Applicant S191-2002, Ex parte - Re MIMIA
[2002] HCATrans 501
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S191 of 2002
In the matter of -
An application for Writs of Mandamus and Certiorari against MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Ex parte –
APPLICANT S191/2002
Applicant/Prosecutor
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 21 NOVEMBER 2002, AT 9.46 AM
Copyright in the High Court of Australia
MR L. BOCCABELLA: Your Honour, I appear for the applicant. (instructed by the applicant)
MR R.J. BROMWICH: May it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)
MR BOCCABELLA: Your Honour, I read the affidavit of the prosecutor in these proceedings.
HIS HONOUR: Is there any objection to the reading of the affidavit of the prosecutor?
MR BROMWICH: Not in the circumstances. No objection, your Honour.
HIS HONOUR: Is there any application to cross‑examine the prosecutor on his affidavit?
MR BROMWICH: There is none, your Honour.
HIS HONOUR: Is that your evidence?
MR BOCCABELLA: Yes, your Honour.
HIS HONOUR: Is there evidence for the respondent? I have an affidavit of Dale Jennifer Watson.
MR BROMWICH: Yes, I read that affidavit, your Honour.
HIS HONOUR: Is there any objection to the affidavit of Ms Watson?
MR BOCCABELLA: No, your Honour.
HIS HONOUR: Do you wish to cross‑examine Ms Watson?
MR BOCCABELLA: No, your Honour.
HIS HONOUR: Is that your case?
MR BROMWICH: It is.
HIS HONOUR: Is there any case in reply?
MR BOCCABELLA: No, your Honour.
HIS HONOUR: Well, what do you say, Mr Boccabella?
MR BOCCABELLA: Your Honour, could I start with the respondent’s submissions first on the question of whether the applicant is caught by section 48A(2).
HIS HONOUR: I assume you say that the amendment to the section, which is a supervening amendment, does not take away or does not render valid that which is arguably invalid.
MR BOCCABELLA: That is right.
HIS HONOUR: And that it has not been said so expressly and therefore there is a reasonably arguable proposition that the amendment to the section does not affect your client’s case.
MR BOCCABELLA: That is right, your Honour, yes. That is in a nutshell ‑ ‑ ‑
HIS HONOUR: What is the principle relating to the interpretation of subsequent amendments to an Act? There is a principle governing the difference between procedural and substantive changes to the law.
MR BOCCABELLA: Well, this is a substantive change because it obviously takes away people’s right and therefore it purports to affect facts in existence prior to the amendment. It would have been a simple thing for the legislature to have added words like “including applications already dealt with or already lodged”. It would have been extremely easy to do and, in fact, they appear to have done that in that very provision ‑ ‑ ‑
HIS HONOUR: Is there anything in the explanatory memorandum that suggested that the amendment was to have retrospective operation?
MR BOCCABELLA: No. I read the explanatory memorandum. All it said was it purports to do what it purports to do, which is to prevent people from applying for further visa applications if they have already had one rejected as a family member.
HIS HONOUR: So it is section 48A(2)(ab)?
MR BOCCABELLA: Yes, that is right.
HIS HONOUR: Let me just read it.
MR BOCCABELLA: Thank you, your Honour.
HIS HONOUR: Yes.
MR BOCCABELLA: Your Honour can already see that in subparagraph (a) there obviously was an attempt to deal with previous situations. So that clearly the legislature has turned its mind to these issues.
HIS HONOUR: I am sorry, I did not catch that.
MR BOCCABELLA: As you can see in subparagraph (a) ‑ ‑ ‑
HIS HONOUR: I see, in subsection (1):
(whether or not the application has been finally determined) –
Is that the point you are making?
MR BOCCABELLA: No. In subparagraph (2) – (a) comes after (ab), of course.
HIS HONOUR: I see, yes. When was that section included?
MR BOCCABELLA: I understand that was there from the start.
HIS HONOUR: It would not be from the start, would it? What, from 1958?
MR BOCCABELLA: No, from when 48 was included.
HIS HONOUR: I see. When was 48A inserted?
MR BROMWICH: Can I assist, your Honour? Act 102 of 1995.
MR BOCCABELLA: I am indebted to my learned friend, your Honour.
