(4)(b) if she held a substantive visa which lapsed the day before she turned 18 than if she held one which lapsed the day after she turned 18 or the day she turned 18.

18                  Counsel for the respondent sought to support the meaning contended for by reference to the alternative criterion in subcl 832.212(5)(a).  He suggested that subcl (4)(b) and (5)(a) operate as sensible alternatives only if subcl (4)(b) operates where the applicant for a Close Ties visa has no substantive or bridging visa upon turning 18. 

19                  The first of the two subpars of subcl 832.212(5) requires Ms Ruykys to satisfy Sch 3 criterion 3002.  This in turn requires that:

“The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).”

20                  Subclause 3001(2) provides:

“(2)     For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a)               if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa – 1 September 1994; or

(b)               if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa – the day when the applicant last became an illegal entrant; or

(c)               if the applicant:

(i)                 ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)               entered Australia unlawfully on or after 1 September 1994;

whichever is the later of:

(iii)             the last day when the applicant held a substantive or criminal justice visa; or

(iv)             the day when the applicant last entered Australia unlawfully.”

21                  In my judgment, the function of subcl 832.212(5)(a) is to identify the commencement of a period within which an application for a Close Ties visa may be made, when relying upon subcl 832.212(5).  I consider the Tribunal erred in law in its consideration of subcl 832.212(5).  It said simply that subcl 832.212(5) did not apply to Ms Ruykys “because she held a substantive visa at the time she made the application” for the Close Ties visa.  It also added that Ms Ruykys “did not enter Australia illegally and has always had a valid visa”.  I understand the Tribunal’s reference to her not having entered Australia unlawfully as indicating that her application for a Close Ties visa did not activate the alternative in subcl 3001(2)(c)(ii).

22                  In my view, it was erroneous to regard subcl 3001(2) as providing that subcl 832.212(5) can be activated only if the visa applicant does not hold a substantive visa at the time of the application for a Close Ties visa.  It does not so provide.  It is inherently inconsistent with eligibility under subcl 832.211(2)(a) – which contemplates the applicant holding a substantive visa at the time of the application – to regard subcl 832.212(5)(a) as requiring the applicant not to hold a substantive visa at the time of the application.  Subclause 832.212(1) expressly provides that, inter alia, the requirements of subcl 832.212(5)(a) may be satisfied if the applicant meets the requirements of subcl 832.212(2)(a).  In addition, there is no logical reason why Ms Ruykys should in this matter have been ineligible to make use of subcl 832.212(5) by applying for the Close Ties visa up to 14 March 2002, the day before her substantive student visa expired, but have been eligible to do so on 16 March 2002 and at any time within the 12 month period after 15 March 2002. 

23                  For the purposes of criterion 3002, the relevant day, in relation to Ms Ruykys - because she ceased to hold a substantive visa after 1 September 1994, namely when her student visa expired on 15 March 2002 - is the last day when the applicant held a substantive visa, namely 15 March 2002.  Her application for a Close Ties visa was made on 30 January 2002, well within the period specified by criterion 3002, which then expired on 14 March 2003.

24                  Upon that understanding of the criterion imposed by subcl 832.212(5)(a), there is in my view no apparent sensible interaction of subcl 832.212(4)(b) and subcl 832.212(5)(a).  The latter is available where a substantive visa is held when the Close Ties visa applicant turns 18, but is subject to the substantive factual criteria of subcl 832.212(5)(b), namely those in subdiv 151.21.  Relevantly it provides:

“(1)     The applicant meets the requirements of subclause (2) or (3).

(2)       An applicant meets the requirements of this subclause if the applicant:

(a)               spent the greater part of his or her life before the age of 18 in the migration zone as an Australian permanent resident; and

(b)               did not at any time acquire Australian citizenship; and

(c)                has maintained business, cultural or personal ties with Australia; and

(d)               has not turned 45 at the time of the application.”

Subclause (3) does not apply to Ms Ruykys.

25                  The obstacle to Ms Ruykys meeting those criteria is that her time in Australia until turning 18 was not as an Australian permanent resident.  The expression “Australian permanent resident” is relevantly defined in reg 1.03 as a “non-citizen who, being usually resident in Australia, is the holder of a permanent visa”.  The term “permanent visa” is defined in s 5 of the Act by reference to s 30 which provides for permanent visas (which entitle the visa holder to remain in Australia indefinitely) and temporary visas (which entitle the visa holder to remain in Australia during a specified period or until a specified event happens or while the holder has a specified status.  It is common ground that Ms Ruykys has not held a permanent visa at any time.

