Ismail, Isman v Minister for Immigration and Ethnic Affairs
[1996] FCA 227
•25 MARCH 1996
CATCHWORDS
CITIZENSHIP, IMMIGRATION AND EMIGRATION - Judicial review of decision not to grant Humanitarian Migrant visa - transitional provisions contained in regulations designed to deal with past circumstances - applicants may apply for visa under s.48 of the Migration Act 1958 only - alleged inconsistency of regulations with statutory scheme of the Act - "Henry VIII clauses" - voidness for repugnance - regulations not "so radical as to be an excess of power"
Migration Act 1958
Migration Reform Act 1992
Migration Reform (Transitional Provisions) Regulations 1994
R v The Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198
ISMAN ISMAIL v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
& ORS.
No. G 237 of 1996
BEAUMONT J.
SYDNEY
25 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G 237 of 1996
)
GENERAL DIVISION )
BETWEEN:ISMAN ISMAIL
Applicant
ANDMINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
MARGARET J.M. KORN, Senior
Migration Officer
Second respondent
THE COMMONWEALTH OF AUSTRALIA
Third respondent
CORAM: Beaumont J.
PLACE: Sydney
DATE: 25 March 1996
MINUTES OF ORDER
THE COURT ORDERS:
The separate question be answered as follows:
Q.Is Regulation 8 of the Migration Reform (Transitional Provisions) Regulations valid?
A.Yes.
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 ) No. G 237 of 1996
)
GENERAL DIVISION )
BETWEEN:ISMAN ISMAIL
Applicant
ANDMINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First respondent
MARGARET J.M. KORN, Senior
Migration Officer
Second respondent
THE COMMONWEALTH OF AUSTRALIA
Third respondent
CORAM: Beaumont J.
DATE: 25 March 1996
REASONS FOR JUDGMENT
This is an application brought under s.39B of the Judiciary Act 1903 to review a decision that the application made by the applicant for a visa of the class known as Humanitarian Migrant Class BA, sub-clause 202 under the Migration Regulations was not a valid application for the reason that it was, in essence, barred by the provisions of s.37 of the Migration Act 1958 as preserved by reg.8 of the Migration Reform (Transitional Provisions) Regulations 1994. In support of the application for review, as originally framed, the applicant sought to challenge the validity of reg.8.
However, during the course of the hearing the applicant foreshadowed a further and alternative claim for judicial review on the basis that the decision wrongly assumed that s.37 of the legislation applied. Although I propose to allow the applicant leave to raise this further and alternative claim, I accept the respondent's submission that this aspect of the matter is not in a position to proceed and I will for the moment defer consideration of it. In those circumstances, I made an order that the original basis for seeking judicial review be isolated and dealt with as a separate question and I now address that question.
In order to understand the context in which the question of the validity of the regulation arises, reference should be made by way of background to the statement of agreed facts prepared by the parties and tendered by consent as follows:
"1.On 1 February 1993 the Applicant, while still in Indonesia, was granted a class 670 visitor visa valid until 1 May 1993.
On 19 March 1993 the Applicant arrived in Australia.
On 10 March 1994 the Applicant lodged a Form 306 Application for Refugee Status. This Form was incorrect and the Applicant was advised by letter dated 14 March 1994 to lodge a Form 830.
On 15 April 1994 the Applicant lodged a Form 830, being applications for refugee status, class 817 entry permit and class 830 entry permit.
On 26 August 1994 all above applications were refused and the applicant was notified by
letter dated 29 August 1994.
On 1 September 1994 Regulation 8 of the Migration Reform (Transitional Provisions) Regulations commenced operation.
On 20 September 1994 the Applicant applied to the Refugee Review Tribunal (`RRT') for review of the refusal of his application for refugee status.
On 3 October 1995 the RRT affirmed the decisions to refuse refugee status. The Applicant was notified by letter dated 4 October 1995.
On 18 October 1995 the Applicant was considered not to come within the guidelines for the exercise of the section 417 discretion and was not referred to Minister's office.
10.On 12 December 1995 the Applicant posted to the Australian Embassy in Kuala Lumpur a class BA/subclass 202 application.
11.On 28 December 1995 the Applicant was granted a Bridging Visa class E (`BVE') valid to midnight on 15 January 1996.
12.On 28 February 1996 the Australian Embassy in Kuala Lumpur determined that the Class BA/subclass 202 application was not valid."
The applicant was notified of this determination in a letter which is reproduced in attachment "K" to the statement of agreed facts. The sole reason for this determination was stated as follows:
"You fall under s37 of the pre 1 September 1993 Migration Act (preserved by regulation 8 of the Migration Reform (Transitional Provisions) Regulations 1994).
Because of this provision, you are not entitled to make certain visa applications while hyou remain in Australia."
