FEDERAL COURT OF AUSTRALIA

Thapaliya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1741

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from the whole of the judgment and orders of the Federal Circuit Court given on 7 November 2018 in Thapaliya v Minister for Immigration and Border Protection [2018] FCCA 3278. In that decision, the primary Judge dismissed an application by the appellant for judicial review of a decision of a delegate to the Minister to cancel the appellant’s former wife’s Employee Nomination (Class EN – Subclass 186) visa, and the appellant’s secondary visa which was dependent on the visa of his former wife.

Background

2    On 27 April 2008, Ms Sumitra Sapkota and the appellant were married. At relevant times they were citizens of Nepal.

3    On 22 July 2014, Ms Sapkota applied for an Employer Nomination (Class EN – Subclass 186) visa, a permanent visa for skilled workers who are nominated by an Australian employer. A condition of this visa was that the visa applicant be employed by the nominator for a period of at least two years (Reg 5.19 (3)(d)(i) of the Migration Regulations 1994 (Cth)). Ms Sapkota sought the visa on the basis that she would be employed as a cook for her putative employer’s restaurant operated by Café Kathmandu Pty Ltd.

4    The appellant applied for the same visa as Ms Sapkota as a secondary applicant, on the basis that he was a member of the same family unit as Ms Sapkota (cl 186.311 to Sch 2 of the Migration Regulations). The appellant applied for a visa, referable to the same transaction and file number as Ms Sapkota, on 22 July 2014.

5    Ms Sapkota and the appellant were granted visas on 24 December 2014.

6    It transpired that on 5 December 2014 – that is prior to the date on which the visas were granted – Café Kathmandu Pty Ltd had entered liquidation. As at 18 November 2016 however, Ms Sapkota had not informed the Department of this event.

7    On 18 November 2016, Ms Sapkota’s visa was cancelled pursuant to s 128 of the Migration Act, which relevantly provides:

Cancellation of visas of people outside Australia

If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

8    In summary, the liquidation of Café Kathmandu Pty Ltd constituted a change of circumstances requiring Ms Sapkota to inform the Minister as soon as practicable of such change pursuant to the provisions of section 104 of the Migration Act, and the delegate took the view that she chose not to inform the department of the change in her circumstances due to the significant advantage of gaining a permanent visa to remain in Australia. As it transpired, Ms Sapkota had been granted her visa on the basis of incorrect information. Further, Ms Sapkota was outside Australia and had not complied with s 104 of the Migration Act, and if she attempted to enter Australia it is likely that her visa would be cancelled.

9    The appellant’s visa was also cancelled on 18 November 2016 pursuant to s 140(1) of the Migration Act. In the decision record the delegate noted:

I have also considered that Ms SAPKOTA’s husband, Mr BISHNU PRASAD THAPALIYA is currently residing in Australia and was granted a visa as a member of her family unit. I find there may be some hardship or possible disruption to Ms SAPKOTA and her husband’s current circumstances on the basis that they may be unexpectedly separated for a period of time, ,,, …

Ms SAPKOTA’s husband Mr THAPALIYA holds a visa as a dependent member of Ms SAPKOTA’s family unit. As a result of Ms SAPKOTA’s visa being cancelled, I have considered that Mr THAPALIYA’s visa will also be consequentially cancelled by operation of law under section 140 of the Migration Act. …

10    On or around 1 December 2016, Ms Sapkota requested that the Minister revoke the cancellation decision under s 131 of the Migration Act. The appellant, who by this point was divorced from Ms Sapkota, wrote to the Minister on 12 December 2016 requesting revocation of the cancellation decision. I note the letter from the appellant was dated 12 November 2016, predating the cancellation decision.

11    On 8 December 2016, a delegate of the Minister refused the revocation request of Ms Sapkota. Materially the letter also said:

After considering your response, I have decided not to revoke the cancellation of your visa under section 131 of the Migration Act.

Also, family unit members (eg spouse, dependent children (including children born in Australia)) who held a visa because you held a visa, have had their visa cancelled. If another person (other than a family unit member) holds a visa only because you held a visa, then that person’s visa may also be cancelled without notice from the Minister. ….