HIS HONOUR: Yes. Well, fortunately both sides have put in very helpful written submissions and I think I understand the issue. Your contention is that the established authority in the Federal Court before section 48A(2)(ab) was amended was to the effect that an earlier application by a spouse or family member or dependant did not exclude an application by a person in their own right and that that was the established authority of the Federal Court and, indeed, was accepted by the Parliament by the enactment of subsection (ab) to overcome it, but that it is reasonably arguable that the amendment did not take away established legal rights to make an application in the person’s own right and that that point remains open and should be considered by the Court and you therefore seek an order nisi for that purpose.
MR BOCCABELLA: That is right.
HIS HONOUR: Yes, very well.
MR BOCCABELLA: And, your Honour, I add another point, a reference to section 49 of the Act. In this regard, I will need to take your Honour to page 48 of the book that the respondent has kindly provided.
HIS HONOUR: That is Ms Watson’s affidavit, is it?
MR BOCCABELLA: Yes.
HIS HONOUR: Page 48?
MR BOCCABELLA: Yes.
HIS HONOUR: Yes.
MR BOCCABELLA: If that point is not accepted ‑ ‑ ‑
HIS HONOUR: Just elaborate the argument. What is the argument?
MR BOCCABELLA: The argument is that if that point is not accepted which your Honour has articulated which is our submission, then the situation here was that the applicant had actually paid a separate application fee and purported to lodge an application back in 1996 and what the letter on page 48 purports to do is to withdraw the application and if it is withdrawn, under section 49 it is taken not to have been refused. I submit that is reasonably arguable as well on the strength of that letter.
HIS HONOUR: Now, there is a suggestion somewhere that the fresh application, if I can put it that way, of your client was not different from the application made on his behalf by his wife. Is that correct or not?
MR BOCCABELLA: Well, he never articulated a claim within his wife’s application.
HIS HONOUR: But this is not a case where the wife put in an application and then purported to put in on his behalf and behalf of the family and then subsequently he on his own behalf put in an elaborated, detailed and factually enhanced application which might enliven a larger decision‑making activity on the part of the Minister. I think it is said that they are both effectively the same. Is that correct?
MR BOCCABELLA: Not before the delegate. I certainly have to concede that the applicant, in fact, did not present separate material to the delegate, but before the Refugee Review Tribunal there was pertinent facts outlined in relation to him specifically. But to answer your Honour’s question, there was no separate case articulated before the delegate because nothing was articulated before the delegate on behalf of the prosecutor. That is as far as I can take it.
HIS HONOUR: Yes, very well.
MR BOCCABELLA: The argument in relation to section 49, however, is that if the Court were to be against me on that other point then it is dealt with by section 49.
HIS HONOUR: At the moment I am not against you in the sense that I think it is a reasonably arguable point, but I will hear what Mr Bromwich has to say.
MR BOCCABELLA: Yes, and then from my submissions your Honour sees the other point as to whether that other application of which there is a receipt on page 68 was a valid application anyway. There is a receipt on page 68 and then on page 66 and 67 there is a letter saying there was an application.
HIS HONOUR: But would that matter if, in fact, section 48A(2)(ab) includes a spousal application in another person’s application? Whether there is a receipt or not, it would not matter, would it?
MR BOCCABELLA: It may do in the sense that it just adds another argument, which is that if the application was withdrawn and a new one made – sorry, if it is withdrawn and the new one is not really an application, then for the purposes of section 48A(2)(ab) there has not been an application of the prohibited kind.
HIS HONOUR: Yes.
MR BOCCABELLA: I have articulated the reasons for that in my outline of submissions. I do not know whether your Honour needs me to go to that in any detail at all.
HIS HONOUR: Yes, very well. I have noticed your submissions relating to the so‑called privative provisions which have been argued before the Full
Court and, of course, the decision in that case, including, as it did, Justice Gaudron, has to be decided before 10 February next year. Perhaps I should hear what the Minister has to say about that first and you can deal with that in reply.
MR BOCCABELLA: Yes. Of course, the other matter is, your Honour, this matter could be remitted to the Federal Court, as I said, and we apply for that.
HIS HONOUR: That is dependent on the validity of the privative provisions, is it not?
MR BOCCABELLA: Yes, it depends on whether ‑ ‑ ‑
HIS HONOUR: I would not be remitting it until that matter has been passed on by the Full Court.
