Howlader v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 572

FEDERAL COURT OF AUSTRALIA

Howlader v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 572

FAISAL HOWLADER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 549 of 2005

WILCOX J
29 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 549 of 2005

BETWEEN:	FAISAL HOWLADER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	29 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

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	NSD 549 of 2005

BETWEEN:	FAISAL HOWLADER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	29 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. The applicant in this matter is Faisal Howlader, a national of Bangladesh who was born on 12 March 1983. 

2. Mr Howlader entered Australia on 2 September 1999 pursuant to a tourist class visa issued to him in Bangladesh.  The visa was a class TR676 visa.  It was valid until 20 February 2000.  The visa provided that only one entry was allowed, pursuant to the visa, and the arrival date must be not after 30 November 1999.  Mr Howlader apparently entered Australia in the company of his younger sister.  They had an older sister who was an Australian citizen and resident.

3. The visa contained three conditions, one of which is of some significance in this proceeding. It was identified on the visa as ‘8503 - no further stay’. The reference to ‘8503’ is a reference to a condition of that number in Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The text of the condition is as follows:

   ‘The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.’

4. It appears Mr Howlader overstayed his approved time in Australia.  Subsequently, he and his younger sister made applications for protection visas.  They were, apparently, each granted bridging visas.  In the case of Mr Howlader, at least, it appears no condition in terms of condition 8503 was attached to the bridging visa.  I am not certain this was the situation, but I am prepared to deal with this case upon the assumption, favourable to Mr Howlader, that it was.  The applications for protection visas failed.  Nonetheless, Mr Howlader remained in Australia.

5. On 6 June 2003, Mr Howlader lodged a further application for a visa.  The visa he sought on this occasion was described as a ‘close tie visa’, apparently on the basis of the applicant’s connection with his older sister.  The close tie visa, if granted, apparently would have enabled Mr Howlader to remain in Australia permanently.  The application for that visa was certainly an application for a substantive visa, as distinct from a bridging visa. 

6. The applicant had the benefit of legal advice at this time.  A letter written by Parish Patience, Immigration Lawyers, dated 1 May 2003, supported his visa application.  That letter annexed a number of documents and provided information about Mr Howlader's position.  The application was rejected by the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) on the basis that it could not validly be made.  On 23 February 2004, an officer of the Department wrote to Mr Howlader informing him that the application was an invalid application.  The letter stated:

   ‘Under Australian migration law an application for permanent residence in Australia may be deemed invalid if one of the following criteria is not satisfied.’

7. The letter set out five criteria, the last of which was:

   ‘The applicant is subject of condition 8503.  “No Further Stay” on their visa.’

8. The letter went on to say that, as Mr Howlader was a person to whom this last criterion, applies:

   ‘... the department is unable to process your application.’

9. It seems that, at some stage after that date, Mr Howlader was apprehended and taken into detention at the Villawood Detention Centre, where he remains.  From Villawood, he filed the application that is now before the Court.  He sought the following relief:

   ‘1.A declaration that the Minister was not precluded by section 48 (sic 47) of the Migration Act from considering and determining the Close Ties (subclass 832) visa application lodged by the applicant on 6^th June 2003.

   2.An order requiring the Minister to consider and determine the close ties visa application made by the applicant on 06 June 2003.

   3.An order requiring the Minister to consider and determine a close ties visa lodged by the applicant within fourteen days of this order on the basis that it be treated as a sufficient replica of the application actually lodged on 06 June 2003.

   4.To the extent that an extension of time is required, the applicant seeks leave to extend time for the purposes of the present application.

   5.        Such other orders as the Court considers appropriate.

   6.Costs.’

10. The matter came before me for directions last week.  The applicant was not legally represented.  Although it was probably not necessary, the applicant was assisted by an interpreter.  The applicant speaks fluent English and appears to understand English well.

11. At the directions hearing, I inquired of the solicitor appearing for the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, why it was that the visa application had been rejected.  She did not know but undertook to make inquiries.  To enable this to be done, I stood the matter over until this morning. 

12. This morning, I was informed of the facts set out above.  I said I thought it desirable that the matter be dealt with promptly, bearing in mind that the applicant is in detention.  Accordingly, with the agreement of both the applicant and the solicitor for the Minister, I fixed the matter for hearing this afternoon.  This provided sufficient time for the solicitor to obtain copies of the relevant regulations and supply a copy of them to the applicant.  She has done this.

13. I have been concerned to ensure the condition attached to the visa was authorised by the Migration Act 1958 (Cth) (‘the Act’) and the Regulations. I am now satisfied this is the case. There are a number of relevant provisions.

14. Division 3 of Part 2 of the Act relates to visas for non-citizens. Section 40(1) provides:

    ‘The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.’

15. Section 41 relevantly provides:

    ‘(1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

    (2)Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

    (a)a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia.’

16. Section 41(2)(a) appears to authorise the making of a regulation imposing the condition purported to be applied in this case. 

17. Subclass 676 of Schedule 2 of the Regulations deals with visas of the type that was granted to the present applicant.  The Regulations refer to this category of visas as "tourist (short stay)".  The regulation sets out criteria to be satisfied at the time of the application and criteria to be satisfied at the time of decision. 

18. There are a number of requirements to be satisfied at the time of the application.  I need not go to the detail.  It is sufficient to say that clause 676.6 relates to conditions.  Subclauses 676.611, 676.612 and 676.612A deal with visas granted under particular subclauses of clause 676.  None of those subclauses applies to the present case.  Subclause 676.613 then provides:

    ‘In any other case:

    (a)conditions 8101, 8201 and 8205 must be imposed, and

    (b)condition 8503 may be imposed.’

19. It will be recalled that the condition relevant to this case is condition 8503.  It seems to me that subclause 676.613 clearly authorises the imposition of this condition on the visa issued to the applicant in Bangladesh. 

20. The applicant submitted that the condition does not apply to him because his original tourist visa has expired.  He asserts, and I accept this assertion for present purposes, that no similar condition was imposed on his bridging visa.  His argument, therefore, is that the operation of condition 8503 terminated with the expiry of his tourist visa.

21. When this proposition was put to me this morning, I thought it might have merit.  For that reason, I was anxious to look carefully at the relevant regulations. However, it is clear that condition 8503 has been so constructed as to deny relevant persons the benefit of such an argument.  The operation of the condition is not limited to the life of a visa to which it is affixed.  The condition provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa other than a protection visa while he or she remains in Australia.  In other words, it applies notwithstanding the expiry of the visa on which the person entered Australia.

22. The extended operation of the condition is supported by the Act itself. Section 46(1A) reads as follows:

    ‘Subject to subsection (2), an application for a visa is invalid if:

    (a)the applicant is in the migration zone; and

    (b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

    (c)the Minister has not waived that condition under subsection 41(2A); and

    (d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.’

23. There is no doubt that the applicant is in the migration zone, that is within Australia.  It is clear that para (b) is satisfied.  Since last entering Australia, he has held a visa - that is, the subclass 676 visa - subject to a condition described in s 41(2)(a).  It is not suggested that the Minister has waived the condition.  Paragraph (d) is satisfied because, under the condition, the applicant was not entitled to the grant of the visa.  It does not matter that the original visa has expired.  The fact that the applicant entered Australia pursuant to that visa is enough to bring s 46(1A) into operation. 

24. The result is that the application made by the applicant in June 2003 was invalid.  The Department was correct in treating it that way.  There is no basis for the Court to grant relief.  The application must be dismissed.

25. The order of the Court is that the application be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            12 May 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Ms K Crawley of Clayton Utz
Date of Hearing:	29 April 2005
Date of Judgment:	29 April 2005