Capistrano, Arnulfo v Minister of State for Immigration & Multicultural Affairs

[1997] FCA 260

CATCHWORDS

IMMIGRATION - Application for visas - Whether Migration Regulations Amendment, statutory rules 211 of 1996 are valid

STATUTORY INTERPRETATION - Whether amendments to Regulations were ultra vires

Migration Act 1958 (Cth), ss 29, 30, 31, 37, 40, 45, 46, 47, 337,338, 340, 476, 504

Migration Regulations Schedule 1 Paragraphs 1301(3)(c), 1302(3)(baa), 1303(3)(c), 1304(3)(baa) and 1305(3)(bb).

Acts Interpretation Act (Cth) ss 15AA

ARNULFO CAPISTRANO v. MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No. NG 952 of 1996

EMMETT J

SYDNEY

18 April 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) No.  NG 952 of 1996
)
GENERAL DIVISION	)

BETWEEN:		ARNULFO CAPISTRANO Applicant
AND:		MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	EMMETT J
PLACE:	SYDNEY
DATED:	18 APRIL 1997

REASONS FOR JUDGMENT

These proceedings were commenced by application under Part IVA of the Federal Court of Australia Act. The application is brought against the respondent (“the Minister”) on behalf of a class said to comprise persons who had made applications for visas which the Minister had refused to consider on the ground that they were not valid applications. The application purports to invoke the jurisdiction of the court under section 486 of the Migration Act 1958 and section 39B of the Judiciary Act 1903.

Notice of objection to the competency of the application was filed on behalf of the Minister. I dealt with that question separately and concluded that the objection to competency should fail. In the course of argument on the substance of the application, however, it became apparent that there may be further questions of jurisdiction which remain to be resolved. It may be, therefore, that my earlier determination should be regarded as provisional.

It is clear that a question of law has arisen as between the members of the class and the Minister. By the Migration Regulations (Amendment), being statutory rules 211 of 1996 (“the Amendment”), paragraphs 1301(3)(c), 1302(3)(baa), 1303(3)(c), 1304(3)(baa) and 1305(3)(bb) in Schedule 1 to the Migration Regulations were amended. The question in issue between the members of the class and the Minister is whether those amendments were valid.

I propose to deal with the question. It may be that it will then be necessary to consider the procedural framework within which the question can properly be determined. As I understand the position, if the amendments effected to the paragraphs to which I have referred above are valid, the present application must be dismissed.

In order to deal with the question, it is necessary to examine the statutory framework within which the paragraphs operate. Section 29(1) of the Migration Act provides that the Minister may grant to a non-citizen permission, to be known as a “visa”, either to travel to and enter Australia or to remain in Australia. Section 40(1) provides that the regulations may provide that visas of a specified class may only be granted in specified circumstances. Section 40(2) provides that the circumstances may be that, when the visa is granted to the person, the person:

“(a)     is outside Australia, or
 (b)      is in immigration clearance, or

(c)has been refused immigration clearance and has not subsequently been immigration cleared, or

(d)     is in the migration zone and, on last entering Australia:

(i)        was immigration cleared, or

(ii)bypassed immigration clearance and had not subsequently been immigration cleared.”

Section 31(2) provides that, as well as certain prescribed classes, there are classes of visa provided for by other sections of the Act, including relevantly for present purposes, section 37. Section 31(3) provides that the regulations may prescribe criteria for a visa provided for by section 37.

Section 37 provides for classes of temporary visa, to be known as a “bridging visa”, which are granted under Subdivision AF. Section 73, which is in Subdivision AF, provides that the Minister may grant an eligible non-citizen, who satisfies the criteria for a bridging visa prescribed under section 31(3), a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia either during a specified period or until a specified event happens.

Sections 45, 46 and 47 deal with visa applications. Those provisions appear in Subdivision AA entitled “Application for Visas” whereas sections 29, 30, 31, 37 and 40 appear in Subdivision A entitled “General Provisions about Visas”. The relevance of that distinction will appear later.

Sections 45, 46 and 47 relevantly provide as follows:

“45(1)........ a non-citizen who wants a visa must apply for a visa of a particular class.

(2)Without limiting subsection (1), the regulations may prescribe the way for making:

(a)       an application in specified circumstances; or
  (b)       an application for a visa of a specified class; or

(c)an application in specified circumstances for a visa of a specified class.

