BQG17 v Minister for Immigration
[2018] FCCA 3617
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQG17 v MINISTER FOR IMMIGRATION | [2018] FCCA 3617 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to amend application to include further ground – leave granted to rely upon and file in Court amended application in the form dated 6 August 2018. |
| Legislation: Migration & Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), cl.32 of sch.2 Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (Cth), item 4 of sch.1 Other materials cited: |
| Cases cited: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 |
| Applicant: | BQG17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1159 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Dr S Tully |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the Respondent: | Mr P Herzfeld |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) is extended up to 12 April 2017.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1159 of 2017
| BQG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on 20 May 2012. The circumstances of his arrival meant that he fell within the definition of an “unauthorised maritime arrival” for the purposes of the Migration Act 1958 (Cth)[1]. On 26 August 2012 he applied for a permanent protection visa. On 9 February 2017 a delegate of the Minister decided to grant the applicant a temporary protection visa on the basis that the effect of s.45AA of the Act and reg.2.08F of the Migration Regulations 1994 (Cth) was to treat the applicant’s permanent protection visa application as an application for a temporary protection visa.
[1] Section 5AA inserted with effect from 1 June 2013 by the Migration Amendment (Unauthorised Maritime Arrivals & Other Measures) Act 2013, (Cth) sch.1, item 8.
The applicant contends that reg.2.08F is invalid and for that reason he ought to have been granted a permanent rather than a temporary protection visa.
There was no issue that the Court has jurisdiction to determine this matter under s.476 of the Act. An application to this Court under that provision must be made with 35 days of the date of the decision: s.477(1).
The application to this Court was not made within the prescribed time. However, the Court may extend the period for making application if one or both of the following conditions are met:
477 Time limits on applications to the Federal Circuit Court
...
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
...
The first of these conditions is met. The question is whether the Court is satisfied that it is necessary in the interests of the administration of justice to make an order extending the period for making the application.
The only basis upon which the Minister opposed the making of an order extending the period for making an application was that the ground of the application lacks merit.
Having regard to the brief period of delay and the reason for that delay, as well as the lack of prejudice to the Minister, and the fact that, despite some obvious flaws in the applicant’s arguments, I could not say on a broad-brush approach that they are hopeless, I am satisfied that it is necessary in the interests of the administration of justice to grant an order extending the period for making the application for judicial review. Such an order will be made. However, for the reasons that follow, the substantive application will be dismissed.
Factual background
The facts relevant to the issues in these proceedings fall within a short compass and, as they were not in dispute, may be sufficiently stated as they were set out in the respondent’s outline of submissions (with some minor amendments):
11. The applicant arrived in Australia at Christmas Island on 20 May 2012(applicant’s affidavit [9]). He thereby became an “offshore entry person” as the Act then stood. He became an “unauthorised maritime arrival” on the commencement of the definition of that expression in s 5AA of the Act on 1 June 2013.
12. On 26 August 2012, the applicant applied for a Protection (Class XA) visa (Permanent Protection Visa).
13. On 20 November 2012, a delegate of the Minister decided not to grant the applicant a Permanent Protection Visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations.
14. The Refugee Review Tribunal upheld the applicant’s review application and remitted the matter to the Minister.
15. On 5 February 2014, a delegate of the Minister again decided not to grant the applicant a Permanent Protection Visa, on the basis of the then cl 866.222 of sched 2 to the Regulations (applicant’s affidavit [13]). Clause 866.222 had been inserted into sched 2 to the Regulations by an amendment made in December 2013 and made it a criterion for the grant of a Permanent Protection Visa that the applicant is not an unauthorised maritime arrival.
16. Following the disallowance of cl 866.222 by the Senate on 27 March 2014 (applicant’s affidavit [23(a)]), the Refugee Review Tribunal again upheld the applicant’s review application and remitted the matter to the Minister.
17. On 16 December 2014, pursuant to the Amendment Act, s 45AA of the Act and reg 2.08F of the Regulations commenced.
18. On 19 September 2015, pursuant to the Amendment Regulation, the amendments to reg 2.08F of the Regulations commenced.
19. On 9 February 2017, a delegate of the Minister decided to grant the applicant a Temporary Protection Visa, on the basis that the effect of s 45AA of the Act and reg 2.08F was that the applicant’s Permanent Protection Visa application was to be treated as an application for a Temporary Protection Visa.
(References omitted)
Statutory scheme
The stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s.4(1). Part 2 of the Act contains provisions in respect of the arrival, presence and departure of persons from Australia. A critical aspect of those provisions is that non-citizens must have a visa to enter and remain in Australia: see ss.13(1) and 14(1).
