Bojanovic v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 113 (20 February 2002)

Last Updated: 22 February 2002

FEDERAL COURT OF AUSTRALIA

Bojanovic v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 113

MIGRATION - application for temporary (sub-class 820) and permanent (sub-class 801) spouse visas - whether criteria satisfied - whether tribunal erred in finding applicant failed to satisfy criteria - whether applicant satisfied evidentiary requirements of proof of domestic violence by nominating spouse.

MIGRATION - application for temporary (sub-class 820) and permanent (sub-class 801) spouse visas - whether Tribunal erred in not addressing the applicant's claim for a permanent visa in circumstances where criteria for the temporary visa were not satisfied.

Migration Act 1958 (Cth) - ss 31, 40, 65(1), 347, 348

Migration Regulations 1994 (Cth) - Regulations 1.15A, 1.22, 1.23, 1.24, 1.25, 1.26, Schedule 2 cls 820.211, 801.221, Schedule 3 criteria 3004

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 - referred to

MARKO BOJANOVIC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.191 of 2001

MANSFIELD J

20 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.191 OF 2001

BETWEEN:	MARKO BOJANOVIC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	20 FEBRUARY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.191 OF 2001

BETWEEN:	MARKO BOJANOVIC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	20 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application to review a decision of the Migration Review Tribunal (the Tribunal) given on 28 September 2001 which affirmed a decision of a delegate of the respondent that the applicant is not entitled to the grant of a Partner (Temporary) (Class UK) visa under the Migration Act 1958 (Cth) (the Act).

2 The applicant is a national of Yugoslavia, born on 26 November 1973. He arrived in Australia on 31 December 1997 on a Tourist (Short Stay) (Class TR) sub-class 676 visa, for a three month stay. That visa was subsequently extended from time to time to 31 December 1998. On 26 December 1998 the applicant married an Australian citizen.

3 On 4 January 1999, four days after his tourist visa had expired, the applicant was granted a Bridging Visa Class E allowing him to stay in Australia until 12 January 1999, and that bridging visa was subsequently extended until a final decision is made on his substantive visa applications. He sought to make substantive visa applications on 4 January 1999, but due to some deficiency in the material presented that process was delayed.

4 On 12 January 1999 the applicant applied for a General (Residence) (Class AS) sub-class 801 (Spouse) visa (the permanent visa). That is a visa which would, if granted, entitle the applicant to remain in Australia permanently. He also applied for an Extended Eligibility (Temporary) (Class TK) sub-class 820 (Spouse) visa as it is now called (the temporary visa) which, at the time of the application, was called a Partner (Temporary) (Class UK) sub-class 820 (Spouse) visa. The Migration Regulations (the Regulations) require that the two visas be sought together, apparently on the basis (as the Tribunal explained) that the temporary visa can be granted immediately to permit a stay until a decision is made on the permanent visa and that:

"This process is intended to test whether the relationship is continuing, two years after the visa application, before permanent residence is confirmed."

To be eligible for the permanent visa, one of the criteria to be satisfied at the time of the decision, generally, is that at least two years have passed since the application was made: see cl 802.221(2)(d) of Schedule 2 to the Regulations.

5 The applications were supported by the applicant's wife as his nominator. She was born in Australia on 28 October 1970. She confirmed the marriage on 26 December 1998, and said that she and the applicant intended to maintain a lasting marital relationship.

6 On 15 September 1999, before the applications had been determined, the applicant's wife withdrew her nomination in support of his application. She provided a statutory declaration that the relationship had broken down. The applicant and his wife apparently separated finally in about September 1999. The applicant accepts (as the Tribunal found) that from 15 September 1999 that marital relationship has broken down, notwithstanding the attempts of the applicant to save his marriage. The applicant and his wife have not since resumed their spousal relationship, and they no longer live together as husband and wife.

7 On 5 July 2000 the delegate of the respondent refused the application for each of those visas.

8 The applicant sought review by the Tribunal of the delegate's decision to refuse both of those visas. The Tribunal conducted a hearing on 13 June 2001, at which the applicant and two witnesses gave evidence. On 28 September 2001, as noted above, the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant the temporary visa. It explained its decision in the following terms:

"The obvious intention behind the application for review is to seek a review of whatever decision prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class TK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class TK visa."

