Harjanto, Rudy v Minister for Immigration and Multicultural Affairs

[1998] FCA 1401

FEDERAL COURT OF AUSTRALIA

MIGRATION – respondent refused appellant’s application for a bridging visa – appellant a group member in representative proceedings in which applicant/representative party sought order setting aside respondent’s decision to treat an application for a visa as invalid – whether appellant had applied for judicial review of a decision.

Federal Court of Australia Act 1976 (Cth), Pt IVA
Migration Act 1958 (Cth), ss 31, 73, 476, 479(b)
Migration Regulations, subcl 050.212(4)(a) of Schedule 2

RUDY HARJANTO v MINISTER OF STATE FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

NG 600 of 1998

CARR, SUNDBERG & NORTH JJ
SYDNEY
4 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 600 of 1998

BETWEEN:	RUDY HARJANTO Appellant
AND:	MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	CARR, SUNDBERG AND NORTH JJ
DATE:	4 NOVEMBER 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 600 of 1998

BETWEEN:	RUDY HARJANTO Appellant
AND:	MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	CARR, SUNDBERG AND NORTH JJ
DATE:	4 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

The appellant, Mr Harjanto, is involved in two proceedings in the Court.  One is an appeal against a decision of Branson J setting aside the Immigration Review Tribunal’s grant of a bridging visa (“the first proceeding”).  The other is a representative proceeding launched on 5 December 1997 pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth): Kagi v Minister of State for Immigration and Multicultural Affairs (“the second proceeding”).  This appeal is against the decision in the first proceeding, and its resolution depends on the proper characterisation of Mr Harjanto’s involvement in the second proceeding.  Mr Harjanto is an Indonesian citizen who has resided in Australia since 1985.  He entered the country on a two month visitor’s visa, and has remained here since the expiration of that visa.  He does not hold a substantive visa.  Between 24 December 1997 (the day on which a delegate of the respondent refused to grant the bridging visa for which he had applied) and 31 December 1997 (the day on which the Tribunal set aside that decision) he was held in custody.

Section 73 of the Migration Act 1958 (“the Act”) provides that the Minister may grant a bridging visa to an eligible non‑citizen who satisfies the criteria prescribed under s 31(3). Mr Harjanto is an eligible non‑citizen for the purposes of s 73. Section 31(3) provides that the regulations may prescribe criteria for a visa or a visa of a specified class. Subdivision 050.21 of the second schedule to the Migration Regulations prescribes the criteria for a bridging visa. The relevant criterion is that “the applicant has applied, within statutory time limits, for judicial review of a decision other than a decision in relation to the grant of a visa”: sub‑clause 050.212(4)(a). The question in this appeal is whether Mr Harjanto’s involvement in the second proceeding satisfies this requirement. Branson J held that the Tribunal was wrong in deciding that it did, and the question on the appeal is whether her Honour was correct.

The principal relief claimed in the second proceeding is:

(b)A declaration pursuant to section 10 of the Racial Discrimination Act 1975 that, by reason of:-

(i)subclause 3(d) of clause 1216A of Part 2 of Schedule 1,

(ii)subclause (3) of clause 850.212 of Part 2 Schedule 2, and

(iii)clause 850.213 of Part 2 of Schedule 2

of Statutory Rules No 279 of 1997, the applicant and the other group members do not enjoy a right that is enjoyed by persons of another national origin or other national origins or enjoy a right to a more limited extent than persons of another national origin or other national origins and therefore are entitled to enjoy the rights conferred by those regulations to the same extent as persons of that national origin or those national origins.

(c)An order setting aside the decision of the respondent or his delegate to treat the application made by the applicant on 3 December 1997 as invalid and requiring the respondent to consider an application for a Resolution of Status (Residence) (Class BL) visa or a Resolution of Status (Temporary) (Class UH) visa from the applicant and each group member as valid applications notwithstanding that the applicant or any group member does not hold a passport issued by and was not a citizen of or usually resident in a country listed in clause 850 of Part 2 of Schedule 2 of Statutory Rules No 279.

(d)An order restraining the respondent, by himself or his delegates, agents or servants, from removing the applicant or any of the group members from Australia until further order.

