CHERYALA v Minister for Immigration
[2017] FCCA 2261
•15 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHERYALA v MINISTER FOR IMMIGRATION | [2017] FCCA 2261 |
| Catchwords: MIGRATION – Application for a Bridging E (Class WE) General (Subclass 050) visa – invalid application – decision made under s.116(1)(g) by reason of reg.2.43(1)(p)(ii) to cancel the applicant’s visa – reg.2.43(1)(p)(ii) does not operate arbitrarily or capriciously – the nature and power of the regulation making power under s.116 supports the making of a Regulation under reg.2.43(1)(p)(ii) – item 1305(3)(g) of the Regulations is a valid and proportionate exercise of the regulation making power under s.46(3) – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.31, 45, 47, 116, 118, 189, 195A, 196, 476, 504 Migration Regulations 1994, reg.2.25, 2.43, Item 1305 of Schedule 1 |
| Cases cited: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) |
| Applicant: | CHAFIC CHERYALA |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2079 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 15 September 2017 |
| Date of Last Submission: | 15 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin on a direct access basis |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The hearing of the application for interlocutory relief as identified in the amended application filed on 1 September 2017 be heard at the same time as the hearing proceeding on a final basis.
Grant leave to the applicant to file in Court the affidavit sworn by the applicant on 15 September 2017 and dispense with the need for the electronic filing of the same.
The amended application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $7,206.00.
THE COURT NOTES THAT:
The Court will consider what interim relief, if any, should be granted depending on whether the Court reserves its decision and on the outcome of the proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2079 of 2017
| CHAFIC CHERYALA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This an application for Constitutional, declaratory and other consequential relief in respect of the decision of the delegate made on 27 June 2017 notifying the applicant of an invalid application for a Bridging E (Class WE) General (Subclass 050) visa. As a non-reviewable migration decision, the matter is within this Court’s jurisdiction in respect of an alleged jurisdictional error under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”)
The applicant is a citizen of Lebanon who arrived in Australia on 27 December 2008. The applicant’s last substantive visa ceased on 12 May 2012. On 22 June 2017, a decision was made under s.116(1)(g) of the Migration Act by reason of reg.2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”) to cancel the applicant’s visa.
The grounds upon which the Notice of Intention to Consider Cancellation identifies the consideration of a power to cancel arose as the applicant who as the holder of a subclass 050 visa, had been charged with an offence against a law of the State of New South Wales.
The delegate made reference to the evidence available, being a NSW Police fact sheet which indicated that the applicant had been charged with serious offences as follows:
· Take and detain person with intent to obtain advantage, contrary to s.86(1)(b) of the Crimes Act 1900 (NSW);
· Sexual intercourse without consent, contrary to s.61I of the Crimes Act 1900 (NSW);
· Assault with an act of indecency, contrary to s.61L of the Crimes Act 1900 (NSW).
Part of the record of decision whether to cancel the visa identifies that the applicant alleged that the circumstances arose all because a girl who loves him and that everything changed once she wanted money. The information provided by the applicant concluded that the alleged victim’s relatives in Lebanon are threatening to kill him. The applicant also alleged that the cancellation should await the outcome of the court case and a finding of guilty
The New South Wales Police fact sheet relevantly provides as follows:
The Accused is currently in Australia on a bridging Visa. The Accused is a family friend of the X Family.
On Sunday 11 June 2017, the Accused contacted A (mother of the victim) and asked for her daughter's hand in marriage. The W family turned down this marriage proposal. This was the second time that the Accused had asked for the victim's hand in marriage and was turned down.
After1:10am on Monday 12 June 2017, the Accused contacted the victim on her mobile phone number. The Accused said words to the effect of, “Pack your stuff you're coming with me. If you don't come I will kill you. If you don't come with me I will kill myself."
Fearful the victim packed a small bag and met the Accused outside her house. At the time, the Accused was seated in the front drivers seat of his black Mercedes convertible, New South Wales registration. The victim entered the front passenger seat and the Accused drove the victim to the 'Novotel Sydney Brighton Beach', located at The Grand Parade, Brighton-Le-Sands.
Once at the Novotel, the Accused checked himself and the victim into room 1018. The Accused and the victim then entered the hotel room. Once inside, the Accused started to kiss the victim all over her face and neck. The victim felt uncomfortable and told the Accused to stop and pushed him away.
The Accused told the victim; “Let's play a game of X 0. If I win you have to do whatever I say. “The victim explained to Police that the game was like naught's and crosses or tick, tack, toe.
During this game the victim was forced to remove her clothing as the Accused was wining the games being played by the victim and Accused. The victim was left wearing only her crop top and underwear. The Accused during this time took his clothes off and was now naked standing in front of the victim.
The Accused took hold of the victim and pushed her backwards onto the bed. The Accused attempted to place his penis inside the victim's vagina. The victim felt immense pain and a lot of pressure and could feel part of the Accused's penis inside her vagina. The Accused stood in front of the victim. The victim was embarrassed and didn't want to look at the Accused, she could see that the Accused had an erect penis and he told her to touch it. The victim refused to touch it. The Accused grabbed hold of the victim's hand and started stroking his penis. The victim pulled away and told the Accused that it was that time of the month for her and she didn't want to do anything.