The provisions relating to the grant of visas are complex and inter-related. Relevantly, div.3 of pt.2 of the Act provides for classes of visas, criteria for the grant of visas, applications for visas and decisions about the grant or refusal to grant visas. Central to the whole visa scheme is that the Minister must consider, and can only consider a valid application for a visa: s.65(1). An application for a visa is valid if it complies with the requirements of s.46.
At the time that the applicant applied for a protection visa, s.36 of the Act provided that there was a class of visas to be known as protection visas. The Regulations provided that the class of protection visas was to be known as Protection (Class XA) visas and that there was one sub-class in that class of visa: subclass 866 (Protection): sch.1, item 1401. The criteria for the grant of that visa were set out in s.36 as well as in cl.866 of sch.2 to the Regulations. Sub-clause 866.226 made it a criterion that the Minister be satisfied that the grant of the visa was “in the national interest”.
These provisions were affected by the introduction of the Migration & Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (2014 Amendment Act). Shortly after its introduction, the relevant provisions of the 2014 Amendment Act were considered by the High Court in Plaintiff S297/2013 v Minister for Immigration & Border Protection (2015) 255 CLR 231. The Court summarised the relevant provisions at [26] – [29]:
[26] The 2014 Amendment Act inserted in the Act a new s 35A, providing that there is to be a class of permanent visas to be known as “permanent protection visas” and a class of temporary visas to be known as “temporary protection visas”. The notes to both the definition of “protection visa” inserted in s 5(1) and the newly inserted s 35A(2) record that, when those provisions commenced, permanent protection visas were classified by the Regulations as Protection (Class XA) visas. Amendments made to the Regulations by the 2014 Amendment Act provided that the new class of temporary protection visas was to be classified as Temporary Protection (Class XD) visas. The Regulations still provide for those classes of visa.
[27] The 2014 Amendment Act also inserted in the Act a new s 45AA. That section provides for certain visa applications to be taken to be applications for a different visa. In particular, s 45AA(3) provides that a regulation, referred to as a “conversion regulation”, may provide that, despite anything else in the Act, a “pre‑conversion application” for a “pre‑conversion visa”:
“(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa.”
[28] The 2014 Amendment Act inserted in the Regulations a new reg 2.08F. Regulation 2.08F(1) is a conversion regulation of the kind provided for by s 45AA(3). Regulation 2.08F(1) provides for converting certain applications for Protection (Class XA) visas into applications for Temporary Protection (Class XD) visas. This conversion is to be made with respect to an application “made before the commencement of this regulation by an applicant prescribed by subregulation (2)”. One of the classes of prescribed applicants is unauthorised maritime arrivals.
[29] Regulation 2.08F(3) provides for when the regulation starts to apply and it is this provision which is of central importance in the present matter. So far as relevant, it provides:
“This regulation starts to apply in relation to a pre‑conversion application immediately after the occurrence of whichever of the following events is applicable to the application:
(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act - the commencement of this regulation;
(b) in a case in which the Minister had made such a decision before the commencement of this regulation - one of the following events, if the event occurs on or after the commencement of this regulation:
...
(iii) a court quashes a decision of the Minister in relation to the pre‑conversion application and orders the Minister to reconsider the application in accordance with the law.”
(Emphasis in original, footnotes omitted)
The Court held that reg.2.08F did not convert the plaintiff’s application to an application for a temporary visa because neither of the relevant parts of reg.2.08F(3) applied. Relevantly, the Court held that the Minister in that case had “made a decision” within the meaning of sub-reg.2.08F(3)(a) even though the decision made was legally infirm because it was affected by jurisdictional error.
The regulation was amended after that decision by the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (Cth) (2015 Amendment Regulation). Item 4 of sch.1 to the 2015 Amendment Regulation provided that the amendments made by the 2015 Amendment Regulation applied to pre-conversion applications made before the commencement of the 2015 Amendment Regulation, that is, before 19 September 2015.
Regulation 2.08F(3), in its current form, is set out below. The amendments introduced by the 2015 Amendment Regulation are italicised:
...
(3) This regulation starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application:
(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Act—the commencement of this regulation;
(b) in a case in which the Minister had made such a decision before the commencement of this regulation—one of the following events, if the event occurs on or after the commencement of this regulation:
(i) the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Act;
(ii) the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;
(iii) a court orders the Minister to reconsider the pre-conversion application in accordance with the law;
(iv) a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre-conversion application is invalid, void or of no effect;
(v) a court quashes a decision of the Minister in relation to the pre-conversion application.
(4) To avoid doubt, for the purposes of subregulation (3), the Minister is taken not to have made a decision in relation to a pre-conversion visa application under section 65 of the Act if, before 16 December 2014:
(a) the Minister had made a decision in relation to the pre-conversion application under section 65 of the Act; and
(b) one of the following events occurred after the Minister made that decision:
(i) the Refugee Review Tribunal remitted a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Act;
(ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre-conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975;
(iii) a court ordered the Minister to reconsider the pre-conversion application in accordance with the law;
(iv) a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre-conversion application was invalid, void or of no effect;
(v) a court quashed a decision of the Minister in relation to the pre-conversion application; and
(c) after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre-conversion application.
