FEDERAL COURT OF AUSTRALIA

Bains v Minister for Immigration and Citizenship [2012] FCA 649

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Within seven days of the making of these orders, each party file and serve a written submission (not exceeding two pages) as to the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    On 25 March 2009, the appellant (“Bains”) lodged an application for a Student (Temporary) (Class TU) visa on the basis of a claimed de facto relationship with a woman called Jyoti Bala (“Bala”). The refusal of that application is the subject of this appeal from a judgment of a Federal Magistrate (Bains v Minister for Immigration and Citizenship [2011] FMCA 452). In that proceeding, the Federal Magistrate dismissed the application of Bains for judicial review. The Federal Magistrate reviewed a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant Bains a visa.

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by Bains was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court on the appeal brought by Bains is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

3    The appeal raises the following issues for determination:

(i)    Did the Tribunal misconstrue cl 572.314 of Schedule 2 (“cl 572.314”) of the Migration Regulations 1994 (“the Regulations”) and, if it did, should the relief sought by Bains be granted?

(ii)    If the Tribunal did misconstrue cl 572.314, is there an independent basis which supports the Tribunal’s decision?

(iii)    Whether, by reason of the Tribunal misleading the appellant, the appellant was denied procedural fairness?

the proper construction of clause 572.314

The Relevant Legislative Provisions

4    Section 29(1)(b) of the Migration Act, empowers the Minister to grant a non-citizen a visa to remain in Australia. Section 31 provides for there to be prescribed classes of visas and authorises for regulations to be made specifying the criteria for a visa of a specified class.

5    The Regulations deal with particular classes of visas. Regulation 2.01 provides that for the purposes of s 31 of the Migration Act, the prescribed classes of visas are those which are set out in the respective items in Schedule 1 to the Regulations (“Schedule 1”). Further, Regulation 2.02 identifies that there are subclasses of visas relevant to particular classes of visas and that these are identified in Schedule 2 to the Regulations (“Schedule 2”). Schedule  2 is organised into Parts, each of which deals with a particular subclass of visa. Regulation 2.03(1) relevantly identifies that the prescribed criteria for the grant to a person of a visa of a particular class are the “primary criteria” set out in a relevant Part of Schedule 2 or, if a relevant Part of Schedule 2 sets out a secondary criteria, that secondary criteria.

6    Section 40(1) of the Migration Act provides that the Regulations may specify the circumstances in which a visa of a specified class may be granted. Regulation 2.04 provides that the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in the relevant Part of Schedule 2, are those circumstances set out in that Part.

7    Schedule 1 is divided into four Parts. Part 2 deals with temporary visas and, relevantly to this appeal, cl 1222 identifies a Student (Temporary) (Class TU) visa (“Student visa”) as an available class of visa. Clause 1222(4) identifies the subclasses of visas applicable to a Student visa and relevantly includes a subclass of visa known as Subclass 572-Vocational Education and Training Sector (“Subclass 572 Student visa”).

8    Regulation 2.07AF(3) requires that an application for a Student visa made (on the specified form) by a person who seeks to satisfy the primary criteria, must include details of each person who is a member of that person’s family unit including the relationship between such a person and the applicant (referred to as the “primary applicant”). Regulation 2.07AF(4) requires that where a person becomes a member of a family unit of the primary applicant, after the time of that person’s application for a Student visa and before the time of decision, the primary applicant must inform the Minister of various details in relation to that person, including as to the relationship between that person and the primary applicant.

9    Clause 572.314 appears in that Part of Schedule 2 which deals with Subclass 572 visas. Within that Part, Division 572.2 sets out the primary criteria required to be satisfied by a primary applicant for a Subclass 572 visa, including a Subclass 572 Student visa. The Division commences with a “Note” which states that the primary criteria must be satisfied by at least one member of a family unit, and that other members of the family unit who are applicants for a visa, need satisfy only the secondary criteria. The primary criteria is divided into “time of application” and “time of decision” criteria. Division 572.3 is headed “Secondary criteria” and begins with a “Note” stating that the Division sets out the requirements to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria. That Division is also broken into “time of application” criteria (cl 572.31) and “time of decision” criteria (cl 572.32).

10    There are four clauses dealing with the “time of application” criteria that a person who is a member of a family unit of a primary applicant (“a secondary applicant”) must satisfy.