The victim was exhausted and went to sleep on the bed. The victim said that the Accused went and had a shower and she fell asleep on the bed. The victim was clothed when she went to sleep. The victim cannot remember where the Accused slept.
About 10:30am the Accused checked himself and the victim out of the Novotel Hotel. The Accused then drove the victim to his house at Z where he packed some of his clothing into a bag.
The Accused then drove to a location believed to be in Lakemba. The Accused took the victim into a house next to a Mosque where a Sheik was present and so was his wife. Here the Accused made the victim sign a document written in Arabic. The victim remembers seeing the Accused's name and her name, everything else was written in Arabic. The victim was told to sign, which she did and the Accused signed. After this, the Accused contacted the victim's mother, telling her that the victim and he were 'married now.'
Around midday, the victim told the Accused that she needed feminine supplies and the Accused took the victim to Woolworths at Punchbowl where they purchased a number of items. The Accused person paid in cash.
From here the Accused drove the victim to his brother's Tarek's house in Liverpool. The victim still in fear of being harmed remained in the car. The victim felt scared and alone and did not want to be in the company of the Accused.
Sometime later, the Accused received a call from his cousin and told the victim that they were heading to Melbourne. The victim felt very scared as she has never left Sydney before. The victim told the Accused that her mother had contacted the Police and that they would come looking for them. The Accused laughed and said that no one will come looking for her because she is 18 years of age and the Police cannot do anything.
As the Accused drove along the Hume Highway the victim was able to keep in regular contact with her best friend and next door neighbour, X. The victim tried to give her friend details of her whereabouts without alerting the Accused as to what she was doing. The Accused spoke only to the victim in Arabic.
Along the Hume Highway the Accused stopped a number of times, for McDonalds, petrol and other supplies. During this time the victim felt scared and isolated and did not try and get help in fear of being harmed by the Accused.
About 8:50pm that evening, vehicle was sighted by Police on the Hume Highway at Gundagai. Wagga Wagga Highway Patrol activated their vehicle warning devices, signalling for the vehicle to come to a stop. The vehicle complied and pulled over to the side of the road.
As Police approached the vehicle, the victim yelled, “He's going to kill me; he's going to kill me." Police observed the victim who was shaking and crying whilst seated in the front passenger seat of the vehicle.
The victim and the Accused were separated by Police. The Accused was cautioned and placed under arrest. A short time later, the Accused was conveyed to Wagga Wagga Police Station and introduced to the Custody Manager, Constable H.
The Accused was read and explained his rights in accordance of Part 9 of Law Enforcement (Powers and Responsibilities) Act 2002 by Senior Constable D who speaks and understands Arabic. The Accused was offered the opportunity to participate in an electronically recorded interview to which he accepted. During such interview the accused denied that he did anything wrong. The Accused stated that he and the victin1 were in regular contact via text message and the use of the “What's Ap". The Accused stated that he and the victim met about 4 or 5 months ago on a holiday at Kiama. Both the Accused person's family and the victim's family were holidaying at the location. The Accused stated that the victim wanted to be with him and that she was a willing participant to come with him. The Accused denied any wrong doing in relation to sexually assaulting the victim or touching her inappropriately.
The victim was conveyed to Wagga Wagga Rural Referral Hospital where a Sexual Assault Investigation Kit (SAIK) was carried out. The victim provided Investigators with a recorded statement in relation to the incident. The victim has extreme fears for her safety as the Accused states that they are married and he will keep coming after her to make her be with him as his wife. The victim does not want anything to do with the Accused person. When the victim was with the Accused person she thought that she would never see her family again.
The Accused is now charged with the matters before the court.
The statement of facts reveals steps taken to obtain admissible evidence to support the charges laid. The assertion by the applicant that the alleged victim is now his wife and he will keep coming after her is also troubling. A ceremony under Sharia law is not a marriage or recognised as such under the law of Australia. On no view, does the ceremony described in the statement of facts support that the alleged victim is the applicant’s wife.
On 18 June 2017, a statement was provided to the police by the alleged victim, identifying the alleged victim was 18 years of age. The alleged victim identified a recording that was undertaken and an examination that was undertaken. The alleged victim identified being aware that the applicant had been charged with criminal offences.
The alleged victim’s statement says:
I do not wish to supply a formal statement or written version of events in relation to the incident that occurred on 12 June 2017 involving the applicant.
The above paragraph refers to “the incident that occurred” and is not a retraction of the alleged victim’s recorded statement. The alleged victim indicated she did not wish to assist the police further in relation to the prosecution of the applicant and that she wished the charges to be withdrawn and that she was making this decision of her own free will, and alleged that she had not been pressured by anyone. The alleged victim stated the consequences of withdrawal of a statement were explained and that the current criminal charges and the accompanying AVO against the applicant are likely to be withdrawn. The alleged victim signed that statement.
