Goldie, Brian Gerald James v Commonwealth of Australia
[1998] FCA 894
•31 JULY 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - Application for interlocutory relief for an order directing the Minister to remove the condition of bridging visa that applicant not be permitted to work and return of security - whether serious question to be tried regarding expiry of Bridging B visa - effect of grant of Bridging E visa - whether Bridging E visa granted in error - whether applicant would be entitled to relief sought if Bridging E visa granted in error - whether Minister precluded from treating application for Bridging E visa as application for Bridging A or Bridging B visa - whether applicant has to re-apply for bridging visa initially granted on the basis of substantive visa application if applicant subsequently seeks judicial review of refusal to grant substantive visa - whether serious question to be tried regarding substantial compliance with bridging visa application procedures and forms.
PRACTICE AND PROCEDURE - application for interlocutory mandatory injunction relief - whether grant of relief is appropriate and necessary to ensure effective exercise of the jurisdiction of the Court as invoked by the applicant - whether remedy appropriate to the protection or enforcement of the rights or subject matter in issue in the proceedings - whether serious question to be tried.
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Acts Interpretation Act 1901 (Cth)
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1988] HCA 30 - Applied
Fletcher v Foodlink Ltd (1995) 60 FCR 262 - Applied
Castlemaine Tooheys Ltd v SA (1986) 161 CLR 148 - Considered
Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301 - Considered
Ousley v R (1997) 148 ALR 510 - Applied
F Hoffman-La Roche & Co v Secretary of State of Trade and Industry [1975] AC 295 - Considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 - Applied
Hamilton v Minister for Immigration (1994) 53 FCR 349 - Not followed
Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Fang’s Case) - Applied
Onea v Minister for Immigration and Multicultural Affairs (Unreported, Finkelstein J, Federal Court of Australia, 18 December 1997) - Applied
BRIAN GERALD JAMES GOLDIE v COMMONWEALTH OF AUSTRALIA AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No QG 51 of 1998
COOPER J
BRISBANE
31 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 51 of 1998
BETWEEN:
BRIAN GERALD JAMES GOLDIE
APPLICANTAND:
COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENTMICHAEL CAIN
THIRD RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
31 JULY 1998
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application for interlocutory relief is dismissed.
The applicant pay the respondents’ costs of and incidental to the applciation for interlocutory relief, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 51 of 1998
BETWEEN:
BRIAN GERALD JAMES GOLDIE
APPLICANTAND:
COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENTMICHAEL CAIN
THIRD RESPONDENT
JUDGE:
COOPER J
DATE:
31 JULY 1998
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the United Kingdom. On 17 May 1993 he applied to remain permanently in Australia. His application, which had become an application for a Transitional (Permanent) visa, was refused on 20 May 1997 under s501 of the Migration Act 1958 (Cth) (“the Act”). The application was refused on character grounds.
On 3 July 1997 the applicant applied to the Administrative Appeals Tribunal (“the AAT”) for review of the decision to refuse him the visa. The AAT affirmed the decision on 18 February 1998. On 24 February 1998 the applicant lodged an appeal from the decision of the AAT. The appeal was brought pursuant to s44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and is currently pending in this Court.
On 24 November 1995 the applicant was granted a Bridging B visa to allow him to leave and re-enter Australia for the purposes of his employment. The visa did not permit the applicant to travel to and re-enter Australia after 27 February 1996. The visa bore the following endorsement :-
“‘HOLDER PERMITTED TO REMAIN IN AUSTRALIA UNTIL 28 DAYS AFTER NOTIFICATION OF PRIMARY DECISION OR DECISION BY REVIEW AUTHORITY OR WITHDRAWAL OF APPLICATION IN RESPECT OF APPLICATION RECEIPT NO BL9891100177704’”
On 24 February 1998 the applicant was arrested and detained under s189 of the Act as an unlawful non-citizen. The applicant was detained in the Perth Detention Centre in Western Australia. On 25 February 1998 the applicant applied for a Bridging E visa. That visa was granted on 27 February 1998 subject to conditions that the applicant not work and that he lodge a security in the amount of $10,000. The applicant was released from detention on 27 February 1998.
On 13 May 1998 the applicant applied for a further Bridging E visa with a request that the visa contain a condition that he be allowed to work. On 20 May 1998 the visa was issued, but it remained conditioned to the applicant not working in Australia and the retention of the $10,000 security, which had been previously lodged.
