Hossain v Minister for Immigration - [2007] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION

[2007] FMCA 35

MIGRATION – Skilled Independent Overseas Student Visa – review of delegate decision – substantive visa granted – bridging visa ceased to be in effect – visa period ended – applicant unlawful non-citizen – bridging visa not reactivated – subsequent application for another student visa invalid – application dismissed.

Migration Act 1958, ss.5, 13, 14, 66, 67, 68, 73, 82, 474(3), 476, 483A
Migration Regulations 1994, Reg 2.17, Sch 1 Item 1128CA, Sch 2 Cl. 010.511
Migration Reform Bill 1992

Applicant:

MOHAMMED FAROQUE HOSSAIN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 537 of 2005

Judgment of:

Nicholls FM

Hearing date:

18 September 2006

Date of Last Submission:

18 September 2006

Delivered at:

Sydney

Delivered on:

2 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr. N. Dobbie

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Mr. G. Kennett

Solicitors for the Respondents:

Phillips Fox

ORDERS

The reference to the respondent’s name be amended to read “Minister for Immigration & Citizenship”.
The application is dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 537 of 2005

MOHAMMED FAROQUE HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me an application filed on 2 March 2005 seeking review of the decision made on 4 January 2005 by a delegate of the respondent which rejected, as invalid, an application for a Skilled Independent Overseas Student Visa (Class DD Subclass 880) made by