The delegate’s decision
On 27 June 2017, the delegate made reference to the applicant having applied for a Bridging E (Class WE) General (subclass 050) visa. The delegate identified that the application was invalid because the applicant did not meet item 1305(3)(g) of Schedule 1 to the Regulations. The decision made reference to that provision requiring that the applicant has not previously held a visa which was cancelled on a ground specified in reg.2.43(1)(p) or (q) to the Regulations.
In the present case, an earlier decision had been made cancelling the applicant’s visa under reg.2.43(1)(p) of the Regulations. The decision notified that as the application was invalid, it cannot be accepted or processed, and that the applicant had no rights of merits review.
Before this Court
The grounds in the amended application are as follows:-
1. Regulation 2.43(1)(p)(ii) of the Migration Regulations is ultra vires and invalid
Particulars
The regulation is plainly unjust and is not rationally adapted or proportionate to the purpose of deciding whether a person should continue to hold a visa.
2. Item 1305(3)(g) in Schedule l of the Migration Regulations is ultra vires and invalid
Particulars
The regulation is plainly unjust and is not rationally adapted or proportionate to the purpose of determining the validity of a visa application.
The amended application seeks interim relief. That interim application was heard concurrently with the final hearing with the agreement of both counsel, with the intention that if the Court reserved, further submissions could be put in support of the interim relief, which was to the following effect:
An injunction requiring the respondent to release the applicant from Immigration detention immediately
The final relief sought in the amended application is as follows:-
1. A declaration that Regulation 2.43(1)(p)(ii) of the Migration Regulations is ultra vires and invalid.
2. A declaration that the applicant continues to hold a bridging visa E class 050
3. A declaration that the detention of the applicant from 22 June 2017 to the date of this order was unlawful
4. An injunction requiring the respondent to release the applicant from Immigration detention immediately
5. costs
Alternatively
6. A declaration that Item 1305(3)Cg) in Schedule l of the Migration Regulations is ultra vires and invalid
7. An order that the decision of the Minister that the applicant's application for a Bridging Visa E Class 050 was invalid be quashed.
8. A writ of mandamus directed to the Minister, requiring them to determine the applicant's application according to law.
9. An injunction requiring the respondent to release the applicant from Immigration detention immediately
10. costs
In relation to ground 1, the relevant regulation making power is identified in s.116(1)(g) of the Migration Act. The terms of s.116 of the Migration Act are as follows:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
the health, safety or good order of the Australian community or a segment of the Australian community; or
the health or safety of an individual or individuals; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that:
(a) incorrect information was given, by or on behalf of the person who holds the current visa, to:
(i) an officer; or
(ii) an authorised system; or
(iii) the Minister; or
(iv) any other person, or a tribunal, performing a function or purpose under this Act; or
(v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
(b) the incorrect information was taken into account in, or in connection with, making:
(i) a decision that enabled the person to make a valid application for a visa; or
(ii) a decision to grant a visa to the person; and
(c) the giving of the incorrect information is not covered by Subdivision C.
This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that:
(a) a benefit was asked for or received by, or on behalf of, the person (the visa holder ) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or
(b) a benefit was offered or provided by, or on behalf of, the person (the visa holder ) who holds the current visa to another person in return for the occurrence of a sponsorship-related event.
(1AD) Subsection (1AC) applies:
(a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
(b) whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and
(c) whether or not the sponsorship-related event occurred.
(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
The object of the Migration Act is identified in s.4 of the Migration Act:
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
Section 30 of the Migration Act provides for kinds of visas and s.31 of the Migration Act provides for different classes of visas. Those provisions in relation to kinds of visas and different parts of visas are found in Subdivision A, Division 3 of Part 2 and are concerned with visas for non-citizens. Subdivision AA of Division 3 of Part 2 is concerned with applications for visas, and relevantly for these proceedings, s.46 of the Migration Act provides as follows:
(1) Subject to subsections (1A), (2) and (2A), 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 satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi) section 501E (earlier refusal or cancellation on character grounds); and
(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 46AA (visa applications, and the grant of visas, for some Act-based visas);
(ii) section 46A (visa applications by unauthorised maritime arrivals);
(iii) section 46B (visa applications by transitory persons);
(iv) section 91E or 91G (CPA and safe third countries);
(v) section 91K (temporary safe haven visas);
(vi) section 91P (non-citizens with access to protection from third countries).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is 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.
Provision of personal identifiers
(2A) An application for a visa is invalid if:
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Subdivision AC of Division 3 of Part 2 refers to decisions to grant or refuse to grant a visa. There must be a valid application for a visa before any such decision can be made. Section 47 of the Migration Act provides as follows:
(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.