Federal circuit Court

12    On 21 December 2016, the appellant applied to the Federal Circuit Court pursuant to s 476 of the Migration Act for judicial review of the 18 November 2016 cancellation decision. Ms Sapkota made no application for judicial review. The appellant relied on the following grounds:

1.    With respect to the decision to cancel the Applicant's former spouse' visa the decision maker:     

a.     acted in a way that was unreasonable and irrational in particular in circumstances where, without limiting the ground, it was inappropriate to make the decision when the former spouse was out of the country and the former spouse was not given an opportunity to respond;

b.     Denied procedural fairness to both the former spouse and the Applicant and took into account irrelevant considerations.

2.     With respect to the position of the Applicant's visa status the decision maker:

a.     Failed to take into relevant considerations being the Applicant's submissions;

b.     Failed to consider and apply a request for revocation or consideration of the Applicant's visa status

c.     acted in a way that was unreasonable and irrational in particular in failing to consider the submissions and allow an opportunity for the Applicant to be afforded the opportunity to make representations regarding his substantive rights as a visa holder or person with a legitimate expectation of having a right to remain in Australia or be present within a Australia or to make representations as to why he may remain within Australia from within Australia.

(Errors in original.)

13    At [8] of the primary judgment his Honour said:

It can be seen from ground 1 of the applicant’s grounds of application that the applicant challenges the making of the decision in respect of the cancellation of the applicant’s former spouse. However, it is clear that the decision made in respect of the applicant’s former wife’s spouse was a decision directly against her interests, and not against the interests of the applicant. The decision record, on its face, at page 47 of the court book, records that the decision was in respect of Ms Sapkota, and not in respect of the applicant. The applicant, on general principles, has no standing in such case to make application as he has.

14    His Honour referred to the terms of s 140 and also Rani v Minister for Immigration and Multicultural Affairs [1997] FCA 1493; (1997) 80 FCR 379 at 399 and Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181. His Honour noted at [11] that the appellant was “seeking to substitute himself as an applicant in the matter” and that “if anyone was entitled to agitate the validity or otherwise of the cancellation of Ms Sapkota’s visa, it was Ms Sapkota, and not the applicant”.

15    His Honour also observed:

13.    Secondly, the circumstances of the case give rise to the automatic cancellation of the applicant’s visa by operation of section 140(1) of the Act. In circumstances where there is an automatic cancellation of a visa, there is no relevant migration decision amenable for review by the applicant. That there is no migration decision amenable to review prevents the applicant from asserting that in respect of any automatic cancellation of his visa, some person or entity failed to take any relevant consideration into account, or otherwise took irrelevant considerations into account, or otherwise acted in a way which was unreasonable or irrational.

14.    For those reasons, the application for review is without merit. The whole regime relating to the applicant’s having obtained a visa based upon his being a member of a family unit would be thwarted in circumstances where such an applicant was able to continue to press the validity of his visa status in circumstances where the original applicant’s visa, upon which he depended, had been cancelled.

16    In light of these considerations, the primary Judge dismissed the application.

Appeal

17    The appellant appeals from the whole of the judgement and orders of the Federal Circuit Court. In his Notice of Appeal, the appellant relies of the following two grounds of appeal:

1.     The Learned Judge erred in the interpretation of s 140 of the Migration Act in particular whether the Applicant's visa was cancelled pursuant to s.140(1) or ought to have been the subject of a discretionary consideration subject to s.140(2)

2.     The Learned Judge erred in finding that the Applicant was not a proper party to the proceedings in that the Applicant was also a combined Applicant for a visa

18    The appellant seeks the following orders:

  1.    The appeal be allowed

2.    The orders of the Federal Circuit Court of Australia in proceeding no BRG1186/2016 made on 7 November 2018 be set aside and further direct that:

(i)    there be a declaration that the Appellant's visa was not liable to automatic cancellation pursuant to s.140(1) and that the Respondent was required to consider the Appellant's visa for cancellation under s.140(2)

(ii)    there be a writ of mandamus directed to the Respondent requiring it to deal with the Appellant in accordance with law

(iii)    A writ of mandamus directed to the Second Respondent requiring it to determine the appellant's combined application for a visa to the Respondent according to law;

(iv)    That the Respondent pay the Appellants' costs of the Federal Circuit Court of Australia proceeding no BRG 1186/2016 fixed in the sum of $8,877 (consisting of the filing fee of $615, setting down for hearing fee of $795 and professional costs of $ 7,467 for the hearing.