It did not separately deal with the application for the permanent visa. I shall refer to that matter later in these reasons as, in my view, the application for review to the Tribunal was in respect of both visas. In the application for review, when identifying the details of decision to be reviewed, the applicant identified the name of the visa as "spouse visa" and the sub-class to be "820/801". Sub-class 820 relates to the temporary visa and sub-class 801 to the permanent visa.

THE TEMPORARY VISA

9 Section 31 of the Act permits the prescription of classes of visas by regulation, and the prescription of criteria for visas or classes of visas. Section 40 permits the Regulations to provide that visas, or visas of a specified class, may only be granted in certain circumstances. Section 65(1) directs the respondent, and on review the Tribunal, to grant a visa applied for if (inter alia) it is satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, and to refuse to grant the visa if it is not satisfied that the criteria prescribed by the Act or the Regulations have been satisfied.

10 Clause 820.211 of Schedule 2 to the Regulations in relation to the temporary visa contains certain criteria to be satisfied at the time of the application. It relevantly provides:

"(1) The applicant:

(a) is not the holder of a Subclass 771 (Transit) visa; and

(b) meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).

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

(a) the applicant is the spouse of a person who:

(i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a nominating spouse; and

[820.211(2)(b) was omitted by SR 376 of 1994].

(c) the applicant is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

(d) in the case of an applicant who is not the holder of a substantive visa - either:

(i) the applicant:

(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B) satisfies Schedule 3 criterion 3002; or

(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 applicant is not the holder of a sub-class 771 (transit) visa, so he satisfied criterion 820.211(1)(a). It is also clear that he did not meet the requirements of sub-cls (3), (4), (5), (6), (7), (8) or (9) of that sub-clause, so that his capacity to satisfy the criteria specified required that he meet the requirements of sub-cl (2) of cl 820.211.

11 The Tribunal was satisfied that the applicant met the requirements specified in sub-cls (2)(a) and (c) of that sub-clause. It was not satisfied that the applicant met the requirements of sub-cl (2)(d), and so found that he did not meet the requirements of sub-cl (2) of cl 820.211 at the time of his application. Clearly the applicant did not meet the requirements specified in sub-cl (2)(d)(i).

12 The Tribunal then addressed the alternative prescribed in sub-cl (2)(d)(ii), namely Schedule 3 criteria 3001, 3003 and 3004. It was satisfied that the applicant met Schedule 3 criteria 3001 and 3003. Schedule 3, criteria 3004 is in the following terms:

"If the applicant:

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

(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit or visa (if any) was granted (other than a condition of which the applicant was in breach solely because the entry permit or visa ceased to be in effect); and

(f) either:

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia."

13 The applicant ceased to hold a substantive visa on 31 December 1998 when his extended tourist visa expired. At the time of his applications, he held a bridging visa. The term "substantive visa" is defined in s 5 of the Act as meaning a visa other than a bridging visa (and certain other nominated visas). Consequently, if the applicant was to meet the Schedule 3 criteria 3004, it was necessary that he satisfy the Tribunal of each of the sub-clauses of that item. They are cumulative. The Tribunal addressed only item (c) of those criteria. It was not satisfied that the applicant was not the holder of a substantive visa at the time of his application because of factors beyond the applicant's control. It expressed its reasons in following terms:

"Firstly, he had extended his initial visitor's visa on two previous occasions prior to those visas expiring - such conduct clearly indicates he was aware that temporary visas are granted for a particular period of time and that he was aware that his last substantive visa was due to expire on 31 December 1998. Secondly, the application for the visa that is the subject of review was not completed correctly on the day the applicant first attempted to lodge it, namely 4 January 1999. Thirdly, the applicant did not have sufficient funds to pay the relevant fee to DIMA for the application until 12 January 1999. The Tribunal considers these are all matters that were within the applicant's control. The Tribunal finds the applicant fails to meet Schedule 3 criterion 3004."