The power to cancel a visa found in s.116 of the Migration Act is found in Subdivision D of Division 3 of Part 2. Subdivision D of Division of Part 2 deals with detention of unlawful citizens, and relevantly, s.118 of the Migration Act provides as follows:
The powers to cancel a visa under:
(a) section 109 (incorrect information); or
(b) section 116 (general power to cancel); or
(c) section 128 (when holder outside Australia); or
(ca) section 133A (Minister's personal powers to cancel visas on section 109 grounds); or
(cb) section 133C (Minister's personal powers to cancel visas on section 116 grounds); or
(cc) section 134B (emergency cancellation on security grounds); or
(d) section 134 (cancellation of business visas); or
(da) section 137Q (cancellation of regional sponsored employment visas); or
(e) section 140 (consequential cancellation of other visas); or
(ea) section 500A (refusal or cancellation of temporary safe haven visas); or
(f) section 501, 501A, 501B or 501BA (special power to refuse or cancel on character grounds);
are not limited, or otherwise affected, by each other.
Section 504 of the Migration Act in respect of Regulations provides as follows:
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
(a) making provision for and in relation to:
(i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or
(ii) the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;
(iii) the way, including the currency, in which fees are to be paid; or
(iv) the persons who may be paid fees on behalf of the Commonwealth;
(b) making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees;
(c) making provision for or in relation to the furnishing or obtaining of information with respect to:
(i) persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and
(ii) persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and
(iii) persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier;
(d) making provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph (c);
(e) making provision for and in relation to:
(i) the giving of documents to;
(ii) the lodging of documents with; or
(iii) the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;
(f) prescribing the practice and procedure in relation to proceedings before a Commissioner or a prescribed authority under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations and the payment of expenses of witnesses;
(g) requiring assurances of support to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of assurances of support and the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the assurances of support are given;
(h) making provision for the remission, refund or waiver of charges under the Migration (Health Services) Charge Act 1991 ;
(i) enabling a person who is alleged to have contravened section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units;
(j) enabling a person who is alleged to have contravened section 229 or 230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding:
(i) in the case of a natural person--30 penalty units; and
(ii) in the case of a body corporate--100 penalty units; and
(jaa) enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and
(ja) enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and
(k) prescribing penalties, of imprisonment for a period not exceeding 6 months or a fine not exceeding 10 penalty units, in respect of offences against the regulations; and
(l) making provision for matters that, under the Education Services for Overseas Students Act 2000 , are required or permitted to be prescribed in regulations made under this Act.
(2) Section 14 of the Legislation Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations.
(3) The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.
(3A) The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e).
(4) Regulations in respect of a matter referred to in paragraph (1)(g) may apply in relation to maintenance guarantees given before the commencement of this Part in accordance with the regulations that were in force under any of the Acts repealed by this Act.
(5) An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(g) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever.
(5A) The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied:
(a) subsection (5) of this section;
(b) regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for:
(i) the enforcement of assurances of support; or
(ii) the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.
(6) In this section:
“international air carrier” means an air transport enterprise that operates an air service between Australia and a place outside Australia.
Regulation 2.43 of Subdivision 2.9.2 of Division 2.9 under Part 2 of the Regulations provides as follows:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(a) that the Foreign Minister has personally determined that:
(i) in the case of a visa other than a relevant visa--the holder of the visa is a person whose presence in Australia:
(A) is, or would be, contrary to Australia's foreign policy interests; or
(B) may be directly or indirectly associated with the proliferation of weapons of mass destruction; or
(ii) in the case of a relevant visa--the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction;
Note: A relevant visa is explained in subregulation (3).
(aa) in the case of a person who is the holder of a visa other than a relevant visa, the person:
(i) is declared under paragraph 6(1)(b) or (2)(b) of the Autonomous Sanctions Regulations 2011 for the purpose of preventing the person from travelling to, entering or remaining in Australia; and
(ii) is not a person for whom the Foreign Minister has waived the operation of the declaration in accordance with regulation 19 of the Autonomous Sanctions Regulations 2011 ;
(b) that the holder of the visa has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ;
(e) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18 ; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using form 601E, who is under 18 ; or
(iva) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18;
that either:
(v) both of the following apply:
(A) the law of the visa holder's home country did not permit the removal of the visa holder;
(B) at least 1 of the persons who could lawfully determine where the additional applicant is to live did not consent to the grant of the visa; or
(vi) the grant of the visa was inconsistent with any Australian child order in force in relation to the visa holder;
(ea) in the case of a Subclass 601 (Electronic Travel Authority) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder:
(i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or
(ii) has ceased to have that intention;
(f) in the case of:
(i) the holder of an Electronic Travel Authority (Class UD) visa who is under 18 and is not accompanied by his or her parent or guardian; or
(iii) the holder of a Tourist (Class TR) visa, that was applied for using a form 601E, who:
(A) is under 18 ; and
(B) is not accompanied by his or her parent or guardian; or
(iv) the holder of a Visitor (Class TV) visa who is under 18 and is not accompanied by his or her parent or guardian ; or