Mr. Mohammed Faroque Hossain (“the applicant”).
Relief Sought
The applicant seeks writs of prohibition, certiorari and mandamus, but central to the claim is a declaration that this decision is null and void. There was no dispute between the parties that the Court has jurisdiction. The Minister accepted that the “determination” made by the delegate was a “decision” in the sense as set out in s.474(3) of the Migration Act 1958 (“the Act”), and therefore a migration decision as defined in s.5(1) of the Act, and that the Court has jurisdiction under s.476. However, the Minister’s position is that orders of certiorari, or prohibition, would not be meaningful, or appropriate, given that the decision was not an act that purported to have any effect on rights, or interests, but was merely an assessment of the existing legal position.
Given my ultimate conclusion on this matter (in finding for the Minister), it is not necessary to determine this issue other than to confirm at this stage that the Court does have jurisdiction to address the central dispute between the parties as to whether the respondent’s delegate was required to consider the application for the visa made by the applicant, or required not to consider this application. Essentially, whether the delegate's determination that the application was invalid should be allowed to stand.
Representation
At the hearing of this matter before this Court, Mr. Dobbie appeared for the applicant and Mr. Kennett appeared for the respondent.
Amended Application
At the hearing, Mr. Dobbie sought leave, which was subsequently granted, to file an amended application which contended:
“The grounds of the application are:
(1)The delegate failed to exercise her jurisdiction by failing to apply the law or the delegate misapplied the law to the facts.
Particulars
1. The delegate found that Subitem 1128CA(3)(h) of Schedule 1 of the Migration Regulations 1994 applied to the Applicant such that the subclass 880 visa application was invalid, when that subitem did not apply to the Applicant.”
At the commencement of the hearing, the Court had before it:
(1)A Court Book (“CB”) filed on 15 April 2005.
(2)A Supplementary Court Book (“SCB”) filed on 15 September 2006.
(3)The applicant's outline of submissions filed on 15 September 2006.
(4)The respondent's written submissions of 18 September 2006.
Evidence
The applicant had filed three affidavits. At the hearing before the Court, Mr. Dobbie:
(1)Did not seek to read the affidavit of Nicholas Alexander McNally, solicitor, of 2 March 2005.
(2)Sought to read the affidavit of Motasim Billah, a clerk in the employ of the applicant's solicitors, made on 15 September 2006 with annexure. Mr. Kennett raised the issue of relevance, but said that the Court would not be able to rule on that without hearing the case. I understood Mr. Kennett's objection to be made in a formal way. I considered the attachment to the affidavit, in particular page 3, which contained a copy of the relevant visa label as relevant to the applicant's argument before the Court, and admitted the affidavit and its annexure, for the purposes of the Court being able to properly consider the applicant’s case.
(3)Sought to read the affidavit of Mohammed Faroque Hossain Bhouyan (the applicant) made on 15 September 2006. The affidavit in essence is the applicant's account of events surrounding, and leading up to, the determination that his application for the overseas student visa was invalid. Mr. Kennett objected to:
(i)Paragraph 3 of the affidavit to the extent that it purports to be evidence of the reasons why the respondent's Department took, or did not take, certain action. Mr. Kennett's position was that this was not something that the applicant was in a position to give evidence about. I admitted paragraph 3 into evidence, except for (in upholding Mr. Kennett's objection) the following words, “… so the visa could not be granted straight away”.
(ii)Mr. Kennett also objected to paragraph 5, given its very general nature, that it was lacking in detail both as to the “many occasions” that the applicant says he contacted the respondent's Department, and about what exactly was said to him. Ultimately, Mr. Dobbie said that given that paragraph 6 of the affidavit was not objected to, and that this was the critical part of the evidence that he wanted to put before the Court, in that the applicant was not informed that another visa for which he had applied had been granted to him, then he took no “objection” to Mr. Kennett's objection. In all, I upheld Mr. Kennett's objection in relation to paragraph 5. But clearly, paragraph 6 is the critical and relevant part to the applicant’s case (for reasons which will become obvious below).
Mr. Kennett sought to read into evidence the affidavit of Marica Pasalic of 15 September 2006, an employee of the Minister’s Department, with annexures “A” to “D”. Mr. Dobbie objected to paragraph 6.2 of the affidavit to the extent that it refers to annexure “D” which is a printed extract from the respondent's Department's electronic database showing the list of visas held by the applicant. Mr. Dobbie objected to the affidavit in that it referred to the column headed visa status as being a reference to when the relevant visas had “ceased”. The objection was contingent in the sense that if the Court were to reject the applicant’s submission, then a reasonable inference could be drawn that the visas so listed in this document did cease on the dates indicated in the column headed “Visa Status”. I noted the objection and allowed the affidavit and annexures into evidence subject to the contingency.
Background
The application for a Skilled Independent Overseas Student (Class DD (Subclass 880)) visa lodged with the respondent’s Department on 16 December 2004 is reproduced at CB 6 to CB 7. It was accompanied by a submission from the applicant's solicitors reproduced at CB 1 to CB 5. By letter dated 4 January 2005 (CB 14 to CB 16) the Minister's delegate notified the applicant’s solicitor that she had determined that the application for this visa was invalid because it did not meet the criterion prescribed in Schedule 1, Item 1128CA to the Migration Regulations 1994 (“the Regulations”). The delegate's letter (at CB 14.6) makes reference to Schedule 1, Item 1128CA(3)(h). I accept that this is a reference to Schedule 1, Item 1128CA(3)(h) to the Regulations which sets out criteria relevant to the grant of such a visa. At (h) the requirement is:
“(h) Applicant must not have been an unlawful non‑citizen at any time in the 6 months immediately before making the application.”
The delegate then explains the determination as to the validity of the application in the following terms (at CB 15.3):
“The applicant and each member of the family unit must not have been an unlawful non-citizen at any time in the 6 months immediately before making the application. Our records show that yours and Mrs Hosene Ara Parveen's (the applicant's spouse) student visas ceased on 31 August 2004. On 27 September 2004 you were both granted Bridging E visas until 28 October 2004. You therefore do not meet this requirement as you have both been unlawful non-citizens within the last 6 months.”
The documentation and the application to which it related was returned to the applicant's solicitors as the application “was not validly lodged”.
From the material before the Court the following background matters can be ascertained and, from the submissions of both parties, are not contentious:
(1)The applicant applied for a student visa on 5 March 2004.
(2)On 5 March 2004, he was granted a bridging visa A, associated with, and resulting from, his application for a student visa (see annexure “A” to the affidavit of Mr. Billah, and also see annexure “A” to the affidavit of Ms. Pasalic).
(3)On 3 June 2004, the applicant was granted the student visa for which he had applied in March 2004 (see CB 17, and annexure “B” to the affidavit of Ms. Pasalic).
(4)That visa was valid until 31 August 2004 (see CB 15.3, and see also annexure “B” to the affidavit of Ms. Pasalic which shows that the visa “ceased” and that this status took effect on 31 August 2004).
(5)The respondent's Department did not tell the applicant, in a timely fashion, that he had been granted the student visa for which he had applied on 5 March 2004. It would appear and it is common ground between the parties, that the applicant was only notified that this visa had been granted after the period for which the visa had “ceased” (see paragraph 6 of the applicant's affidavit that he was not informed the visa had been granted until his solicitor informed him on 14 September 2004).
(6)On 24 September 2004, the applicant lodged an application for another student visa. At the same time he also applied for a bridging visa E in association with that application (see annexure A to the applicant's affidavit).
(7)On 27 September 2004, the applicant was granted a bridging visa E for which he had applied on 24 September 2004 in connection to the application for the student visa made on that day (see CB 15 where the Minister's delegate acknowledges that the applicant was granted a bridging visa E on 27 September 2004. Also see annexure “C” to the affidavit of Ms. Pasalic).
(8)On 28 October 2004, the applicant was granted a student visa for which he had applied for on 24 September 2004 (see the applicant's affidavit at paragraphs 7 and 8 and annexure B to that affidavit (see also annexure “D” to the affidavit of Ms. Pasalic).
(9)On 16 December 2004 the applicant applied for yet another student visa, the subject of the delegate’s decision.
The Minister's delegate, as is shown in the letter to the applicant's solicitor of 4 January 2005 (at CB 14 and 15), found that the applicant was “an unlawful non-citizen” for a time in the six months immediately before making the application on 16 December 2004 for a student visa. This was on the basis that the applicant was an unlawful non-citizen from 1 September 2004 (the day following the date on which the previous student visa was said to have ceased – see paragraph 11(4) above) until 27 September 2004 when he was granted a bridging visa E in relation to yet another application for a student visa made on