As the Tribunal was not satisfied that that criterion was met, sub-cl (2)(d)(ii) of cl 820.211 of Schedule 1 to the Regulations directed the Tribunal to address whether it "is satisfied that there are compelling reasons for not applying" that criterion. The Tribunal duly considered that matter. Its reasons and its conclusion are expressed in the following passage:

"The Tribunal notes the marriage was of less than 12 months duration and there is no child of the relationship. It is apparent the applicant cannot have truly known the person he married. The applicant tried repeatedly to save his marriage but the sponsor did not come to the party. The marriage failed in less than a year, principally because of the sponsor's involvement with drugs. In the circumstances, and taking all relevant matters into account, the visa applicant's circumstances are not of sufficient force for the Tribunal to be satisfied that there are "compelling reasons" for not applying criterion 3004 of Schedule 3, as may be permitted by clause 820.211(2)(d)(ii)."

In reaching that conclusion, the Tribunal applied a dictionary definition of the word "compelling" as meaning "powerfully evoking attention or admiration".

14 Consequently, the Tribunal concluded that the applicant did not meet the criteria specified in sub-cl 820.211(2) at the time of his application because, and only because, he did not satisfy the criterion specified in Schedule 3 criterion 3004(c). The Tribunal did not address the other cumulative requirements of criteria 3004.

15 On that basis alone, in the light of that decision, the Tribunal was directed by s 65(1) of the Act to affirm the decision of the Tribunal not to grant temporary visa.

16 The Tribunal proceeded, however, to address the criteria specified in cl 820.221 of Schedule 2 to the Regulations, being criteria to be satisfied at the time of its decision. It relevantly provides:

"(1) In the case of an applicant referred to in subclause 820.211 (2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3).

(2) ...

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

(a) the applicant would continue to meet the requirements of subclause 820.211 (2), (3), (4), (5) or (6) except that the relationship between the applicant and the nominating spouse has ceased; and

(b) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the nominating spouse or of the applicant or of both of them;

has suffered domestic violence committed by the nominating spouse;

(ii) ..."

It is not necessary to refer to sub-cls (2) or (3)(b)(ii) as there was no suggestion that they arise in the present circumstances.

17 The Tribunal was not satisfied that the applicant continued to meet the requirements of sub-cl (2) of cl 820.211 at the time of the decision. That is because, at that time, it did not consider that the applicant was "the spouse" of his wife as that expression is used in cl 820.211(2)(a). As the Tribunal had found, from 15 September 1999 the marital relationship had broken down. Regulation 1.15A of the Regulations provides that a person is the spouse of another person if the two persons are in a married relationship. It also provides that persons are in a marital relationship if, firstly, they are married to each other and, secondly, the Tribunal is satisfied that:

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

(ii) the relationship between them is genuine and continuing;

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent basis."

Given its findings as to the status of the relationship from 15 September 1999, the Tribunal was not satisfied that the marriage involved a continuing mutual commitment to a shared life as husband and wife, or that the relationship continued to be genuine and continuing. The applicant's own evidence to the Tribunal provided an ample basis for those conclusions.

18 It was therefore necessary for the Tribunal to address the question whether the applicant would continue to meet the requirements of sub-cl 820.211(2) except that the relationship between him and his wife had ceased, and that the applicant had suffered domestic violence committed by his wife, so as to fall within sub-cls (3)(a) and (b) of the criteria specified in cl 820.221, relevantly under sub-cl (3)(b)(i)(A). The Tribunal said:

"There is no evidence that ... the applicant has suffered domestic violence except in the most general terms, and certainly not as required by Division 1.5 of Schedule 1 to the Regulations."

The reference to Schedule 1 in that passage is in error. The reference to Division 1.5 is a reference to Division 1.5 of the Regulations themselves, which contains special provisions relating to domestic violence. Regulation 1.22(1) provides that a reference in the Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence. Regulation 1.23(1) relevantly provides:

"For the purpose of these Regulations:

(a) a person ("the alleged victim") is taken to have suffered domestic violence; and

(b) another person ("the alleged perpetrator") is taken to have committed domestic violence in relation to the alleged victim;

if:

...

(g) if the alleged victim is a person referred to in subregulation (2) - the alleged victim or another person on the alleged victim's behalf presents evidence in accordance with regulation 1.24 that:

(i) the alleged victim has suffered relevant domestic violence; and

(iii) the alleged perpetrator has committed that relevant domestic violence."

Sub-regulation (2) includes a spouse of the alleged perpetrator of the domestic violence. It is not suggested that the other provisions of that regulation are applicable to the present circumstances.