On 1 June 1998 the applicant filed a substantive application in this Court against the Commonwealth of Australia as first respondent, the Minister for Immigration and Multicultural Affairs as second respondent and against Mr Michael Cain, an officer for the purposes of the Act, as third respondent.
The applicant claims against the first, second and third respondents :-
“1.damages for false imprisonment and assault arising out of the unlawful arrest of the applicant on 24 February, 1998 and unlawful detention of the applicant from 24 February, 1998 to 27 February, 1998;
2.damages for misfeasance in public office in respect of alleging the applicant was an unlawful non-citizen and directing him to apply for a Bridging E visa rather than a Bridging A visa;
3.damages for negligence and/or negligent misstatement arising out of alleging the applicant was an unlawful non-citizen, directing him to apply for a Bridging E visa and prejudicing his rights to apply for other visas;
4.in the alternative damages for negligence and/or negligent misstatement by delegates of the second respondent advising the applicant in February, 1997 and May, 1997 that the applicant held a valid Bridging visa at those times;
5.a declaration that up to 18 March, 1998, the applicant held a valid Bridging B visa or a Bridging A visa;”
The applicant claims against the second respondent :-
“5A.further and/or in the alternative a declaration that the applicant holds a valid Bridging B visa until 28 days after the completion of matter no QG 9/98 in the Federal Court of Australia (including any proceedings on appeal);
6.a declaration that the applicant’s permission to travel to and enter Australia was the only aspect of the Bridging B visa evidence no 6395004317 which expired on 27 February, 1996;
7.A declaration that the application made by the applicant for a Bridging E visa on or about 25 February, 1998 be treated (by way of substantial compliance) as an application for a Bridging A visa.
8.Consequential orders that the second respondent determine the applicant’s migration status on the basis of applying for a Bridging A visa on 25 February 1998.”
On 19 June 1998 the applicant was granted a further Bridging E visa subject to the work prohibition and continued money security conditions.
The application for interlocutory relief
On 19 and 22 June 1998 I heard an application by way of interlocutory relief for an order directing the second respondent to remove the condition on any bridging visa which the applicant then held that he not be permitted to work, and to Ms Valerie Finnis ordering the return of the security lodged in the sum of $10,000.
For the purpose of the application for interlocutory relief, the second respondent admitted that the applicant held a valid Bridging B visa up to 27 February 1998 when the Bridging E visa was granted.
To succeed on an application for interlocutory injunctive relief, the applicant is required to demonstrate that the grant of the relief is appropriate and necessary to ensure the effective exercise of the jurisdiction of the Court as invoked by the applicant: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1988] HCA 30 at 21-22. Further, an interlocutory injunction must be a remedy appropriate to the protection or enforcement of the rights or subject matter in issue in the proceedings: Fletcher v Foodlink Ltd (1995) 60 FCR 262 at 265.
In order to secure the grant of relief the applicant must show that there is a real question to be tried that the applicant will make out the grounds pleaded as giving rise to the cause of action and be entitled to the relief claimed. If that is done, the question of balance of convenience in favour or against the grant of interlocutory relief arises for consideration: Castlemaine Tooheys Ltd v SA (1986) 161 CLR 148; Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301.
The interlocutory relief seeks the mandatory removal of conditions imposed on a Bridging E visa, the issue of which terminated the events which give rise to the alleged causes of action against the first, second and third respondents and for which the applicant seeks damages, including punitive and aggravated damages. It also seeks the removal of those conditions which attached to the Bridging E visas granted on 20 May 1998 and 19 June 1998, notwithstanding that those decisions have not been challenged by way of merits or judicial review.
The causes of action for false imprisonment and unlawful assault are pleaded in paragraphs 1 to 5 inclusive of the statement of claim. The cause of action for misfeasance in public office against the third respondent is pleaded in paragraphs 16 to 18 of the statement of claim. The cause of action in negligence against the third respondent is pleaded in paragraphs 23 to 26 of the statement of claim and a further cause of action is pleaded in negligence against the first and second respondents in paragraphs 27 to 30 of the statement of claim.