(3)Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant:

(a)       must be outside Australia; or
  (b)       must be in immigration clearance; or

(c)must have been refused immigration clearance and not have subsequently been immigration cleared; or

(d)      must be in the migration zone and, on last entering Australia:

(i)        have been immigration cleared; or

(ii)have bypassed immigration clearance and not have subsequently been immigration cleared.

46       (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)......

(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.

47       (1)       The Minister is to consider a valid application for a visa.....

(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.”

Part 2 of the Migration Regulations is entitled “Visas”. Division 2.1 within that part is entitled “Classes, Criteria, Conditions, etc”. Division 2.2 is entitled “Applications”.

Within Division 2.1, regulation 2.03 prescribes, for the purposes of subsection 31(3), the criteria for the grant to a person of a visa of a particular class by reference to the relevant parts of Schedule 2. Regulation 2.04 provides that, for the purposes of section 40, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.

Regulation 2.07(1), which is in division 2.2, provides that, for the purposes of section 45 and 46 of the Act, 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.”

Schedule 1 is headed “Classes of Visas”. It contains under that heading the following note:

“This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered; see the Act, sections 45, 46 and 47........ ”

Part 3 of Schedule 1 is headed “Bridging Visas”. There are five items in part 3, being items 1301, 1302, 1303, 1304 and 1305, each relating to a different class of bridging visa. Each item  contains three headings as follows:

“(1)      Form:

(2)      Fee:

(3)      Other:”

Those headings correspond with paragraph 2.07(1)(a), (b) and (c) referred to above. The Amendment altered each of the five items in a similar fashion.

Various members of the class represented by the applicant in the proceedings have applied for different classes of visa and different items apply to different members of the class. By consent, I made an order under Order 29 that there be decided before all other questions in the proceedings, the question which arises in connection with any application for a bridging visa covered by paragraph 1301(3)(c). The same question arises in relation to all of the members of the class except that in some question arises that in relation to other items in Part 3 of Schedule 1. The question involves the validity of the Amendment.

The Amendment inserted into paragraph 1301(3)(c), opposite the heading “(3) Other:”, the following material:

“(c)      Either;

(i) the applicant has made a valid application, in Australia, for a substantive visa that can be granted if the applicant is in Australia and that application has not been finally determined; or

(ii) the applicant has applied, within statutory time limits, for judicial review of a decision to refuse a substantive visa that was applied for in Australia and can be granted if the applicant is in Australia and the judicial proceedings (including proceedings on appeal, if any) have not been completed.”

The Amendment does not specify the source of the power for the alteration thereby made. Apart from the specific provisions referred to above, section 504 empowers the Governor General to make regulations prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

It is not contended on behalf of the applicant that the alteration made to paragraph 1301(1)(c) by the Amendment was beyond power except in so far as it was expressed to be, by reason of the terms of regulation 2.07 and being included in Part 3 of Schedule 1, a prescription for the purposes of section 45 and 46 of the Act.

In particular, it is not contended by the applicant that the matters which are the subject of the alteration to paragraph 1301(3)(c) could not have been the subject of a prescription of criteria pursuant to section 31(3) or that they could not have been specified circumstances for the purposes of section 40(1). The contention, however, is that they are not a prescription of a way for making an application for the purposes of section 45(2).

The Minister contends that the effect of the Amendment is to prescribe the way for making an application within section 45(2) or, alternatively, if not, that the effect of the Amendment is to prescribe criteria for the purposes of section 31(3) or to specify circumstances for the purpose of section 40(1).

I was referred to a minute of the Minister expressed to be an explanatory memorandum in relation to the Amendment. Counsel for the Minister said that reference to such extraneous material was justified by section 15AA of the Acts Interpretation Act which requires that a construction that would promote the purpose of or object underlying an act is to be preferred to a construction that would not promote that purpose or object.

In the explanatory memorandum it is said that the proposed regulation would, inter alia, prevent application for bridging visas by on-shore applicants applying for visas off-shore. The authority for the Amendment relied on in the explanatory memorandum included sections 504, 31(3), 40(1), 45(1), 45(2), 45(3) and 46(2).