24 September 2004. This plainly was the basis on which the Minister's delegate determined that this application (that is, the application of 16 December 2004) was an invalid application.
Other Resolution
I should just note at this point that having settled the matters of evidence at the hearing before the Court, I sought from both parties whether there had been some attempt at resolution of this issue prior to the hearing before the Court, and if there was any chance of a resolution without proceeding with a hearing. It was not in dispute between the parties that the Minister’s Department’s failure to notify the applicant of the grant of the visa on 3 June 2004 until after this visa was said to have ceased was plainly a significant factor that gave rise to the situation relied upon by the Minister's delegate to determine that the subsequent application for a visa was invalid. Mr. Kennett submitted that the Minister's Department was “I suppose embarrassed, for want of a better word, as to the sequence of events that have led us to be here”, but submitted that the Minister was not in a position to agree to the Court making any orders that the delegate's decision was invalid unless of course the Court was to so determine. Mr. Dobbie submitted that from the applicant's side, there was no likelihood of any resolution between the parties and pressed that the matter be heard by the Court.
Although not relevant to the ultimate determination of the issue pressed before the Court, I did have in mind that making a new application for a student visa would be open to the applicant, as indeed he had done so, whether in light of the fact that subsequent visas had been granted made the issue of before the Court in that sense otiose. However, equally the Court can understand that an applicant would not want to have on his immigration record (both for any possible consequences in any future applications for visas in Australia or indeed, in any other country) that he had been unlawfully in Australia, albeit even for the short period relevant to his case. Whatever the reason, both parties pressed that the matter should proceed.
The Issue
The issue, then, between the parties is whether or not the Minister's delegate was correct in the determination that she made that the applicant had been unlawfully in Australia for the period 1 September 2004 to 27 September 2004. The issue that sits below this is whether or not, the bridging visa A granted to the applicant on 5 March 2004 (see paragraph 11(5) above) had ceased on 3 June 2004 (when the student visa for which he had applied, which was connected to the application for this bridging visa A, had been granted), or whether this bridging visa A continued in effect until 27 September 2004 (given that he had not been notified of the granting of the 3 June 2004 visa).
Applicant’s Submissions
Mr. Dobbie's submission was that with reference to the claimed period of unlawfulness (1 September 2004 to 27 September 2004) that the applicant was not an unlawful non-citizen for this period given that he was not notified of the grant of the visa for which he had applied on 5 March 2004 until after the expiry of the validity of that visa on 31 August 2004. His argument in support relied on what he said was put by the Minister's Department on the relevant visa label (see page 3 to annexure A of the applicant's affidavit) and when compared with the relevant Regulations.
The applicant was granted a bridging visa A on 5 March 2004. This was said to have ceased on 3 June 2006 when the student visa application to which it related was granted. The bridging visa A has on its face (see the annexure to the affidavit of Mr. Billah):
“GRANTED 5/3/04. VISA PERMITS YOU TO REMAIN IN AUSTRALIA UNTIL 28 DAYS AFTER NOTIFICATION OF THE PRIMARY DECISION OR DECISION BY A REVIEW AUTHORITY OR REMITTAL OR WITHDRAWAL OF YOUR APPLICATION IN RESPECT OF APPLICATION RECEIPT NO SG425505671. V504<9005823T.”
Mr. Dobbie's submission was that the applicant was not notified of the decision to grant him a visa until after the visa had ceased to be in effect, yet the bridging visa A label clearly notified the applicant that that visa permitted him to remain in Australia until 28 days after notification “of the primary decision”.
Mr. Dobbie referred the Court to Schedule 2 to the Regulations and in particular provisions dealing with the grant of subclasses of visas, and further in particular bridging visa A at clause 010.511, dealing with when such a visa is in effect. The Regulations at this part, relevant to Mr. Dobbie's argument, state:
“010.511 When visa is in effect
010.511 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;” …
Mr. Dobbie submitted that, relevantly, the bridging visa A was granted on 5 March 2004 and came into effect on that day. It permitted the holder (the applicant) to remain in Australia, and in this case given that the Minister's decision in respect of the substantive visa applied for, that is, to which the bridging visa A was associated, was granted, then the holder “is” permitted to remain in Australia until the grant of that visa. Clearly, Mr. Dobbie submitted that the “28-day period of grace” (clause 010.511 (b)(ii)) only applies if the Minister's decision was to have been to have refused to grant the substantive visa. He conceded that this would “disqualify the applicant” unless he could convince the Court of his submission as it flowed from the terms that are printed on the relevant visa label associated with the bridging visa A granted on 5 March 2004 to the applicant. He conceded that if the Court were to reject the argument flowing from the terms on that label, then the “hurdle” at clause 010.511 (b)(i) would be “impossible” for the applicant to get over.
Mr. Dobbie's argument relied on s.73 of the Act, which was relevantly in the following terms:
“Bridging Visas
If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non‑citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.”
Mr. Dobbie's submission was that this section empowers the Minister to grant a bridging visa “for as long as she wants, so to speak”. His argument was that it appears that there is an unfettered discretion, (that is unfettered by any other provision in the Act) and that what the Minister was really doing, with reference to what was printed on the bridging visa A label, was that there was a permission given for the applicant to remain in Australia for 28 days after notification of the primary decision. His argument was that that is capable of being taken as the specified period, or even until a specified event happens, for the purposes of s.73, even though there is a rule pursuant to Schedule 2 to the Regulations (clause 010.511) that would suggest the contrary.
Mr. Dobbie's submission was that clearly such an interpretation would solve the problem of where a visa has been granted and an applicant is then held “at the mercy of an officer's diligence or otherwise or ability to communicate”. His claim was that the applicant was prejudiced by the failure to notify him of the grant of the substantive visa for which he had applied and that seeing what has happened (as represented by what is said on the visa label) is evidence of the Minister's exercise of the discretion pursuant to s.73 which in Mr. Dobbie's submission would override the otherwise insurmountable barrier placed by the relevant part of the Schedule to the Regulations.