There is neither pleaded, nor is it alleged, that the original imposition of a non-work requirement and the provision of security as conditions of the Bridging E visa which issued on 27 February 1998 and the Bridging E visas which subsequently issued, are relevant to these alleged causes of action. Nor is it alleged that removal of the conditions pending suit is necessary to preserve any cause of action or any rights which the applicant seeks to vindicate in these proceedings.
The matters which the applicant relies upon as supporting his claim for declaratory and injunctive relief are those pleaded in paragraphs 19 to 22 of the statement of claim. Those paragraphs plead :-
“19. During detention, the applicant did in fact apply for a Bridging E visa on the strength of the assertion by the third respondent that he was an unlawful non-citizen.
20. The applicant would have applied for a Bridging A visa had the assertion that he was an unlawful non-citizen not been made.
21. In the premises the applicant has substantially complied with the form for applying for a Bridging A visa or the applicant ought to be permitted to amend that Bridding [sic] E visa application to meet the form for applying for a Bridging A visa.
22. The applicant therefore seeks a declaration that he has substantially complied with the form for applying for a Bridging A visa and that the second respondent determine his application as an application for Bridging A visa and would therefore ordinarily not be prohibited from working.”
As the only injunctive relief sought is by way of interlocutory mandatory injunctive relief, it is the matters pleaded in paragraphs 19 to 21 inclusive which must sustain the interlocutory application presently before the Court.
The statutory scheme
The control of arrival and presence of non-citizens in Australia is dealt with by Division 3 Part 2 of the Act. The division deals with the issue of visas to non-citizens for this purpose. Section 31 provides :-
“31(1) There are to be prescribed classes of visas.
(2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37 and 38.
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36 or 37 but not by section 33, 34, 35 or 38).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.”
Regulation 2.01 prescribes, for the purposes of s31, the classes of visas which are those set out in Schedule 1. Schedule 1 sets out the specific ways in which a non-citizen applies for a visa, and details the forms which are to be used for each visa application.
Regulation 2.03 prescribes the criteria for the various classes of visa which are those set out in the relevant part of Schedule 2, and those criteria are incorporated by reference from Schedules 3, 4 and 5.
Section 37 provides that there is a class of temporary visas, known as “bridging visas” to be granted under subdivision AF. Part 3 of Schedule 1 sets out the way in which an application for a bridging visa is made, and the particular forms which are to be used.
Section 40 provides :-
“40(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be that, when the person is granted the visa, 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.”
Regulation 2.04 provides that the relevant circumstances applicable to each class of visa are those set out in the part of Schedule 2 (Regulation 2.04) which corresponds to that class of visa.
By s41 a visa may be subject to conditions :-
“41(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa) while he or she remains in Australia; or
(b)a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i)any work; or
(ii)work other than specified work; or
(iii)work of a specified kind.
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.”
Regulation 2.05 provides that the relevant conditions that apply to a visa or that may be imposed on a visa by the Minister, are those set out in the relevant part of Schedule 2 corresponding to the particular class of visa.
Subdivision AA of Division 3 of the Act relates to applications for visas. Section 45 provides :-
“45(1) Subject to this Act and the regulations, 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.”
Section 46 details the requirement for a valid visa application and provides :-
“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); 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 section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 161 (criminal justice) or 195 (detainees); and
(e)in a case where the applicant is in the migration zone and the application is not for a protection visa or a bridging visa, the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 41(2)(a).
(2) An application for a visa is also valid if:
(a)it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b)under the regulations, the application is taken to have been validly made.”
Regulation 2.07 provides that, for the purposes of s45 and s46, the approved form, the visa application charge and other matters relating to the visa application are those set out in the relevant part of Schedule 1. In respect of bridging visas, Part 3 is the relevant section of Schedule 1. An applicant must complete an approved form in accordance with any direction on it (Reg 2.07(3)).
Consideration of the visa application by the Minister is dealt with in s47, which provides :-
“47(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.”
Subdivision AB of Division 3 of the Act provides a code for the fair, efficient and quick dealing by the Minister of visa applications, including communications between the Minister and the applicant.
The requirements for the grant of a visa are dealt with in subdivision AC. Section 65 provides :-
“65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered untii [sic] it has been removed from the pool under subsection 95(3).”
The procedure for notification of the decision by the Minister to the applicant is set out in s66, which provides :-
“66(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and
(c)unless subsection (3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a)the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b)this Act does not provide, under Part 5 or 7, for an application for a review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.”