(v) the holder of a Subclass 600 (Visitor) visa in the Tourist stream, that was applied for using form 1419 (Internet), who is under 18 and is not accompanied by his or her parent or guardian;
that the holder of that visa does not have adequate funds, or adequate arrangements have not been made, for the holder's maintenance, support and general welfare during the holder's proposed visit in Australia;
(g) in the case of a temporary visa held by a person other than a visa holder mentioned in paragraph (h)--that the visa holder asks the Minister, in writing, to cancel the visa;
(h) in the case of a temporary visa held by a person who is under the age of 18 years and is not a spouse, a former spouse or engaged to be married--that:
(i) a person who is at least 18 years of age, and who can lawfully determine where the visa holder is to live, asks the Minister, in writing, to cancel the visa; and
(ii) the Minister is satisfied that there is no compelling reason to believe that the cancellation of the visa would not be in the best interests of the visa holder;
(i) in the case of the holder of:
(i) a Subclass 456 (Business (Short Stay)) visa; or
(ia) a Subclass 459 (Sponsored Business Visitor (Short Stay)) visa; or
(ib) a Subclass 600 (Visitor) visa in the Business Visitor stream; or
(ii) a Subclass 956 (Electronic Travel Authority (Business Entrant--Long Validity)) visa; or
(iii) a Subclass 977 (Electronic Travel Authority (Business Entrant--Short Validity)) visa--
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes;
(ia) in the case of a holder of:
(i) a Subclass 400 (Temporary Work (Short Stay Specialist )) visa; or
(ia) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ib) a Subclass 402 (Training and Research) visa; or
(ic) a Subclass 403 (Temporary Work (International Relations)) visa; or
(id) a Subclass 407 (Training) visa; or
(ie) a Subclass 408 (Temporary Activity) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(v) a Subclass 420 (Entertainment) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
that the grounds in subregulation (1A) are met;
(j) in the case of the holder of:
(i) a Subclass 600 (Visitor) visa that is not in the Business Visitor stream or the Frequent Traveller stream ; or
(ii) a Subclass 676 (Tourist) visa; or
(iii) a Subclass 679 (Sponsored Family Visitor) visa;
that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment;
(ja) in the case of the holder of a Subclass 600 (Visitor) visa in the Frequent Traveller stream--that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a tourist or to engage in a business visitor activity;
(k) in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;
(ka) in the case of a holder of a Subclass 651 (eVisitor) visa--that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted;
(kb) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4)--that, despite the grant of the visa, the Minister is satisfied that:
(i) the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or
(ii) the holder has ceased to have a genuine intention to perform that occupation; or
(iii) the position associated with the nominated occupation is not genuine;
(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor )--that:
(i) the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or
(ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or
(iii) the sponsor has failed to satisfy a sponsorship obligation; or
(iv) the sponsor has been cancelled or barred under section 140M of the Act; or
(v) the labour agreement has been terminated, has been suspended or has ceased;
(la) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who was granted the visa on the basis of a nomination of an activity under regulation 1.20GA as in force immediately before 14 September 2009--that the holder is living or working within an area specified by the Minister in an instrument in writing for this paragraph;
(lc) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 407 (Training) visa; or
(ic) a Subclass 408 (Temporary Activity) visa; or
(iii) a Subclass 416 (Special Program) visa; or
(xi) a Subclass 488 (Superyacht Crew) visa;
who is a primary sponsored person in relation to a person who is or was an approved sponsor--that 1 of the grounds specified in subregulation (1B) is met;
(ld) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 402 (Training and Research) visa; or
(ib) a Subclass 407 (Training) visa; or
(iii) a Subclass 420 (Entertainment) visa; or
(ix) a Subclass 457 (Temporary Work (Skilled)) visa;
who is a secondary sponsored person in relation to a person who is or was an approved sponsor--that the person who is or was an approved sponsor of the primary sponsored person to whom the secondary sponsored person is related has not listed the secondary sponsored person in the latest nomination in which the primary sponsored person is identified;
(le) in the case of a holder of:
(i) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(ia) a Subclass 408 (Temporary Activity) visa granted on the basis that the primary sponsored person satisfied the criteria in clause 408.223 (religious worker) or 408.224 (domestic worker) of Schedule 2; or
(iv) a Sub class 457 (Temporary Work (Skilled)) visa;
who is a primary sponsored person or a secondary sponsored person in relation to a person who is or was an approved sponsor--that the person who is or was an approved sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation mentioned in regulation 2.80 or 2.80A;
(m) that the Minister reasonably suspects that the holder of the visa has committed an offence under section 232A, 233, 233A, 234 or 236 of the Act;
(n) that:
(i) a certificate is in force under paragraph 271(1)(l) of the Act, stating that a computer program was not functioning correctly; and
(ii) both of the following apply:
(A) the visa was granted at the time, or during the period, that is specified in the certificate;
(B) the grant of the visa is an outcome from the operation of that program, under an arrangement made under subsection 495A(1) of the Act, that is specified in the certificate;
(o) that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
(ob) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning or intelligence that:
(i) the holder has committed an offence against a law of another country and is likely to commit a similar offence; or
(ii) the holder is a serious and immediate threat to public safety;
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
(iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or
(iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
(A) has committed an offence against a law of another country; and
(B) is likely to commit a similar offence; or
(v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;
(q) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that:
(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;
(r) in the case of the holder of a Subclass 771 (Transit) visa--that, despite the grant of the visa, the Minister reasonably suspects that the holder of the visa:
(i) did not have, at the time of the grant of the visa, an intention to transit Australia; or
(ii) has ceased to have that intention.