26                  The operation of subcl 832.212(5)(b) therefore extends only to holders of permanent visas.  Its operation is hard to understand, especially if (as the respondent contends) subcl 5(a) can be satisfied only if the visa application is made after, and within twelve months of, the lapse of the substantive visa.  It then contemplates the visa applicant having held a permanent visa before turning 18 permitting the visa holder to remain indefinitely in Australia (subdiv 151.211(2)(a)) but somehow ceasing to hold that visa, and then only after that time but within 12 months making an application for a Close Ties visa.  If my view of the operation of subcl 832.212(5)(a) is correct, the only difference is that it permits the application for a Close Ties visa whilst a substantive visa (the permanent visa permitting indeterminate stay in Australia in any event, or if somehow it has lapsed, some other substantive visa) is still in force.  On either view, there is no reason to construe subcl 832.212(4)(b) in the way contended for by the respondent by reason of the operation of subcl 832.212(5) is apparent.  Subclause (4) deals with those who have, or have held, non-permanent visas and subclause (5) relevantly deals with those who have, or have held, permanent visas.  I do not perceive any harmonious interaction between the two subclauses.  On the contention of the respondent, an unlawful non-citizen upon turning 18 could qualify under subcl 832.212(4) for a Close Ties visa and would be subject to no time limit (as it imposes no time limit) but would be subject to a 12 month time limit if the applicant held a permanent rather than a substantive but temporary visa until just before turning 18 if seeking to qualify under subcl 832.212(5).  The holder of a substantive temporary visa upon turning 18, upon the respondent’s contention, would be unable to rely upon either subcl 832.212(4) or subcl 832.212(5).  The point remains that there is no apparent reason why a person who is an unlawful non-citizen upon turning 18 should be in a more favourable position than one who held a substantive visa, or a bridging visa, upon turning 18.  The same comment would apply on the view I have taken about the operation of subcl 832.212(5)(a), although in that event the holder of a permanent visa upon turning 18 and which somehow then came to an end would be able to apply within 12 months after it lapsing under subcl 832.212(5).  The apparently idiosyncratic operation of subcl 832.212(4) would still apply, and I see no reason why subcl 832.212(5) would make it less idiosyncratic.

27                  The context of subcl 832.212(4)(b) also supports the construction which I have adopted.  The words “before turning 18” are used in both subpars (b) and (c) of subcl 832.212(4).  So far as possible, they should be given the same meaning in each of those subparagraphs:  see e.g. Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 at 6.  In subpar (c), the inquiry relates to a part of the period of time leading up to the applicant turning 18, but it does not require that part of the period to run up to and include the date upon which the applicant turns 18.  Consistent use of the expression therefore supports giving the words in subpar (b) their ordinary meaning rather than that contended for by the respondent.  In my view, the alternate qualifications expressed in subcl 832.211(2) also support that construction.  The applicant, who may apply for a Close Ties visa on or after reaching the age of 18, may do so either as the holder of a substantive visa or as a person not holding a substantive visa.  Thus it contemplates an applicant who holds a substantive visa at the time of, and after, the applicant turned 18.  Subclause 832.212(1) then imposes further criteria upon an applicant who satisfies, inter alia, the criterion in subcl 832.211(2)(a), i.e. an applicant who held a substantive visa at the time of the application.  One alternative of those further criteria are the criteria in subcl 832.212(4).  It makes more coherent sense, in that context, for subpar (b) of subcl 832.212(4) to refer to any period before the applicant turned 18, rather than to regard it as requiring the applicant not to hold a substantive visa or a bridging visa at the time of turning 18.  There would otherwise be an apparent contradiction in the way in which the two subclauses could operate.

28                  Accordingly, in my judgment Ms Ruykys met the criterion in subcl 832.212(4) of Sch 2 to the Regulations at the time of her application for the Close Ties visa.  At the time of her application, she was a person who had ceased to hold an entry permit or a substantive visa before turning 18, namely for the period 18 April 1992 to 18 August 1992.

