Guo v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 256

[2009] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S114 of 2009

B e t w e e n -

QI GUANG GUO

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 12.11 PM

Copyright in the High Court of Australia

MR G.C. LINDSAY, SC:   May it please the Court, I appear with MR L.J. KARP for the applicant.  (instructed by Ren Zhou Lawyers)

MR G.T. JOHNSON:   May it please your Honours, I appear for the first respondent.  (instructed by Australian Government Solicitor)

HEYDON J:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, these proceedings involve what we submit is a neat exercise in statutory construction which calls for consideration of the expression “subject to the regulations” in an Act of the Commonwealth Parliament that has a common form of power to make regulations not inconsistent with this Act for the purpose of giving effect to the Act.  So far as we are aware, the expression “subject to the regulations” does not appear to have been the subject of any judicial consideration outside this case. 

The central question in the proceedings is whether a regulation purportedly made under the Migration Act was invalid.  If valid, the effect of the regulation was to render nugatory any entitlement the applicant had under section 48 of the Act to apply for a prescribed form of visa.  The legislation is extracted in two places in the application book; in the judgment of the court below and also at pages 65 to 69.  The applicant submits that subclause 850.211 of the regulations was invalid because it could not properly be regarded as having been authorised by the general regulation‑making power contained in section 504(1) of the Act. 

Firstly, we submit that it was inconsistent with section 48 in that its effect was that any visa application made by the applicant was bound to fail at the outset.  Secondly, we submit that it was an unreasonable exercise of the regulation‑making power in two respects.  First, it rendered the statutory right to make an application for a visa illusory and, secondly, insofar as the regulation might have been thought to be justified by a need to protect the public against a person of bad character, it was unnecessary, and it was unnecessary because a separate regulation enabled the question of character to be assessed at the time of decision – at the time of decision, I emphasise – on a visa application.

CRENNAN J:   Did not Justice Besanko, at the bottom of application book 43 and over the page, decide that one needed to take into account the combined operation of the regulations?

MR LINDSAY:   That is right.

CRENNAN J:   In order to achieve a proper construction of section 48 of the Act, do you challenge the correctness of that approach?

MR LINDSAY:   We do, for a couple of reasons.  One needs to unpack what his Honour was saying, but one of the flaws, we would submit, a logical flaw, in his Honour’s approach was that in saying that one looks at the whole of the regulations, one makes an assumption about the validity of one of the regulations which is under challenge.  A conclusion that flows from his Honour’s reasoning is that he attributes to section 48 and also to the regulations qualities that they do not have.

The point that your Honour has raised with me lies at the heart of his Honour’s reasoning process, whether he deals with our argument on one head or the other, but the net effect of what his Honour reasoned was that he said that it was open to the Executive in making a regulation to prescribe subcategories of applicants, classes of applicants.  In our submission, that is not what section 48 does.  Section 48 itself sets out the class of people who are the subject of an entitlement to apply for a visa.

CRENNAN J:   I think, in essence, his Honour was saying you cannot tease a right out of section 48.

MR LINDSAY:   Again, that gets us back to the central question of the case, what is meant by “subject to the regulations”?  If one looks at the regulations and the section that need to be passed, if you like, clause 2.12 of the regulations expressly prescribed various classes of visa for the purpose of section 48.  In our submission, the effect of section 48, read with that clause, was that the applicant was entitled “subject to the regulations” to apply for an identified class of visa.

His Honour, in order to accommodate the reasoning that he adopted, needs really to assume that the impugned subclause is valid and, in our submission, there is a tension there which inevitably raises the central question of what is meant by “subject to the regulations” and how does that expression tie in with the general regulation‑making power, bearing in mind that the general regulation‑making power has two features.  One feature is that any regulation made under section 504 must be not inconsistent with the Act and another is that any regulation made has to be made for the purpose of carrying out or giving effect to the Act.

An essential problem is that the impugned regulation, we would say, is inconsistent with section 48, particularly if it is suggested that the regulations could establish some subclass of applicants in the teeth of section 48.  If we stop to ask what is the effect of his Honour’s reasoning process, at the end of the day the effect of his Honour’s reasoning is that a person who falls within the section 48 class, the applicant, can apply for a visa, has an entitlement to apply for a visa, but if the impugned regulation is valid, it is bound to fail at the outset.

So we have not something that establishes a subclass and says people within the subclass have no right to apply, it does not do that at all.  What it does is to say, well, on his Honour’s reasoning, yes, you can put in an application but it just goes nowhere.  So that, in effect, if his Honour’s reasoning is correct, we have a Clayton’s right to apply for a visa.  It then carries on to this extent, that there is an element of catch 22 about it because on his Honour’s reasoning, if you fall within section 48, the primary paragraphs of section 48, you cannot complain if you do not make an application for a visa because you have an opportunity to apply for a visa, but then if you do apply for a visa, your application is bound to fail at the outset.