(1A) For paragraph (1)(ia), the grounds are that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have at the time of grant of the visa, or has ceased to have, a genuine intention to stay temporarily in Australia to carry out the work or activity in relation to which:
(a) the visa holder's visa was granted; or
(b) if the visa holder is identified in a nomination after the visa is granted--the visa holder was identified in a nomination.
(1B) For paragraph (1)(lc), the grounds are the following:
(a) the approval of the person as a sponsor has been cancelled, or the approved sponsor has been barred, under section 140M of the Act;
(c) if the primary sponsored person is required to be identified in a nomination--the criteria for approval of the latest nomination in which the primary sponsored person is identified are no longer met;
(d) the person who is or was an approved sponsor has failed to satisfy a sponsorship obligation.
(1C) For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.
(1D) For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:
(a) because of the conduct of the holder; or
(b) because of the circumstances of the holder, other than compassionate or compelling circumstances; or
(c) because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or
(d) on the basis of evidence or a document given to the provider about the holder's circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder's circumstances.
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant visa--each of the circumstances comprising the grounds set out in:
(i) sub-subparagraphs (1)(a)(i)(A) and (B); and
(ii) paragraph (1)(aa); and
(iii) paragraph (1)(b); and
(aa) in the case of a relevant visa--the circumstance comprising the grounds set out in subparagraph (1)(a)(ii).
(3) In this regulation:
“relevant visa” means a visa of any of the following subclasses:
(aa) Subclass 050;
(aaa) Subclass 070;
(a) Subclass 200;
(b) Subclass 201;
(c) Subclass 202;
(d) Subclass 203;
(e) Subclass 204;
(g) Subclass 449;
(i) Subclass 785, including a Subclass 785 visa granted before 2 December 2013;
(k) Subclass 866.
In Division 2.2, relevantly, is Regulation 2.25, which is as follows:
(1) This regulation applies to:
(a) a non-citizen who is in criminal detention; or
(b) a non-citizen who:
(i) is unwilling or unable to make a valid application for a Bridging E (Class WE) visa; and
(ii) is not barred from making a valid application for a Bridging E (Class WE) visa by a provision in the Act or these Regulations, other than in item 1305 of Schedule 1.
(2) Despite anything in Schedule 1, the Minister may grant the non-citizen a Bridging E (Class WE) visa if the Minister is satisfied that, at the time of decision:
(a) the non-citizen satisfies:
(i) the criteria set out in clauses 050.211, 050.212, 050.223, 050.224 and 050.411 of Schedule 2; and
(ii) the interview criterion; or
(b) the non-citizen satisfies the criteria set out in clauses 051.211, 051.212, 051.213, 051.221 and 051.411 of Schedule 2.
(3) The non-citizen satisfies the interview criterion if an officer who is authorised by the Secretary for the purposes of subclause 050.222(1) of Schedule 2 has either:
(a) interviewed the non-citizen; or
(b) decided that it is not necessary to interview the non-citizen.
Part 3 of Schedule 1 to the Regulations includes Item 1305, which relevantly provides as follows:
(1) Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-Internet application charge. Not all of the components may apply to a particular application.
Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.
(b) the second instalment (payable before grant of visa) is nil.
(3) Other:
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b) Applicant must be in Australia but not in immigration clearance.
(ba) Applicant must be an eligible non-citizen within the meaning of section 72 of the Act.
(c) If applicant is in immigration detention, an officer appointed under subregulation 2.10A(2) as a detention review officer for the State or Territory in which the applicant is detained has been informed of the application.
(d) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging E (Class WE) visa may be made at the same time and place as, and combined with, the application by that person.
(e) If the applicant has applied at the same time and on the same form for a substantive visa, the application for the substantive visa is valid.
(f) The applicant has not previously held a Bridging E (Class WE) visa that has been cancelled by reason of a failure to comply with condition 8564 or 8566.
(g) The applicant has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q).
(4) Subclasses:
050 (Bridging (General))
051 (Bridging (Protection Visa Applicant))
Note: Regulation 2.07A sets out the circumstances in which an application for a substantive visa made on a form mentioned in this item is not a valid application for a Bridging A (Class WA), Bridging C (Class WC) or Bridging E (Class WE) visa.
Consideration
Ground 1
In relation to ground 1, Mr Godwin took the Court to various authorities in respect of the validity of regulations and in particular, Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 where French CJ relevantly explained at [43]:
On the question whether a law could be said to be reasonably proportional and therefore incidental to a head of power, Mason CJ said [93]:
“in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object. In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.”
Mr Godwin also drew the Court’s attention to what was said in that decision by Hayne and Bell JJ who agreed at [113] and [117], and also was said by Crennan and Kiefel JJ at [201].