The date from which a visa is effective is set out in s68, which provides :-
“68(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a)specified in the visa; or
(b)when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.
(4) A bridging visa (the ‘reactivated bridging visa’), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a)the non-citizen does not hold a substantive visa that is in effect; and
(b)either:
(i)the non-citizen does not hold any other bridging visa; or
(ii)the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.”
Regulation 2.21 provides :-
“2.21(1) For the purposes of subparagraph 68(4)(b)(ii) of the Act (which deals with the order in which bridging visas are reactivated), if a non-citizen holds more than 1 bridging visa, the bridging visa that is the most beneficial is to be determined as set out in this regulation.
(2) The order of classes from most beneficial to least beneficial is:
(a)Bridging B visa (Class WB);
(b)Bridging A visa (Class WA);
(c)Bridging C visa (Class WC);
(d)Bridging D visa (Class WD);
(e)Bridging E visa (Class WE).
(3)A bridging visa of Class WA, WB or WC that confers an unlimited right to work is taken to be more beneficial than another bridging visa of the same class that confers a limited right to work, and a bridging visa of one of those classes that confers a limited right to work is taken to be more beneficial than one of the same class that confers no right to work.
(4)A bridging visa of Class WA, WB or WC is taken to be more beneficial than another bridging visa of the same class that is subject to the same work conditions if the first-mentioned visa was granted before the second-mentioned visa.
(5)If a non-citizen holds 2 or more Bridging E visas, the one that is granted later or latest is taken to be the more or most beneficial.”
The effect of non-compliance with these procedures, by the Minister, is set out in s69, which provides :-
“69(1) Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.”
Subdivision AA contains sections 44 to 51 and subdivision AB contains sections 52 to 64.
Sections 75 and 76 provide :-
“75(1) If:
(a)an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b)the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.
76(1) The fact that a non-citizen holds a bridging visa does not prevent or affect:
(a)an application by the non-citizen for a visa of another class; or
(b)the grant of such a visa.
(2) To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.”
The prescribed class in s75(1)(a) is a Bridging E visa (Regulation 2.24(1)). Regulation 2.24(2) provides that the time referred to in s75(1)(b) is, in the case of an eligible non-citizen who has been immigration cleared, two working days.
The cessation of the effect of a visa is dealt with in s82, which provides :-
“82(1) A visa that is cancelled ceases to be in effect on cancellation.
(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.
(3) A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa) for the non-citizen comes into effect.
(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.
(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceased to be in effect at the end of that period or on that date unless the older of the visa:
(a)has entered Australia in that period or on or before that date; and
(b)is in Australia at the end of that period or on that date.
(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
(8) A visa to remain in, but no re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.
(9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174).
(10) For the purposes of subsections (5), (6) and (7), ‘particular date” includes:
(a)the date an event, specified in the visa, happens; or
(b)the date the holder ceases to have a status specified in the visa or the regulations.”
The argument
The applicant’s counsel submits :-
(a)There is a serious question to be tried that the Bridging B visa which was valid at 27 February 1998 did not expire until 18 March 1998 or alternatively does not expire until twenty-eight days after the finalisation of the Federal Court appeal QG9 of 1998.
(b)There is a serious question to be tried that the applicant’s application for a Bridging E visa amounted to substantial compliance with the requirements for an application for a Bridging A or B visa, and accordingly, that the applicant ought to have been granted a Bridging A or B visa.
(c)The balance of convenience favours an order that the applicant be treated as if he held a valid Bridging A or B visa with the result that the applicant be allowed to work; in particular the applicant needs to work in order to fund this litigation, the appeal from the AAT and proceedings against him in the Supreme Court of Western Australia.
The respondents’ counsel submits that there is no serious question to be tried and that, in any event, the balance of convenience is wholly against the grant of the interlocutory relief claimed.
The applicant contends that as at 27 February 1998 he was not eligible for the grant of a Bridging E visa and thus the grant of the Bridging E visa was invalid and he continued to hold a valid Bridging B visa. This ineligibility, it is submitted, is because he does not satisfy the criteria that must be established at the time of the application for a Bridging E visa set out in clause 050.21 of Schedule 2 to the Act, viz that the applicant is either :-
(a) an unlawful non-citizen; or
(b) a holder of a Bridging E visa.