Mr. Dobbie also submitted that what was set out at Schedule 2, clause 010.511, was in one sense a “general rule” but that it did not stipulate that the Minister had to put on the visa label what in fact was placed there. He distinguished this situation with what applied to the evidencing of a substantive visa and with particular reference to Regulation 2.17 dealing with the evidencing of visas and the ways of giving evidence of a visa. Relevantly:
“2.17 Ways of giving evidence of a visa
…
(2)Evidence of the grant of a substantive visa (other than a transitional visa ) that is given by means of a visa label must include:
(a) a statement of the period for which the visa is in effect; and
(b)a statement of the class and the sub-class to which the visa belongs; and
(c) if the visa allows the holder to travel to and enter Australia - a statement of that fact.”
His submission was that he could not find anywhere the “comparable regulation” which made similar provisions for bridging visas. Therefore the inclusion of the statement going to the period for which the bridging visa A was in effect was therefore placed on the relevant visa label, not as a result of any regulatory requirement, but in the exercise of the discretion pursuant to s.73. The circumstances of this case, are “a departure from what would otherwise normally follow from the grant of a bridging visa”. So that when the statement was put on the bridging visa A label, that the visa permits the applicant to remain in Australia until 28 days after notification of the primary decision, this was the exception to the “general rule” (as he described it) laid out in the Regulation. This gives further weight to the argument that it was done in exercise of the power that the Minister had under s.73 of the Act, which of course, he said, would take precedence over anything else in the Regulations.
Further, he submitted, when seen in this way, there was “no inconsistency” between the relevant parts of Schedule 2 to the Regulations and s.73 of the Act. That the delegate who granted the bridging visa A chose to act in this fashion, that is, to put the statement on the bridging visa A label, strengthens his argument that what was said on the visa label is critical, and is evidence that the Minister has granted permission, as a result of that statement, for the applicant to remain in Australia. That is, to be lawfully in Australia, until 28 days after the notification of the decision on the substantive visa that had been applied for, and to which the bridging visa A related.
The “essence of the application” to the Court was that as notification of the grant of the substantive visa did not occur until 14 September 2006, and the applicant had a further 28 days (from notification), then the applicant's application made on 24 September (see paragraph 11(7) above and paragraph 7 of the applicant’s affidavit of 15 September 2006) which led to a bridging visa E (being granted on 27 September 2004) operates to mean that the applicant was not an unlawful non-citizen for the period 1 September 2004 to 27 September 2004.
I note that Mr. Dobbie also submitted, with reference to what was stated on the relevant visa label, that there is reference there to 28 days after notification of the “primary” decision, and that primary decision is only defined in the Act insofar as it relates to the Court's jurisdiction to entertain a particular matter. This was with reference to (at the relevant time) s.476(6) of the Act. The Court does have jurisdiction pursuant to the then s.483A (Act No. 62) as it was at the time the applicant filed his application to the Court on 2 March 2005 (the current version of s.476 in the Act was amended by Act No. 137 of 2005 and became operational on 1 December 2005). This is equivalent to the Federal Court s.39B jurisdiction and in my view, that jurisdiction would include the relief that the applicant is seeking. That is, that if the application were to be said to be valid, then the Court would have the power to compel the Minister to deal with that application.
In any event, his submission was that he could not find “primary decision” defined “on its own in the Act”, and that the “only” definition was exclusive for a particular section only. This meant that it was not to be generally applied across the rest of the Act. Therefore, when the Minister's delegate used the word “primary” on the visa label, the ordinary usage of “primary” should be applied. He made reference to the ordinary dictionary meaning of primary and that this with reference to an extract from an unnamed dictionary that primary meant:
“First or highest in rank or importance;”
“First in order in any series or sequence”
“First in time”.
He emphasised that the delegate was not proceeding under any legislative or regulatory direction.
In all therefore he submitted that, on the basis of “those components of the equation” above, the delegate exercised the power under s.73 to grant a bridging visa valid until 28 days after notification of a decision to refuse, or grant of the visa. As notification did not arrive until 14 September 2004, the bridging visa was therefore valid until 28 days after that, with the consequence that the applicant was not unlawfully in Australia as claimed by the Minister’s delegate.
Respondent’s Submissions
Mr. Kennett submitted that both parties agreed that the issue turns on whether the applicant's bridging visa A granted on 5 March 2004 (see paragraph 11(2) above) continued in effect after the grant, and subsequent expiry of the applicant's substantive visa for which he had applied on the same date (see paragraph 11(1), 11(3) and 11(4) above). The issue, then, is when did that bridging visa cease to have any effect?
Mr. Kennett referred to what he said was the relevant statutory regime:
1)Section 68 of the Act:
“When visa is in effect
(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.”
2)This needs to be read in connection with the following relevant parts of s.82 of the Act:
“When visas cease to be in 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.
…
(7)A visa to remain in Australia (whether also a visa to travel to and enter 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.
…
(10)For the purposes of subsection (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.”
3)Also to be read with clause 010.511(b) of Schedule 2 to the Regulations:
(See paragraph [19] above, but repeated for ease of reference):
“When Visa is in Effect
In the case of a visa granted to a non‑citizen who has applied for a substantive visa -- bridging visa:
…
(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;…”
With reference to the relevant part of the Regulations (clause 010.511(b)(i), which permits the holder of the visa to remain in Australia until the grant of the substantive visa), Mr. Kennett’s argument was that the grant of the substantive visa in the case before the Court now, (that is, the visa applied for on 5 March 2004 to which the bridging visa A was linked) was the event which brought s.82(7) into operation, and that this happened at exactly the same moment as s.82(3) applied (given that both sections are to be taken as read together). In other words, the combined effect of ss.82(3) and 82(7), when read with clause 010.551(b) of the Regulations, had the effect that the bridging visa granted on 5 March 2004 only permitted the applicant to remain in Australia until 3 June 2004 (the date of the grant of the substantive visa).
In relation to this bridging visa A therefore, the Regulation provides that the bridging visa comes into effect on grant, but only permits the holder to remain in Australia until a number of events which, relevant to what had occurred in this case, is until the Minister's decision which was to grant the substantive visa (that is, the substantive visa to which the bridging visa related). In the case before me, therefore, the bridging visa A ceased to be in effect at the time that the substantive visa was granted because the applicant was only permitted by that bridging visa to remain in Australia until the consequent event relevantly of the grant of the substantive visa to which it related. Having ceased, therefore, the bridging visa A had no capacity to be subsequently used to prevent the applicant from becoming unlawful.
Mr. Kennett’s response to the Court’s question seeking a reconciliation of this construction of the relevant legislation with s.68(4) (see paragraph 32 above) was that the operation of s.82(7) left s.68(4) with “nothing to do”, because s.68(4) provides that the visa would come into effect again during the visa period for the visa. His submission was that there was “nothing left of the visa period”.
Mr. Kennett submitted further that there are two difficulties specifically with Mr. Dobbie's argument. These relate to:
1)The effect of clause 010.511 of Schedule 2 to the Regulations.
2)Aspects of the wording on the visa label.
The first is that the wording of clause 010.511 of Schedule 2 is such that it leaves no room for any consideration of the term for which the visa should be enforced. His short point being that the visa comes into effect on grant which permits the holder of the visa to remain in Australia until the substantive visa is granted. There is nothing in this, in Mr. Kennett's submission, to show that in any exercise of the discretion set out in s.73 that a delegate can depart from what is plainly set out in the relevant Regulation by granting a visa for a longer, or even a shorter, period. That is, that the visa would come to an end at some time, or some event, other than in the events set out at clause 010.511(b). Mr. Kennett submitted that the applicant has not mounted an attack on the validity of this sub-clause and that he would have needed to have done so if this part of the Regulations could be read in context of s.73 and to be interpreted in the way that the applicant is now putting forward.
Mr. Kennett's submission in relation to the “applicant’s other problem” is in the terms of what is on the visa label. Mr. Kennett's submission was that Mr. Dobbie had pointed out the complexity that arises from the use of the phrase “primary decision”. Mr. Kennett's submission was that that phrase, at the very least, echoes, and was intended to do so, the distinction that was made in the then relevant s.476. That is, its relevance to determining the Court's jurisdiction, and to therefore have had a similarly limited connotation.
The wording of what appears on the visa label (see paragraph 17 above) clearly shows, in Mr. Kennett's submission, that a distinction is drawn between a “primary decision”, which in context, must mean the decision of a delegate, and then with a decision by a review authority which, in a case of this type, would presumably have been the Migration Review Tribunal. It is not therefore the case as submitted by Mr. Dobbie that what is in s.476 does not include a positive decision, that is, a decision where the substantive visa is granted.
Further, he submitted, that the opening words of the text on the visa label talk about what the bridging visa permits. In other words, this is to speak of the effect of the bridging visa and that is the permission that it gives, as the words plainly say, to remain in Australia. His submission was that this needs to be read in context, that if the decision on the substantive visa is a positive decision, then the holder will obviously remain in Australia because of what flows from that substantive visa, and that is for reasons other than the bridging visa itself. He saw this as, in effect, being that the bridging visa will have been “overtaken” by the grant of the substantive visa.
At that point, the bridging visa and whatever was written on its label would become irrelevant. In this context, therefore, in his submission, the label is plainly geared to a situation where it defines an end to the permission granted by the bridging visa in that it only speaks of the circumstances in which the end of the visa determines the end of the visa holder's right to be in Australia. This is reinforced when it is seen that the visa does not address what happens if the bridging visa is simply overtaken by events. That is, relevantly, the grant of the substantive visa. That when it is seen in that context, that is, the context in which the bridging visa is granted, it becomes understandable that the phrase “timely decision” was chosen. Even though, as Mr. Kennett conceded, that the wording on the label may be somewhat confusing, it does not purport (not could it do so) to grant a visa extending beyond that which the Regulations would permit. In that light, therefore, the Regulations, whatever the label may have written on it, preclude the argument put forward by Mr. Dobbie.