11    Clause 572.311 sets out the criteria for when an application is made outside of Australia. Those criteria are reasonably short. The secondary applicant must be a member of a family unit of a primary applicant who is already the holder of certain specified visas or who satisfies or has satisfied the primary criteria for a Subclass 572 visa. Clause 572.312 then sets out the criteria which applies where the application is made in Australia. The criteria here set out, are far more complicated and contain different requirements depending upon such matters as whether the secondary applicant does or does not already hold a substantive visa. What then follows is the clause at the heart of the construction question raised on the appeal. Clause 572.314 provides:

If the applicant is not included in the application under subregulation 2.07AF (3), or the information under subregulation 2.07AF (4), as a member of the family unit of the primary applicant mentioned in those subregulations, the applicant gives to the Minister evidence that the applicant became such a member of the family unit after the decision to grant the Subclass 572 visa to the primary applicant was made.

12    The last clause dealing with “time of application” criteria is cl 572.315. That clause specifies that a secondary applicant is excluded if that person is a secondary exchange student.

13    Finally, in order to deal with the construction issue and other issues raised by the appeal, it is necessary to identify what the Regulations relevantly mean by the phrase “member of the family unit”. Regulation 1.03 defines “member of the family unit” to have the meaning set out in Reg 1.12. Regulation 1.12(2A) provides that a person is a member of the family unit of a holder of a Student visa, including where the person is “a spouse” of the visa holder. At the relevant time, Reg 1.15A defined a person to be the “spouse” of another, including if the two persons are in a de facto relationship of the kind described in Reg  1.15A(2). Relevantly to this appeal, Reg 1.15A(2)(d) provided that persons are in a de facto relationship if:

(d)     subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Student (Temporary) (Class TU) visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa — the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:

(i)    they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)     the relationship between them was genuine and

        continuing; and

(iii)     they had:

(A) been living together; or

(B) not been living separately and apart on a permanent basis;

(emphasis added)

The Construction applied by the Tribunal and the Federal Magistrate

14    The Tribunal determined that for an applicant to meet the criteria specified by cl 572.314, it is necessary for the applicant to satisfy the Minister that the applicant became a member of the family unit after the decision to grant the Subclass 572 visa to the primary applicant was made. With that construction of cl 572.314, and having in mind Regulation 1.15A(2)(d), the Tribunal concluded at [61] that, as Bains’s application was made on 25 March 2009, in order to satisfy the requirements of cl 572.314, it was necessary for Bains to satisfy the Tribunal that he became the de facto spouse of Bala between 16 March 2009 (the date Bala’s visa was granted) and 25 March 2009 (the date of Bains’s application). The Tribunal referred to those dates as constituting “the relevant period” and at [65] identified the question of whether Bains had become a member of Bala’s family unit during the relevant period, as “the central issue for the Tribunal”.

15    With that central issue in mind, the Tribunal considered the oral and documentary evidence before it and concluded at [83] that:

Taking into account all of the evidence, the Tribunal is not satisfied that, at the time of application, the applicant has given evidence that he became a member of the family unit after the decision to grant the Subclass 572 visa to Jyoti Bala was made. Accordingly, the applicant does not meet clause 572.314.

16    The Federal Magistrate agreed with the construction adopted by the Tribunal. Having considered cl 527.314 together with Regs 2.07AF(3) and (4), the Federal Magistrate concluded (at [28]-[31]) that the scheme of these provisions was that if a secondary applicant wished to make an application for a visa after the time of the granting to a primary applicant of a Student visa, it was necessary for the secondary applicant to establish that the de facto relationship between the primary and secondary applicant commenced after the time of the grant of the visa to the primary applicant.

Consideration

17    Clause 572.314 is to be understood in the context of the scheme provided for by the Regulations in relation to a secondary applicant. That scheme envisages that ordinarily, if a secondary applicant is claimed to be a member of the family unit of a primary applicant at the time of application for a student visa, the primary applicant will include such a person in the application made by the primary applicant and specify the nature of the relationship between them: Reg 2.04AF(3). If, however, the secondary applicant is claimed to have become a member of the family unit of the primary applicant after the time of the lodging by the primary applicant of her or his application for a Student visa, but before the time of the decision upon that application, the primary applicant must inform the Minister of that fact and provide information including as to the relationship between the primary and secondary applicants: Reg 2.07AF(4).

18    What is apparent, is that each of Regs 2.04AF(3) and (4), are dealing with the requirement to make a claim and put information before the Minister supporting that claim. They are not dealing with the criteria which the Minister must be satisfied of in order to grant a visa to a secondary applicant.