The second issue

29                  The respondent contends that, in any event, the Tribunal did not err in a way which exposes its decision to review under s 39B of the Judiciary Act 1993 (Cth).  His contentions are:

(1)         the decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act, and is therefore final and conclusive subject to the “Hickman” exceptions discussed by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 391 (NAAV), and that none of those exceptions apply in the present circumstances;

(2)                 the Court should follow the course adopted by Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 (Lobo) of regarding the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157) as overruling NAAV only to the extent of determining that s 474, properly construed in the context of the Act as a whole, does not prevent the Tribunal from committing jurisdictional error if it fails to accord procedural fairness to the visa applicant (at least until the operation of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)) and the error of the Tribunal in this matter is not of that nature;

(3)               alternatively, Plaintiff S157 decides that the operation of s 474(1) in any particular case will depend upon the construction of the Act as a whole and that the type of error which the Tribunal might be found to have committed in this case is not a jurisdictional error of the nature recognised in Plaintiff S157 because it does not amount to a failure to exercise jurisdiction or an excess of jurisdiction, but is simply an error of fact (the wider definitions of jurisdictional error discussed for example in Craig v State of South Australia (1995) 184 CLR 163 (Craig)and Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) are said not to properly describe jurisdictional error as recognised in Plaintiff S157.  It is contended that the “narrow jurisdictional error”, which will give rise to jurisdictional error so as to enliven the Court’s power under s 39B, relates to limitations on the exercise of the Tribunal’s power which are “indispensable” or “essential to valid action”:  see Plaintiff S157 at [20] and [26], and relates to a “fundamental requirement for the exercise of jurisdiction”:  see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 at [38] (Applicants S134).

30                  Having determined that Ms Ruykys met the criterion in subcl 832.212(4)(5) of Sch 2 to the Regulations, upon its proper construction, it is now necessary to identify the nature of the error on the part of the Tribunal which led it to reach a different conclusion.  The identification of its error will then indicate whether it is jurisdictional in nature.

31                  Under s 5 of the Act, a substantive visa is defined to mean, relevantly, a visa other than a bridging visa.  The expression “entry permit” is defined in reg 1.03 of the Regulations to have the meaning given by s 4(1) of the Act as in force before 1 September 1994, which in turn is defined as meaning permission to enter or remain in Australia.  A bridging visa clearly falls within the definition:  ss 37, 72 and 73.

32                  The data available to the Tribunal, identified by counsel for the respondent as being the “Movement Records”, and apparently being that on which it based its findings, indicated that Ms Ruykys has been granted the following visas:

Visitor visa                   17 October 1991         -          17 April 1992

Student visa                  19 August 1992             -          15 January 1997

Bridging visa                 1 September 1994

Bridging visa                 15 January 1997           -          15 January 1997

Student visa                  15 January 1997           -          24 December 1997

Bridging visa                 10 December 1997      -          24 December 1997

Student visa                  24 December 1997      -          16 February 2000

Bridging visa                 28 January 2000           -          16 February 2000

Student visa                  16 February 2000        -          15 March 2002

33                  Ms Ruykys’ passport was also before the Tribunal.  It contained an entry visa stamp indicating she was issued with a visitor visa on 15 October 1991 valid for multiple travel until 12 October 1992, but permitting a stay of six months for each entry to Australia.  It showed she entered Australia on 17 October 1991, so she held a valid visa until 17 April 1992.  Subsequent stamps show four student visas granted from time to time covering the period from 19 August 1992 to 15 March 2002.  A visitor visa is a substantive visa.

34                  I was told she also holds a bridging visa pending determination of her present application.

35                  It is difficult to understand the Tribunal’s reasons.  It has wrongly concluded that Ms Ruykys did not hold a substantive visa for “periods” before turning 18.  It did not identify the periods it referred to. There was only the one such period when Ms Ruykys did not hold a substantive visa:  18 April 1992 to 18 August 1992.  That appears upon consideration of the Movement Records or of the visa stamps on the passport.  Indeed, if the visitor visa stamp on the passport was the source of any misunderstanding by the Tribunal (as it was in respect of Ms Ruykys’ advisers and the respondent’s advisers until shortly before the present hearing), the finding would have been that Ms Ruykys held a substantive visa at all times from her entry on 17 October 1991 until after her application for the Close Ties visa.  The Tribunal found, correctly, that Ms Ruykys has held bridging visas on four occasions before she turned 18, but did not apparently appreciate they overlapped with her substantive student visas.  It did not say what those occasions were.  But, by reference to the information before the Tribunal they can be seen to be after the period when she did not in fact hold a substantive visa or a bridging visa, that is after 18 August 1992.  It is unclear how it understood that Ms Ruykys had “not ever become unlawful”, as it did not identify the periods she held a bridging visa or a substantive visa.  It is also unclear how it understood that it was to apply the policy in Policy Advice Manual 3 (PAM 3).  Its reference to PAM 3 is apparently to discern whether Ms Ruykys came within subcl 832.212(4).  How it used PAM 3 to conclude the subclause could not be applied favourably to Ms Ruykys is not explained.  The passage it quoted from PAM 3 was from the overview, under the heading “Formative years”, and there is then a detailed test explaining the policy underlying that expression.  It provides no warrant for the Tribunal to use PAM 3 to inform the proper construction of subcl 832.212(4)(b).  Nor does it entitle the Tribunal to depart from the application of subcl 832.212(4)(b) on the basis that it thinks there are cogent reasons to do so.