(Emphasis in original and added)
In this case, the Minister had made two decisions in relation to the applicant’s application for a protection visa prior to the 2014 Amendment Act. On both occasions the applicant applied to the Refugee Review Tribunal (RRT) for review and the RRT remitted the matter under sub-s.415(2)(c) of the Act.
The applicant argued, in his amended application[2], that this meant that reg.2.08F did not apply to the applicant. That may have been correct under reg.2.08F as it was first introduced by operation of the 2014 Amendment Act; however, the argument does not take into account the amendments brought about by the 2015 Amendment Regulation and, in particular, the introduction of sub-reg.2.08F(4)(c).
[2] Leave was granted to the applicant at the hearing to file an amended application that included this ground.
The operation of sub-reg.2.08F(4)(c) in the circumstances meant that, as at the date of commencement of reg.2.08F in 2014, the Minister had not made a relevant decision and so the regulation applied from the date of its commencement. That meant, subject to the applicant’s arguments as to validity, that the applicant’s application for a protection visa in 2012 was taken always to have been a valid application for a temporary protection visa. The fact that there was, historically speaking, a time at which that was not the case does not affect that outcome and the applicant did not articulate any clear reason why it should.
The applicant also contended that reg.2.08F had not come into effect because the conditions in s.45AA(1) had not been satisfied. However, one of those conditions was that the criteria for the grant of a class of visa changed after the application for the visa had been made. That applied here because sch.2 to the 2014 Amendment Act made substantial changes to the criteria for the grant of a protection visa. For instance, cl.32 of that schedule repealed and replaced the cl.866.211 in sch.2 to the Regulations.
The validity of regulation 2.08F
The applicant posits five reasons for which reg.2.08F is invalid. Overall, those grounds fail to recognise that reg.2.08F was first inserted by legislation rather than by a regulation making power in the Act. That is an independent reason for rejecting at least the first three particulars in ground 1 of the applicant’s amended application. In any event, even if the arguments were addressed solely to the amendments made by the 2015 Amendment Regulations they have no merit and must be rejected.
First ground: repugnancy
The applicant asserts that reg.2.08F is inconsistent with, and therefore repugnant to, the scheme of the Act concerning the validity of applications for visas. In particular, it is inconsistent with s.46 of the Act. He argues that, to the extent that the regulation is supported by s.45AA, there is nothing that suggests that that provision should take supremacy over s.46.
There is no inconsistency either between reg.2.08F, in either its amended or original form, or s.45AA and the scheme of the Act. First, reg.2.08F is precisely the type of regulation envisaged by s.45AA(3). That much must be recognised by the fact that reg.2.08F was introduced by operation of the same legislation that introduced s.45AA(3). Secondly, s.45AA is part of the scheme of the Act and, in fact, assumes the continued operation of s.46. All that it does is to allow for a visa applicant to be granted a different class of visa than that for which he or she had applied. The words “despite anything else in this Act” in s.45AA(3) make it clear that s.45AA, the regulations made under it, and s.46 are intended to operate as a coherent whole. This ground is rejected.
Second ground: excess of scope of power
The applicant asserts that reg.2.08F extends beyond the scope of the power in s.45AA(3) because it runs counter to the scheme of the Act. This is, in effect, only another way of putting the first ground and is rejected for the same reasons.
Third ground: not a proper purpose
The applicant argues that the purpose of reg.2.08F was to deter the unauthorised entry to Australia by non-citizens and that this was inconsistent with the purpose of the Act which is to “regulate non-citizens coming to and their presence in Australia”. He also argues that reg.2.08F is inconsistent with the Act’s objective of implementing Australia’s obligations under the Convention Relating to the Status of Refugees [1954] ATS No 5[3]. In particular, he relies on the obligation under that Convention not to refoule a refugee to a place where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion[4].
[3] Convention Relating to the Status of Refugees [1954] Australian Treaty Series, No 5: entry into force for Australia and generally: 22 April 1954.
[4] See Article 33, [1954] ATS No 5.
There are many difficulties with this argument. It is only necessary to note two, both of which are fatal.
First, the deterrence of non-citizens from arriving unlawfully in Australia is entirely consistent with the stated objects of the Act. Those objects are pursued by means of the visa scheme implemented in pt.2 of the Act and include, amongst other provisions, the prohibition of travel to Australia without a visa (s.42), and the mandatory detention (s.189) and removal (s.198) of non-citizens without visas. The scheme as a whole, and each of the provisions within it “regulate” the entry of non-citizens into Australia and, by operation of the manner of that regulation, deters non-citizens from attempting to enter by unlawful means.