Mr Godwin emphasised the importance of the presumption of innocence being a fundamental value of the common law and an incident of the fundamental freedom of liberty of a citizen. Mr Godwin of counsel drew attention to the observations of French CJ Justice in Momcilovic v The Queen (2011) 245 CLR 1 at [43] and [44], as follows:
43. The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law (215). The range of rights and freedoms covered by the principle has frequently been qualified by the adjective “fundamental”. There are difficulties with that designation (216). It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power (217). Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted “rights” and “freedoms”. It applies to the rules of procedural fairness in the exercise of statutory powers (218). It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power (219). It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations (220).
44. The common law “presumption of innocence” in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.
Mr Godwin submitted that, in determining whether or not reg.2.43(1)(p)(ii) of the Regulations was relevant, it was relevant to consider realistic examples that might be put as to the breadth of the operation of the Regulation. Mr Godwin contended that there was no definition of “offence” and that it might include “civil offences”. On a proper construction of the Regulation, I am satisfied that the reference to “charged with an offence” is a reference to a criminal offence.
Mr Godwin submitted that in considering whether or not the provision was proportionate, it is not to be presumed that the Regulation will be enforced with restraint. Regulation 2.43(1)(p)(ii) of the Regulations is a ground amongst others enlivening a discretionary power to issue a notice under s.116 of the Migration which engages a discretionary power to cancel a visa.
Mr Godwin took the Court to Weinberg J’s reasoning in the Full Court of the Federal Court decision in Vanstone v Clark (2005) 147 FCR 299 for the breadth of potential criminal offences that might be caught by reg.2.43(1)(p)(ii) of the Regulations. Mr Godwin identified that potential criminal offences could range from trivial offences to offences in respect of archaic provisions as well as provisions that may be inconsistent between states, and sought to rely upon the reasons in Vanstone v Clark (2005) 147 FCR 299 in support of the argument that reg.2.43(1)(p)(ii) of the Regulations is invalid.
Mr Godwin submitted that the reference by French CJ in Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 in relation to the significance of a fundamental freedom were involved in the construction of whether the current regulation was proportionate. Mr Godwin of counsel argued that reg.2.43(1)(p)(ii) of the Regulations affected both liberty and the presumption of innocence.
Mr Godwin of counsel identified that the existence of charges does not give rise to a person being assumed to be guilty. Rather, the person is presumed to be innocent. The facts in this case asserted in the statement of facts identify the source of the same, being a recorded statement by the alleged victim. The statement of facts identifies very serious offences of which the applicant has not been convicted and in respect of which the applicant remains presumed innocent.
Nonetheless, the concept of a person being charged with an offence is one in respect of which as a matter of judicial notice involves a responsible person being satisfied that there is admissible evidence to establish a prima facie case to the requisite criminal standard of proof of the alleged offence. There can be circumstances in which there are malicious prosecutions. That does not however of itself give rise to reg.2.43(1)(p)(ii) of the Regulations being disproportionate or invalid, just as there can be circumstances where a victim has made up the allegations.
The provisions of the Migration Act are not concerned with the enforcement of criminal laws. The object and purpose of the Migration Act as a matter of construction is the protection of Australian citizens. A legitimate purpose within the scope of the Act on its construction, is compliance with Australian laws by those who enter this country and are not Australian citizens. The terms upon which visas are granted can legitimately include as a condition the expectation of the Australian community that such persons will abide by the laws of this country. Part of the scope of s.116 of the Migration Act, on its face, as a matter of construction, is a deterrent purpose to ensure that those who are granted visas comply with Australian law and this is within the purpose of protection of Australian citizens.
Whilst I accept that the provision could have been drafted in a way that identifies other categories of alleged criminal offences, be it domestic violence, those involving sexual assaults or other criteria, such as the significance of the potential punishment, on the face of the provision, it is within the scope and object of s.116 of the Migration Act, that persons granted visas in Australia should be discouraged from committing offences against the law of the Commonwealth.
Whilst the charging of an offence is not and does not establish the commission of an offence, the regulation is part of a discretionary provision, both in respect of the power of cancellation and the power to issue the notice. Mr Godwin submitted that it does not go to validity that those who might exercise the power might be expected to exercise the power reasonably. However, the fact that a power may be exercised unreasonably does not lead to the proposition that the provision is disproportionate to the regulation making power. The provision is not beyond the scope of the objective of s.116 of the Migration Act.
I do not regard reg.2.43(1)(p)(ii) of the Regulations as manifesting an arbitrariness, injustice or partiality of the kind referred to by Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at [384]. The provision does not in my opinion operate arbitrarily or capriciously. The provision provides an important power for the Minister to be able to protect the citizens of Australia from a person who has been charged with an offence. The charges arise in circumstances referred to in the statement of facts. The charges reflect a prosecutor being satisfied that there was admissible evidence being a recorded statement from the alleged victim that establishes to the requisite degree, a prima facie case for the respective charge. Regulation 2.43(1)(p)(ii) of the Regulations is both proportionate to the regulation making power and its means are within the scope of the regulation making power.
