Guo v Minister for Immigration
[2008] FMCA 764
•26 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 764 |
| MIGRATION – Review of Migration Review Tribunal decision – subclass 850 visa – refusal – subcl.850.211 of sch.2 to the Migration Regulations1994 is not void for absurdity or ultra vires s.504 of the Migration Act 1958 by reason of inconsistency with s.48 of the Act – s.48 expressly operates subject to the Regulations – rights granted by s.48 can be limited by the Regulations. |
| Migration Act 1958, ss.37, 48, 359A, 501, 504 Migration Regulations 1994, regs.2.12 |
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77
| Applicant: | QI GUANG GUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3188 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 May 2008 |
| Date of Last Submission: | 20 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L.J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3188 of 2007
| QI GUANG GUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 26 March 1998 the applicant applied for a Resolution of Status (Temporary) Subclass 850 visa (Relevant Documents (“RD”) page 67). This was refused by the Minister’s delegate on 22 May 1999.
The applicant’s subsequent appeal to the Administrative Appeals Tribunal and judicial review proceedings in the Federal Court were unsuccessful. Because of defects in the original notification of the delegate’s decision to the applicant he was re-notified of the decision on his visa application by letters dated 4 September 2006 and
19 September 2006. The applicant applied to the Migration Review Tribunal (“Tribunal”) for a review of the delegate’s decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant law
At the material time, namely at the point when the applicant made his visa application, the provisions of the Migration Act 1958 (“Act”) and the Migration Regulations 1994 (“Regulations”) relevant to this matter were:
a)section 48:
SECT 48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i)after last entering Australia, was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas) or 501 (special power to refuse or cancel);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
b)regulation 2.12:
Reg 2.12 Certain non-citizens whose applications refused in Australia (Act, s.48)
(1)For the purposes of section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed:
(a) Change in Circumstances (Residence) (Class AG);
(c) Protection (Class AZ);
(ca)subject to subregulation (3), Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(n) Resolution of Status (Temporary) (Class UH);
(o) Resolution of Status (Residence) (Class BL).
(3)Paragraph (1) (ca) applies to a person if and only if he or she meets the requirements of subclause 685.212 (6) or (7) of Schedule 2.
c)clause 850.211 of sch.2 to the Regulations which sets out the criteria for the grant of the visa sought by the applicant under s.48:
850.21 Criteria to be satisfied at time of application
850.211 If:
(a) the applicant:
(i) was in Australia on 1 September 1994; and
(ii)was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and
(iii)has not been granted a substantive visa on or after 1 September 1994; or
(b) the applicant is a person to whom section 48 of the Act applies;
the applicant has not been refused a visa, or had a visa cancelled, under section 501 of the Act.
Background facts
On 30 June 1994 the applicant had lodged an application for a subclass 815 PRC (Permanent) Entry Permit visa (RD 3). This was refused on 25 October 1996 on the basis that the applicant did not meet the requirements of s.501 of the Act, which deals with the refusal of visas on character grounds (RD 61).
Then on 26 March 1998 the applicant applied for Combined Resolution of Status visas under subclasses 850 (Temporary) and 851 (Permanent) (RD 67) the former being the subject of these proceedings. As already noted, the application was refused by the Minister’s delegate on
22 May 1999(RD 81). The application was refused because, with respect to subclass 850, the applicant had previously been refused a visa under s.501 of the Act and therefore failed to satisfy the criteria set out in subcl.850.211 of the Regulations and, as to subclass 851, the applicant failed to satisfy a criterion set out in subcl.851.221, namely, that he be or have been the holder of a subclass 850 visa.
The applicant was notified effectively of the delegate’s decision by letter dated 19 September 2006 (RD 182). His review application had already been filed with the Tribunal following an earlier ineffective notification of the delegate’s decision (see [2] above).
On 23 April 2007 the Tribunal, pursuant to s.359A of the Act, wrote to the applicant through his adviser inviting him to comment on the information that on 25 October 1996 he had been refused a subclass 815 visa under s.501 on character grounds.
On 19 June 2007 the Tribunal received a facsimile in response from the applicant’s adviser.
The Tribunal’s decision and reasons
On 11 July 2007 the Tribunal wrote to the applicant to advise that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 30 August 2007 to give oral evidence and present arguments. The applicant was advised that if he did not attend then the Tribunal might make a decision on his application without further notice.
On 28 August 2007 the Tribunal received a facsimile from the applicant’s adviser stating that he (the adviser) had tried without success to contact the applicant to obtain instructions relating to the hearing (RD 274). The facsimile further stated that:
The Applicant’s position in so far as the impact of criteria 850.211 has been reduced to writing and is articulated in my fax of 19 June 2007.
The applicant did not attend the hearing on 30 August 2007 and the Tribunal proceeded to make a decision in his absence.
The Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 850 Resolution of Status (Temporary) visa, noting that:
a)the “time of application criteria” relevant to the grant of the visa were clear and prescriptive, and required an applicant for a subclass 850 visa to meet the provisions of subcl.850.211;
b)on the evidence before it, the Tribunal was unable to find that the applicant satisfied subcl.850.211(a)(ii) and (iii); and
c)as the applicant had been the subject of a visa cancellation under s.501 of the Act on character grounds, he was incapable of meeting the requirements of subcl.850.211(b).
