Case: Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755
Outcome: applied
the Federal Magistrates Court attention centred upon whether the words "continues to" ought to be afforded the meaning given to those same words in another clause of Sch 2 to the Regulations by Allsop J (as his Honour then was) in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 ( Rao's Case)or that which commended itself to a Full Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 ( Xiang's Case) in respect of like words in yet another clause in Sch 2 to the Regulations. In the result, the learned Federal Magistrate considered that contextual similarities as between the words as used in cl 845 and as used in the provisions considered in Rao's Case favoured following the construction of "continues to" adopted in that case rather than, as the Appellant had submitted, that given to those same words by the Full Court in Xiang's Case The following passage from Xiang's Case, which was cited by the learned Federal Magistrate, sets out the views of the Full Court with respect to the meaning of the words "continues to", as well as that earlier voiced by Allsop J in Rao's Case: [8] The tribunal also fell into error in the meaning it placed on the word "continues" in subcl 806.221 of the Regulations. According to the tribunal it means that a visa applicant must do more than establish that he or she is a special need relative at the time of application and at the time of decision. It also requires the applicant to satisfy this definition throughout the entire intervening period, or at least for a substantial part of that period. According to the tribunal "[t]o hold otherwise would deny any use or purpose to the inclusion of the word 'continues' in the regulations". Although not the subject of complaint, it should be noted that the tribunal said that unless an applicant was a special need relative during the period between the time of the application and the time of decision, the applicant would not satisfy subcl 806.213 of the Regulations. Even if the tribunal were correct in its construction (which it is not, for reasons soon to be explained), it was wrong to hold that this would result in a failure to satisfy subcl 806.213. It could only lead the tribunal to the conclusion that the visa applicant had failed to satisfy subcl 806.221, namely the criteria at the time of decision, and not that she had failed to do so at the time of the application. [9] Returning to the meaning of the word "continues" in subcl 806.221, that meaning cannot be considered in isolation. Its meaning must be gathered from the context. The context is that a visa applicant must be a "special need relative" both at the time of application, and at the time of decision, to satisfy that criteria. It will be remembered that a special need relative is defined as a relative who is willing and able to provide the requisite assistance to an Australian or New Zealand citizen or resident. The first point to note is that the word to be construed is the verb "continues" and not the adjective "continuing". Second, it is plain that the word "continues" is not concerned with any activity on the part of the visa applicant, but rather with the applicant's status; a status which has a temporal condition. [10] Finally, the question whether the applicant meets the criteria at the time of application and at the time of decision is determined at the time of decision. Relevantly, the question is whether the applicant was (at the time of application) and still is (at the time of decision) a "special need relative". That is to say, the applicant "continues" that status if the applicant still is a "special need relative" at a particular time; that time being when the decision is made. Possibly the draftsman assumed that a person who was a "special need relative" at the time of the application and continues to satisfy that condition on the day of decision would be a "special need relative" throughout the intervening period. But, whatever may be the assumption, there is no legal requirement that this be so. This conclusion is probably inconsistent with the decision in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755.There on a slightly differently worded regulation Allsop J decided that the word "continues" was not intended to limit the enquiry whether the visa applicant in that case had satisfied the relevant criteria at the time of the decision. On the other hand, the judgment in that case may be supported because the word "continues" was used in a different context. This issue need not be resolved. The relevant visa class considered in Xiang's Case is evident from the passage quoted. The "slightly differently worded regulation" considered by Allsop J in Rao's Case was that part of the Regulations which governed eligibility for the Student (Temporary) (Class TU Subclass 560) visa sought by the visa applicant in that case. One condition to which that applicant's existing visa was subject was condition 8105, which prescribed that the holder must not engage in work in Australia (other than in relation to her course of study or training) for more than 20 hours per week during any week when the institution at which the holder was studying was in session. Within Subclass 560, cl 560.21 set out the criteria to be satisfied at the time of application. Subclause 560.22 set out the criteria to be satisfied at the time of decision. Subclause 560.213 provided: If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. In turn, cl 560.227 provided: If the application is made in Australia, the applicant continues to satisfy the criterion in cl560.213. [Emphasis added] There was a finding of fact at tribunal level in Rao's Case that, in the interval between date of application and date of decision, the visa applicant had consistently breached the working hours limitation.