MR BOCCABELLA: Yes, your Honour.
HIS HONOUR: But it may be a reason for not giving an order nisi at this stage pending that decision. If, for example, that decision is handed down in the December sittings of the Court, then the matter could be listed after that decision has been given and an order made.
MR BOCCABELLA: That is true, yes.
HIS HONOUR: But let me hear what Mr Bromwich – he might be able to indicate that there is no arguable point here.
MR BOCCABELLA: Thank you, your Honour.
HIS HONOUR: I would like to thank you both for your written submissions, which are very good.
MR BROMWICH: Thank you, your Honour. There seems to be now two major points and the third point is in relation to section 474. I should indicate that if there is a need to go to 474 consistently with what I understand to be the Minister’s stance, we would not be seeking to bring this on or have that aspect determined prior to the Full Court’s decision. It is stating the obvious, but clearly stating it nonetheless.
HIS HONOUR: The Minister wants me to decide the matter in advance?
MR BROMWICH: No, he does not.
HIS HONOUR: He does not?
MR BROMWICH: The Minister does not.
HIS HONOUR: He does not. I am relieved to hear that.
MR BROMWICH: No. I was saying I would not be pressing to hear it, I am sorry, your Honour.
HIS HONOUR: No. I misunderstood you.
MR BROMWICH: No, I may not have been clear enough.
HIS HONOUR: I did not believe that the Minister would want me to jump the gun.
MR BROMWICH: No, your Honour. I perhaps was not clear enough.
HIS HONOUR: Is he hoping for some sort of little hint of what might happen? I would never give that.
MR BROMWICH: Your Honour, in relation to the first point that is put, which is in relation to some sort of accrued right, the submission for the respondent is that there is no accrued right and that is not a proper way to deal with it, first of all, because of the very nature of criteria for applications are things that change with a prospective effect. So what happens is over time different criteria change for different sorts of visas.
HIS HONOUR: I understand that and I understand that that is a very arguable proposition, but can you really say that this is not a reasonably arguable contention given the background of the jurisprudence of the Full Federal Court and the terms of the amendment of section 48A? It would have been easy for Parliament to have said this will apply from a certain date or whenever made. It could have easily been done, but it did not do that.
MR BROMWICH: In a sense, with respect, your Honour, that involves injecting a measure of tautology into the section because what, in effect, my friend puts to the Court against me is that there should be a words such as “including applications lodged prior to the commencement of this subsection”.
HIS HONOUR: Or “an application for a visa, whenever made,”.
MR BROMWICH: But the very structure of the section is that it applies to all applications for visas, whenever made, because the very structure of the section is talking about making a further application and it is a section that is designed to stop having two bites at the cherry.
HIS HONOUR: Now, are you familiar with Bhardwaj?
MR BROMWICH: Yes, I am.
HIS HONOUR: The view that you are propounding to me is the sensible, practical view that I took in Bhardwaj, but I was alone and the Court took a strict view about invalid Acts and compatibly with what appears to be the jurisprudence of the Full Court of the Federal Court and of this Court you cannot say it is not arguable.
MR BROMWICH: Your Honour, it may be that it is a doomed submission but I will develop it a little further and it may be that I am falling on non‑fertile ground.
HIS HONOUR: No, my mind is open to it because I took a certain view in Bhardwaj but I was alone.
MR BROMWICH: The submission put simply, your Honour, is that the very structure of the section, when one looks at 48(1) and then after paragraphs (a) and (b):
may not make a further application for a protection visa while in the migration zone –
is an unambiguous statement of a limitation on what further application can be made.
HIS HONOUR: Yes, but it is talking about, or at least arguably, an event in time, an application, and you are then hovering over it and supervening a new extension of that which did not exist at the time the application was made. At least that is the argument.
MR BROMWICH: We say that the proper way to look at it is not from the perspective of the previous application but from the perspective of the current application and you look to the current application and this section governs what further application can be made. It is saying you:
may not make a further application for a protection visa while in the migration zone.
And then you go to subsection (2) to work out what is being referred to by “application for a protection visa” and what is defined to be covered or not defined to be covered can change over time, just like the criteria for anything else, but those criteria take effect at the point of time on which the application is made. It is not retrospective. It is prospective. It applies from the date that the amendment comes in to any future application.