Proceedings in this Court
The grounds of review pressed by the applicant at the hearing were limited to two particulars of his allegation that the Tribunal took into account an irrelevant consideration. Those particulars were:
a)the Tribunal took subcl.850.211 of sch.2 to the Regulations into account although that subclause was invalid; and
b)the Tribunal took into account a s.501 visa cancellation although the applicant had not been the subject of such a visa cancellation.
Invalidity of subcl.850.211
Section 48 prevents a person who has previously been refused a visa or had a visa cancelled from applying for another visa other than one of those mentioned in reg.2.12. The visa which the applicant sought was a visa falling within the categories set out in reg.2.12.
The applicant’s case turns on the fact that, as a person who has had a visa refused under s.501 of the Act, thus coming within the class of people permitted by s.48(b)(1) to apply for one of the visas prescribed in reg.2.12, subcl.850.211 of sch.2 to the Regulations effectively denied the right purportedly given by s.48. This is because that subclause prescribed as a primary criterion for the subclass 850 – Resolution of Status (Temporary) visa which the applicant sought, that he not have previously been refused a visa or had a visa cancelled under s.501 of the Act. As already noted, this applicant had had a visa refused pursuant to that section.
The applicant’s first argument was that subcl.850.211 is ultra vires s.504 of the Act which permits the Governor-General to make regulations “not inconsistent with this Act”. It was submitted that the subclause was inconsistent with the Act because it purported to take away what s.48 gave.
However, s.48 expressly made an applicant’s right to apply for a visa of a prescribed class “subject to the regulations”. That is to say, s.48 expressly provided that such rights as it granted could be limited by the Regulations. This is only logical because its related regulation, reg.2.12, which prescribes the visas which a s.48 applicant might seek, identified various visas which have their own eligibility criteria.
The applicant’s argument can only succeed if it can be concluded that s.48 is a special section giving particular rights which are super-imposed over the general operation of the Act and the Regulations; yet the section itself negates such an interpretation. Section 48 must be understood as a form of second chance for people who have been unsuccessful in earlier visa applications but it is a second chance which is subject to visa criteria which are no different from those which would apply to the applicant were that second chance application his or her first application. It should be concluded that subcl.850.211 had an existence and operation completely independent of s.48 and that the wording of s.48 evidences the legislature’s intention that such a situation obtain, with the result that subcl.850.211 was not made ultra vires.
Therefore, the first element of the first particular of the jurisdictional error alleged is not made out.
The applicant further submitted that the operation of subcl.850.211 produced an absurd result and the subclause was liable to be declared invalid. The applicant referred to Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 which dealt with a plan to allocate fishing quotas which contained a “statistical fallacy” that produced an “irrational result” with the consequence that it was held to be void. The Full Court of the Federal Court did not overturn the primary judge’s finding that the relevant provisions of the plan were capricious and irrational such that no reasonable person could ever have devised them, with the result that those provisions were beyond power and thus void (per Beaumont and Hill JJ at 401). As Lockhart J said at 384:
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.
…
It is only in an extreme case that the court takes the step of declaring invalid delegated legislation of the kind with which this case is concerned, but in my view this is such a case.
The first of these paragraphs was quoted with apparent approval by the majority of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 at 88.
The applicant submitted that subcl.850.211 met this criterion because it was arbitrary and capricious for the Regulations to remove a right which the Act had granted. It was submitted that for the provision to be void it was sufficient that there be a possibility that the outcome was impossible or absurd and this would be so notwithstanding that it would not have the claimed absurd operation in every situation.
However, I do not conclude that the subclause meets the criteria for a finding that it is void. Far from being absurd, for the reasons already given, it is not inconsistent with s.48. One can conclude that the Act was specifically drafted to preserve the integrity of the Regulations by making them prevail in circumstances where s.48 permits an unsuccessful visa applicant to make a second application. That the rights provided by s.48 are subject to the standard visa criteria is neither unreasonable nor absurd.
Consequently, the second element of the first particular of the jurisdictional error alleged is not made out.
No s.501 visa cancellation
One of the Tribunal’s findings was based on its statement that the visa applicant had been “the subject of a visa cancellation under section 501”, whereas, in fact, he had been refused such a visa. It was submitted that this was an error as to a jurisdictional fact and, as such, amounted to jurisdictional error. However, a consideration of the Tribunal’s decision record leads to the conclusion that the reference in its findings to a visa cancellation under s.501 was no more than a slip on its part. This is because its reasons at RD 289 make it clear that the Tribunal was aware that the visa in question had been refused, not cancelled. The Tribunal recited the relevant facts at p.2 of its decision (RD 285) when it said:
As the applicant had been previously refused a visa under Section 501 of the Migration Act the applicant was incapable of meeting criteria 850.211 and thus was not eligible for the grant of the visa.
The only conclusion reasonably open is that where the Tribunal refers to a visa cancellation under s.501 at RD 291 and 292, it is indeed no more than a slip which reflects that s.501 might be employed either to refuse or to cancel a visa. Indeed, as far as subcl.850.211 was concerned, it was irrelevant whether a visa was refused or was cancelled, as long as s.501 was the section under which such a decision was made.
In these circumstances I do not conclude that the Tribunal was mistaken as to the relevant jurisdictional fact or that the second particular to the applicant’s allegation discloses jurisdictional error on the Tribunal’s part.
However, were I to be wrong on this point, the fact that the applicant was, in fact, refused a visa under s.501 of the Act would lead inevitably to the same outcome with the result that any remittal of the matter to the Tribunal would be futile. This is so even if, as the applicant suggests, further evidence might be available to demonstrate that he was a person to whom s.37 of the Act applied.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 June 2008
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