19 Regulation 1.24 provides in the applicant's circumstances that the evidence referred to in sub-regulation 1.23(1)(g) is either a statutory declaration under regulation 1.25 by the applicant together with a statutory declaration under regulation 1.26 by a "competent person" and a copy of a record of an assault on the applicant allegedly committed by his wife kept by a police service of a state or territory, or alternatively the statutory declaration of the applicant under regulation 1.25 together with statutory declarations from two "competent persons" under regulation 1.26. Regulation 1.26 also prescribes information which must be included in the statutory declaration. Regulation 1.21(1) defines a "competent person" as being a registered medical practitioner, a registered psychiatrist, a registered nurse, a social worker, a court counsellor under the Family Law Act 1975 (Cth), or a manager/co-ordinator or other responsible person of a women's refuge or a domestic violence crisis and counselling service.

20 No statutory declarations which could constitute statutory declarations by competent persons under regulation 1.26 of the Regulations were before the Tribunal. Notwithstanding that, on one view, the Tribunal may have understated the nature of the evidence of the applicant as to the domestic violence he had suffered by saying that there was no evidence of him being the victim of domestic violence "except in the most general terms", the prescriptive requirements of Division 1.5 of the Regulations clearly were not satisfied. Consequently, the Tribunal did not consider that the applicant fell within sub-cl (3) of cl 820.221 of the Regulations. The applicant did not satisfy the criteria to be required to be satisfied at the time of the decision, on the Tribunal's decision, because he was no longer in a genuine and continuing marital relationship, and he did not meet the requirements of sub-cl (3) by being a person whose relationship had ceased and who had suffered domestic violence committed by his wife, as Division 1.5 of the Regulations prescribes the means of proof of that circumstance.

21 I add that the Tribunal's determination that the applicant had not satisfied the criterion specified by cl 820.211(2)(d)(ii) at the time of the application, based upon the failure to satisfy Schedule 3 criteria 3004(c) continued as well. On the Tribunal's findings, that failure to meet the criterion would necessarily continue in any event at the time of the decision so that, irrespective of the continued relationship of the applicant, he would not "continue to meet the requirements of sub-cl 820.211(2) so as to fall within either cl 820.221(1)(a) or, by virtue of meeting the requirements of sub-cl (3), the requirements of cl 820.221(1)(b).

22 Consequently, the Tribunal affirmed the decision of the delegate of the respondent that the applicant is not entitled to the grant of the temporary visa.

THE APPLICATION FOR REVIEW

23 The applicant appeared in person on the hearing of the application. His application for review does not identify any clear basis upon which the Court is asked to exercise its jurisdiction under s 39B of the Judiciary Act 1903 (Cth), the jurisdiction preserved to the Court by s 476 of the Act. It is necessary, however, to determine whether some error has been made by the Tribunal in the process of its decision-making, so that in the light of any such identified error, the court can determine whether relief should be granted under s 39B of the Judiciary Act notwithstanding the privative clause provision in s 474 of the Act.

24 The particular matters raised by the applicant in his application for review are that the Tribunal did not comply with provisions of the Family Law Act 1975 (Cth) in hearing his evidence regarding domestic violence, and that his evidence as to the nature of the domestic violence which he had suffered was sufficient for him to fall within "cl 820.211(6)(b)(i)(B)" of Schedule 2 to the Regulations, and that he understood that his evidence was sufficient to make up that ground. That reference is clearly in error. Clause 820.211(6) is one of the alternative requirements by which the criteria specified in cl 820.211(1)(b) may be met, but it relates to a person holding a sub-class 300 (Prospective Marriage) visa. The applicant at the time of the application did not hold that visa. I take that reference to be a reference to sub-cls 820.221(1)(b) and (3) of the Schedule. As indicated above, the nature of the evidence required to establish that the applicant has suffered domestic violence committed by his spouse is specifically prescribed by Division 1.5 of the Regulations. It is clear that the applicant's evidence did not meet those specific requirements. His statement filed with his application is representative of the nature of his evidence. I set it out:

"Eliza began threatening me, verbally abusing me, she also began to get very physically aggressive. On one occasion, she threw a glass ashtray, which caused a severe cut on my head. Similar incidents, began on a regular basis. This is when I realized, I had no-one to turn to, I was alone. As a man, I would never re-act in a physical way towards my Eliza, as I knew she was unwell and needed professional help. I refused to advise any law authority, as I would be imbarrassed [sic] and humiliated. As a quite large statique [sic], would anyone believe, that this was happening to me? I was also protecting my stepson, I didn't want Shannon to see police at our home as I thought this would cause emotional scarring. I didn't want things to get out in the community as Whyalla is a small knit community."