HIS HONOUR: I can see that argument and I have some sympathy for that argument ‑ ‑ ‑
MR BROMWICH: I see what your Honour is saying.
HIS HONOUR: ‑ ‑ ‑ but I have ringing in the back of my mind the bell of Bhardwaj, the melancholy tolling bell that ‑ ‑ ‑
MR BROMWICH: I recognise that as long as your Honour sees that there is an arguable case in favour of the applicant then there is little I can do.
HIS HONOUR: It has to be a reasonably arguable case.
MR BROMWICH: Yes.
HIS HONOUR: Do you say it is not a reasonably arguable case? Do you say on behalf of the Minister it is not a reasonably arguable case?
MR BROMWICH: It is a submission I think I should just make sure I am comfortable in making, if I may, your Honour.
HIS HONOUR: Certainly. Of course you must.
MR BROMWICH: Your Honour, I think the position is that I cannot do much about the position of the Court in Bhardwaj. I can say it is arguable. As to whether it is reasonable really depends upon the view you take as to the overall structure of the Act and its prospective effect in relation to the criteria for every form of visa and I say it is not reasonably arguable for the reason that it involves the legislature having to double state its position. It puts in a change in relation to a particular statute which is meant to operate prospectively. There is not an accrued right. It is a misconception, with respect, to describe it as an accrued right. The legislature should not have to do more than commence a statute from a particular time and have it take effect from that time.
HIS HONOUR: Well, I understand that submission and on the return of a constitutional writ I might well be sympathetic to it, consistent with what I said in Bhardwaj, but I was on my own in Bhardwaj and therefore when one reads what the Full Court of the Federal Court said, which was rather similar to what the Full Court of this Court said in Bhardwaj, at least in principle, I just cannot say myself that this is not reasonably arguable. At least that is my present feeling.
MR BROMWICH: I do not think I am able to say anything more to persuade your Honour on that point. I would though wish to just address the other point briefly, if I may.
HIS HONOUR: Yes.
MR BROMWICH: I know in one sense it may be academic but it is important that the point be confined to this point.
HIS HONOUR: This is the section 49 point?
MR BROMWICH: Well, the section 49 point depends upon an argument that, in effect, there was no application brought forward by the wife on behalf of the applicant. That is not borne out when you actually look at the material. What I understand my friend to be saying is, in effect, that the letter which enclosed the Part C application, which is at page 48, amounted to an implied withdrawal of his application and the respondent submits that is wrong for several reasons.
The first is that it is contrary to the structure – or to what had already happened at pages 44 and 45, which is the Refugee Advice and Casework Service enclosing a letter from the applicant amending a section of the Form 866 so as to include her husband in the application and then the document at 45 is the specific request to amend the form to achieve that. When one turns back to the form itself, at page 6, your Honour, that is precisely what has occurred. The fourth person is the applicant now before the Court.
HIS HONOUR: As I took it, section 49 is a bit of a makeweight or a fall‑back position and if, in fact, the applicant has a reasonably arguable case for a constitutional writ on section 48A, it is not necessary for me to determine whether or not there is an arguable case as well on section 49.
MR BROMWICH: If that is your Honour’s position ‑ ‑ ‑
HIS HONOUR: I would have to consider the form of the order nisi as to whether one included that within the order nisi. Is that within the draft order nisi or not?
MR BROMWICH: The draft order nisi advances a number of things that go, with respect, apparently beyond the scope of what has really been presented today.
HIS HONOUR: Yes, we would have to get that a little bit clearer.
MR BROMWICH: The only reason I am addressing this, your Honour, is that I would seek to have the order nisi that your Honour is clearly contemplating issuing confined to the section 48A point and I wanted to point out why it is that it is just not arguable at all in relation to the other point. What I was going to say is, first of all, you have as a matter of fact that the applicant’s wife joined her husband on the application; secondly, that he was in fact joined and, thirdly, that the structure of these applications and the structure of part 866 of Schedule 2 of the Regulations is that you can have two streams by which you can get a protection visa – in your own right or as a member of a family unit – and that the different parts of the forms contemplate that and are interlinked. So that when one looks at the actual Part C that is filed, which is at page 49, your Honour will see under question 1 at about point 5 it has:
Applicant Number - as shown in Question 1 on Part B
Now, what should have been written in there was the digit “4” because he is the fourth applicant, going back to page 6.