In particular, the applicant says he was not an unlawful non-citizen as he held a valid Bridging B visa.
Whether or not the decision of the second respondent to grant a Bridging E visa is ultimately held to have been made in error, the legal position is that as an administrative act, it is presumed to be valid until set aside on review: Ousley v R (1997) 148 ALR 510 at 555 - 556; F Hoffman-La Roche & Co v Secretary of State of Trade and Industry [1975] AC 295 at 365 - 366. This is so whether or not s69 itself operates to relieve the second respondent from the consequences of any defect in the procedure as laid down in Subdivisions AA and AB of Division 3.
The result is that the Bridging E visa, when it issued on 27 February 1998, was for all purposes a valid and effective visa until set aside.
The grant of the Bridging E visa on 27 February 1998 had two consequences of immediate relevance. The first is that, by operation of s82(3) of the Act, the Bridging B visa then ceased to be in effect. However, the applicant retained the benefit of s68(4). This meant that the Bridging B visa would be a reactivated bridging visa, being the most beneficial of the bridging visas held by the applicant during the visa period of the Bridging B visa. Subject to dealing with the applicant’s alternative submission, that period expired on 18 March 1998. Thereafter the only bridging visa held by the applicant was the Bridging E visa granted to him on 27 February 1998. The second consequence is that when the second respondent granted a Bridging E visa to the applicant on 20 May 1998, the applicant then satisfied the criteria in clause 050.21 of Schedule 2 because he was then the holder of a Bridging E visa, it not having been set aside on review at that time. Likewise, when the further Bridging E visa was granted on 19 June 1998, the applicant satisfied the criteria for the grant of such a visa.
Even if there is a serious question to be tried that the second respondent was in error when he granted the Bridging E visa on 27 February 1998 and the applicant succeeded on that issue at trial, it does not follow that he would be entitled to a bridging visa which allowed him to work in Australia pending hearing and determination of his appeal in this Court. Nor would it automatically require the second respondent to grant a bridging visa without a condition prohibiting the applicant from working or being required to post security that he will comply with the conditions of the visa. This follows from the operation of the statutory scheme.
A non-citizen who wants a visa must apply for a visa of a particular class: s45(1). Section 46(1) provides that “an application for a visa is valid, if and only if :- (a) it is for a visa of the class specified in the application.” Regulation 2.07 requires for the purposes of s45 and s46 that if an application is required for a particular class of visa, then the approved form which is to be completed by the applicant is that specified in the relevant Part of Schedule 1, and, the applicant must complete an approved form in accordance with any directions on it. The approved forms for a Bridging A visa are Forms 887, 852, 147, 157Y, 601, 866, 1002, 1003, 1004, 1005, 1066 or 1096: clause 1301 of Schedule 1. The approved forms for a Bridging B visa are Forms 1005 or 1006: clause 1302 of Schedule 1.
The applicant filled in a Form 1008 which is one of the approved forms for a Bridging E visa. It is not an approved form for a Bridging A or Bridging B visa. The application made was for a Bridging Visa E - Subclass 050 as appears at the top of the application form.
For the purposes of the Act and Regulations certain consequences flow from the application made in Form 1008 on 25 February 1998. It was not an application for a Bridging A or Bridging B visa. It was not in the approved form for an application for a Bridging A or Bridging B visa. Consequently there was not and could not be a valid application before the second respondent for a Bridging A or Bridging B visa as a result of the lodging of the application in Form 1008. The second respondent, because he did not have before him a valid application for a Bridging A or Bridging B visa, was prevented from giving consideration to and determining the application before him as an application for a Bridging A or Bridging B visa: s47(1) and s47(3). There is no ambiguity or uncertainty under the Act and Regulations as to whether Form 1008 is an approved form for an application for a Bridging A or Bridging B visa. In my view the clear intention of the legislature was to prohibit the second respondent considering other than a valid application for a Bridging A or Bridging B visa. Therefore in the context of the Act, for the second respondent to do what the application seeks, namely to grant a Bridging A visa to the applicant in the absence of a valid application for a visa of that class, would be to engage in conduct which is invalid under the Act and therefore beyond power: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 515 - 517.