Whilst I accept that the provision may have an effect upon the exercise of the applicant’s liberty and/or on the presumption of innocence, that is only an indirect consequence and is not the object of the provision. I accept that the legal and practical operation of the provision must be taken into account in considering whether it could reasonably have been adopted as a means of obtaining the ends of the power.
The protection of Australian citizens is not one in respect of which the practical operation of the regulation in the present case could not reasonably be adopted in attaining the ends of the power identified in s.116 of the Migration Act. There is a direct and substantial connection between the operation of the regulation and the statutory object underlying s.116 of the Migration Act. I do not accept that the means employed by reg.2.43(1)(p)(ii) of the Regulations go further than is reasonably necessary to achieve the legislative object.
All citizens in Australia should comply with the rule of law in Australia. All persons who are non-citizens that enter Australia should comply with the rule of law in Australia. In particular, non-citizens should comply with the criminal law. The applicant has not been found to be in breach of the criminal law or to have been convicted of any offence. The applicant has however, engaged in conduct that has given rise to being charged with the respective serious offences being alleged, that are criminal offences against a law of the Commonwealth. The applicant engaged in conduct that gave rise to the laying of those charges, whether or not the charges ultimately were able to be proved, or were pursued or were withdrawn.
I do not regard the possibility of malicious prosecution as giving rise to the provision being beyond the reasonable scope of the regulation making power. It is the applicant’s conduct, that has been evaluated by someone in a position of authority to lay charges that has occurred, engaging the potential operation of reg.2.43(1)(p)(ii) of the Regulations. If a discretionary decision is made to issue a notice, then a further discretionary decision arises as to whether or not the cancellation power should be exercised. I regard the decision in Vanstone v Clark (2005) 147 FCR 299 as clearly distinguishable, because the provision in that case was one concerning a deemed meaning of misbehaviour in respect of a regulation power concerning misbehaviour.
The fact the charges may be based on false evidence or that a person may subsequently decide to withdraw their support or willingness to participate in giving evidence in a prosecution, or because the prosecution is unable to prove the elements of the offence to the requisite degree, are not matters to which the regulation is addressed. Rather, the regulation is addressed to identifying persons in respect of whom consideration should be given as to whether or not the safety of Australian citizens is engaged and steps should be taken for the protection of Australian citizens in respect of that person. Those are steps to be taken, regardless of whether the criminal law has been processed to conclusion, successfully or unsuccessfully. Further, the Regulation does not determine the applicant’s guilt or take away the applicant’s liberty. Any person held in immigration detention is free to leave Australia and the continued detention arises from the person being unlawfully in Australia.
I accept the Minister’s submission that reg.2.43(1)(p)(ii) of the Regulations does not necessarily result in the detention of a person. The detention is regulated by s.189 and s.196 of the Migration Act. The object of s.189 and s.196 of the Migration Act is to require the detention of persons who are known or suspected to be unlawful non-citizens. The applicant is presently in immigration detention, because he is an unlawful non-citizen in Australia and adequately does not wish to leave Australia.
Regulation 2.43(1)(p)(ii) of the Regulations is valid because by reference to the regulation power in s.504 of the Migration Act, it answers the description of a regulation that is required or permitted to be prescribed, having regard to s.116(1)(g) of the Migration Act. The true nature and purpose of the regulation making power in s.116 of the Migration Act supports the making of a Regulation of the kind identified in reg.2.43(1)(p)(ii) of the Regulations.
Ground 2
It was an agreed fact that the Bridging visa in the present case was not one that had been cancelled under s.195A of the Migration Act.
The Explanatory Statement, Select Legislative Instrument No. 269, 2013 issued by the Minister for Immigration and Citizenship which introduced the relevant provision, relevantly provided:
It is intended by these amendments that persons who hold or have held a BVE granted under section 195A will be required to sign a Code of Behaviour (the Code) before a further BVE will be granted to them.
The reference in the explanatory statement to the operation of the provision in relation to those who held a bridging visa under s.195A of the Migration Act does not introduce words of limitation in relation to the operation of the provision, being item 1305(3)(g) of Schedule 1 to the Regulations. That regulation was made pursuant to s.46 of the Migration Act.
The requirement for a valid bridging visa meeting the criteria identified in item 1305(3)(g) of Schedule 1 to the Regulations is within the scope of the purpose of the provisions in respect of a valid visa for substantially the same reasons as identified in relation to reg.2.43(1)(p)(ii) of the Regulations. The Minister has a power under which the Minister can, despite the operation of item 1305(3)(g) of Schedule 1 to the Regulations, exercise a power under reg.2.25 of the Regulations.
Taking into account the object of s.46(3) of the Migration Act, together with s.4 of the Migration Act, item 1305(3)(g) of the Regulations, is a valid and proportionate exercise of the regulation making power. The regulation does not operate capriciously or arbitrarily. The provision identifies constraint in respect of the making of a further application for a visa in certain circumstances of the kind identified in the provision. Those circumstances are ones that follow the making of a reviewable decision. Accordingly, neither ground 1 nor ground 2 of the amended application is made out.
Conclusion
The amended application is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 28 September 2017
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