HIS HONOUR: Yes.
MR BROMWICH: And if you have a Part D application, it has a similar question. So that it is an express family unit application, then similarly they are all interlinked. So that what happens is someone makes an application in their own name and with other family members and so they are necessarily making an application in that capacity and then they may or may not be also advancing – and I think the way in which your Honour described it was enlarging their application by bringing their own claims. They may or may not do that. They may, as in this case, suggest they are going to do it and not actually do it, at least not before the delegate. But nonetheless the first claim still stands there and there is no abandonment. That is what went through, in effect, the first claim. It is just that his own claim did not get advanced until the Tribunal stage. For that reason, your Honour, I would submit that if the order nisi is to be granted, it should be confined to section 48A because there is no abandonment and this point depends upon there being some implied abandonment of the application under the name of the wife, and it just is not there. It is not there as a matter of structure in the forms, it is not there in the letters and it is not what took place.
HIS HONOUR: Yes, very well.
MR BROMWICH: There were some mistakes made by the delegate, I should say, but they are not material because that is not, in fact, what occurred.
HIS HONOUR: Tell me this: what do you submit should be done, assuming that I am inclined to grant the order nisi on section 48A? The question then arises you have, in a sense, a fall‑back position relating to the so‑called privative provisions of the Act.
MR BROMWICH: Yes.
HIS HONOUR: Your submissions on that point were rather cautious. You said something to the effect that they may be covered, but was that contingency simply respectful of the fact that the validity of the section is before the Full Court of this Court or did it have some other foundation.
MR BROMWICH: It was (a), I hope, respectful and (b) reflective of the fact that a range of views may come out of the Court which may have different impacts, not only as to validity, but as to operation, and because of the uncertainty of operation, the two cannot really be separated.
HIS HONOUR: Now, if the consequence of the decision of the Full Court is that the provisions of the Act are constitutionally valid, then would you want to then have the opportunity before an order nisi was granted to argue that an order nisi should not be granted because of the terms of the Act, or are you content to have the order nisi granted with liberty to apply to revoke the order nisi in the event that the decision of the Full Court gives you some further argument on the basis of the statute?
MR BROMWICH: I think the former, your Honour. May I just get instructions?
HIS HONOUR: Yes.
MR BROMWICH: I think the former, your Honour, that it should not be granted with the prospect of revocation but, rather, stood over.
HIS HONOUR: It may be that that is in the applicant’s interests in that the proper time for me, or the Court, to consider the question of remitter to the Federal Court in the event that the provisions of the Act are held to be unconstitutional would be when the decision of the Full Court is handed down and then, if it is favourable to your side, you can submit that the order
nisi should not be granted; if it is favourable to the applicant’s side, he can submit that the proper course is to remit the matter to the Federal Court.
MR BROMWICH: For an intermediate court’s determination of the section 48A point, yes.
HIS HONOUR: Yes.
MR BROMWICH: Otherwise this Court is being used as a trial court, yes.
HIS HONOUR: I do not think you should say too much about that, if I can say so, Mr Bromwich. I do not think you should say anything at all about that subject.
MR BROMWICH: No. I will stay well away from it, I am sorry, your Honour.
HIS HONOUR: Yes, very well. What do you say, Mr Boccabella?
MR BOCCABELLA: Yes, your Honour, that does seem to be the appropriate course. If your Honour were to grant an order nisi, I would have submissions as to the scope of the grounds, but I would agree that the appropriate course would be to stand the matter over until the Full Court has decided the privative clause issue.
HIS HONOUR: Yes, very well. In the meantime, you could get your grounds into proper order because the grounds 1, 2, 3 and 4 seem to have nothing to do with the matter that has been debated before the Court this morning.
MR BOCCABELLA: Yes. I did not prepare that, obviously.
HIS HONOUR: You will blame some other person for that. That is not like you, Mr Boccabella, to be so ungracious of your predecessor.
MR BOCCABELLA: That is right, your Honour.
HIS HONOUR: All right. Well, out of respect for the way you have argued this matter, both in writing and orally, I will give some reasons.
This is an application for an order nisi for constitutional writs and other relief directed to the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”). Counsel for the Minister, on instructions, submitted that the application was not reasonably arguable and that it should therefore be dismissed.