19    In my view, cl 572.314 is dealing with the same subject matter dealt with by Reg 2.04AF(3) and (4). Its subject matter is the requirement to declare and provide information to the Minister of a secondary applicant’s claim to be a family member. Clause 572.314 requires that such a declaration be made where a secondary applicant applies for a Subclass 572 Student visa, at a time after a visa was granted to the primary applicant, and in circumstances where the secondary applicant had not been included in the primary applicant’s application or otherwise previously declared to the Minister under Reg 2.07AF(4).

20    The explanatory memorandum accompanying the Migration Amendment Regulations 2001 (No. 5) said with respect to cl 572.314:

New clause 572.314 provides for the circumstance where the applicant was not declared as a member of the family unit in the primary applicant’s application. Where this is the case, the applicant must give evidence to the Minister that the applicant became a member of the family unit after the decision to grant the Subclass 572 visa to the primary applicant was made.

21    That explanation serves to confirm that the subject matter of the clause is the provision of information. Namely, the declaring of a secondary applicant in circumstances where no prior declaration of the person as a member of the primary applicant’s family unit had occurred. That analysis suggests that cl 572.314 is a facilitative requirement for the making of an application of the same character as Regs 2.07AF(3) and (4), rather than a substantive requirement going to the criteria that must be satisfied once such an application in the proper form has been made. In that context, the words “after the decision to grant the Subclass 572 visa to the primary applicant was made” which appear at the end of cl 572.314, are not to be understood as imposing a qualification upon the criterion of being a member of the family unit but, consistently with the subject matter of the clause, are to be understood as addressing the timing for the provision of the information which the clause requires.

22     I appreciate that on the construction which I prefer, the location of cl 572.314 under a heading “Criteria to be satisfied at time of application”, is odd. However, the Regulations are peppered with oddities. An example of a provision under the very same heading, where the heading was found not to connect grammatically to the terms of the provision, is given at [22]-[27] of Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 (French CJ, Gummow and Crennan JJ).

23    The conclusion I have arrived at is supported by a consideration of the consequence of adopting the contrary construction which the Tribunal applied and for which the Minister contends. The contrary construction would result in a significantly different criteria being applicable for secondary applicants who became members of the family unit of the primary applicant at a time prior to the decision to grant the primary applicant a visa, than the applicable criteria for those who became such a member at a time after the grant of that visa. A day could make a world of difference, despite there being no discernable reason which would suggest a basis for such a distinction.

24    In my view, just like all other secondary applicants, a secondary applicant claiming to have become a member of the family unit of a primary applicant after the grant of the primary applicant’s visa, has to meet the criteria specified in either cl 572.311 (where the application is made outside of Australia) or the criteria specified in cl 572.312 (where the application is made in Australia). I can think of no reason why the criteria there specified is to be avoided by or made unavailable to a secondary applicant merely because that person’s application post-dates the date of the grant of a visa to the primary applicant.

25    Additionally, if cl 572.314 contains the substantive criteria to be met by all secondary applicants who had not been previously declared in accordance with Reg 2.07AF(3) or (4), unfairness would result. If the alternative construction is correct, it would have the effect of denying the capacity of a secondary applicant who became a member of the primary applicant’s family before the primary applicant was granted a visa, but who had not been declared to the Minister to be such a person prior to the grant of the primary applicant’s visa, to meet the criteria for a Subclass 572 Student visa. For instance, if a primary applicant neglected to declare her de facto spouse of many years, prior to the grant of her application for a visa, that spouse could never make an application as a secondary applicant. Counsel for the Minister sought to avoid that obvious unfairness by contending that, in those circumstances, the primary applicant could apply again for a visa and include the long standing de facto spouse in a new application. It is difficult to accept that the draftsperson intended a new application as the solution to a problem likely to be commonly experienced. The construction which the Tribunal adopted and for which the Minister contends, leads to “such plain unfairness and absurdity that it is not to be preferred”: Berenguel at [26] (French  CJ, Gummow and Crennan JJ).