3.    The First Respondent pay the Appellants' costs of this proceeding as agreed or assessed.

  4.    Such further or other order as the court considers appropriate.

Consideration

19    This appeal turns on the proper construction of s 140 of the Migration Act. The section relevantly provides:

(1)     If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2)      If:

(a)     a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

(b)     another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person’s visa.

20    It is not in dispute that Ms Sapkota’s visa was cancelled pursuant to s 128 of the Migration Act.

21    The crux of the appellant’s submissions is that s 140(1) did not apply as at the time of the visa cancellation, as he was no longer Ms Sapkota’s “spouse” – and therefore no longer a member of her family unit – by virtue of the fact of his divorce from Ms Sapkota. He argues further that, in circumstances where he was no longer a member of Ms Sapkota’s family unit, there could be no mandatory cancellation of his visa under s 140 (1) of the Migration Act. Rather, cancellation of his visa required the exercise of discretion pursuant to s 140(2) of the Migration Act. In that respect, the appellant submits that the Minister failed to consider the appellant’s specific circumstances, that is, that he was divorced and making an application for a visa.

22    The Minister contends that s 140(1) is focussed on the basis for a person obtaining, acquiring or qualifying for the grant of a secondary visa, not on whether they in fact continued to be a member of the same family unit as another person.

23    Both parties relied on Rani. In particular, Sackville J said at 399:

These difficulties may well require some modification of the applicant's submissions, but I do not think that they detract substantially from the basic point made by Mr Beech Jones. This is that s 140(1) was drafted at a time when it was clearly contemplated that the secondary criteria for many classes of visa would be specifically expressed to include a requirement that the applicant be "a member of the family unit of" the primary applicant. It was also contemplated at that time that applicants satisfying this requirement would usually, if not invariably, apply at the same time as the primary applicant.

In my opinion, the structure of the Migration Regulations supports the view that s 140(1) was intended to apply only where a visa holder obtained his or her visa by satisfying a criterion explicitly framed in terms of being “a member of the family unit” of another person whose visa is later cancelled… In other words, s 140(1) may apply to a person who acquired a visa by satisfying a primary criterion expressed specifically in terms of being a “member of the family unit” of another person whose visa is later cancelled. But I think the better view is that s 140(1) was not intended to effect the automatic cancellation of the visa held be a person who obtained the visa because he or she satisfied the description in any one of the subparagraphs of the definition contained in reg 1.12 of the Migration Regulations.

(Emphasis added.)

24    In my respectful opinion, the observations of Sackville J in Rani apply to the circumstances currently before me.

25    The distinction between circumstances in which s 140(1) and s 140(2) apply is illustrated by contrasting the present circumstances with those in, for example, Ara v Minister for Immigration and Border Protection [2017] FCA 130 where s 140(2) was relevant.

26    In this case, the appellant obtained his visa as a secondary applicant, referable to Ms Sapkota’s visa application, because he was a member of her family unit.

27    In Ara the applicant’s husband, Mr Ahmed, had a permanent resident (subclass 880) visa. The applicant sought and was granted a subclass 100 spouse/partner visa granted on the basis of her marriage to Mr Ahmed. Driver FCCJ at first instance (Ara v Minister for Immigration & Anor [2016] FCCA 2154) examined in detail the interaction between ss 140(1) and 140(2), and in particular observed:

33.    In my opinion, the interpretation Ms Ara seeks to place on the word “only” in s.140(2)(b) of the Migration Act is an artificial one. In the first place, she, like Sackville J in Rani, could not point to any class of visa that is held only because another person holds a visa. It was observed in argument that a member of a family unit may hold a visa only because someone else in their family holds a visa but that situation is dealt with in s.140(1) and subsection (2) only applies where subsection (1) does not apply. Ms Ara submits that the fact that no class of visa is dependent solely on another person holding a visa does not mean that s.140(2) is invalid or incapable of rational administration, because regulations could be made prescribing a class of visa with such a sole condition. In my opinion, however, the word “only” does not mean solely in s.140(2)(b) but, rather, means that the fact of another person holding a visa was a condition precedent to the grant of the visa. It may not be the only condition for the visa granted but it is the material condition for the purposes of the subsection.

34.    Subsections 140(1) and 140(2) are substantially similar; they both provide for the cancellation of a second person’s visa. The two main differences are that:

a.    subsection 140(1) is an automatic cancellation whereas subsection 140(2) is a discretionary power of cancellation;

b.    subsection 140(1) applies to a “member of the same family unit”, whereas subsection 140(2)(b) applies beyond persons granted the visa by virtue of family unit membership, to “another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled holds a visa”.

35.    The first difference above does not appear to be in dispute. However it is the second with which Ms Ara is taking issue.

36.    According to PAM3 – Act – Visa Cancellation powers (ss 109, 116, 128 and 140) the present situation is precisely the situation that s.140(2) contemplates. That is, where Ms Ara held a visa (here a subclass 100 spouse visa) by virtue of her husband’s subclass 880 visa and not because she was the member of a family unit, as a secondary visa holder to her husband’s subclass 880 visa.

…

39.    The Minister submits, and I accept that, if Ms Ara’s argument is that the phrase “only because the person whose visa is cancelled” might be ambiguous because other criteria (unconnected to the cancelled visa holder) must be satisfied like health and character, then it must fail. Health and character requirements are present in every visa subclass, but s 140(2) of the Migration Act is designed to ensure a liability for cancellation arises materially where the applicant’s visa, as here, is held because of the connection with another person whose visa has now been cancelled.

28    On appeal Jagot J said at [7]:

…Section 140(2)(b), by the use of the word “only because”, should be understood to mean that the person holds a visa by reason of another person having held a visa, in the sense that another person holding a visa was, as the primary judge said, “a condition precedent to the grant of the visa” (Ara v Minister for Immigration ]2016] FCCA 2154 at [33]).

29    Section 140(1) applies to the appellant. He obtained the same visa as Ms Sapkota as a secondary applicant, on the basis that he was a member of her family unit at the relevant time. The appellant is “another person” who held a visa because of being a member of the family unit of the person whose visa is also cancelled. The fact that the appellant had ceased to be a member of the same family unit as Ms Sapkota by the time of the delegate’s decision was irrelevant – s 140(1) looks to the circumstances in which the visa was acquired, not subsequent events.

30    Despite what appears to be potential overlap between circumstances envisaged by ss 140(1) and 140(2), the differences in application are illustrated by the decision in Ara, where the applicant/appellant:

    obtained a spouse/partner visa (that is, different to the visa held by her husband); and

    held that visa only because her husband held a permanent residence visa.

31    Accordingly, I agree with the primary Judge that the circumstances of this case give rise to the automatic cancellation of the appellant’s visa by operation of s 140(1) and dismiss the appellant’s first ground of appeal.

Standing

32    In light of my finding that the circumstances of this case give rise to the automatic cancellation of the appellant’s visa pursuant to s 140(1), it is not necessary to consider the issue of standing, however, I make the following observations.

33    The appellant’s second ground of appeal relates to his standing before the Court. The appellant claims that the primary Judge erred in finding that the appellant was not a proper party to the proceedings.

34    At first instance, the primary Judge considered the appellant’s standing, noting:

7.    On 21 December 2016, the applicant (but not Ms Sapkota) applied for judicial review of the first delegate’s 18 November 2016 cancellation decision pursuant to section 476 of the Act. The application does not relate to, or challenge, the non-revocation decision made by the second delegate. ...

8.     It can be seen from ground 1 of the applicant’s grounds of application that the applicant challenges the making of the decision in respect of the cancellation of the applicant’s former spouse. However, it is clear that the decision made in respect of the applicant’s former wife’s visa was a decision directly against her interests, and not against the interests of the applicant. The decision record, on its face, at page 47 of the court book, records that the decision was in respect of Ms Sapkota, and not in respect of the applicant. The applicant, on general principles, has no standing in such case to make the application he has.