The background facts
By letter dated 14 May 2002 the Minister’s delegate wrote to the applicant refusing to process his application for a protection visa. The refusal was made on the basis that the applicant had previously lodged an application for a protection visa as a refugee and that the Minister had refused that application. By s 48A of the Migration Act 1958 (“the Act”) a non‑citizen, refused a protection, visa may not make a further application for such a visa. The applicant is a non‑citizen.
At this stage of the proceedings, the point of dispute between the parties is whether the previous application lodged with the Minister, and dealt with by his delegate, was a “application for protection visa” within s 48A(1) of the Act. It is common ground that the applicant’s wife had lodged an application for a protection visa that referred to the applicant. That document is before the Court. It carries the date 1 July 1996.
On 19 August 1996 the applicant lodged his own separate application for a protection visa. On 11 December 1997 the delegate of the Minister, considering the wife’s application, noted the existence of the applicant’s separate application “in his own right”. The delegate went on:
However, he did not lodge a separate set of claims. I have therefore taken his claims to be identical to those of his wife.
The applicable legislation
In respect of applications for a protection visa the Act contains detailed strict, and even rigid, requirements. As at 1 July 1996, ss 46 and 47 of the Act read:
Section 46. Valid visa application
(1) Subject to subsection (2), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 161 (criminal justice) or 195 (detainees); and
(e) in a case where the applicant is in the migration zone and the application is not for a protection visa or a bridging visa, the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 41(2)(a).(2) An application for a visa is also valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.Section 47. Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
At the same time, reg 2.07 of the Migration Regulations (“the Regulations”) provided:
Regulation 2.07. Application for visa - general
(1) For the purposes of sections 45 and 46 of the Act (Dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the fee (if any) payable on an application;
(c) other matters relating to the application.(2) A fee is not payable on an application for a visa if:
(a) the application is combined with another application in a way permitted by:
(i) the relevant item in Schedule 1; or
(ii) regulation 2.08; and
(b) the fee (if any) has been paid on that other application.(3) An applicant must complete an approved form in accordance with any directions on it.
Decisions of the Federal Court
In the Federal Court a problem in some ways similar to the present one arose in Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456. That was a decision of the Full Court given on 18 October 2000. There the Full Court drew attention to the express requirements of reg 2.10 of the Regulations obliging an application made in Australia to be made “at any office of immigration in Australia”. In a joint judgment Ryan, Sackville and Emmett JJ affirmed the decision of the primary judge (Heerey J). Their Honours concluded that non‑compliance with reg 2.10 could not be cured or corrected by an applicant subsequently supplying materials to the Refugee Review Tribunal. An application which did not conform to the requirements of the Regulations was not a valid application. It could not enliven the process contemplated by the Act. In the eye of the law it was no “application” at all.
Similar reasoning was applied by the Full Court of the Federal Court to the application of s 48A of the Act, as it stood before 2 October 2001, to members of the family unit of an applicant who did not advance claims of their own. Such persons were held not, in substance, to be applicants in their own right: Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 at [23]‑[24]. On that footing, it was held by the Federal Court that there was no bar in s 48A of the Act on a member of a family unit making a later application on his or her own behalf.
In a sense, this line of authority turned on the apparent rigidity of the Act and the Regulations. The Federal Court took a strict view. In some ways the view taken by the Federal Court is similar in principle to that taken by the majority of this Court in Minister for Immigration v Bhardwaj (2002) 76 ALJR 598. At this stage of the present proceedings it seems prudent for me to accept the approach of the Full Federal Court. That approach seems consistent with what the majority of this Court held in Bhardwaj. In any case, the correctness of the decisions in Li and Dranichnikov are not challenged before me.
Supervening amendment of the Act
The Minister took a different tack. He relied on amendments to s 48A of the Act made in the Parliament with effect from 2 October 2001. Those amendments inserted into the Act s 48A(2)(ab). That paragraph includes within the definition of an application for a protection visa the following:
(ab) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa; and
As the Minister points out, paragraph 7 of the Explanatory Memorandum circulated with the Migration Legislation Amendment Bill [No 6] 2001 (Cth), which became the Act amending s 48A(2), states that the Bill would extend the bar on second applications contained in s 48A to apply to all applicants for protection visas irrespective of whether the visa was sought personally or as a member of the claimant’s family. The Minister submits that the amendment was designed to reverse the effect of the Federal Court’s decision in Dranichnikov. Such a view of the effect of the amendment has been taken by two judges of the Federal Court (Gray and Goldberg JJ) in Soondur [2002] FCAFC 324 at [34].