26    It is common ground that the application made by Bains was made on the basis that he had not been previously declared to the Minister to be part of Bala’s family unit. In those circumstances, the Tribunal should have asked itself whether that was so and whether Bains had so declared and given the Minister evidence supporting his claim. If satisfied of those matters, the Tribunal should have concluded that the requirements of cl 572.314 were met. The Tribunal should then have considered whether (given that the application was made in Australia) the “time of application” criteria set out in cl 572.31 were satisfied and then whether the “time of decision” criteria in cl 572.32 were also satisfied. By misconstruing the requirements of cl 572.314, the Tribunal asked itself the wrong question and fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] and [84] (McHugh, Gummow and Hayne JJ).

27    The Federal Magistrate erred in failing to identify that error and on that basis, I am satisfied that Bains has established appealable error.

28    Whilst I have accepted that the Tribunal made a jurisdictional error, it does not follow that Bains is necessarily entitled to the relief he seeks – that the matter be remitted to the Tribunal for reconsideration. Bains is only entitled to that relief if he has been deprived of the possibility of a successful outcome by the Tribunal’s failure to observe the requirements of the statute or, put another way, Bains will succeed unless the Tribunal’s failure could have had no bearing on the decision made: Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [47], and [64] (Sackville J with whom Black CJ agreed at [5], applying Re Refugee Review Tribunal; Ex parte AALA (2000) 176 ALR 219); and see VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [82]-[83] (Hill, Sundberg and Stone JJ) and Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [66] (Bromberg J).

29    In order to consider that issue and a further ground of appeal raised by Bains, I need to turn to the other issues raised by the appeal.

Is there an independent basis which supports the Tribunal’s decision?

30    The Minister contended that there is an independent basis which supports the Tribunal’s decision. That contention relies upon the factual finding made by the Tribunal at [71] of its decision, that Bains and Bala first “formed a mutual commitment to each other” in May 2008.

31    The identification of that date in the context of the Tribunal’s reference to a “mutual commitment” is clearly a reference to the requirements of Reg 1.15A(2)(d) that, in the context of this case, required Bains to establish that for a period of at least 12 months immediately preceding the date of his application, a de facto relationship existed between Bains and Bala in which they “had a mutual commitment to a shared life as husband and wife to the exclusion of all others”. It is common ground that to have succeeded in his application, Bains had to satisfy the Tribunal of that matter.

32    The Minister contended that, given that Bains made his application on 25 March 2009 and that the Tribunal found that a de facto relationship with Bala only commenced in May 2008, Bains could not have succeeded in his application, even if the Tribunal did misconstrue cl 572.314.

33    The Minister’s contention that there was an independent basis for supporting the decision, was raised for the first time during the hearing of the appeal. In those circumstances, I indicated at the hearing a preparedness to allow a further ground of appeal to be raised which attacked the factual finding upon which the Minister’s new point was based. In accordance with the directions I gave at the hearing, Bains filed a Further Amended Notice of Appeal which raised a new ground of appeal.

34    The Minister did not oppose leave being granted for the new ground to be raised and I am prepared to grant that leave.

Was Bains denied procedural fairness?

35    The new ground is ambiguously pleaded and the submissions made in support of it are largely unhelpful, including because they travel beyond the particulars given in the Further Amended Notice of Appeal. Doing the best I can, it seems that the fundamental point of the new ground is that Bains was denied procedural fairness because the Tribunal conducted the hearing on the basis of its misconception of cl 572.314. That contention is based upon an allegation that, by reference to its misconstruction of cl 572.314, the Tribunal misled Bains into believing he was required to satisfy the Tribunal that any de facto relationship with Bala commenced between 16 and 25 March 2008. The Tribunal then made credibility findings adverse to Bains on the basis of evidence unfairly obtained from Bains in circumstances where he had been misled. The credibility finding, led to the rejection of the evidence given by Bains that the de facto relationship commenced in March 2008, and the finding made that the relationship commenced in May 2008.

36    On the assumption that the Tribunal erred in construing cl 572.314, there is no issue that during the hearing, Bains was misled by the Tribunal into believing that he was required to establish that his de facto relationship with Bala commenced in the period 16 to 25 March 2008.

37    The Minister contends that there is an independent basis for the adverse credibility finding made by the Tribunal against Bains. It seems clear that there were two considerations which moved the Tribunal to make the adverse finding that it did. The first (at [67]) was that Bains had made a false declaration in connection with an earlier student visa application. There is no suggestion that finding was based upon any evidence unfairly obtained by reason of any misleading conduct of the Tribunal. The second consideration (at [70]) was that Bains changed his evidence as to the date of commencement of his relationship with Bala to attempt to fit his evidence into the period 16 to 25 March 2008. At [70], the Tribunal relied upon both considerations in concluding that it did not accept Bains to be a witness of truth and that it did not accept his evidence that the relationship commenced on 20 March 2008.