While in detention the applicant was in receipt of legal advice and the application in fact made on 25 February 1998 was for a Bridging E visa. There is no material filed by the applicant to suggest that he sought to withdraw the application for a Bridging E visa or to lodge an application for a Bridging A visa or any other class of visa prior to or upon his release from detention on 27 February 1998.
In these circumstances, there is no basis to grant the interlocutory relief sought on the ground that there is a serious question to be tried that the second respondent acted in error and beyond power when granting the Bridging E visa on 27 February 1998.
The alternative argument of the applicant is that the Bridging B visa granted to him on 24 November 1995 is valid and remains in effect at the present time, or at least there is a serious question to be tried that that is so.
This submission relies upon the Bridging B visa being more beneficial than any Bridging E visa subsequently granted and the visa period continuing to run until the completion of the appeal from the AAT pursuant to s44 of the AAT Act filed in this Court on 24 February 1998.
The applicant submits that the conclusion he contends for follows from clause 020.512 to Schedule 2 which provides, as to when the visa is in effect :-
“020.512 In the case of a visa granted to a non-citizen who has applied for judicial review of a decision - bridging visa:
(a)coming into effect:
(i)on grant; or
(ii)when the substantive visa (if any) held by the holder ceases; and
(b)permitting the holder to remain in Australia until:
(i)28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or
(ii)if the holder withdraws his or her application for judicial review - 28 days after that withdrawal; or
(iii)the grant of another bridging visa in respect of the same application for judicial review; or
(iv)if the substantive visa (if any) held by the holder is cancelled - that cancellation; and
(c)permitting the holder to travel to and enter Australia until:
(i)a date specified by the Minister for the purpose; or
(ii)the visa ceases as set out in subparagraph (b)(i), (ii), (iii) or (iv), as the case requires.”
The applicant submits that he is “a non-citizen who has applied for judicial review of a decision” and that his application for judicial review on 24 February 1998 by appeal under s44 of the AAT Act was made within the visa period of the Bridging B visa granted to him on 24 November 1995. As a consequence, he contends that the visa permits him to remain in Australia for the visa period which now extends until twenty-eight days after the completion of pending proceedings in this Court. This visa, he submits, is free of any conditions prohibiting him from working or requiring security.
The construction for which the applicant contends gives clause 020.512 an operation independent of the other provisions of “subclass 020 - Bridging Visa B”. The other provisions are clause 020.1 (interpretation), clause 020.2 (primary criteria), 020.3 (secondary criteria), 020.4 (circumstances applicable to grant), 020.5 (when visa is in effect), 020.6 (conditions) and 020.7 (way of giving evidence).
Clause 020.21 sets out the requirements that must be met at the time of the grant of a Bridging B visa. The three criteria are set out in clauses 020.211, 020.212 and 020.213. Clause 020.211 requires the applicant to hold a Bridging A or B visa. Clause 020.212 and 202.213 provide :-
“020.212(1) The applicant meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)that application has not been finally determined; and
(c)the applicant wishes to leave and re-enter Australia during the processing of that application; and
(d)the Minister is satisfied that the applicant’s reasons for wishing to do so are substantial.
(3)An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)that application was refused; and
(c)the applicant has applied, within statutory time limits, for judicial review of the decision to refuse to grant the substantive visa, and the judicial proceedings (including any proceedings on appeal) have not been completed; and
(d)the applicant wishes to leave and re-enter Australia during the judicial proceedings; and
(e)the Minister is satisfied that the applicant’s reasons for wishing to do so are substantial.
020.213 The applicant’s return to Australia would not be contrary to the public interest.”
The clauses which deal with the period when the Bridging B visa is in effect are 020.511 and 020.512. Clause 020.511 provides :-
“020.511 In the case of a visa granted to a non-citizen who has applied for a substantive visa - bridging visa:
(a) coming into effect:
(i)on grant; or
(ii)when the substantive visa (if any) held by the holder ceases; and
(b) permitting the holder to remain in Australia until:
(i)if the Minister’s decision in respect of the substantive visa application is to grant a visa - the grant of the visa; or
(ii)if the Minister’s decision in respect of that application is to refuse to grant a visa - 28 days after the holder is notified of that refusal; or
(iii)if the substantive visa application is refused and the holder applies for merits review of that refusal - 28 days after notification of the decision of:
(A)the review authority; or
(B)if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies - 28 days after notification of the decision of that other review authority; or
(iv)if the holder withdraws his or her application for a substantive visa or an application to a review authority - 28 days after that withdrawal; or
(v)the grant of another bridging visa to the holder in respect of the same application for a substantive visa; or
(vi)if the substantive visa (if any) held by the holder is cancelled - that cancellation; and
(c)permitting the holder to travel to and enter Australia until:
(i)a date specified by the Minister for the purpose; or
(ii)the visa ceases as set out in subparagraph (b)(i), (ii), (iii), (iv), (v) or (vi), as the case requires.”
