Dyer & Ors v Minister for Immigration and Border Protection

[2016] HCATrans 155

[2016] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S283 of 2015

B e t w e e n -

ALF RONALD DYER

First Plaintiff

JOHN FREDRICK DYER

Second Plaintiff

KASELIA DYER

Third Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Decision

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 JULY 2016, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 10 September 2015, the plaintiffs applied for Other Family (Residence) (Class BU) visas (“residence visas”).  The primary visa applicant was the first plaintiff, Mr Dyer.  The second and third plaintiffs are Mr Dyer’s son and wife, respectively.  They applied for the same visas as members of Mr Dyer’s family unit.  A delegate of the Minister refused those residence visa applications on 16 September 2015.

By an application for an order to show cause filed on 22 December 2015, the plaintiffs seek relief in relation to the delegate’s decision. The application for an order to show cause was filed with an affidavit in support sworn by Mr Dyer on that day.  On 15 February 2016, the Australian Government Solicitor sent, on behalf of the Minister, a letter to Mr Dyer inviting him to consent to the dismissal of the proceedings.  There is no evidence before me of any response by the plaintiffs to that letter.  It thus appears that the plaintiffs have taken no steps to prosecute the proceeding since their application for an order to show cause was filed over 6 months ago.

On 3 May 2016, the Minister filed a summons seeking dismissal of the application for an order to show cause for want of prosecution or, in the alternative, on the basis that the application raises no arguable grounds.

On 31 May 2016, a Deputy Registrar of this Court wrote to the parties advising that the proceeding would be determined on the papers, and directing the plaintiffs to file and serve any submissions in support of their application by 10 June 2016.  The plaintiffs have not filed any submissions. Nor have they filed a summons as required by r 25.03.1(c) of the High Court Rules (Cth).

I propose to dismiss the application on the alternative basis advanced by the Minister.  There is no arguable ground that the delegate’s decision was affected by jurisdictional error. 

Section 48(1) of the Migration Act 1958 (Cth) provides that:

(1)A non citizen in the migration zone who:

(a)does not hold a substantive visa; and

(b)      after last entering Australia:

(i)was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non citizen had applied (whether or not the application has been finally determined)...

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

Section 48(3) of the Act provides that:

(3)For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who, while holding a bridging visa, leaves and re‑enters the migration zone is taken to have been continuously in the migration zone despite that travel.

The “migration zone” is defined in s 5 of the Act to mean, among other things, “the area consisting of the States, the Territories...”. Plainly, the migration zone includes “Australia” for the purposes of s 48(1)(b).

Regulation 2.12 of the Migration Regulations (Cth) prescribes the classes of visa for the purposes of s 48(1). The residence visa is not one of the classes prescribed by reg 2.12.

Documents annexed to an affidavit filed in support of the Minister’s summons show that each of the plaintiffs last entered Australia on a visa other than a bridging visa on 30 July 2013 and that they were refused applications for protection visas on 6 February 2014.  The documents also show that, as at the date of their applications for residence visas, the plaintiffs had last entered Australia on 1 September 2014 on bridging visas.

The delegate refused those applications on the bases that the plaintiffs did not hold substantive visas at the time of their application; that they were refused protection visas after they last entered Australia; and that s 48 of the Act therefore did not allow them to apply for residence visas.  That reasoning is plainly correct. 

The plaintiffs do not assert that they held substantive visas at the time of their applications for residence visas.  They argue that they have not been refused any protection visas since they last entered Australia.  They say that they last entered Australia on 1 September 2014.  That is not so for the purposes of s 48.

Accordingly, the plaintiffs’ application for an order to show cause advances no arguable case that the delegate’s decision not to grant them residence visas was affected by jurisdictional error.

The orders I will make are therefore as follows:

1.The application for an order to show cause be dismissed.

2.The plaintiffs to pay the defendant’s costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

AT 10.00 AM THE MATTER WAS CONCLUDED