In our submission, the absurdity of that sort of approach highlights the difficulty in his Honour’s reasoning.  It highlights the need to establish some focus on the meaning of the expression “subject to the regulations”.  Whichever way one looks at this case, ultimately it comes down to the proper interpretation and operation of those words and how they interrelate with the fairly standard form of general power to make regulations.  The effect, in our submission, of the impugned regulation is such that it cannot fairly be characterised as a provision meeting the purposive condition of the regulation‑making power in section 504.  It was designed, we submit, to defeat any right conferred by section 48, with or without clause 2.12, and it was designed to defeat any such right not to carry out or give effect to the Act.  In our submission, that is at the core of the case and the question is an important one, notwithstanding that it needs to be dealt with within a fairly narrow compass.  Those are our submissions.

HEYDON J:   Thank you, Mr Lindsay.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, the application is opposed upon the basis that it has insufficient prospects of success and also, your Honour, it is noted at the outset that the case is not one which raises in general terms the ambit of the expression “subject to the regulations”.  Rather, the case is concerned with the interaction between section 48 of the Migration Act and two specific regulations that his Honour dealt with.

The first thing to be noted about section 48, which, as your Honours will have noticed, is set out by Justice Besanko at page 38 of the application book in paragraph 5, is that the first part of section 48 down to but not including the words “may, subject to the regulations” – that is, the part of the section preceding the words “may, subject to the regulations” – really do no more than define a given number of populations of people.  The words that are germane for the purposes of the present case are those last two lines of his Honour’s quote, “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”.

Section 48, standing alone, without reference to the regulations, does not entitle an applicant to apply for any visa.  First, there must be a class prescribed that he or she can apply for.  Justice Besanko made that point about line 50 on page 43 of the book where his Honour says:

Section 48 only creates a right when it is combined with a regulation made in accordance with its terms.  Insofar as a class of visa is not prescribed, the section provides that an application  may not be made.

I will stop reading there and come back to what his Honour next says at that point.  I would ask your Honours to return for the moment to that quotation of the terms of section 48 and to note that it is drafted in such a way that it depends upon the regulations in two ways and it interfaces with the regulations in two ways; firstly, the words “subject to the regulations”, secondly, the reference to “visa of a class prescribed for the purposes of this section”.

The “class prescribed for the purpose of this section” is to be found from regulation 2.12 and 2.12 lists a considerable number of classes of visa.  The relevant ones are extracted by his Honour.  There are others and we provided yesterday a full copy of the regulation as it was.  Your Honours will note that regulation 2.12 describes the prescribed classes of visas in such a way as to depend upon other parts of the regulations and, in particular, the visa criteria in Schedule 2, to identify the criteria to be satisfied.

CRENNAN J:   So you have to read them together.

MR JOHNSON:   That is right.

CRENNAN J:   You have to read both of them with section 48.

MR JOHNSON:   Exactly.

CRENNAN J:   This is your answer to the giving on the one hand and taking away on the other.

MR JOHNSON:   Yes.  My friend’s core submission was put succinctly by him describing it as a Clayton’s right to apply for a visa.  He is assuming that the regulations and, in particular, clause 850.211 take away a right that the applicant would have in the absence of the regulations and, indeed, in the absence of 850.211.  It is just not correct.  That is the central point. 

Your Honours are aware, of course, of what Justice Besanko went on to say at the bottom of page 43 and over to the top of page 44 basically elaborating upon the very idea that Justice Crennan has just put to me.  His Honour there explains:

It is not permissible to take s 48 and only reg 2.12 and conclude that those legislative provisions create a right from which cl 850.211 cannot derogate, or operate in such a way that is inconsistent with the right.  Put another way, it is not s 48 which creates the relevant right, but that section and regulations made as envisaged by the section.  The combined operation of reg 2.12 and cl 850.211 means that the group identified in s 48 of the Act, other than those persons who have been the subject of a s 501 refusal or a s 501 cancellation, may apply for the relevant visa.  In my opinion, there is no inconsistency between s 48 and cl 850.211.

HEYDON J:   I do not think we need trouble you any further. Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honour.

HEYDON J:   Yes, Mr Lindsay.  Do you have anything in reply?

MR LINDSAY:   My friend’s submissions, in essence, adopt the reasoning process of the court below, but in doing so, they focus attention on the very matter that we seek to agitate in this Court, namely, the meaning of “subject to the regulations”.  Section 48 does not stand alone.  Section 48, in terms of creating a right, section 48 must be read with clause 2.12, the limited operation of which is expressly directed towards prescribing various classes of visa.  If you take clause 2.12, section 48 relevantly provides “may, subject to the regulations, apply for visa” X, Y, Z.  In our submission, that is where you get the right to apply for a visa.  There is no necessary connection between clause 2.12 and the impugned regulation.  The impugned regulation is one of a number of criteria that has to be satisfied, on the face of it, at the time an application is made. 

It is not, in our submission, correct to say that one needs to read those two together at all, but even if one did, we have this situation, that my friend has to say that it was within the regulation‑making power, section 504, for the Executive to create a class of people entitled to apply for a visa on an application which was bound to fail.  In our submission, that in itself is an absurdity.  It is not one, in our submission, that could readily be attributed to the legislature in the general regulation‑making power.  Those are our submissions.

HEYDON J:   Thank you, Mr Lindsay.

We think that an appeal would have insufficient prospects of successfully overturning Justice Besanko’s orders and therefore the application must be dismissed with costs.

AT 12.31 PM THE MATTER WAS CONCLUDED