Even further however, he also submitted, in the alternative, that even if what was put on the label was relevant, and even if there was a power residing in the delegate when granting a bridging visa to “mould the term of the bridging visa”, then even if in those circumstances when what is written on the label is read “with care”, that it does not, when read in the way that Mr. Kennett has outlined, “depart” from what is set out in the Regulations. I understand this is particular to mean that the juxtaposition of the reference to a decision by a “Review Authority” with “primary decision” meant that the reference to “primary decision” meant a decision negative to the applicant (visa not granted), because a decision positive to an applicant would have meant that a review authorities intervention would plainly be unnecessary and irrelevant.
In short, therefore, the respondent's argument is that if the substantive visa has been granted and comes into effect, the bridging visa is then overtaken and at that point ceases to be relevant. The substantive visa is equated with what flows from the “primary decision”. In those circumstances, it does not matter when the bridging visa is stated to end, because the bridging visa in any event no longer provides the authority to stay in Australia. Further, on the wording used on this particular visa label, it does not operate to resurrect the visa that had already ceased to have effect. In a “nutshell”, Mr. Kennett's position requires the terms of the grant of the bridging visa to be read in the context of the role of the bridging visa as a whole, and in the context of the broader terminology of the Act and the Regulations. The context relevantly is that a bridging visa A is granted in association with an application for a substantive visa. If the substantive decision is negative, then it becomes critical in those circumstances to know how much longer after that decision the applicant has to leave the country, or to seek review. But if the substantive decision is positive, then the bridging visa ceases to have any operation under s.82(3), and more broadly ceases to have any importance because a substantive visa is in place. This is the context in which he invited the Court to consider the applicant's argument.
Consideration
First, and by way of preliminary observation, I should note that the relevant bridging visa A was granted on 5 March 2004 (the same day on which the applicant made his application for a substantive student visa). That is, the bridging visa sprang out of the circumstances attendant on the application for the student visa. On the material before the Court now, and if for no other reason, as made plain on the label evidencing the visa, the visa was specified to come into effect on 5 March 2004 pursuant to s.68(2)(a) of the Act. This is so, given that in any event the visa would have come into effect pursuant to s.68(1) of the Act. That is, on the day of its being granted.
Second the applicant was granted the (substantive) student visa for which he applied on 5 March 2004, on 3 June 2004. He was not notified at that time, nor indeed until some time later, of the granting of that visa. However, in my view this does not affect the efficacy or validity of the grant. Section 67 of the Act provides:
“Way Visa Granted
A visa is granted by the Minister causing a record of it to be made.”
The evidence before the Court is that such a record was made (see the affidavit of Ms. Pasalic of 15 September 2006 – in particular annexure “B”).
Further, I also note the provisions of s.66(4) of the Act, that failure to give notification of a decision, that is, a decision to grant or refuse to grant a visa does not affect the validity of the decision. In my view, therefore, the substantive student visa for which the applicant had applied for on 5 March 2004 was granted on 3 June 2004, and its validity was not affected by the failure to notify the applicant of its grant.
In any resolution of an issue of this type, it is trite to say that the provisions of the Act will take precedence over provisions of the Regulations which would then in turn take precedence over any other advice to an applicant. That is, in looking at the resolution of this issue, the advice provided on the visa label cannot be said to override any express statutory or regulatory provisions to the contrary on its own. In this regard, I note, in particular, the provisions of s.82(3) of the Act which provides that a bridging visa ceases to be in effect if another visa in relation to the same person (“non-citizen”) comes into effect. The importance, therefore, of s.82(3) to the circumstances before the Court now is that as soon as the substantive visa was granted on 3 June 2004, the bridging visa A granted on 5 March 2004 ceased to have effect. I accept Mr. Kennett's submissions that the terms of s.82(3) are express and clear in this regard.
The provisions of s.73, as they relate to bridging visas do provide discretion to the Minister enabling the grant of a bridging visa permitting a non-citizen to travel to, or enter and remain in Australia. The period for this permission may be specified by reference to a period or limited by an event. But the provision of s.82(3) cannot be seen as having no effect in relation to this period. In my view, s.73 is clearly directed to what the Minister may do in granting a visa. But it cannot be read as excluding the subsequent operation of s.82(3). The exercise of the Minister’s delegate’s discretion in this case, pursuant to s.73, must be understood in the context of s.82(3). Simply, the Minister granted a bridging visa to the applicant. It ceased to have effect when a substantive visa was subsequently granted to the applicant. There is no inconsistency between the application of s.73 in the granting of the bridging visa and the subsequent ceasing of effect of this bridging visa by virtue of s.82. I see the discretion in s.73 as directed to whether the bridging visa should be granted or not, and where it is granted s.82(3) operates with specific reference to bridging visas by stating that such a visa ceases to have effect when a substantive visa is granted. In the particular relevant circumstance to this case, s.82(3), provides an express statutory provision for when the visa is said to have ceased to have effect.