While the second respondent referred to the date of
1 September 1993, the relevant date is in fact 1 September 1994. This was not disputed by the parties.
The statement of facts continued as follows:
"13.On 5 March the Applicant was detained as an unlawful non-citizen.
14.On 6 March 1996 the Applicant lodged an application for a BVE.
15.On 8 March 1996 the BVE application was refused.
16.On 11 March 1996 the Applicant lodged an application for review of this refusal by the Immigration Review Tribunal (`IRT').
17.On 14 March 1966 the IRT affirmed the BVE refusal.
18.On 15 March 1966 a removal order in respect of the Applicant was signed."
The regulation now challenged is in the following terms:
"8. (1)This regulation applies to a non-citizen who:
(a)was in Australia on 1 September 1994; and
(b)was, immediately before that date, a person to whom section 37 of the old Act applied.
(2)On and after 1 September 1994, section 37 of the old Act continues to apply to a person to whom this regulation applies as if:
(a)paragraphs (b) and (c) were omitted and the following paragraph substituted:
`(b)while in Australia, has been refused an entry permit.'
and
(b)subsections (2) and (3) were omitted and the following subsection substituted:
`(2)While a person to whom this section applies is in Australia, he or she may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48 of this Act as in force on 1 September 1994, but not for a visa of any other class.'."
By regulation 2 of the Migration Reform (Transitional Provisions) Regulations, it is provided that those regulations commenced on 1 September 1994. By reg.3 of those regulations, the interpretation provision, it was provided that, "the old Act", meant the Migration Act 1958 as in force immediately before 1 September 1994.
These regulations dealt with a number of other subjects, for instance, the effect of entry permits and visas granted before 1 September 1994, but it is not necessary to refer to those provisions for present purposes. Section 37 of the old Act in its unamended form was in these terms:
"37.(1) This section applies to an illegal entrant who:
(a)has entered, and remains in, Australia;
(b)while in Australia, has been refused an entry permit; and
(c)is not a person to whom section 36 applies because of section 121.
(2)Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:
(a)there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and
(b)no deportation order has been made in respect of that person under section 59.
(3)Nothing in this section prevents a person making a further application for an entry permit while he or she remains in Australia if:
(a)he or she has been notified under subsection 121(2); and
(b)the further application is made, because of that notification, within 10 working days after he or she is so notified.
As has been noted, reg.8 provides that the provisions of s.37 of "the old Act" were to continue to apply as if certain parts of that section were omitted and other provisions substituted.
For ease of reference, I set out as follows the notional terms of s.37 of "the old Act" as amended and deemed to have continued to apply in accordance with the provisions of reg.8:
"37.This section applies to an illegal entrant who:
(a)has entered, and remains in, Australia;
(b)while in Australia, has been refused an entry permit.
(2)While a person to whom this section applies is in Australia, he or she may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48 of this Act as in force on 1 September 1994, but not for a visa of any other class."
In order to understand the legal issues that now arise, it is necessary to refer to some of the legislative history. On 7 December 1992, the Migration Reform Act 1992 received Royal assent. On 28 October 1993, the Migration Laws Amendment Act 1993 received Royal assent and became operational on that day. On 9 April 1994, the Migration Legislation Amendment Act 1994 received Royal assent. On the 21 July 1994 the Migration Reform (Transitional Provision) Regulations were made including, as has been noted, reg.8. However, those regulations did not commence until, as has been noted, 1 September 1994. On that date, 1 September 1994, various amendments were made to the Migration Act 1958, and these amendments included the repeal of s.37 as from that date.
By way of further background to the legal arguments which have been advanced, some reference should be made to the legislative scheme providing for the making of regulations. The Migration Reform Act 1992 dealt with the regulation power in a number of ways. By s.36 of that Act, s.181 of the principal Act was amended in ways which are not presently material. More importantly, s.40 provided a power to make regulations dealing with the subject of transitional matters in the following terms:
"40. (1)In this section:
"`amended Act class' means a class of visas that is provided for by, or by regulations under, the Principal Act as amended by this Act;
`Principal Act class' means a class of visas or permits that is provided for by regulations under the Principal Act;
`specified persons' includes:
(a)persons in a specified class; and
(b)persons in specified circumstances; and
(c)persons in a specified class in specified circumstances.
(2)The regulations may provide that a specified provision of the Principal Act repealed or amended by this Act is to continue to apply:
(a)to specified persons; or
(b)in specified circumstances; or
(c)in relation to visas in a specified amended Act class.
(3)The regulations may provide that a specified provision of the amended Act is not to apply:
(a)to specified persons; or
(b)in specified circumstances.
(4)Regulations under subsection (2) or (3) providing that a provision is to apply or not apply may provide that the provision is to apply or not apply:
(a)to a specified extent; or
(b)with specified modifications, not being the modification of a penalty; or
(c)as if a specified status or specified situation were another specified status or specified situation; or
(d)without limiting paragraph (c), as if a person who had a specified status, specified visa or specified permit had another specified status, specified visa or specified permit.