38    I do not accept the Minister’s contention that the adverse credibility finding is immune from challenge because there is an independent basis for sustaining it. As Kirby J said in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at [81], decision-making is a complex mental process and the disbelief of a person’s credibility on one matter has the potential to impact upon a decision-maker’s disbelief of the same person on other matters. If a decision-maker was conscious that an initial disbelief on one matter was erroneous, that decision-maker might well be convinced to look at the person’s entire evidence in a new light. See further, AALA at [4] (Gleeson CJ).

39    The Minister also contended that the Tribunal had a basis for disbelieving Bains because of the revision of his evidence during the hearing, some of which occurred well before any misleading of Bains by the Tribunal. I accept that may be so. However, the adverse credibility finding made by the Tribunal was based upon what the Tribunal perceived to be the changed evidence given by Bains in response to the Tribunal pointing out that the requisite relationship needed to have commenced between 16 and 25 March 2008 (see at [69] and [79]).

40    A denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. The case dealt with by the High Court in AALA provides an example of a case where a party was misled by a Tribunal into believing that the Tribunal had taken into account certain material. The decision of the Tribunal was quashed for want of procedural fairness, because a credibility finding adverse to the party misled might not have been made if that party had not been misled and thereby taken the opportunity to answer the adverse inferences made by the Tribunal, which had led to the adverse credibility finding. In that case, the misleading conduct resulted in the denial of a proper opportunity to be heard and it could not be said that the denial of that opportunity made no difference to the outcome of the proceeding: See in particular Gleeson CJ at [4]; Gaudron and Gummow JJ at [80] and Kirby J at [128]-[133].

41    The facts of this case do not demonstrate that the misleading conduct of the Tribunal led to any failure to provide Bains with a proper opportunity to be heard or otherwise denied Bains procedural fairness.

42    To succeed in his application, Bains had to establish that the requisite relationship with Bala had been in existence from at least 25 March 2008. He initially gave evidence that he and Bala had formed a commitment to each other in approximately May 2008 (see at [79]). He later gave evidence to the effect that the relationship was formed in March 2008. He sought to assert that his later evidence was true and that he should be believed that the relationship was formed in March 2008.

43    The Tribunal disbelieved the revised evidence which Bains (and Bala) gave. The Tribunal did that, including because it was of the view that the revised evidence had been given by Bains, so that his evidence as to the commencement of the relationship would fit into the period identified by the Tribunal as the relevant period.

44    The Tribunal’s credibility finding and its preference for May 2008 rather than March 2008 as the commencement date for the relationship, was based upon the fact that Bains (and Bala) had changed their evidence. The Tribunal was of the view that the change had occurred because Bains was a witness willing to say whatever was necessary to meet the criteria for the visa. The fact that the Tribunal mischaracterised what was in fact necessary, is beside the point. The mischaracterisation of the criteria made by the Tribunal was not material to the credibility finding made. What was material, was the adverse inference the Tribunal drew from the changed position adopted by Bains. That point may be tested by asking whether the adverse credibility finding would not have been made, if the revised evidence given by Bains, had been given in response to the Tribunal correctly telling Bains that to succeed he needed to establish that a de facto relationship had been in existence at least since 25 March 2008. In my view, even if Bains had not been misled, the result would have been the same.

45    In that context, Bains is not able to point to any denial of procedural fairness. Nor is he able to show that, but for the Tribunal’s mischaracterisation, the outcome of the proceeding might have been different.

46    The new ground of appeal raised by Bains must be rejected. That analysis also persuades me that the mischaracterisation of cl 572.314 by the Tribunal did not deprive Bains of the possibility of a successful outcome.

disposition

47    For those reasons, the appeal must be dismissed.

48    Whilst I have declined to provide Bains with any of the relief he seeks, I have found appealable error in relation to the Tribunal’s mischaracterisation of cl 572.314. In those circumstances and given the way in which new points were raised in the course of the hearing (including by the Minister), it may not be appropriate that costs should follow the event or that the costs order made by the Federal Magistrate ought not be disturbed. If the parties are unable to agree on the question of costs, I will determine those matters after considering short written submissions provided by the parties. I will make orders for the filing and the exchange of those submissions.

Associate:

Dated:    21 June 2012