Also, in my view, the reconciliation between s.82(7) and s.82(3) is that s.82(7) provides for a visa to cease where a particular period or particular date is stated as the relevant date permitting a non-citizen to remain in Aust, and that date is reached. Section 82(3) provides for the application of an intervening event irrespective of what may have been stated as the relevant period for the bridging visa. Once having been granted for a specific period or until a specific event happens, the bridging visa continues in effect, consistent with this, unless a substantive visa is granted at some time prior to the expiration of this period or prior to the otherwise specified event at which time the bridging visa ceases to be in effect.
This view of the relationship between ss.73 and 82 is consistent with, and supported by, relevantly clause 010.5119b)(i) of Schedule 2 to the Regulations which provides that the holder of the bridging visa is permitted to remain in Australia (by virtue of that bridging visa) until a substantive visa is granted to the holder. In any event, at this time the “non-citizen” does not “need” the bridging visa to remain in Australia, the substantive visa is the active mechanism for that purpose. The “scheme” of the legislation and this applicable part of the Schedule to the Regulations is that where a bridging visa is granted to an applicant, in circumstances where the applicant for this bridging visa was a non-citizen who had also applied for a substantive visa, then the permission to remain in Australia by virtue of the bridging visa is until the substantive visa is granted (clause 010.511(b)(i)) and the bridging visa thereby ceases to be in effect (s.82(3)).
In this scheme s.82(7) has the effect of mandating that the visa ceases to be in effect at the end of the particular period for which the applicant was permitted to remain in Australia. This is plainly in circumstances where no intervening event such as that envisaged in s.82(3) took place. In all, therefore, I accept Mr. Kennett's submission that ss.82(3) and 82(7) should be read together. In the circumstances of this case, what cannot be avoided, and what is plain, is that the bridging visa held by the applicant ceased to have effect on the day that he was granted a substantive visa. That is, on 3 June 2004.
In my view as set out above clause 010.511(b)(i) of Schedule 2 to the Regulations, plainly, when read in context of s.82(3), is consistent with what is set out at s.82(3) in that it contemplates that a bridging visa which comes into effect on the date of its grant only permits the holder to remain in Australia until, where a decision is made on the substantive visa application to grant a visa, the grant of that substantive visa. I therefore do not accept Mr. Dobbie's argument that somehow this clause should be read as separate, or apart, or even in conflict, with what is plainly set out at s.82 of the Act. What must be emphasised is that s.73 deals with the grant of bridging visas. Section 82 and clause 010.551 of the Regulations deal with the situation of when such a visa would cease to be in effect.
On the consideration set out above I accept Mr. Kennett’s submission, the Minister’s delegate was correct in determining that the bridging visa granted to the applicant on 5 March 2004 ceased to have effect on 3 June 2004 when the applicant was granted a substantive visa.
I did also consider the effect of ss.68(3) and 68(4) of the Act which also deal with the time within which a visa is in effect. These subsections are in the following terms:
“When visa is in effect
...
(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.”
Section 68(4) provides that a bridging visa that previously ceased to be in effect pursuant to s.82(3) will come into effect again in certain circumstances (including that the applicant does not hold a substantive visa), but this “reactivation” is limited to being “during the visa period for the visa”.
Given that the bridging visa was granted on 5 March 2004, the issue then is what was the “period” for this visa? “Visa period” is defined in s.5(1) of the Act as:
“Visa period, in relation to a visa, means the period:
(a)beginning when the visa is granted; and
(b)ending:
(i)in the case of a visa other than a bridging visa - when the visa ceases to be in effect; or
(ii)in the case of a bridging visa - when the visa ceases to be in effect otherwise than under subsection 82(3).”
I accept Mr. Kennett’s submission that in the circumstances of this case clause 010.511(b)(i) of Schedule 2 to the Regulations prescribes the visa period, that is, the period in which the applicant was permitted to remain in Australia pursuant to the bridging visa granted on 5 March 2004. The provisions of 010.511 make it plain that the “visa period” for the bridging visa which the applicant was granted ended when the applicant was granted the substantive visa. For the reasons set out above I accept Mr. Kennett's submission that the statutory and regulatory regime applicable to the circumstances before me now leaves no room for the Minister's delegate to have granted the bridging visa on any other terms, other than those set out at s.82, and clause 010.511 of Schedule 2. While s.68(4) provides that a bridging visa that has ceased to be in effect under s.82(3) (as in the case before me), will come into effect again, this is only during the “visa period”, not indefinitely. The visa period in this case, as I have set out above and as I agree with Mr. Kennett, for the bridging visa was determined by the operation of clause 010.511(b)(i) of Schedule 2 to the Regulations. Section 68(3) states that a visa can only be in effect during the visa period. The bridging visa was in effect until the substantive visa was granted.
In light of what is set out at clause 010.511(b) of Schedule 2 to the Regulations, I cannot see that this can be overcome by what the Minister’s delegate put on the visa label relating to the bridging visa A. I cannot see that the delegate would have had the power to grant a visa that in terms of its period sought to exclude regulatory express provisions.
In my view, the granting of the substantive visa to the applicant on 3 June 2004 (not withstanding that he was not notified of this grant) meant that the bridging visa A which he had been previously granted ceased to have effect and was not resurrected by the provisions of s.68(4) because by that time the period of the bridging visa A had ceased. In all therefore, the applicant did become an unlawful non-citizen upon the expiry of the student visa on 31 August 2004 and in my view, therefore, the Minister's delegate was correct in determining that because he had that status within the period of six months prior to the application for the subsequent visa as referred to in Item 1128CA(3)(h) of Schedule 1 to the Regulations, then the application made in December 2004 for a visa was not a valid application for a visa.
When the bridging visa was granted on 5 March 2004, pursuant to s.73 no specified period (as provided in s.73(a)) for the applicant to remain in Australia was stated. The language appearing on the face of the visa label makes reference (consistent with s.73(b)) to a specified event, namely 28 days after notification of the decision of the substantive visa for which the applicant had applied on the same date.
The language of s.73 relevantly is that the bridging visa may be granted “permitting the non-citizen to remain” in Australia. This language is picked up in clause 010.511(b) of Schedule 2 to the Regulations where eight (clause 010.511(b)(i) to (viii)) possible, alternate, occurrences, any one of which, marks the end of the period by which the visa holder is permitted to stay in Australia by virtue of the bridging visa.
The language on the face of the visa label appears to relate to clause 010.511(b)(ii) – that is, where the substantive visa applied for is refused, the bridging visa permits the holder to remain in Australia for 28 days after notification of the refusal.