36                  I do not think the Tribunal can be understood as saying there was no scope to apply the policy in PAM 3 because Ms Ruykys “had not ever become unlawful”, as it specifically addressed whether there is a cogent reason to depart from the policy.  Thus the Tribunal appears to have considered that, if there were grounds to do so, it could depart from “the policy”.  That comment must reflect its understanding that Ms Ruykys in her circumstances might have fallen within the criterion in subcl 832.212(4)(b).

37                  In my judgment, the Tribunal’s error extended beyond merely an error of fact as to whether Ms Ruykys ceased to hold a substantive visa or an entry permit before turning 18.  In a way which I am not able to discern from my consideration of its reasons, I am satisfied it has misconstrued subcl 832.212(4)(b).  It is not clear whether its misconstruction has contributed to its finding that Ms Ruykys has “not ever become unlawful” because it is not clear whether it apprehended the hiatus in Ms Ruykys’ lawful status whilst in Australia, although its reference to her having held four bridging visas and the periods of her four bridging visas before turning 18 suggest it was aware of the hiatus.  If it was not aware of the hiatus, by reason of a misreading of the visitor visa stamp on her passport, then she would have appeared to have had substantive visas then at all material times.  But that is not what the Tribunal found.  Its consideration of PAM 3, including its recognition that there may have been scope to depart from its policy, also suggests it was aware of a period when Ms Ruykys held neither a substantive visa nor a bridging visa before turning 18.  I conclude that somehow, but in a way I am unable to clearly discern, the Tribunal erred in law in the way it understood and applied subcl 832.212(4)(b).

38                  I am also satisfied that its error of law is a jurisdictional error sufficient to enliven the Court’s power to make an order under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act.  The Tribunal’s duty was to consider the case before it in the light of the words in the regulation.  It was erroneous to use the policy to determine whether Ms Ruykys fell within the sub-paragraph or not:  cf Ali v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 144 at 151.

39                  It is plain that Plaintiff S157 denotes that s 474(1) is not a primary provision to which all other provisions of the Act are subject.  It is necessary to interpret the Act as a whole to determine whether a transgression of a relevant provision is intended to lead to invalidity.  Gleeson CJ at [19] and the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [60] described the process of statutory construction as “reconciliation”.  To paraphrase what Gleeson CJ said at [26], the question is whether, on the true construction of the Act as a whole, including s 474, the requirement of the proper application of the law is a limitation upon the decision-making authority of the Tribunal of such a nature that is inviolable.  At [29]-[33], Gleeson CJ then stated established principles which are relevant to the resolution of that question and at [71]-[74] Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated rules of constitution and other considerations relevant to the scope of operation of s 474.  Their Honours concluded at [78]:

“The effect of s474 is to require an examination of limitations and restraints found in the Act.  There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a “privative clause decision” as defined in s 474(2) of the Act.”

40                  In my judgment, the decision in Plaintiff S157 obliges the Court to undertake, in relation to the way in which the Tribunal might be found to have erred in its consideration of a particular claim, the task described in the passage quoted above.

41                  There have been several decisions of the Court in which that task has been undertaken.  In Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24 (Zahid), the Full Court (French, Lindgren and Finkelstein JJ) allowed by consent an appeal from a decision of a judge at first instance.  The learned judge at first instance had found that the Migration Review Tribunal had failed to address the correct question posed by the relevant Regulation, but that the decision in NAAV insulated its decision from invalidity.  The Full Court in the light of Plaintiff S157 considered it appropriate to allow the appeal.  In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 (NADH of 2001) the Full Court (Moore, Tamberlin and Hely JJ) concluded, in the light of Plaintiff S157, that an error of construction may amount to jurisdictional error [at 4].