Clause 020.512 is reproduced above.
The respondents submit that if a Bridging B visa was granted on the basis of the criterion in 020.212(2), then the time period for its duration is set out in clause 020.511, and similarly if the basis for the grant was clause 020.212(3), then the duration is found in clause 020.512. This construction, it is submitted, is based on the clear corresponding words of the clauses.
The applicant submits that this view would produce an unfair result, because at the conclusion of a merits review for which a visa had been granted and which was subject to the visa period specified in clause 020.511, a further bridging visa application would need to be made to cover the period of any judicial review initiated by the applicant to get the benefit of the visa period specified in clause 020.512.
To obtain the Bridging B visa the applicant, on the date of its grant on 24 November 1995, was required to satisfy the criteria set out in clauses 020.211 and 020.212: clauses 020.2 and 020.22. The applicant was not then, and did not become prior to the grant of the visa, an applicant for judicial review of a decision to refuse to grant a substantive visa. He did not satisfy the criteria under 020.212(3). He did, however, satisfy the criteria under 020.212(2) because he had a pending application for a substantive visa and it was on that basis that the visa was granted.
Clause 020.5 operates with respect to the visa in fact granted to the applicant and takes effect from the time of that grant. Clause 020.512 was inapplicable to the visa granted to the applicant because it was not “a visa granted to a non-citizen who has applied for judicial review of a decision.” (Emphasis added). Clause 020.511 was directly applicable because it was in respect of “a visa granted to a non-citizen who has applied for a substantive visa.” Consequently, the period in respect of which the visa remained in effect was to be determined in accordance with clause 020.511(b)(i)-(vi) inclusive. Once the basis of the grant of the visa is identified, the operation of clauses 020.511 and 020.512 are mutually exclusive of each other. Although the description of the non-citizen may alter over time, the basis upon which the original grant of the visa was made does not, and there is no occasion or warrant to change from clause 020.511 to clause 020.512 to determine the visa period at a time subsequent to the original grant.
In my view, the Bridging B visa which was granted to the applicant on 24 November 1995 ceased to be in effect on 18 March 1998.
There is no serious question to be tried that the bridging visa granted on 24 November 1995 continued in effect after 18 March 1998 and remains in effect at this time.
In order to overcome the problem created by a failure to apply for a Bridging A visa in the required form or at all, the applicant submits that there is a serious question to be tried that he should be treated as having made an application for a Bridging A visa on 25 February 1998. This assertion is pleaded in paragraphs 20, 21 and 22 of the applicant’s statement of claim. It is assumed in paragraphs 17 and 25 of the statement of claim that the applicant would have applied for a Bridging A visa on 25 February 1998, or within the period expiring on 18 March 1998, but for the statement of the third respondent that the applicant was not entitled to apply for such a visa. The relief claimed against the second respondent in paragraphs 6, 7 and 8 of the prayer for relief requires that the applicant make out these allegations and assumptions. So far as an entitlement to work is concerned, the applicant’s pleaded case in paragraph 22 of the statement of claim is that if the application was treated as an application for a Bridging A visa and determined on that basis, the applicant “would therefore ordinarily not be prohibited from working”. There is no pleading or allegation that if the applicant’s application is treated as one for a Bridging A visa, security could not or would not be required by the second respondent as a condition of the grant.
The applicant submits that a bridging visa is merely a mechanism designed to prevent non-citizens from becoming unlawful non-citizens. Further, it is submitted that the variations between the applicable application forms are not substantial and that it is little more than a form-filling exercise. In any event the applicant submits substantial compliance with the forms is sufficient. The decision in Hamilton v Minister for Immigration (1994) 53 FCR 349 was said to support these contentions.