(5)The regulations may provide that, from 1 November 1993, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in force as visas in a specified amended Act class.
(6)The regulations may provide that, from 1 November 1993, specified persons are to be taken to have been granted visas in a specified amended Act class.
(7)The regulations may provide that, from 1 November 1993, applications made after a specified date, or other specified applications, for visas or permits in a specified Principal Act class are to be taken to be applications for visas in a specified amended Act class.
(8)The regulations may provide that, despite the amendments of the Principal Act made by this Act:
(a)applications made before a specified date or other specified applications for visas in a specified Principal Act class may continue to be dealt with as if that section had not been enacted; and
(b)visas or permits in a specified Principal Act class granted because of paragraph (a) are to be taken to be visas in a specified amended Act class.
(9)A regulation allowed by this section ceases to have effect at the end of 90 sitting days of either House of the Parliament after the regulation commences."
Section 41 also dealt with some transitional matters but is not presently material.
Notice should also be taken in this connection of the provisions of s.2(2) of the Migration Legislation Amendment Act 1994 which provided, inter alia, that schedule 2 of that legislation was to be taken to have commenced immediately after the Migration Reform Act 1992 received the Royal assent, that is, immediately after 7 December 1992. Amongst other provisions, schedule 2 of the 1994 amendment
inserted the following section affecting the regulations making power under that Act:
"42.The Governor-General may make regulations prescribing matters:
(a)required or permitted by this Act to be prescribed; or
(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act."
The submissions advanced on behalf of the applicant by way of the challenge to validity are stated in their written outline dated 25 March 1995 which was marked "1" for identification. The challenge is made on several but related grounds, namely, that reg.8 was void for uncertainty, inconsistent with the statutory scheme (and thus repugnant) and generally beyond power.
As I followed the argument, it was not really suggested that the provisions of the regulation were textually without meaning in the sense described by Fox J. in Panelboard Pty Limited v Trade Practices Commission (1981) 59 FLR 395 at 405. Rather, it was said that, as a matter of substance, it was not open to the Executive in the exercise of administrative power to contradict the legislative scheme.
As I have indicated in the course of argument, whilst it may be true to say that the courts have indicated their dislike of the use of Henry VIII clauses (see the
discussion in Pearce on Delegated Legislation (1977) pp.7-8), a finding of invalidity is another matter.
In making such a finding, I accept that repugnancy or inconsistency is the proper basis for such a finding (see generally the discussion in Pearce at p.175). It may further be accepted as axiomatic that, so far as concerns the general validity of delegated legislation, "the stream can never arise above its source".
Although the applicant attempted to analyse the framework of the legislation in various ways, it seems to me to be clear, and indeed common ground, that s.40 of the Migration Reform Act 1992 (as amended) came into force on 1 September 1994. That being so, it appears to me that it is not necessary to consider the possible applications in the present case of the provisions of s.4(1) of the Acts Interpretation Act 1901, a question which was considered in an analogous context by the Full Federal Court in Aban v Minister for Immigration (1991) 31 FCR 93 at 97.
It follows that the real question in this application is one of substantive repugnancy or inconsistency of the kind discussed by the House of Lords in Regina v The Secretary of the State for Social Security; Ex parte Britnell [1991] 1 WLR 198.
It was there held that a transitional provision designed to deal with past circumstances was expected to be temporary in its operation and was spent when all the past circumstances had been dealt with. Further, although it might take a long time, the regulation there challenged would eventually become spent and was therefore transitional in character. It was further held that the Secretary of State was authorised by s.89(1) of the Social Security Act (1986) UK to include in transitional provisions modification of any enactment mentioned in the Act and that "modification" was capable of covering the extension of the scope of a provision dealing with recovery of overpaid benefits. It was concluded by the House that accordingly, even on the strictest construction of s.89(1), the modification of s.53 was not "so radical as to be an excess of power" (to borrow the language of Lord Keith (at 205)).
In my view, a similar approach should be adopted here. As a matter of policy, in my opinion, the modifications made should not be characterised as being so radical as to be an excess of power.
In the result, I am not persuaded that the challenge to the validity of the regulation should be upheld, and I
propose to answer the separate question ordered in the affirmative.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.
Associate
Dated: 25 March 1996
Counsel and Solicitors Mr. J. Fitzgerald with
for Applicant: Mr. M. Robinson instructed by
Adrian Joel & Company.
Counsel and Solicitors Mr. N.J. Williams with
for Respondent: Mr. J. Stoljar instructed by the
Australian Government Solicitor
Date of hearing: 25 March 1996
Date Judgment delivered: 25 March 1996
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