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Newsflash: The Department and Tribunal Both Got it Wrong!
OK everyone, are you ready for a quiz?
No excuses! You’re not getting out of this one just because it’s a gorgeous day in Sydney!
So put on your thinking caps and sharpen your pencils! This is “open-book” and better still, if you cheat (!!) I won’t tell anyone!
So here it is, ready, set, go:
Are the “time of decision” criteria for a secondary applicant the same for a subclass 309 Partner (Provisional) visa as they are for a subclass 100 Partner (Migrant) visa?
Suppose someone gets a subclass 309 visa on the basis that they are the dependent child of the primary applicant, and then, after they receive a subclass 100 visa, they sponsor their partner for a Partner visa.
Have they “rorted the system”? Do they deserve to have their subclass 100 visa cancelled?
Give up yet?
Surprise, the answers to these questions are lurking on Austlii!
Yep, there was a “real world” case that was handed down on 22 March where these questions came before the Federal Circuit Court – Dou v Minister for Immigration & Anor (2016) FCCA 682.
The facts of the case were exactly like those posed in the quiz. The visa holder was a citizen of China. She originally came to Australia on a student visa. Then, while she was still a minor, her mother was granted a Provisional Partner visa, and she was granted the same visa (subclass 309) on the basis that she was a member of the mother’s family unit. She was ultimately granted a Migrant Partner visa (subclass 100). While she was still the holder of the Provisional Partner visa, she formed a relationship with a man, and then, after the grant of the Migrant Partner visa, she married him.
Was this problematic? Was she in the migration equivalent of a cauldron of boiling oil?
Well, the Department sure thought so! After receiving the partner visa application for the woman’s husband, it issued a Notice of Intention to Consider Cancellation of her Migrant Partner visa on the basis that in her mother’s application for the Provisional Partner visa, it was indicated that she was a dependent of her mother. It was the Department’s view that the woman might have failed to comply with section 104(1) of the Act by not updating the Department and telling it that since the time that she had been granted the subclass 309 visa, she had registered her relationship with her future husband with the NSW Registry of Births, Deaths and Marriages (has anyone else noticed that in the name of this government department, death comes before marriage? I was always under the impression that death had to follow marriage! Orwell must still be in charge of naming government agencies!)
And after assuming that it is a criteria for the grant of a Migrant Partner (subclass 100) visa that, at the time of decision, a secondary applicant must be a dependent child of the primary applicant, the Department’s delegate then decided to cancel her visa.
Did the Tribunal agree with this? It’s time for the Sarah Palin chorus: “You betcha!”
The Tribunal found that if the Department had been aware that the woman was in a de facto relationship at least 6 months prior to the grant to her of a Migrant Partner visa, it likely would have refused to grant her that visa. In the words of the Tribunal:
“That she had commenced a de facto relationship with Mr Chen would have had a direct and fatal impact upon whether she would be entitled to the grant of a subclass 100 Partner visa.”
The Tribunal therefore affirmed the Department’s decision to cancel the visa.
Did the Tribunal and the Department correctly interpret the Regulations?
Nope!!!!!!!!
That’s right!
The secondary criteria for a Provisional Migrant (subclass 309) visa specify that at the time of application and time of decision, the secondary applicant must be a member of the family unit of the primary applicant (meaning under Regulation 1.12, a dependent child).
However, the secondary criteria for the grant of a Migrant Partner visa (subclass 309) do not require that the holder of a subclass 309 visa continue to be a dependent child at the time of decision for the Migrant Partner visa (subclass 100). All that clause 100.321(a) of Schedule 2 says is that the secondary applicant must be the holder of a subclass 309 visa that was granted on the basis that the person was a member of the family unit of another person and that the other person has been granted a subclass 100 visa.
OK, game over right? Well, yes. One might think that under these circumstances that the Minister’s legal representatives might simply have “conceded error”, right? After all, the visa cancellation was premised on an admittedly incorrect interpretation and application of the time of decision criteria for the grant of a subclass 100 visa.
Once again, no!!