Is there a serious question to be tried that substantial compliance with any of the approved forms for a Bridging A or Bridging B visa application is sufficient to enable the second respondent to consider the application and to grant such a visa, or, whether use of a Form 1008 constitutes substantial compliance with an approved form for a Bridging A or Bridging B visa application, sufficient to enable the application to be determined? The submission that there is such a question requires regard to be had to the provisions of s25C of the Acts Interpretation Act 1901 (Cth) That section provides :-
“25C Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”
The respondents submit that the Act and Regulations contain a relevant contrary intention. The relevant manifestation is submitted to be the opening words of s46(1): “Subject to subsection (2), an application for a visa is valid if, and only if ...”. This conclusion is supported, it is submitted, by the decision of a Full Court of this Court in Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Fang’s Case).
In a passage in Fang’s Case relied on by the respondents, Nicholson J said (at 278 - 279) :-
“... How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial Act. It will also be noted that none of these provisions relevantly use ‘shall’ or ‘may’ so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.
Section 25C of the Acts Interpretation Act 1901 (Cth) provides that ‘where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient’. The statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a precondition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the prerequisite entry to Ministerial consideration of the application.”
In distinguishing the case of Hamilton v Minister for Immigration, Nicholson J said at 280 :-
“In my opinion, that section [in Hamilton] is of a very different character to ss 45-47 and significantly is not grounded on the concept of validity having its foundation in an application by a non-citizen made in the requisite manner.”
Jenkinson J agreed with Nicholson J, and similarly Carr J found that (at 261) :-
“In my opinion Parliament has made it clear, in the statutory and regulatory scheme which I have set out earlier in these reasons, that there must be a written application for a protection visa in the form prescribed. Parliament has seen fit to use what I consider to be clear language both conferring and limiting the authority of the first respondent in his decision-making in respect of visas, in the manner to which I have referred above. Even if the language of s 46 had not contained the expression ‘... if, and only if’ and had used language such as ‘only if’ it would, in my view, have been correct to characterise Parliament’s requirement as being a mandatory one: ...”
Special leave to appeal from this decision was refused by the High Court ([1996] 8 Leg Rep SL 2a).
The Full Court decision in Fang’s Case was applied by Finkelstein J in Onea v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, 18 December 1997). The applicant in that case had, through her solicitor, completed the wrong form in applying for a particular visa. His Honour found that there was no room for an argument of substantial compliance having regard to the decision in Fang. Further, his Honour held that an argument that the information in the incorrect form provided nearly all the information required in the correct form, even if correct, could not succeed.
There is no suggestion in the present case that use of Form 1008 to apply for a Bridging E visa was the result of accident, oversight or misunderstanding. It was a conscious decision to apply for a Bridging E visa brought on the applicant alleges by both the insistence of the third respondent that it was the only visa for which the applicant satisfied the criteria and the applicant’s desire to get out of detention.
In my view the issue of substantial compliance is foreclosed against the applicant by the Full Court decision in Fang’ Case. The rejection of the decision in Hamilton v Minister for Immigration by the Full Court as authority for the proposition that substantial compliance is sufficient for the purposes of Division 3 of Part 2 of the Act requires that this submission be rejected. The applicant has not raised a serious question to be tried that substantial compliance with the requirements for a valid Bridging A or Bridging B visa application is sufficient for the purposes of a valid application under s45 and s46 of the Act, and that there was substantial compliance in fact in the instant case by filling out an application in Form 1008 for a Bridging E visa.
Conclusion
The applicant has not shown that the interlocutory relief sought is appropriate or necessary to ensure the effective exercise of the jurisdiction of the Court in the present case and that the interlocutory relief is appropriate to protect any right, or the subject matter, in issue in the proceedings. To say that the applicant needs to work to fund the litigation does not satisfy the test: Fletcher v Foodlink at 266.
Further, I have come to the conclusion that upon examination none of the matters relied upon by the applicant in this application as raising a serious question to be tried, do so. In the absence of a serious question to be tried, no question of balance of convenience falls for consideration.
The application for interlocutory relief is dismissed with costs.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper
Associate: Dated: 31 July 1998
Counsel for the Applicant: L Boccabella Solicitor for the Applicant: Commonwealth of Australia Counsel for the Respondent: R G Atkinson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 June 1998 Date of Judgment: 31 July 1998
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