Secondly, reg.2.08F is not inconsistent with Australia’s non-refoulement obligation under Article 33 of the Refugees Convention. Nothing in the Convention, let alone Article 33, requires a contracting party to give permanent residence to a person who, at one point in time, is determined to be a refugee. Article 1C of the Convention itself recognises that, in certain circumstances, the protection to be afforded to such a person may cease: see Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1. In any event, there is nothing preventing the holder of a temporary visa from applying for a further visa if, at that time, he or she retains a well-founded fear of persecution on return to his or her country of nationality or former residence. This was recognised in the Explanatory Memorandum[5] to the 2014 Amendment Act at page 10.
[5] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014.
Fourth ground: punitive effect
The applicant argues that reg.2.08F is invalid because the exercise of the power conferred by it is punitive. He explained that the effect of the exercise of power was that a visa applicant would have less advantageous rights or conditions than the visa originally applied for and that no refund is given if the first instalment of the visa application charge payable for the converted visa is less than the actual amount paid in respect of the visa application charge for the pre-conversion visa.
The applicant did not explain the judicial basis for the argument that a regulation may be invalid if the exercise of the power given by it has a punitive effect. He did not rely on the Constitutional insistence that the judicial power of the Commonwealth rests solely in the courts: see, for example, Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 33; PlaintiffM76/2013 v Minister for Immigration, Multicultural Affairs & Citizenship (2013) 251 CLR 322 at 369 [138]. Rather, he submitted that the invalidity arose because the punitive effect of the regulation was not incidental to the Act “because such a regulation is not necessary or convenient for carrying out the Act”. That submission must be rejected.
As I have observed, the regulation is clearly and obviously envisaged by s.45AA of the Act. So, too, were the effects which the applicant characterises as punitive. Sub-section 45AA(5)(c) expressly provides for the possibility that a visa application charge already paid will not be refunded to the extent it exceeds the visa application charge for the post-conversion visa. Section 45AA(8) expressly provides for the possibility that the regulation will affect accrued rights.
In any event, the effects relied on by the applicant are not punitive. First, the mere fact that the visa applicant will obtain the right to remain in Australia on a less favourable basis than otherwise might have been the case is not punishment and nor is the fact that no refund of a visa application charge is to be given. Secondly, these effects, like mandatory detention of unlawful non-citizens, do not go beyond what is reasonably necessary to achieve the purposes of the provisions in particular and the Act as a whole.
Fifth ground: addressing impermissible matters
In this ground the applicant makes a number of different assertions.
First, he argues that reg.2.08F effectively eviscerates the regime of temporary and permanent protection visas established by s.35A. I reject that argument. First, s.35A was inserted into the Act by the 2014 Amendment Act. In other words, it was part of the scheme that included s.45AA and reg.2.08F. Secondly, rather than eviscerating the scheme that includes temporary and permanent visas, reg.2.08F engages that scheme.
Secondly, he argues that, contrary to s.504 of the Act, reg.2.08F prescribes matters which are not necessary or convenient for the carrying out of or giving effect to the Act. Leaving aside the breadth and uncertainty of that submission, it must be rejected because it focuses on the regulation making power in s.504 of the Act and, once again, ignores the fact that reg.2.08F was made under the 2014 Amendment Act.
Thirdly, the applicant submits that the regulation is invalid because it creates a framework that is not “readily known, clear, certain and predictable”. I disagree with both the premise and the conclusion of that argument. While s.45AA and reg.2.08F might take a little effort to understand, they are neither unclear nor uncertain. Further, contrary to the unadorned suggestion in the applicant’s written submissions[6], there is no prospect of “arbitrary conversion”. Any conversion occurs as a result of the deeming provisions in the legislation.
[6] Applicant’s submissions dated 16 November 2017 at [32].
Fourthly, the applicant asserts, again without any explanation, that the “foreseeable effects of the conversion regulation on visa applicants are potentially disproportionate to its stated objectives”[7]. This appears to be a submission that the regulation could not reasonably have been made under the power granted by the Act. Once again, this submission overlooks the fact that the regulation was not only contemplated by s.45AA, but was inserted into the Regulations by operation of the 2014 Amendment Act. Once that is understood, this contention rises no higher than a disagreement with the policy behind the regulation and does not establish invalidity: see Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 at [60], [117].
[7] Applicant’s submissions dated 16 November 2017 at [32].
None of the grounds raised by the applicant succeeds. For that reason it is unnecessary to address the Minister’s alternative submission that reg.2.08F, as enacted, operated to effect a conversion of the application for a permanent visa to one for a temporary visa.
Conclusion
Regulation 2.08F is valid. The Minister acted lawfully in applying it to grant the applicant a temporary protection visa. The application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 14 December 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Appeal
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