Possibly it may also be said to have referred to clause 010.511(b)(vii) which permits the bridging visa holder to remain in Australia for 28 days after being notified that the substantive visa application is invalid. (For the sake of clarity I should just note that the substantive visa applied for on 5 March 2004 was not said to be invalid – in fact that application led to a substantive visa being granted. The application said to be invalid was of course, the application of 16 December 2004, which led to the decision of 4 January 2005 which is the subject of complaint before the Court now).
In my view, the relevant scheme applicable to the grant of a bridging visa is that s.73 provides a discretion to the Minister to grant such a visa for the purpose of, amongst other thing, enabling the holder to remain in Australia. Paragraphs (a) and (b) of s.73 relate to the time for which such permission is granted. Clause 010.511(b) prescribes, or specifies, the circumstances for determining the length of this time, that is, the duration of such permission. In other words the “period” of the visa.
While using language on the visa label that makes reference to one or perhaps two of the alternate prescribed circumstances cannot serve to affect the application of the other circumstances if they were to subsequently arise.
In one sense, having in mind the reason for the introduction of bridging visas into the scheme of the Act (see further below: but briefly, for the most part to enable those who have applied for a substantive visa to remain lawfully in Australia while that application is being processed) it is understandable that the Minister’s delegate made reference on the visa label to the period applicable to the situation of where the substantive visa is refused so as to enable the unsuccessful applicant to know how long a time was available so as to arrange for any review application and to remain lawfully in Australia while doing so. But in circumstances where the substantive visa is granted such review is of course unnecessary.
However, what is on the visa label is in this circumstance confusing. It may be that the Minister should consider a different wording on the visa label that provides a more complete advice. But whatever is placed on the visa label cannot, in my view, limit the application to a bridging visa of the relevant time that the holder is permitted to remain in Australia as set out variously at clause 010.511(b) of Schedule 2 to the Regulations.
I should just note (with reference to paragraph 65 above in particular) that the Explanatory Memorandum to the introduction of the Migration Reform Bill 1992 provided in relation to the introduction of bridging visas the following:
“Subdivision AF – Bridging visas
This Subdivision deals with bridging visas which are a temporary class of visa, the grant of which will give temporary lawful status so that detention or continued detention under section 54W is unnecessary.
This section defines “detention non-citizen” to describe who may be eligible for the grant of a bridging visa. An unlawful non-citizen or a person who is about to become an unlawful non-citizen who is being detained, liable to detention or will, within a prescribed period become liable to detention, will be eligible for the grant of such a visa if the prescribed criteria are satisfied. Persons who avoid immigration clearance will not generally be eligible for bridging visas.
As a general rule, bridging visas are intended for persons who have sought prior authority to come to Australia and who have overstayed their visas. There will be a power to make regulations to allow for other situations to allow eligibility.”
The Act provides (s.13) that a non-citizen in Australia’s migration zone who “holds” a visa that is in effect is a lawful non-citizen. Essentially the affect of s.14 of the Act is that a non-citizen who does not hold a visa is “an unlawful non-citizen”. Section 189 provides that if a person is reasonably suspected of being an unlawful non-citizen (by an “officer – see definition in s.5) then that person must be detained. Plainly bridging visas serve the very necessary purpose of providing the mechanism for keeping those non-citizens, who do not otherwise have a visa, but who have applied for a (substantive) visa, out of immigration detention, while the application for the substantive visa is being processed, or to enable such persons to exercise their rights of merits or judicial review in the event that such application is refused. These circumstances support the view of bridging visas as not being unlimited as to time, and is consistent with what is provided at s.73 and the limitations placed on the time that the holder of a bridging visa is permitted to remain in Australia by virtue of that bridging visa and as set out at clause 010.511 of Schedule 2 to the Regulations.
In the case before the Court now when the bridging visa was granted to the applicant on 5 March 2004 no specified period was attached to it (the visa label made reference, inferentially at least, to a specified event). It was always the case therefore that the matters set out at clause 010.511(b) would ultimately govern how long the bridging visa would permit the applicant to remain in Australia by virtue of that bridging visa. That was determined, as set out above, when the substantive visa was granted to the applicant.
While the definition of “visa period” at s.5(1) of the Act contemplates, for the most part, a coincidence of the visa period with the time that a visa is “in effect”, in the case of bridging visas while this is the same as for substantive visas, there is one exception. The definition contemplates a distinction between the bridging visa ceasing to be in effect pursuant to s.82(3). In the former, the visa period is synonymous with the time from the grant of the bridging visa to the point where it ceases to be in effect.
In the latter circumstance, although not expressly stated in the definition, it appears that “visa period”, which must be read with other relevant parts of the Act, contemplates a regime established by s.68(4), that where a bridging visa ceases to be in effect by virtue of s.82(3) of the Act – that is where a substantive visa is granted to the bridging visa holder – that the bridging visa will be reactivated and come into effect again. But only in the circumstances where this is “during the visa period for the visa”.
It must be said that how the various pieces of the “jigsaw” of the relevant (to the circumstances of this case) parts of the legislation come together could have, with respect, benefited from a more expository approach to the drafting.
Nonetheless, what can clearly be derived is that where a bridging visa is granted for a specific period, (s.73(a)), say for the purposes of illustration, 12 months, then a substantive visa is granted at some time within that 12 months, the bridging visa will cease to be in effect at that time (s.82(3)). But if the substantive visa also then ceases within the 12 month period, then the bridging visa will be reactivated for the remainder of the 12 months (s.68(4)) given that this was the (remainder of) the visa period for the bridging visa.
But in the circumstances of the case before the Court now there was no specified period (s.73(a)). A specified event (s.73(b) and clause 010.511(b)(i)) did occur, the substantive visa was granted. But I cannot see in these circumstances, in the absence of any other specified visa period for the bridging visa, that there was any “remaining” visa period to allow the bridging visa to be “reactivated” pursuant to s.68(4).
Therefore when the bridging visa ceased to be in effect on 3 June 2004 (the date of the grant of the substantive visa) it could not, and therefore of course, was not reactivated such as to make the applicant to have been lawfully in Australia for the period 1 September 2004 to 27 September 2004.
In all therefore the applicant was unlawfully in Australia from 1 September 2004 to 27 September 2004 such that his application for a (substantive) visa on 16 December 2004 did not meet the relevant requirements of Item 1128CA(3)(h) of Schedule 1 to the Regulations. The Minister’s delegate was therefore correct in determining this application to be invalid because the applicant was unlawfully in Australia for some part of the six months immediately before making this application. Accordingly the application to the Court now is dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 02 February 2007