No assistance can be obtained from the explanatory memorandum to support a regulation or amendment to the regulations which was not authorised by the Act itself. On the other hand, if there is ambiguity in the Amendment, the explanatory memorandum may be of assistance in resolving the ambiguity.

The applicant’s argument is that paragraph 1301(3)(c), as amended, simply was not, as a matter of language, a prescription of the way for making an application in specified circumstances for the purposes of section 45(2). It could only be, as a matter of language, a specification of circumstances in which a class of visa might only be granted or, possibly, a prescription of criteria for a visa.

It was said that the significance of that distinction is to be gleaned from the effect of section 47(4). A decision by the Minister that an application is not valid and, pursuant to section 47(3), cannot be considered, is not a decision to refuse to grant the visa. Section 340(1) provides that if an application is properly made for a review of an internally reviewable decision, a review officer must review the decision. That review would be a review on the merits.

An internally reviewable decision is, for present purposes, by the operation of sections 337 and 338(1), a decision to refuse to grant a visa. Since the decision that an application is not valid is not a decision to refuse to grant a visa, such a decision is not an internally reviewable decision.

Section 46(1) has the effect that an application for a visa is valid if, and only if, relevantly, it is made in the way required by section 45(2). Thus, making an application in the prescribed way is a condition of validity. If the effect of regulation 2.07 and Part 3 of Schedule 1 is to prescribe the way for making an application and an application is not made in that way, the consequence is that the application is not valid. The decision of the Minister that the application is not valid for that reason is not an internally reviewable decision and, accordingly, is not subject of review on the merits. It may, of course, be subject to judicial review on any of the grounds specified in section 476 of the Migration Act.

It is very difficult to characterise the language of paragraph 1301(3)(c) as a prescription of the way for making an application in specified circumstances. To say that an applicant must have made a valid application, in Australia, for a substantive visa that can be granted if the applicant is in Australia and that the application has not been finally determined, is a statement of circumstances in which a visa may be granted. However, that is not what the regulation, as altered, purports to do. It purports to be a matter relating to an application for the purposes of section 45. But that section only authorises a prescription of the way for making an application in specified circumstances, not the circumstances in which a visa may be granted.

Nevertheless, as I have said, the Amendment was apparently made in reliance upon sections 31 and 40 as well as sections 45 and 46. The authority conferred by section 29 is expressed to be subject to the Act. If, on the true construction of the Regulations as a whole, there has been prescribed circumstances which must prevail before a visa can be granted, section 40(1) would authorise such a prescription. Alternatively, if on the true construction, the requirement in paragraph 1301(3)(c) is a criterion for a visa, that would be authorised by section 31(3). Either way, the Regulations, as altered, would be valid.

While the language of the Regulations as altered may not be felicitous, the effect of the Amendment is that there are now additional circumstances prescribed which must prevail before there is an obligation on the Minister to grant a visa. Alternatively, there are additional criteria which must be satisfied before there is an obligation on the Minister to grant a visa. An alteration to the Regulations which has either of those effects would be a valid alteration. It follows that the Amendment is valid.

The question of whether or not a decision in relation to an application for a visa is an internally reviewable decision will depend upon the construction of the Regulations. It may be necessary to determine whether, in truth, the additional words inserted into paragraph 1303(1)(c) relate to the validity of an application or whether it is circumstances or criteria. That, however, is not the question before me. The only question, at this stage, is whether the Amendment is valid.

Accordingly, I would determine the question which has been ordered to be decided separately from, and prior to the determination of, all other questions in the proceedings by making a declaration that the alteration to paragraph 1301(3)(c) effected by the Amendment is valid.

As I understand the position, the determination of that question in that way would lead to the dismissal of the proceedings, however they are constituted. As I have indicated, however, the procedural framework within which the question arises to be determined is somewhat unclear. Accordingly, I will, following the delivery of these reasons, stand the proceedings over to enable the parties to consider the effect of my decision and to bring in short minutes dealing, if necessary, with the reconstitution of the proceedings.

I certify that this and the preceding nine pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett

Associate:

Dated:               18 April 1997

Heard:            2 April 1997

Place:              Sydney

Decision:        18 April 1997

Appearances:

Counsel for the applicant:     N.J. Williams

D.H. Godwin

Solicitor for the applicant:     Parish Patience.

Counsel for the respondent:    E.Wilkins

Solcitor for the respondent:    Australian Government Solicitor