In certain respects, that evidence was confirmed by witnesses called before the Tribunal.

25 However, as noted above, regulation 1.23 prescribes the circumstances in which a person is taken to have suffered domestic violence, inter alia, for the purpose of satisfying the criterion in sub-cls 820.221(1)(b) and (3). Neither of the applicant's witnesses before the Tribunal was a person who fell within the description "competent person" as that term is defined in regulation 1.21. Consequently, the evidence of domestic violence which the applicant adduced before the Tribunal does not fall within that prescribed by regulation 1.24, as required by regulation 1.23.

26 In submissions, I gained the impression that the applicant did not fully understand the way in which Division 1.5 of the Regulations operated to identify and circumscribe the nature of the evidence required to establish that he suffered domestic violence within the meaning of sub-cls 820.221(1)(b) and (3)(b) of Schedule 2 to the Regulations. That does not involve error on the part of the Tribunal. It is unclear whether the Tribunal apprehended that the applicant had an inadequate understanding of the way in which the Regulations operated in that regard, but there is nothing to indicate that the applicant had consulted any "competent person" in relation to his wife's behaviour towards him in circumstances where such persons could provide the statutory declarations prescribed by regulation 1.26.

27 For those reasons I do not consider that the Tribunal committed any reviewable error in finding that the applicant had not established that he was a victim of domestic violence for the purposes of satisfying the criteria in sub-cls 820.221(1)(b) and (3)(b) of Schedule 2 to the Regulations.

28 Even if he had done so, the applicant in any event would not have satisfied sub-cl 820.221(3) of the criteria. It comprises two cumulative conditions. Sub-cl 820.221(3)(a) requires that the applicant continue to meet the requirements of sub-cl 820.211(2) in the circumstances. The Tribunal's finding that he did not do so at the time of the application and its reasons for that conclusion, applied equally to the time of the decision. The Tribunal addressed the criteria required to be satisfied at the time of the application and at the time of the decision in the one set of reasons and on the one set of evidence. Even though the Tribunal did not itself explicitly make that point, as noted above, on the Tribunal's reasons, the applicant must have continued to fail to meet the criterion specified in sub-cl 820.211(2) because he did not satisfy the criterion specified in Schedule 3 criterion 3004 at the time of the decision.

29 It is necessary to consider whether the Tribunal erred in that conclusion.

30 I do not consider that the Tribunal is shown to have erred in any reviewable way by not being satisfied that the applicant was not the holder of a substantive visa at the time of his application because of factors beyond his control: Sub-cl 820.211(2)(d)(ii) and Schedule 3 criterion 3004. The first of the Tribunal's reasons for that conclusion appears to me to be unexceptional. I have some difficulty in understanding how the Tribunal ascribed weight to the second and third reasons which it gave for that conclusion. The fact that the application for the visas was not correctly completed on 4 January 1999, as distinct from 12 January 1999, was accepted by counsel for the respondent as being a consideration which should bear no weight. It is a factor which would have applied equally had the visa application been made on 4 January 1999 as on 12 January 1999, because his substantive tourist visa expired on 31 December 1998. The Tribunal has not explained how it regards it as having been within the applicant's control that he did not have sufficient funds to pay the fee for the visa applications until 12 January 1999. It may be that there is simply no evidence indicating a change of financial fortune on his part in the period of time between 31 December 1998 and 12 January 1999, but it is understandable that the Tribunal would not accept that, absent such a change, it was equally within his control to have paid that fee prior to the expiration of his substantive tourist visa as afterwards. The consideration which, in my view, should bear no weight is not one which diminishes the Tribunal's conclusion so as to indicate any error of law or other reviewable error on its part. The applicant did not contend that that conclusion was wrongly reached. In my view the Tribunal is not shown to have fallen into error in that regard.