In this case, the counsel acting for the Minister submitted that “this was an error within the jurisdiction”. It was submitted that once the Tribunal focused on the relevant considerations relating to discretionary visa cancellation under Regulation 2.41, “any errors of fact such as this did not affect its jurisdiction”.
I have to confess that I don’t follow this submission. In any event, the Federal Circuit Court didn’t accept it. The Court quashed the Tribunal's decision, and thus overturned the Tribunal's decision to affirm the cancellation of the visa.
I raise this question for your consideration: in circumstances like these, when visa cancellation is premised on an admittedly incorrect interpretation of the law, shouldn’t the Minister’s legal representatives simply accept that and advise the Department simply to revoke the cancellation? Why keep fighting a case like this and expose the government to a costs order (in this case $6,825).
Couldn’t that money be spent on something better than fighting a losing case? How about using it to improve living conditions in offshore detention facilities?
Moral of the case: Do not, do not, assume in any given case that either the Department or the Tribunal is reading the legislation correctly. Always check independently. If they’re wrong, as they were in this case, your client comes out a winner!
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Wednesday, 06 April 2016Thanks for your comment Michael. Obviously without being involved in the litigation it is difficult to understand fully what submissions are being put forward. And as I said in the article, I simply did not understand exactly what the Minister's counsel was trying to postulate. However, at the same time it appears to me that this case really was simple and straightforward. The Tribunal admittedly misinterpreted the Regulations. To my mind, that is clear jurisdictional error. So then why keep fighting this case? Why not do the simple, practical and fair thing and just concede error. If the visa cancellation was wrongly made by the delegate in the first instance, then why not just admit that was the case rather than continuing to litigate, wasting the Court's time and exposing taxpayers to a costs order. I just don't get it. I don't understand why any governmental authority would want to continue ot defend an obvious error. I also do not see how the discretionary cancellation power would be enlivened here. The applicant's mother had truthfully stated that her daughter was a dependent at the time that the provisional partner visa was granted. And there was no requirement that she remain a dependent in order to be eligible for the subclass 100 visa ot be granted. So why did the Department have an agenda to push this cancellaiton?
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Wednesday, 06 April 2016
I know this may seem ridiculous, and I am laughing while I type, but the department did not think it made a jurisdictional error. It made an error, but the error was no different in its legalistic mind from making a typo. Typos are not jurisdictional errors--even if the typo puts your name on the list for the death camps. It is the nature of bureaucracy to see error as internal, and only mischievous--not jurisdictional. It is a bureaucratic standard printed on bumper stickers on the Department cars: DIBP never makes jurisdictional errors.
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Wednesday, 06 April 2016
My view is that the Department like any other governmental authority should be conducting itself as a model litigant. When the jurisdictional error is so utterly obvious, it is my view that the Department's lawyers should be so advising the Department. Suppose the Minister had won this wrongful visa cancellation? The consequence is that the visa holder would become unlawful and at risk of "removal" as the Department so delightfully puts it. And she would be permanently separated from her mother who is presumably living in Australia on her partner visa. Really, is this the way that the Department should be spending its time? How about putting some resources into ensuring that people here on working holiday visas aren't being exploited? Or donating the funds wasted on this type of mindless litigation to the UNHCR?
Immigration blog
Michael, it is not fair to counsel acting for the Minister to say that counsel submitted merely that “this was an error within the jurisdiction”.
'Error within the jurisdiction' is becoming a mantra in the Department. It is the last resort that the Department has against appellants arguing that the reasoning leading to the decision was "outside its jurisdiction". Here the Department was saying that the error was similar to one made by someone hoeing a field. The first strike was insufficient and a second one was needed. The error was not outside the row; it was inside the row, just not quite deep enough. The Tribunal, by this thinking, refocused on the entire row (Regulation 2.41), and asserted “any errors of fact such as this did not affect its jurisdiction”. It may sound silly to you or me, but the argument has some merit--although insufficient to its task. I rarely defend counsel who appear to be wasting money. However, there was a chance, albeit slender, that the Federal Court might have accepted counsel's argument.