This relief is claimed under s 39B of the Judiciary Act 1903 and s 476 of the Act. The relief sought in par (b) requires some explanation. On 13 June 1997 the respondent announced the Government’s decision to resolve the uncertainty surrounding the future status of certain groups of people who for humanitarian reasons had been allowed to remain in Australia as long term residents. This was to be effected by creating new visa classes (850 and 851) to cover persons from Sri Lanka, countries in the former Yugoslavia region, Iraq, Kuwait, Lebanon and the People’s Republic of China (“the specified countries”). The practical effect of these visas is to confer permanent resident status. Effect was given to this scheme by Statutory Rule 279 of 1997. Clause 1216A(3) of Pt 2 of Sch 1 required an application for a visa to be accompanied by evidence that the applicant had entered Australia as the holder of a valid passport of a country specified in par (d) and an entry permit or entry visa that had effect as an entry permit, and so entered on or before the date specified in par (d) in relation to that country. Paragraph (d) listed the specified countries and the applicable dates. Clause 850.212 of Sch 2 prescribed as criteria to be satisfied at the time of the application the matters mentioned in cl 1216A(3). Clause 850.213 added the requirements that immediately before the date on which the applicant entered Australia he or she was a citizen of the country the government of which had issued the passport, and was usually resident in that country.

Section 10(1) of the Racial Discrimination Act 1975 provides as follows:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Thus the effect of a declaration in terms of par (b) of the claim for relief would be to entitle group members to enjoy the same rights to permanent resident status in Australia as persons from the specified countries.

The declaration sought in par (b) relates to Mr Kagi and the other group members (including Mr Harjanto).  The order sought in the first part of par (c) relates to a decision affecting Mr Kagi alone.  The order sought in the second part of par (c) affects Mr Kagi and the group members who have applied for the specified types of visa.  Mr Harjanto had not, at the time when the application was filed in the second proceeding, applied for either of the visas mentioned in par (c).  The order sought in par (d) affects Mr Kagi and the other group members (including Mr Harjanto).

The Tribunal held that Mr Harjanto’s participation in the second proceeding was an application for judicial review within the meaning of sub‑clause 050.212(4)(a).  On the respondent’s application to review the Tribunal’s decision, Branson J decided that the claim embodied in par (c) was the only one which could be regarded as an application for judicial review.  Her Honour held that even though par (c) contained a claim for judicial review of a decision on the validity of Mr Kagi’s visa application, that claim was to be regarded as an application by Mr Kagi and not by Mr Harjanto and the other members of the group.  Her Honour held that the group members other than Mr Kagi had no legal interest in that particular decision.  Their interest in par (c) of the claim for relief was, so her Honour decided, to obtain an order that the respondent treat such similar applications as they might make, or had made, as valid applications.  Her Honour noted that Mr Harjanto had made no such application.  She set aside the Tribunal’s decision and referred the matter to the Tribunal for further consideration.

There are two grounds of appeal. The first is that the primary judge erred in holding that Mr Harjanto had not applied for judicial review of a decision within par (4)(a). The second is that the judge should have found that each claim made in the second proceeding is an application for judicial review. Only the first ground was pursued on the hearing of the appeal. In our view Branson J was correct in deciding that the first part of par (c) of the claim is an application for review made by Mr Kagi and not by the other group members. Sections 33C(2)(a)(iv), 33Q and 33R of the Federal Court of Australia Act recognise that a representative proceeding may be commenced even though the relief sought is not the same for each person represented. Mr Harjanto has not applied for judicial review of the decision made by the Minister to treat as invalid Mr Kagi’s application of 3 December 1997. Nothing in Pt IVA assimilates all represented persons so that because some only apply for specific relief all others are deemed to have applied for that relief. In respect of each applicant the question posed by sub‑clause 050.212(4)(a) remains whether he or she has applied for judicial review of a relevant decision. Even if, by reason of his participation in the representative proceeding, Mr Harjanto were to be treated as having applied for judicial review of the decision affecting Mr Kagi, it is not, in our view, possible to treat the words “the applicant has applied ... for judicial review of a decision” as covering an applicant who has applied for review of a decision affecting someone else. Section 479(b) of the Act relevantly provides that an application to review a judicially reviewable decision of the type made in Mr Kagi’s case may only be made by the person who is the subject of the decision. The words of sub‑clause 050.212(4)(a) – “within statutory time limits” – support the view that the application is for review of a decision on the applicant’s own application.

For completeness we should add that the relief sought by Mr Harjanto in the second part of par (c), namely that any visa application he might make be treated by the Minister as a valid application notwithstanding that it does not satisfy the relevant criteria, is not a claim for judicial review of a decision.

The appeal is dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:            4 November 1998

Counsel for the Appellant:	Ms C A Ronalds
Solicitor for the Appellant:	Messrs Parish Patience
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 November 1998
Date of Judgment:	4 November 1998