31 I also do not consider that the Tribunal is shown to have fallen into error in reaching the conclusion that there are no "compelling reasons" for not applying criteria 3004 of Schedule 3 to the Regulations. The circumstances of the failure of the applicant's marriage, to which the Tribunal was apparently referred by the applicant, are not in my view reasons why the applicant did not make the application for the visas whilst he held a substantive tourist visa. It may be that there will be circumstances in which personal considerations will be relevant to the consideration of such a question. That appears to be the view that the Tribunal has taken in this matter. However, the conclusion of the Tribunal in relation to that limb of cl 820.211(2)(d)(ii) has not been shown to be in error.

32 Consequently, the applicant has not demonstrated that the Tribunal erred in finding that the applicant did not, at the time of his application, satisfy the criterion specified in sub-cl 820.211(2)(d)(ii) of the Regulations, in particular by not satisfying criterion 3004(c) in circumstances where the Tribunal was not satisfied that there are compelling reasons for not applying that criterion. That failure on his part to meet that criterion persisted to the time of the decision, so that it remained an obstacle to his eligibility for the temporary visa by reason of sub-cls 820.221(1)(a) or (b) and (3) of the Schedule to the Regulations. The view of the Tribunal that the applicant did not satisfy the criteria specified in cl 820.221(1)(a) of the Schedule to the Regulations because he did not continue to meet the requirements of sub-cl 820.211(2) because he was no longer the "spouse" as that term is defined, seems to me to be unexceptionable, and was not challenged on this application.

33 In the result, I am not persuaded that the Tribunal has fallen into any jurisdictional or legal error in making its decision in respect of the temporary visa. I am using legal error in the sense explained in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 per McHugh, Gummow and Hayne JJ at 20. Consequently, it is unnecessary to address the application of s 474 of the Act in the circumstances.

THE PERMANENT VISA

34 As noted above, the Tribunal did not specifically address the application for the permanent visa. For reasons already given, in my view, the application for review to the Tribunal obliged it to consider that application.

35 The decision of the delegate of the respondent to refuse to grant the permanent visa was an "MRT - reviewable" decision under s 347 of the Act and s 348 of the Act then obliged the Tribunal to review that decision. As I read the Tribunal's decision, it did not proceed expressly to do so because it considered that the "necessary first step" was the review of the decision to refuse the temporary visa. In my view, it did not act incorrectly in that regard.

36 As noted above, the two visas should be applied for at the same time. Clause 801.221 of Schedule 2 to the Regulations specifies the relevant criteria to be satisfied at the time of the decision if the applicant were to be eligible for the permanent visa. The nature of the visa means, as appears in the Regulations, that there are no criteria to be satisfied at the time of the application. Clause 801.221 relevantly provides criteria to be satisfied at the time of the decision in the following terms:

"(1) The applicant meets the requirements of sub-clause (2), (3), (4), (5), (6) or (8)."

Each of sub-cls (2) - (6) specify as a criterion to be satisfied at the time of the decision that the applicant be the holder of a sub-class 820 visa. Sub-clause (8) relates to the circumstance where the applicant has held a sub-class 820 visa which has ceased on notification of a decision of the Minister to refuse a sub-class 801 visa. That is, where the applicant has held the temporary visa but it has ceased when a permanent visa has been refused, in circumstances where the Tribunal has remitted the matter for re-consideration and the Minister has decided to grant a sub-class 801 visa in any event, or where the Tribunal itself has been satisfied that the criteria for the grant of a sub-class 801 visa exist. Those conditions are all predicated upon the applicant being, or having been, the holder of a sub-class 820 visa, that is having been granted the temporary visa. Clearly the applicant does not qualify under any of those sub-clauses. The Tribunal no doubt had that in mind when indicating that it was necessary first to determine whether the applicant is entitled to the temporary visa.

37 It is not necessary to go beyond that criteria in the circumstances to appreciate that, the Tribunal in the circumstances intended by its decision to affirm the decision not to grant the permanent visa, because it had affirmed the decision not to grant the temporary visa. The decision to affirm the decision of the delegate of the respondent not to grant the temporary visa carried with it a decision by the Tribunal that the criteria to be satisfied at the time of the decision for the grant of the permanent visa did not exist. Alternatively, it is plain that, to remit the matter to the Tribunal in those circumstances for it to consider the applicant's application in respect of the permanent visa would be futile. It could admit of only one answer.

ORDER

38 In those circumstances, in my view, the application should be dismissed. I so order. The applicant should pay the respondent costs of the application.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 19 February 2002

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 February 2002
Date of Judgment:	20 February 2002