Federal Court (Full Court). In the context of an assessment under cl 820.211(2)(d) of Sch 2, can it be said "a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria"?
Clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) provided:
(2) An applicant meets the requirements of this subclause if:
...
(d) in the case of an applicant who is not the holder of a substantive visa—either:
...
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The Full Court of the Federal Court (FCAFC) said:
21 After setting out the factual background to [the non-citizen's / Respondent's] application for a Subclass 820 visa and identifying the applicable legislation, the Tribunal identified (at [13] of its reasons) the issue for determination on the application before it as “whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria”. On the basis that [the non-citizen] had ceased to hold a substantive visa more than 28 days prior to lodging his application for a Subclass 820 visa, the Tribunal found that he did not satisfy Schedule 3 criterion 3001. The Tribunal then explained (at [20]) that, having determined that one of the applicable Schedule 3 criteria had not been met, it was not required to consider the remaining Schedule 3 criteria.
The Tribunal also found that it was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria, thereby finding that cl 820.211(2)(d)(ii) was not met.
The FCAFC continued:
29 The primary judge held (at [49]) that a proper approach to the assessment of the requirement in cl 820.211(2)(d)(ii) required that the decision-maker first assess whether the visa applicant satisfied each of Schedule 3 criteria 3001, 3003 and 3004. This first step was said to require “the making of findings of fact in relation to a range of requirements specified within each of criteria 3001, 3003 and 3004”. His Honour identified eight specific requirements which a decision-maker, in a case like [the non-citizen's], was required to consider and in respect of which they were required to make factual findings. If any of those requirements was not satisfied, the decision-maker was then required to assess whether there were “compelling reasons” not to apply Schedule 3 criteria 3001, 3003 and 3004. In making that assessment, the primary judge held (at [50]), the decision-maker was required to take into account their findings in respect of each of the eight specific requirements it had considered earlier. The primary judge held that any departure from that approach would give rise to jurisdictional error.
30 In the present case, the Tribunal had considered whether [the non-citizen] satisfied Schedule 3 criterion 3001, and whether there were compelling reasons not to apply that criterion, without also considering the issues relevant to whether [the non-citizen] satisfied Schedule 3 criteria 3003 and 3004. Accordingly, the primary judge concluded that the decision of the Tribunal was affected by jurisdictional error, and upheld [the non-citizen's] application for judicial review.
Some of the questions to the FCAFC were as follows:
Question 1: Is it "at least theoretically possible, for example, that a person who satisfies the conditions specified in both paragraphs (a) and (b) of cl 3003 may also satisfy the condition specified in cl 3004(a) if, having arrived in Australia on an entry permit that expired before 31 August 1994, they later held a criminal justice visa at some time after 1 September 1994, which subsequently expired"?
Question 2: May delegated legislation which, on its true construction, is “in some critical respect, unintelligible or meaningless”, be held invalid on that basis?
Question 3: Can it be said that "delegated legislation will not be invalid if it operates in a way that is rationally capable of being understood by a process of construction, even if the language chosen to express its operation might have been more precise"?
Question 4: Should the words "the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004" in cl 820.211(2)(d)(ii) be interpreted as meaning "the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, insofar as they have application to the applicant according to their own terms"?
Question 5: If the answer to Question 4 is 'yes', does it necessarily follow that the "Minister’s consideration of whether there are “compelling reasons for not applying those criteria” is to be assessed by reference to such of the Schedule 3 criteria that are, in their terms, applicable to the visa applicant and which the Minister has found are not satisfied"?
Question 6: Is cl 820.211(2)(d)(ii) "invalid as it provides a criterion which is internally illogical", in that "criterion 3003 only applies to people who did not hold substantive visas after 1 September 1994 and entered Australia prior to that date whereas criterion 3004 only applies to people who have held substantive visas after 1 September 1994 or who unlawfully entered Australia after that date"?
Question 7: Can it be said that "if particular facts that are relevant to one Schedule 3 criterion are advanced by the visa applicant as providing compelling reasons for not applying another of the Schedule 3 criteria (or as compelling reasons for not applying any of the relevant Schedule 3 criteria), they will need to be considered by the decision-maker"?
Question 8: If the answer to Question 7 is 'yes', does it follow that "a decision-maker, in a case where the requirements of one of the Schedule 3 criteria has been found not to be satisfied, is required to consider all of the Schedule 3 criteria, and to make factual findings with respect to each element of those criteria, before assessing whether there are compelling reasons not to apply the Schedule 3 criteria"?
Question 9: If the answer to Question 8 is 'no', is the decision-maker, in determining whether there are compelling circumstances not to apply the Schedule 3 criteria, at least required to consider all applicable criteria that were not satisfied?
The FCAFC answered those questions as follows: