Altintas, H. v The Minister for Immigration, Local Government & Ethnic Affairs
[1994] FCA 724
•10 OCTOBER 1994
HATICE ALTINTAS AND RAMAZAN ALTINTAS v THE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. VG493 of 1993
FED No. 724/94
Number of pages - 19
Immigration
(1994) 124 ALR 579
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
KEELY(1), NEAVES(2) AND WHITLAM(2) JJ
CATCHWORDS
Immigration - Close family visitor visa issued - Visa operating as entry permit - Visa endorsed as being subject to conditions - Conditions expressed in cryptic form - Absence of approval in writing to form of endorsement - Endorsement inaccurate and not apt to convey content of conditions - Whether endorsement effective to impose conditions - Effect of endorsement on validity of visa
Immigration - Close family visitor visa issued - Visa operating as entry permit - Power to impose conditions on grant of visa - Whether power conferred directly by statute or dependent on existence of regulations identifying permissible conditions - Whether regulations sufficient to identify as permissible a condition that notwithstanding statutory provisions holder not to be entitled to grant of entry permit while remaining in Australia
Immigration - Review of decision not to grant extended eligibility (family) entry permit - Applicant for permit entered Australia as holder of close family visitor visa operating as entry permit - Visa endorsed with condition that notwithstanding statutory provisions holder not to be entitled to grant of entry permit while remaining in Australia - Ground of refusal of entry permit that condition on visa limited the power to grant, and precluded the grant of, the entry permit - Whether ground of refusal sustainable
Immigration - Extended eligibility (family) entry permit - Identification of relevant criteria for grant of such entry permit - Whether a relevant criterion that visa held by applicant not granted subject to a condition that holder would not be entitled to be granted an entry permit while remaining in Australia
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Migration Act 1958 (Cth), ss.23, 24, 33, 34
Migration Regulations, regs 17, 42, 120, 127
HEARING
MELBOURNE, 15 June 1994
Date of receipt of last written submission: 22 July 1994
#DATE 10:10:1994
Counsel for the appellants: Mr K.H. Bell
Solicitors for the appellants: Juliano, Ford and Co.
Counsel for the respondent: Mr T.V. Hurley
Solicitor for the respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The judgment of Sweeney J given on 28 October 1993 be set aside and in lieu thereof it is ordered that:
(i) the decision made on 6 July 1992 not to grant to Hatice Altintas an extended eligibility (family) entry permit be set aside;
(ii) the matter be remitted to the respondent to determine whether Hatice Altintas satisfied the criteria prescribed in reg.127(b) of the Migration Regulations made under the Migration Act 1958 (Cth) and to determine the application for an extended eligibility
(family) entry permit according to law; and
(iii) that the respondent pay the applicants' costs of and incidental to the application, including any reserved costs.
3. The respondent pay the appellants' costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
KEELY J In this appeal I have had the advantage of reading the reasons for judgment of Neaves and Whitlam JJ and agree that the appeal should be allowed. I also agree with the orders there set out and with the reasons there given for the making of those orders.
JUDGE2
NEAVES AND WHITLAM JJ Hatice Altintas and Ramazan Altintas ("the appellants") have appealed from the judgment of a judge of this Court (Sweeney J) given on 28 October 1993 dismissing their application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). That application sought an order of review in respect of the decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs ("the respondent") made on 6 July 1992 not to grant to Hatice Altintas ("the first appellant") an extended eligibility (family) entry permit.
The first appellant, who is not an Australian citizen, made application to the Principal Migration Officer at the Australian Embassy at Ankara, Turkey for a close family visitor visa (code number 663). That application was refused on 5 October 1990. The decision to refuse the application was reviewed by a review authority. On 7 March 1991 a decision was made and recorded in the following terms:
"to set aside the primary decision to refuse the application, to approve Mrs Altintas's application for a Close Family Visitor visa (Class 663) and to authorise the grant of a three (3) months visitor's visa, Class 663, subject to the condition specified in paragraph 23(4)(b) of the Migration Act 1958".
By letter dated 8 March 1991, the second appellant, who had applied for the review of the original decision, was informed of the decision of the review authority. The letter, after stating that the visa would be subject to the condition mentioned, continued:
"This means that, under current legislation and after entry in Australia, Mrs Altintas will not be granted any other entry permit while she remains in Australia, ie, she will not be able to obtain an extension of her temporary entry permit or any other entry permit of any description whilst in this country.
The case has now been referred to the overseas post and Mrs Altintas will be contacted for further processing on this basis."
The first appellant entered Australia on 12 December 1991 after disembarking at a proclaimed airport. On arrival she was the holder of a close family visitor visa (code number 663) which had been issued at Ankara on 19 November 1991. It is common ground that the visa issued to the first appellant was an "entry visa" within the meaning of that expression in subs.17(5) of the Migration Act 1958 (Cth) ("the Act"). Consequently, immediately after the first appellant entered Australia, the visa had effect, by virtue of the provisions of s.18 of the Act, for all purposes as if it were an entry permit granted subject to the conditions, and to the limitation as to time she was authorised to remain in Australia, that were specified in the visa.
The visa was expressed to permit the first appellant to travel to Australia on a single occasion between the date of issue and 19 November 1992 and provided:
"SUBJECT TO MIGRATION LAW THIS DOCUMENT WILL OPERATE AS A TEMPORARY ENTRY PERMIT FOR STAY OF 03 MONTHS ON EACH ENTRY TO AUSTRALIA."
The reference to "each entry to Australia" was, of course, inappropriate as the visa only authorised entry on a single occasion. The visa also contained the following words and figures:
"CONDITIONS
. NO WORK (REG 16.8.B)
. NO STUDY (REG 16.8.D)
. NO RESIDENCE (MA 23.4.A)
. NO FURTHER STAY (MA 23.4.B)"
The last line was handwritten, the remainder in printed form.
Thus, the first appellant was entitled to remain in Australia until 11 March 1992. It is common ground that the entry visa was not extended for any further period and that no entry permit has been granted to her.
On 26 February 1992, the first appellant lodged an application to remain permanently in Australia. On its face, it was an application for a permanent entry permit, being a compassionate grounds (family and other close ties) entry permit (code number 806). It was treated by the decision-maker as being also an application for a temporary entry permit, being an extended eligibility (family) entry permit (code number 822), apparently on the basis that a permanent entry permit could not be granted to the first appellant unless she was the holder of a valid temporary entry permit: see s.47 of the Act referred to later in these reasons. The application was refused on 6 July 1992 solely on the ground that, by reason of the condition specified on the visa issued on 19 November 1991, namely "NO FURTHER STAY (MA 23.4.B)", the first appellant had no entitlement to the grant of such an entry permit, with the consequence that there was no power in the respondent or his delegate to grant the application. The first appellant was informed of the decision by letter dated 7 July 1992.
To understand the issues that arise on the appeal, it is necessary to refer to various provisions in force at the relevant time of the Act and the Migration Regulations ("the regulations") made thereunder.
Section 14 of the Act provided that, on entering Australia, a non-citizen became an illegal entrant unless the non-citizen was the holder of a valid entry permit or the entry was authorised by s.17. By virtue of s.17, the holder of an entry visa was entitled to enter Australia after disembarkation at a proclaimed airport. As already mentioned, s.18 provided that, where the holder of an entry visa within the meaning of s.17 entered Australia pursuant to that section, the visa was to have effect, immediately after the holder's entry, for all purposes as if it were an entry permit subject to any conditions, and to any limitation as to the time the holder was authorised to remain in Australia, that were specified in the visa.
Division 2 of Part 2 of the Act was headed "Visas". Subdivision A of that Division, comprising ss.23-28, was headed "General provisions". Section 23 provided:
"23. (1) Without limiting the generality of section 181, the regulations may make provision:
(a) in relation to the granting and refusal of visas with respect to travel to Australia, including the granting of visas:
(i) subject to conditions; or
(ii) subject to a limitation as to the time the holder is authorised to remain in Australia;
(b) for the recording and evidencing of visas;
(c) in relation to the effect and operation of visas; and
(d) in relation to the cancellation of visas.
(2) Regulations made under subsection (1) may provide:
(a) for different classes of visas; and
(b) that, subject to section 28, a person is entitled to be granted a visa of a particular class if a person satisfies all the prescribed criteria in relation to that class.
....
(4) The conditions subject to which visas may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:
(a) the condition that if, because of section 18, the visa has effect as if it were an entry permit, it will be taken, in spite of section 18, not to be a valid entry permit for the purposes of section 47;
(b) the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia; and
(c) a condition imposing restrictions about the work that may be performed in Australia by the holder, including restrictions on performing:
(i) any work;
(ii) work other than specified work; or
(iii) work of a specified kind; without the permission in writing of the Secretary.
(5) Except as otherwise provided in the regulation concerned, a regulation providing as mentioned in paragraph (2)(b) shall, unless it has been disallowed, be taken to be repealed 2 years after the day on which the regulation takes effect."
The reference in subs.23(1) to s.181 was a reference to the section which conferred on the Governor-General a wide regulation-making power. It is unnecessary for present purposes to refer to the terms of s.28.
Section 24 relevantly provided:
"24. (1) This section applies where, and only where:
(a) a person makes an application for a visa of a particular class in the approved form and in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant a visa.
(3) Where it appears to the Minister that an applicant for a visa other than an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned, then:
(a) the Minister shall give the applicant written notice:
(i) stating that the Minister proposes to grant a visa; and
(ii) requiring the applicant to notify the Minister, as prescribed, if there has been any material change in his or her circumstances since the application was made; and
(b) if and only if the Minister becomes satisfied that there has been no material change in the applicant's circumstances since the application was made, the Minister shall, subject to section 28, grant the visa. ....
(5) Where paragraph (3)(b) requires the Minister to grant a visa, the Minister:
(a) may impose such conditions in connection with the grant of the visa as are permitted by the regulations; and
(b) shall impose such conditions in connection with the grant of the visa as are required by the regulations. ...."
Division 1 of Part 2 of the regulations (regs 10 - 20) was headed "Visas". Regulation 10 identified, for the purposes of subs.23(2) of the Act, the classes of visas that might be issued. Those classes included the classes specified in Column 2 in Schedule 2 to the regulations. One of the classes specified in Column 2 of Part 1 of that Schedule was "close family visitor", being item 46 in that Part of the Schedule. That class was assigned the code number 663.
Subregulation 13(1) provided:
"13. (1) A visa granted by the Minister under section 24 of the Act:
(a) is to be in a form approved by the Minister; and
(b) is to be expressed to permit the holder to travel to Australia:
(i) on a single occasion; or
(ii) on not more than a specified number of occasions; or
(iii) on any number of occasions; and
(c) is to be expressed to continue in force until the expiry of the day on which, or period at the end of which, the visa is expressed to expire; and
(d) may set out as provided under this Division, either in the visa or in a document to be given to the applicant on the grant of the visa, any condition subject to which the visa is granted."
Under subreg.13(2), a visa specified in, inter alia, item 46 in Part 1 of Schedule 2 that was granted as an entry visa was not to be granted as an entry visa having effect as a permanent entry permit. Subregulation 13(3) provided that, for the purposes of par.13(1)(a), where the Minister granted a visa of a class specified in the regulations, the relevant class of visas might be identified by the code number specified in a column in Schedule 2.
Regulation 16 was concerned with the effect and operation of visas. It made provision for the date on which a visa was to come into force (subreg.16(1)) and when it was to cease to be in force (subreg.16(2)). One of the circumstances in which a visa was to cease to be in force was if the Minister determined that the holder had failed to comply with a terminating condition subject to which the visa was granted (par.16(2)(c)). The expression "terminating condition" was defined to include a condition that the holder was not to perform any work without the permission in writing of the Secretary to the Department (par.16(8)(b)). Subregulation 17(1) specified in a series of lettered paragraphs the conditions that might be imposed in connection with the grant of a visa of any class. Lettered paragraph (d) may be noted and compared with par.23(4)(a) of the Act. Paragraph (d) prescribed the following condition:
"(d) the condition that an entry visa that has effect as an entry permit under section 18 of the Act is not to be taken to be a valid temporary entry permit for the purposes of section 47 of the Act."
The lettered paragraphs in subreg.17(1) did not, however, reproduce, in terms or in substance, the text of par.(b) or (c) of subs.23(4) of the Act. Those lettered paragraphs were, however, introduced by words which provided that the conditions prescribed in the subregulation were "in addition to the conditions specified in subsection 23(4) of the Act". Lettered paragraphs (j) and (k) in subreg.17(1) as in force prior to 18 December 1991 may also be noted. Those paragraphs prescribed the following conditions:
"(j) the condition that the holder is not to be granted an entry permit other than a refugee (after entry) entry permit that has effect as a permanent entry permit;
(k) the condition that the holder is not to be granted an entry permit other than a refugee A (restricted) entry permit or a refugee B (restricted) entry permit."
Lettered paragraph (p) prescribed a condition that, in the case of a religious worker visa and in the circumstances there set out, a particular class of entry permit could not be granted to the holder of such a visa.
Subregulations (2) and (3) of reg.17 provided:
"(2) Where the holder of a visa refuses or fails to comply with a condition subject to which the visa was granted, the breach of the condition is a ground for the cancellation of the visa.
(3) Where a condition to which a visa is subject is to be set out in the visa, the condition may be so set out in a manner, or in accordance with a notation, approved by the Minister in writing for that class of visas."
Regulation 18 provided:
"18. (1) A visa of a class referred to in Column 2 of an item in Schedule 5 must not be granted unless granted subject to the conditions, referred to in Column 3 of that item, that are relevant to the applicant.
(2) A reference in Schedule 5 to a class of visas by number is a reference to a class of visas specified in the correspondingly numbered item in Part 1 in Schedule 2."
Item 1 in Schedule 5 identified as a mandatory condition in the case of the close family visitor class of visas the condition referred to in par.23(4)(a) of the Act. Other items in Schedule 5, viz items 3 and 9, identified as mandatory conditions in respect of that class of visas the condition that the holder was not to perform any work without the permission in writing of the Secretary and the condition that the holder was not to undertake formal studies. Schedule 5 also provided that the condition specified in par.23(4)(a) of the Act was to be a mandatory condition in respect of other classes of visas (see items 1 and 15) and that the condition specified in par.23(4)(b) was to be a mandatory condition in the case of the tourist (special arrangements) class of visas (see item 2).
Division 3 of Part 2 of the Act (ss.33 - 50) was headed "Entry permits". Section 33 relevantly provided:
"33. (1) Without limiting the generality of section 181, the regulations may make provision:
(a) in relation to the granting and refusal of entry permits, including the granting of entry permits:
(i) subject to conditions; or
(ii) subject to a limitation as to the time the holder is authorised to remain in Australia;
(b) for the recording and evidencing of entry permits;
(c) in relation to the effect and operation of entry permits; and
(d) in relation to the cancellation of entry permits that are granted subject to a limitation as to the time the holder is authorised to remain in Australia.
(2) Regulations made under subsection (1) may provide:
(a) for different classes of entry permits; and
(b) that, subject to sections 40 and 45, a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class. ...."
Sections 40 and 45 are not relevant for present purposes.
Section 34 relevantly provided:
"34. (1) This section applies where, and only where:
(a) a person makes an application for an entry permit of a particular class in accordance with the regulations; and
(b) any fee payable in respect of the application is paid.
(1A) ....
(2) Unless this section applies, the Minister:
(a) is not required to consider an application at all; and
(b) shall not in any circumstances grant an entry permit.
(3) Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister must:
(a) ....
(b) subject to this Division, grant the applicant such an entry permit.
(4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."
Section 47, a section which came into operation on 26 December 1991, provided:
"47. (1) A permanent entry permit must not be granted to a non-citizen after entry into Australia unless the non-citizen is the holder of a valid temporary entry permit.
(2) In this section:
'valid temporary entry permit' does not include:
(a) a temporary entry permit granted subject to a condition set out in paragraph 33(4)(a) or (b); or
(b) an entry visa granted subject to a condition set out in paragraph 23(4)(a) or (b)."
Division 2 of Part 2 of the regulations (ss.21 - 29) was headed "Entry permits". Regulation 21 identified, for the purposes of par.33(2)(a) of the Act, the classes of entry permits that might be issued. Those classes were the classes specified in Schedule 3. One of the classes so specified was "Extended eligibility (family)", being item 91 in that part of the Schedule headed "Class 12 Entry Permit - Extended Eligibility". The extended eligibility (family) class of entry permits was assigned the code number 822.
Regulation 24 provided:
"24. (1) An entry permit granted by the Minister under section 34 of the Act:
(a) is to be in a form approved by the Minister; and
(b) is to be expressed to permit the holder to enter Australia and to remain in Australia, or to remain in Australia; and
(c) may set out as provided under this Division, either in the entry permit or in a document to be given to the applicant on the grant of the entry permit, any condition subject to which the entry permit is granted; and
(d) in the case of a temporary entry permit:
(i) may specify the period during which it is to have effect; and
(ii) may be expressed to authorise the holder to remain in Australia only for that period.
(2) An entry permit is not to be granted:
(a) as a permanent entry permit, unless it is an entry permit specified in Schedule 3:
(i) as a class 1 or class 11 entry permit; or
(ii) as a class 10 entry permit; or
(b) except as a permanent entry permit, if it is an entry permit of a kind referred to in subparagraph (a)(i).
(3) For the purposes of paragraph (1)(a), where the Minister grants an entry permit specified in these Regulations, the relevant entry permit may be identified by the code number specified in the item relating to that entry permit in column 4 in Schedule 3."
It may be noted, in passing, that par.24(2)(b) had no operative effect at the relevant time as Schedule 3 as substituted by Statutory Rules 1990 No.371 was amended by Statutory Rules 1991 No.285 to omit class 10.
Regulation 42 relevantly provided:
"42. (1) Subject to sections 40 and 45 of the Act, a person is entitled to be granted an entry permit referred to in these Regulations if the person satisfies the prescribed criteria in relation to that entry permit.
....
(4) An additional criterion (if any) specified in Column 3 in Schedule 3 in relation to an entry permit specified in Column 2 in that Schedule is prescribed in relation to an entry permit of that kind."
As previously mentioned, ss.40 and 45 of the Act are not relevant for present purposes. No additional criterion was specified in Schedule 3 in relation to the extended eligibility (family) class of entry permits.
Division 5 of Part 3 of the regulations had the heading "Prescribed criteria in relation to temporary entry permits granted only in Australia". That Division comprised regs 120 - 131A each of which set out criteria that were prescribed in relation to a particular class, or particular classes, of entry permit. Regulation 127 provided that the criteria specified in that regulation were prescribed criteria in relation to an extended eligibility (family) entry permit. The only criteria prescribed by that regulation that were relevant to the consideration of the appellant's application were those set out in pars (a)(iii) and (b). The regulation relevantly provided:
"127. The following criteria are prescribed in relation to an extended eligibility (family) entry permit:
(a) at the time when the application for the entry permit is decided, the applicant:
....
(iii) as the result of a death or permanent incapacitation:
(A) is an aged dependent relative, remaining relative, special need relative or orphan relative; and
(B) the relative in Australia to whom that relationship relates is an Australian citizen, or an Australian permanent resident, who has been resident in Australia for a reasonable period; ...; and
(b) at the time when the application for the entry permit is decided, the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria specified in item 9 in Schedule 1."
The expression "special need relative" in par.127(a)(iii)(A) of the regulations was defined in subreg.2(1) as follows:
"'special need relative', in relation to an Australian citizen or an Australian permanent resident usually resident in Australia, means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:
(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit;
(b) the assistance cannot reasonably be obtained from:
(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or
(ii) welfare, hospital, nursing or community services in Australia."
At all times prior to the hearing of the appeal, the matter proceeded on the basis that reg.127 was the only regulation that prescribed relevant criteria in relation to an extended eligibility (family) entry permit. On the hearing of the appeal, however, counsel for the respondent submitted that reg.120 was also relevant. We shall refer to that regulation later in these reasons.
The delegate of the respondent who, on 6 July 1992, decided that the first appellant's application for such a permit be refused accepted that the first appellant satisfied the criterion specified in par.127(a)(iii). The delegate did not, however, consider the question whether the first appellant satisfied the criterion specified in subreg.127(b). It was, of course, unnecessary to do so in the light of the conclusion reached by the delegate that the condition specified in the close family visitor visa issued to the first appellant, namely the condition expressed as "NO FURTHER STAY (MA 23.4.B)", precluded the grant of any further entry permit to her.
The primary judge accepted that the outcome of the proceeding before him turned on the construction and effect of par.23(4)(b) of the Act. In his reasons for judgment, his Honour said:
"In accordance with the terms of paragraph 23(4)(b) of the Act, the visa here in question was issued subject to 'the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia'.
This paragraph is expressed in strong terms. The ordinary meaning of the word 'condition' is a stipulation which is fundamental in nature. The phrase 'in spite of anything else in this Act' lends additional strength to the paragraph. The provision that the holder will not be entitled to be granted an entry permit is also telling. It denies to the holder of the visa any entitlement to be granted an entry permit.
The Parliament might have provided for the grant of a visa, subject to the right to apply, after arrival in Australia, for an entry permit while remaining in Australia, so as to permit the holder to seek an entry permit in reliance upon whatever circumstances might be relevant at the time of that application. In my opinion, it has chosen quite a different course. It has said that, in spite of anything else in the Act, such a holder will not be entitled to be granted an entry permit. It is not helpful to observe that circumstances have changed between the time of the grant of the visa and an application for an entry permit. Such changes are obviously possible but the paragraph does not entitle the holder of such a visa as the present one to rely upon them. What the Parliament has done is to enable some would-be travellers to this country to be offered a conditional visa. If they accept this offer, they are bound by the condition.
There is, in my opinion, nothing in the submissions of the applicants which would justify me in departing from what I regard as the ordinary and natural meaning of the words of the paragraph. I have found the submissions of the respondent generally persuasive.
In my opinion, when Mrs Altintas applied, while still in Australia, for an Extended Eligibility (family) entry permit the authorised officer rightly concluded 'that due to the operation of the condition there was no power to grant the entry permit for which Mrs Altintas had applied, since she had no entitlement to be granted that entry permit'."
An essential element of the decision that there was no power in the respondent or his delegate to grant the first appellant an extended eligibility (family) entry permit was a recognition that the close family visitor visa which the first appellant held on her arrival in Australia on 12 December 1991 had been granted subject to the condition, expressed in the language of par.23(4)(b) of the Act, that, "in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia".
The form of the condition at once excites curiosity. In enacting subs.23(1) of the Act, the Parliament clearly contemplated that a visa with respect to travel to Australia might be granted subject to conditions and that breach of a condition might result in the cancellation of the visa. In that context, one might have expected that any condition imposed would proscribe or require specified conduct on the part of the holder of the visa or would depend for its operation upon the happening or non-happening of some event or upon a state of affairs over which the holder of the visa might be thought to have some influence or control. There are many examples of conditions having such characteristics in subreg.17(1) of the regulations. It might also be thought that a condition might define or otherwise affect the character of the visa itself as, for example, the condition prescribed in par.17(1)(d). The condition with which this case is concerned, however, does not fall within any of those descriptions. Whether the holder of a visa who has entered Australia is to be entitled to be granted an entry permit must, one would think, depend not upon a condition upon which the visa was granted but upon a substantive provision of the Act or, if appropriately authorised, of the regulations. Such a conclusion finds support in subs.34(3) of the Act requiring the Minister, subject to Division 3 of Part 2 of the Act, to grant an entry permit where it appears to him that the holder of the visa is, under the regulations, entitled to be granted an entry permit of the class concerned. Further, it is difficult to see how there could ever be a breach by the holder of the visa of a condition expressed in terms of par.23(4)(b) of the Act.
Notwithstanding what has just been said, the language of subs.23(4) precludes the conclusion that a condition in the terms referred to above was outside the contemplation of the Parliament. The question remains, however, whether there was power in the Minister or his delegate to impose a condition in those terms. The answer to that question depends upon the operation of subs.23(4). Did it, as the primary submission on behalf of the respondent asserted, of its own force prescribe conditions which the Minister might impose upon the grant of a visa?
A power to impose conditions upon the grant of a visa was expressly conferred on the Minister by subs.24(5) of the Act. The terms of that subsection are significant. Although its text is set out earlier in these reasons it is convenient to recall its terms. It provided:
"(5) Where paragraph (3)(b) requires the Minister to grant a visa, the Minister:
(a) may impose such conditions in connection with the grant of the visa as are permitted by the regulations; and
(b) shall impose such conditions in connection with the grant of the visa as are required by the regulations."
It is curious, to say the least, that, if the primary contention of the respondent is correct, sub-s.24(5) was not expressed to confer power on the Minister to impose such conditions as were permitted by the Act. The situation is even more curious when it is recognised, as it must be even if the respondent's contention were to be accepted, that the Minister could not have been required to impose a condition falling within the purview of subs.23(4) of the Act unless provision was made by regulation requiring that the condition be imposed (see, for example, reg.18 and Schedule 5 referred to earlier in these reasons).
A consideration of the language of subs.23(4), referring as it did to "the conditions subject to which visas may be granted pursuant to regulations made under paragraph (1)(a)" (emphasis added) and providing that those conditions might include, but were not limited to, those which followed, and the context in which that subsection appeared, including the presence in the Act of subs.24(5), leads us to the conclusion that subs.23(4) did not have the effect contended for by the respondent, but operated only to clarify, or extend the ambit of, the regulation-making power conferred by subs.23(1). Its purpose was to put beyond doubt that the regulations might make provision for the granting of visas with respect to travel to Australia to be subject to conditions falling within the language of subs.23(4).
The next question for consideration is whether the regulations authorised the imposition of conditions in, or to the effect of, the language of subs.23(4) and, in particular, the language of par.23(4)(b). The relevant provision of the regulations was subreg.17(1) to which some reference has already been made. An examination of the lettered paragraphs in that subregulation indicates that none of them had its genesis in par.23(4)(b) of the Act. Some of those paragraphs, however, reflected, in whole or in part, the language of pars 23(4)(a) and (c) of the Act. Thus, par.17(1)(d), the text of which is set out above, reproduced, in substance, the language of subs.23(4)(a). Similarly, pars 17(1)(g), (h) and (q), which prescribed conditions imposing restrictions on the work that might be performed in Australia by the holder of a particular class of visa, appear to have had their genesis in par.23(4)(c) of the Act.
It was contended for the respondent that, by reason of the introductory words in subreg.17(1), namely "in addition to the conditions specified in subsection 23(4) of the Act", that sub-regulation authorised the imposition of conditions falling within the purview of that subsection. For the appellants, it was submitted that, if the introductory words had the effect contended for by the respondent, the presence in subreg.17(1) of such lettered paragraphs as (d), (g), (h) and (q) was otiose and that that circumstance required the rejection of the respondent's contention.
Not without considerable hesitation, we have reached the conclusion that the introductory words in subreg.17(1) to which we have referred were sufficient to import into that regulation, by reference, the conditions set out in subs.23(4) of the Act.
Given that there was power in the Minister or his delegate to impose a condition in the terms of par.23(4)(b) of the Act, the question arises whether what was done was effective to impose that condition.
By virtue of par.13(1)(d) of the regulations, a visa granted under s.24 of the Act might set out as provided under Division 1 of Part 2 of the regulations, either in the visa or in a document to be given to the applicant on the grant of the visa, any condition subject to which the visa was granted. The obvious intent of that provision was that the holder of the visa should receive a precise statement of the conditions subject to which the visa was granted. Subregulation 17(3) should also be noted. It provided that, where a condition to which a visa was subject was to be set out in the visa, the condition might be set out in a manner, or in a notation, approved by the Minister in writing for that class of visa. It may be supposed that the Minister would not have approved a manner or a notation which would not adequately convey to the holder of the visa the substance of the conditions subject to which the visa was granted. But, be that as it may, the Court was informed that the Minister had not given any approval under subreg.17(3) that was of relevance to the present case.
It has not been suggested that a document setting out the conditions subject to which the visa was granted was given to the first appellant upon the grant of the visa. What was purported to be done was to set out the conditions in the visa itself. The conditions were, however, referred to in the cryptic form reproduced earlier in these reasons.
The general comment may be made that the manner in which the conditions were referred to in the visa was hardly apt to bring to the notice of the first appellant the content of the conditions subject to which the visa was granted. But, apart from that general comment, specific criticisms may be directed to the effectiveness of what was done. The first of the conditions was expressed as "NO WORK" followed by the words and figures "(REG 16.8.B)". It may be accepted that that was a reference to par.(b) of subreg.16(8) but, assuming the words "NO WORK" were intended to convey that the holder was not to perform any work without the permission of the Secretary, par.16(8)(b) of the regulations was not the relevant provision. The relevant provisions were subreg.18(1) and item 3 in Schedule 5 to the regulations. Similarly, if the words "NO STUDY" were intended to convey that the holder was not to undertake formal studies, par.(d) of subreg.16(8) referred to in the visa was not the relevant provision: the relevant provisions were subreg.18(1) and item 9 in Schedule 5 to the regulations. Further, the words and figures "(MA 23.4.A)" and "(MA 23.4.B)" may be taken to be references respectively to par.23(4)(a) and par.23(4)(b) of the Migration Act. The words "NO RESIDENCE" and "NO FURTHER STAY" were apparently intended to convey that the visa was subject to the conditions expressed in those provisions.
In our opinion, the endorsement on the visa of the material to which we have referred was not apt to impose a condition in the terms of par.23(4)(b) of the Act. What are the consequences of that conclusion we do not propose to consider as we did not hear full argument on the point. At least three possibilities are open. One possibility is that the visa was not validly issued. Another is that it was validly issued but was subject to no conditions. A further possibility is that the visa was validly issued but subject only to the mandatory conditions required by subreg.18(1) and items 3 and 9 in Schedule 5 to the regulations, those mandatory conditions not including a condition in the terms of par.23(4)(b) of the Act.
If, however, contrary to the conclusion we have already expressed, the endorsement on the visa was apt to impose a condition in the terms of par.23(4)(b), the further question arises whether there is a proper basis which will support the decision of the delegate of the respondent that, by reason only of that condition being in the visa, there was no power in the respondent or the delegate to grant the application for an extended eligibility (family) entry permit.
In our opinion, the delegate of the respondent was in error in so deciding. Reference has already been made to the provisions of the Act and the regulations concerning the granting of entry permits and, in particular, to the provisions of pars 33(2)(b) and 34(3) of the Act and subreg.42(1) of the regulations which entitled a person to be granted an entry permit if the person satisfied the prescribed criteria in relation to that entry permit. The decision of the delegate of the respondent involved the conclusion that the mere circumstance, without more, that the visa held by the first appellant had been granted subject to a condition expressed in the terms of par.23(4)(b) of the Act had the effect of overriding and impliedly repealing those provisions of the Act and the regulations. We are unable to accept that such was the effect of par.23(4)(b) of the Act or of the imposition of a condition in the terms there expressed. If the Parliament had intended to limit the power to the extent suggested, one would have expected to have found an express provision to that effect. Examples of such express limitations upon the power of the respondent or his delegate to grant entry permits were to be found in ss.43-48, subs.115(11) and subs.137(7).
As has previously been noted, the delegate of the respondent accepted that reg.127 was the only regulation that prescribed relevant criteria in relation to an extended eligibility (family) entry permit and the matter proceeded before the primary judge on that basis. Clearly, that regulation, unlike other regulations, did not prescribe as a criterion in relation to that class of entry permit a criterion that the visa held by the applicant for the entry permit had not been granted subject to a condition that the holder of the visa would not, after entering Australia, be entitled to be granted an entry permit. In the absence of such a criterion in relation to the class of entry permit applied for, the circumstance that the visa held by the first appellant was subject to such a condition provided, in our opinion, no sufficient ground for refusing her application.
On the hearing of the appeal, however, counsel for the respondent for the first time advanced an argument that the prescribed criteria in relation to an extended eligibility (family) entry permit were to be found not only in reg.127 but also in reg.120. That regulation provided:
"120. The following criteria are prescribed in relation to a temporary entry permit (other than a working holiday entry permit, a domestic worker (diplomatic or consular) entry permit or an interdependency (temporary) entry permit) where the applicant for the entry permit is the holder of a valid visitor entry visa operating as an entry permit, or a visitor entry permit, or a prescribed temporary entry permit the application for which would have resulted in the applicant being granted a visitor entry permit if the application had been made on or after 19 December 1989:
(a) the applicant has complied substantially with any conditions subject to which the visa or entry permit was granted;
(b) the visa or entry permit was not granted subject to a condition that the holder of the visa or entry permit will not, after entering Australia, be entitled to be granted:
(i) in the case of a visa - an entry permit; or
(ii) in the case of an entry permit - a further entry permit;
while he or she remains in Australia;
(c) the applicant satisfies prescribed public interest criteria (as applicable) and, except in the case of an applicant referred to in paragraph (fa), the prescribed health criterion specified in item 9 in Schedule 1;
(d) the Minister is satisfied that the applicant intends to comply with any conditions subject to which the entry permit is granted;
(e) the applicant, being an applicant for a visitor entry permit (other than a medical treatment entry permit):
(i) establishes that there are compelling personal reasons for seeking to extend his or her stay in Australia; or
(ii) establishes that a further period of stay in Australia is necessary in connection with legal proceedings; or
(iii) seeks to extend his or her stay in Australia for purposes of tourism; or
(iv) establishes that a further period of stay in Australia is necessary to complete business negotiations or arrangements and, in addition, the applicant establishes that the proposed visit to Australia is a genuine visit and that he or she has adequate financial support for the proposed period of stay during that visit;
(f) the applicant, being an applicant for a retirement entry permit, satisfies the prescribed criteria in relation to the class of visas to which that entry permit is equivalent;
(fa) the applicant, being an applicant for a medical treatment entry permit, satisfied the prescribed criteria in relation to the class of visas to which that entry permit is equivalent;
(fb) the applicant, being an applicant for an occupational trainee temporary entry permit, satisfies the prescribed criteria for the class of visa to which that entry permit is equivalent;
(g) the applicant, being an applicant for a temporary resident entry permit other than a retirement entry permit, a medical treatment entry permit or an occupational trainee entry permit:
(i) has special occupational or professional skills (or both); and
(ii) is sponsored by an employer or organisation who or which is able to establish that a person with such skills is not reasonably available in Australia; and
(iii) satisfies the prescribed criteria in relation to the class of visas to which that entry permit is equivalent;
(h) the applicant, being an applicant for a student entry permit:
(i) satisfies the prescribed criteria in relation to the class of visas to which that entry permit is equivalent; and
(ii) establishes exceptional reasons for the grant of the entry permit."
Counsel for the respondent submitted that the language of reg.120 was apt to include within the temporary entry permits in relation to which it prescribed criteria an extended eligibility (family) entry permit (to which reg.127 expressly applied) as well as an extended eligibility (spouse) entry permit (to which reg.126 applied), an extended eligibility (economic) entry permit (reg.128), an extended eligibility (pilot) entry permit (reg.129) and an extended eligibility (interdependency) entry permit (reg.130A). It was further submitted that the language of reg.120 was apt to include the first appellant as she was the holder of "a valid visitor entry visa operating as an entry permit". This submission assumed that the expression "visitor entry visa", which is not defined, had the same meaning as the expression "visitor visa" which was defined in reg.2(1) to mean "a visa of the class specified in any of the items 45 to 50 inclusive in Part 1 in Schedule 2". It will be recalled that the close family visitor visa that the first appellant held was item 46 in that part of Schedule 2.
Regulation 120 expressly excluded from the temporary entry permits in relation to which it prescribed criteria a working holiday entry permit, a domestic worker (diplomatic or consular) entry permit and an interdependency (temporary) entry permit. Each of those classes of entry permits fell within Class 2 in Schedule 3 to the regulations, being respectively items 43, 52 and 59D. Paragraphs (a), (b), (c) and (d) prescribed criteria in relation to all the temporary entry permits to which reg.120 applied. Each of the remaining paragraphs, pars (e), (f), (fa), (fb), (g) and (h), referred to a particular class or particular classes of entry permit. Thus, par.(e) referred to a visitor entry permit (other than a medical treatment entry permit), the expression "visitor entry permit" being defined in reg.2(1) to mean an entry permit specified as a Class 4 entry permit in Schedule 3 to the regulations. The remaining paragraphs referred to a retirement entry permit, a medical treatment entry permit, an occupational trainee temporary entry permit, a temporary resident entry permit and a student entry permit. Those classes of entry permit fell within either Class 2, Class 3 or Class 4 in Schedule 3 to the regulations.
Regulation 120 must, of course, be read in its context. It was within Division 5 of Part 3 of the regulations. Part 3 was headed "Prescribed criteria for classes of visas and entry permits". Division 5 had the heading "Prescribed criteria in relation to temporary entry permits granted only in Australia". Division 5 comprised regs.120-131A.
Regulation 121 prescribed criteria in relation to a temporary entry permit (other than a domestic worker (diplomatic or consular) entry permit) where the applicant for the entry permit was the holder of a valid working holiday entry visa operating as an entry permit or a working holiday entry permit. Regulations 122 and 122A prescribed criteria in relation to a temporary entry permit (other than a working holiday entry permit, a domestic worker (diplomatic or consular) entry permit or an interdependency (temporary) entry permit) where the applicant for the entry permit was, or had been, the holder of a valid student visa operating as an entry permit or a student entry permit or a prescribed temporary entry permit, an expression defined in reg.2(1). There was no reg.123. Regulation 124 prescribed criteria in relation to a student entry permit where the applicant for the entry permit was a person who had entered Australia as a dependant of the holder of a valid diplomatic visa. Regulation 125 prescribed criteria in relation to a temporary entry permit (other than a working holiday entry permit, a domestic worker (diplomatic or consular) entry permit or an interdependency (temporary) entry permit) if the applicant was the holder of a valid temporary resident entry visa operating as an entry permit, a temporary resident entry permit, a border entry permit or a prescribed temporary entry permit. Regulation 125AA prescribed criteria in relation to a temporary resident entry permit (other than a working holiday entry permit, a domestic worker (diplomatic or consular) entry permit or an interdependency (temporary) entry permit) on application by a person who was an illegal entrant as a consequence of the expiry of a temporary resident entry permit. Regulation 125C prescribed criteria in relation to a foreign government agency entry permit applied for by the holder of an existing entry permit of that kind or of a foreign government agency visa.
Each of the regulations referred to with the exception of reg.124, that is to say, regs 121, 122, 122A, 125, 125AA, 125A and 125C, prescribed, as one of the criteria, the criterion that the visa or entry permit was not granted subject to a condition that the holder was not to be entitled to be granted an entry permit or a further entry permit while he or she remained in Australia.
Regulations 126, 127, 128, 129, 130A, 131 and 131A respectively prescribed criteria in relation to an extended eligibility (spouse) entry permit, an extended eligibility (family) entry permit, an extended eligibility (economic) entry permit, an extended eligibility (pilot) entry permit, an extended eligibility (interdependency) entry permit, a processing entry permit and a December 1989 (temporary) entry permit. None of those regulations specified as a criterion that the visa or entry permit was not granted subject to a condition that the holder was not to be entitled to be granted an entry permit or a further entry permit while he or she remained in Australia.
It is abundantly clear, and counsel for the respondent did not contend to the contrary, that the criteria prescribed in pars (a), (b), (c) and (d) of reg.120 are not to be read as cumulative upon those prescribed in regs 121, 122, 122A, 124, 125, 125AA, 125A and 125C in relation to the temporary entry permits to which those regulations respectively referred. In our opinion, no cogent reason has been advanced why the criteria prescribed in pars (a), (b), (c) and (d) of reg.120 should be read as cumulative upon those prescribed in regs 126-131A inclusive in relation to the temporary entry permits to which those regulations respectively referred. In reaching a conclusion on this aspect of the matter we have considered the whole of the provisions of Division 5 of Part 3 of the regulations, with particular reference to the nature of the temporary entry permits to which the regulations within that Division respectively referred and to the degree of specificity of the language in which each of those regulations was cast. A further factor that tends against adopting the view advanced on behalf of the respondent is the duplication in reg.120 and other of the regulations, including reg.127, of the criteria referred to as public interest and health criteria.
In our opinion, the criteria prescribed in pars (a), (b), (c) and (d) of reg.120 applied only in relation to those temporary entry permits for which the regulations provided other than the temporary entry permits for which specific criteria were prescribed within Division 5 of Part 3 of the regulations. It follows that the criterion specified in par.120(b) provided no support for the decision that the first appellant was not entitled to the grant of the extended eligibility (family) entry permit.
In the result, the appeal is allowed, the judgment of this Court given on 28 October 1993 is set aside and, in lieu thereof, it is ordered that -
(i) the decision made on 6 July 1992 not to grant to Hatice Altintas an extended eligibility (family) entry permit be set aside;
(ii) the matter be remitted to the respondent to determine whether Hatice Altintas satisfied the criteria prescribed in reg.127(b) of the Migration Regulations made under the Migration Act 1958 (Cth) and to determine the application for an extended eligibility
(family) entry permit according to law; and
(iii) that the respondent pay the applicants' costs of and incidental to the application, including any reserved costs.
The respondent must pay the appellants' costs of and incidental to the appeal.
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