The question is therefore whether the earlier application, purportedly made in 1996 by his wife on behalf of the applicant, as considered by the delegate of the Minister in 1997, applied to the present application. Was the applicant’s subsequent personal application in effect rendered invalid by the supervening amendment to s 48A(2) of the Act in 2001?
There is no doubt, as contended by the Minister, that the language of the Act could extend to such a construction. In favour of such a construction might be the view that the amendment is purely definitional and merely enlarges the operation of the Act in that way. Against that contention is the submission for the applicant that he had established legal rights that would only be removed by amendment of the Act expressed in terms of clear and express provisions. The applicant submitted, for example, that such a provision might have been made if the amendment in October 2001 had been expressly stated to apply from a certain time or to apply to applications “whenever made”. There is nothing in the Explanatory Memorandum to support the construction of the Act urged for the Minister.
The applicant’s case is still reasonably arguable
It cannot be said that the contention urged for the applicant on this point is not reasonably arguable. At this stage I therefore would be minded to grant an order nisi or other relief limited to that point. The applicant also raised an argument concerning the operation, in the facts of his case, of s 49 of the Act, as that section applied to his wife’s original application and his own later separate application. In my view, that argument is not reasonably open on the facts. There was no abandonment of the application (if such it was) first made by the wife. The terms of the application which are before me indicate that it was the purpose of the applicant’s wife, in the original application made in 1996, to join the applicant in a family application. Accordingly, I would not consider that the point argued on s 49 of the Act is reasonably arguable. However, the point raised in reliance upon s 48A of the Act is arguable.
Postponement of consideration of the privative provisions
It follows that the ultimate questions become whether the order nisi should be granted now, whether the proceedings could and should be remitted to the Federal Court or whether, in light of privative provisions in the Act (s 474 of the Act), I should delay any final resolution of this present application until the Full Court of this Court has delivered its decision in the challenge to the constitutional validity of the privative provisions. In the premises, both sides agree that the appropriate course was to await the decision of the Full Court on the constitutional point. However, once that decision is published the matter should be relisted quickly and orders disposing of the matter then made.
If the decision of the Full Court is favourable to the Minister, it will be necessary for the Court to hear further argument concerning the effect of the privative provisions on the application, the Minister contending that those provisions, in their terms, stand in the way of the provision of an order nisi or any relief. If, on the other hand, the decision is unfavourable to the Minister (and to the validity of the privative provisions), a decision can be made at that stage whether to advance the proceedings by way of the issue of an order nisi returnable before this Court or to remit the proceedings to the Federal Court, if that then be possible, for the Federal Court to consider the availability of the constitutional writs and other relief in the circumstances of the case.
Orders
I therefore adjourn the further hearing of this application until a date to be fixed. Such date should be fixed immediately after the decision of the Full Court of this Court in the Application concerning Plaintiff No 157 of 2002. I give liberty to both parties to approach the Registrar for the purpose of relisting the matter before the Court in the light of the outcome of the decision of the Full Court. The matter is not necessarily to be treated as part heard before me.
I have taken pains to explain my present thinking so that, when the matter is relisted, it should not be necessary for all of the issues to be recanvassed. The proceedings could then be progressed from this point, in the light of the decision of the Full Court. At this stage, I would have been minded to order that the costs of the applicant be costs in the proceedings as further advanced, either before this Court or before the Federal Court. Final orders as to costs and final orders as to the disposition of the matter may be made when the matter is returned. The applicant should discuss with the respondent the form of the ground upon which relief is sought, limited to the point raised under s 48A of the Act. If need be, and if the parties agree, the proceedings could be disposed of, in the light of the Full Court’s decision, by a consent order, signed on behalf of both parties, filed in proper form.
Is there anything else that you ask?
MR BOCCABELLA: No, your Honour.
HIS HONOUR: Is there anything else you ask?
MR BROMWICH: Only to certify for counsel, your Honour.
HIS HONOUR: I certify for the appearance of counsel in chambers. The Court will now adjourn.
AT 10.30 AM THE MATTER WAS ADJOURNED
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