Case: Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301
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 learned Federal Magistrate was keenly aware of the authority of a decision of a Full Court of this Court, if in point, as the following passage reveals. I cite it not only to highlight this but also because it evidences a correct understanding by his Honour of the language actually employed in cl 845.221 and the essence of why his Honour preferred the meaning given to the words "continues to" in Rao's Case: [75] It follows that for the decision in Xiang to be binding the context in which the word "continues" is used has to be materially similar to the context in that case. In my view for reasons which follow the context in which the word "continues" appears in clause 845.221 is not similar to the context to which the word appeared in clause 806.221. Though His Honour's use of the word "continuous" both before and after this passage was unfortunate, this passage is pivotal in his reasons for judgment. Noting this, and reading the reasons as a whole, I am not persuaded that the erroneous references to "continuous" were material to his Honour's interpretative conclusion. What was material was the learned Federal Magistrate's apprehension that it had been recognised in Xiang's Case that the meaning to give to the word "continues" may depend on whether it was used in relation to a status or an activity. It was because his Honour considered that it was used in the latter context that he concluded that, in this regard, there had been no error made by the Tribunal. The requirement for a duality of satisfaction by a visa applicant of particular criteria at both the time of application and the time of decision is not unique to cl 845, nor even to those considered in Xiang's Case and Rao's Case. It is a feature which permeates the Regulations. It is a further permeating feature that the verb "continues" is employed so as to require satisfaction on the part of the administrative decision maker at the time of decision that a visa applicant "continues to" satisfy nominated criteria which were first required to be satisfied at the time of application. Against this background, it is highly unlikely, in my opinion, that it was intended by the Governor-General-in-Council when making and amending the Regulations that the meaning, as opposed to the effect in context, of "continues to" would vary throughout those regulations.