42                  In WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48(WADK) Hill J (with whom Marshall J agreed) described the issues raised in NAAV as “no longer of great significance” following the decision in Plaintiff S157.  His Honour said at [26]:

“What is now clear is that, despite the terms of the Migration Act 1958 (Cth), the jurisdiction of the High Court to grant prohibition, and in aid thereof certiorari, and it would follow of this court, through s 39B of the Judiciary Act 1903 (Cth) has not been ousted by the use of the privative clause.  Accordingly, both the High Court and this court may grant prohibition and consequent relief in a case where the Tribunal has committed jurisdictional error.  While the High Court did not seek in that case to define the boundaries of jurisdictional error, it had to some extent earlier done so in cases such as Craig v South Australia (1995) 184 CLR 163 and, more recently in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323.”

43                  At the more general level, the decisions of the Full Court (Kiefel, North and Allsop JJ) in NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 at [4] and of the Full Court in NADH of 2001 at [1] recognise that the High Court in Plaintiff S157 decided that the approach to the construction and application of s 474 adopted in NAAV is incorrect.  See also per Lindgren and Stone JJ in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [17].

44                  I note that both VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 and NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266 referred with approval to Lobo, but the alleged jurisdictional error in each case was that the Tribunal had failed to accord procedural fairness to the visa applicant.  Consequently, the extent to which, by reason of Plaintiff S157, the Court should no longer follow NAAV did not arise.  In the light of the decisions referred to, and as it appears that Gyles J at the time of his decision in Lobo did not have the benefit of the views of the Full Court in some of the cases referred to as to the effect of Plaintiff S157, I do not feel obliged to follow the decision in NAAV in all cases except those where the jurisdictional error involves the failure to accord procedural fairness to the visa applicant.

45                  In this matter, for the reasons I have expressed, I consider the Tribunal erred in law by somehow not addressing the issue posed by subcl 832.212(4)(b).  I think the error is of the kind referred to by the Full Court in Zahid, NADH of 2001, and in WADK.  It is not necessary to go so far as to accept that error as described in Craig and Yusuf still defines the boundaries of jurisdictional error under the Act.  The Tribunal’s error means its decision was not made “under this Act” as that term is used in s 474(2) because the Tribunal’s error of law has resulted in it failing to exercise jurisdiction in the particular circumstances.  I accordingly conclude that, on the proper construction of the Act including s 474, the Tribunal’s error is jurisdictional.

46                  In my view, the error of the Tribunal is a jurisdictional error of a fundamental nature.  The Tribunal was bound to make a finding as to whether Ms Ruykys met criterion 832.212(4)(b).  It did not do so in terms of that criterion because it misinterpreted the law.  It thereby identified a wrong question.  It did not address the issue which the sub-paragraph required it to address:  see Plaintiff S157 at [21], [26], [67]-[70], and [160] and Applicants S134 at [72]-[85].

Conclusion

47                  In this matter, as the above consideration illustrates, the detailed provisions of cl 832.212 of the regulations are complex.  The Tribunal was confronted with an erroneous assertion of fact about Ms Ruykys’ visa history.  However, that does not mean the Tribunal’s decision should not be set aside.  Its inquisitorial role requires it to determine the substantive issues raised by the material before it, and it is obliged not to limit its determination to the “case” articulated by an applicant if the material it accepts, or does not reject, raises a case on a basis not articulated by an applicant:  Grant v Repatriation Commission (1999) 57 ALD 1 at 6 [17]-[18]; Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287; Benjamin v Repatriation Commission (2001) 34 AAR 270 at 281 [47]; Benjamin v Repatriation Commission (2001) 34 AAR 270 at 281; [2001] FCA 187 at [47].  In this matter, the Tribunal did itself address whether the applicant fell within subcl 832.212(4)(b).  It considered the visa history of Ms Ruykys.  It did not simply act on what it was told by those representing Ms Ruykys.  It then, for the reasons I have given, fell into legal error in its consideration of the issue.

48                  I note, so it is not seen to be overlooked, the respondent’s contention that if Ms Ruykys has or is granted a further student visa (I noted above that I was told during the hearing she presently has a bridging visa), then at the completion of her studies she may be eligible to apply for a permanent visa Subclass 880 – Skilled – Independent Overseas Student (1) or Subclass 881 – Skilled – Australian Sponsored Overseas Student (1).  Whether or not Ms Ruykys may at some future time be entitled to apply for such a visa, and whether she might then be able to satisfy the criteria for the grant of such a visa, is of course for the future.  I do not think the prospect of her doing so should affect the exercise of my judgment that, in the present matter, she is entitled to have the Tribunal’s decision set aside.

49                  For the reasons given, in my judgment the decision of the Tribunal should be set aside, and the matter before the Tribunal should be remitted to it for consideration according to law.

Associate:

Dated:              8 May 2003