…

11.     Accordingly, two matters flow from the above factual scenario. First, the decision record made by the Department was in respect of Ms Sapkota, and not the applicant, thereby precluding the applicant from seeking to substitute himself as an applicant in the matter. If anyone was entitled to agitate the validity of otherwise of the cancellation of Ms Sapkota’s visa, it was Ms Sapkota, and not the applicant.

12.    That proposition is supported by the Full Court of the Federal Court decision in Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [58], where it was said by Besanko J:

The person who was the subject of the relevant privative clause decision (ss 478(v) and 479(b)) was Konel and not the applicant. By reasons of ss 478 and 479 of the Act, it was not competent for the applicant to make an application for constitutional writs or associated relief or both, or be parties to such an application, in respect of the Tribunal’s decision on Konel’s application for review.

35    In a similar context I also note the following comments of Jessup J in Farah v Minister for Immigration and Citizenship [2011] FCA 185:

2.    The second, third, fourth and fifth appellants were also applicants in the Federal Magistrates Court. Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate’s decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. Both the proceedings before the Tribunal and the application in the Federal Magistrates Court were concerned wholly with the circumstances of the first appellant, and it is likewise those circumstances which should govern the disposition of the present appeal. Unless that appeal is successful, the visas of the other appellants will remain cancelled by the operation of s 140. In the circumstances, I shall refer to the first appellant as “the appellant”, and say nothing further about the other appellants.

(Emphasis added.)

36    The Minister made the following submissions in relation to the appellant’s standing:

    A person’s standing to bring and continue a judicial review is governed by the Migration Act. Sections 478(b), 479(b) and 486C(2)(a) confer standing on “the person who is the subject of the [migration] decision”.

    The use of the word “the” in the context of the phrase “the person who is the subject of the decision” indicates that standing can only be conferred on the person whom the decision is directly about, which in this case is Ms Sapkota.

    This can be contrasted with ss 478(c) and 479(c) which extend standing to “a person prescribed by the regulations”.

    The decision record makes clear that the only “decision” made by the delegate was to cancel Ms Sapkota’s visa, as Ms Sapkota was “the subject” of that decision. The appellant’s visa was cancelled by operation of the law.

    The other subsections ss 478 and 479 support the above construction. For example, ss 478(a) and 479(a) confer standing on “the applicant in the review”. This shows legislative intent to restrict the conferral of standing on a person affected by a decision who is not the applicant to a review.

    There is authority to support such construction; c/f Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; Singh v Minister for Immigration and Border Protection [2017] FCA 921; T&K McKrill Holdings Pty Ltd v Minister for Immigration (2017) 325 FLR 239.

    In situations where a combined visa application is made, the application comprises of two separate visa applications which are assessed against separate criteria and result in two separate decisions.

    The appellant’s submission that Rani supports his contention that he had standing before the Federal Circuit Court should be rejected, because in Rani, the Court decided as to whether it had jurisdiction to make the declarations sought in light of s 485(1) of the Migration Act at that time.

    In Rani, the wife sought a declaration as to her legal status under s 39B of the Judiciary Act 1901 (Cth). Before the Federal Circuit Court, the appellant sought relief being the issue of Constitutional writs under s 476 of the Migration Act, in connection with the second delegate’s decision.

37    In my view the Minister’s submissions have merit, particularly when read with the observations of Jessup J in Farah. The appellant’s submission that his standing hinged upon whether he had a right that was affected, or whether a decision was made or not made about his visa, is not particularised, and no authority is provided. Further, the Migration Act contains specific provisions in relation to standing, notably ss 478(b), 479(b) and 486C(2)(a).

38    In circumstances where the appellant’s visa was automatically cancelled pursuant to s 140(1), I consider that there has not been a “decision” made against him, meaning there is no relevant migration decision for review. I am not satisfied that the appellant has established that the primary Judge erred in finding that the appellant was not a proper party to the proceeding.

39    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    23 October 2019