Khandakar v Minister for Immigration - [2010] FMCA 611

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHANDAKAR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 611

MIGRATION – MRT decision – Bridging visa E – pending application to High Court for Constitutional writ and extension of time under Migration Act – Tribunal opinion that applicant had not ‘applied for judicial review’ until extension of time had been ordered – Tribunal erred in law and made characterisation not open in law – jurisdictional error established – discretion to refuse relief – whether High Court proceedings futile or abusive – relief in relation to bridging visa not refused.

Constitution, s.75(v)
Education Services for Overseas Students Act 2000 (Cth), s.20
High Court Rules 2004 (Cth), rr.25.01, 25.03, 25.03.2, 25.06
Migration Act 1958 (Cth), ss.48, 48(1), 48(1)(b)(ii), 66(2)(d)(iv), 73, 137J, 417, 476, 477(2), 486A, 486A(1), 486A(2), 486D(5)
Migration Regulations 1994 (Cth), Sch.2 cll.050.212, 050.212(2), 050.212(3A), 050.212(3A)(b)(i), 050.212(4)(a)

Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 6
Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Harjanto v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 411
Hasan v Minister for Immigration & Citizenship (2010) 114 ALD 602, [2010] FCA 375
Streimer v Tamas (1981) 54 FLR 253
SZASP v Minister for Immigration & Citizenship [2007] FCA 771
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260
SZICV v Minister for Immigration & Anor (2006) 202 FLR 200
SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79
VFAY v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 402

Applicant:

SAKIB AHMED KHANDAKAR

a.k.a. KHANDAKAR SAKIB AHMED

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1372 of 2010

Judgment of:

Smith FM

Hearing date:

9 August 2010

Delivered at:

Sydney

Delivered on:

9 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The applicant’s name in the proceedings is amended to include “a.k.a. KHANDAKAR SAKIB AHMED”.
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 7 June 2010 in matter 1004218.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 27 May 2010.
The first respondent pay the applicant’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1372 of 2010

SAKIB AHMED KHANDAKAR
a.k.a. KHANDAKAR SAKIB AHMED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This judgment explains my reasons for setting aside a decision of the Tribunal, which on 7 June 2010 affirmed a decision made on 27 May 2010 to refuse to grant a bridging visa E to the applicant. He is currently in immigration detention, and he hopes that he will gain his release if he can successfully obtain a bridging visa during the pendency of High Court litigation which he has commenced. The application raises an interesting question as to the meaning of the words “applies for judicial review”, when used in the Migration Regulations in the context of the High Court’s jurisdiction under s.75(v) of the Constitution. However, the urgency of the matter has led me to give the following ex tempore reasons.
The applicant brings this application in the name of Sakib Ahmed Khandakar, but he has commenced other applications in this Court and in the High Court in the name of Khandakar Sakib Ahmed. He has also applied for various immigration decisions in both names. In that situation I propose in this judgment to refer to him as “the applicant”.
He first arrived in Australia in 2003, and returned in 2005 to commence studies. His last substantive student visa was due to expire on 23 May 2007. On or around 29 March 2007 the Department of Immigration took the view that the visa had terminated before its expiry, pursuant to an ‘automatic’ or legislative cancellation under s.137J of the Migration Act 1958 (Cth) on 29 March 2007, as a result of his education provider issuing a s.20 notice under the Education Services for Overseas Students Act 2000 (Cth).
Since that time, the applicant has lodged a series of visa applications seeking new student visas, and has engaged in other administrative proceedings and in litigation concerning various immigration decisions. In the course of this, he was granted numerous bridging visas. He essentially appears to claim that the s.137J cancellation did not occur in law, that the s.20 notice was not properly notified to him, and that he ought to be permitted to reside in Australia under a further student visa or some other permission.
He first applied for a new student visa on 21 September 2007. However, on 24 September 2007 he was notified that that application was considered to be inadmissible and invalid as a result of the bar under s.48(1)(b)(ii) of the Migration Act. That subsection provides:
48Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
(1)A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i)after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii)held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
…
The applicant did not challenge the decision not to accept a second student visa application at that time, but adopted a strategy to invoke the Minister’s discretionary powers under s.417 of the Act. On 18 January 2008, his solicitor lodged an application for a protection visa. It was refused by a delegate on 7 April 2008, and that decision was affirmed by the Refugee Review Tribunal on 1 July 2008. Both the delegate and the Tribunal noted that the protection visa application expressly indicated that no Convention‑related claims to fear persecution in Bangladesh were made. It was for that reason that the Tribunal affirmed the delegate’s decision, and also the fact that the applicant did not attend a hearing to put forward any refugee claims in person.
The applicant then applied to the Minister for a discretionary grant of a “more favourable” decision under s.417. This application was refused on 7 July 2009, when the Minister personally decided not to exercise his powers. The applicant was informed that his bridging visa had expired, and that “you are expected to leave Australia as soon as practicable”.
The applicant then revived his claims to be entitled to lodge further student visa applications. Another student visa application was lodged on 13 August 2009, and again on 12 January 2010. By letter dated 20 January 2010, an officer of the Department of Immigration noted that the student visa application:
… has previously been found to be invalid in light of the effect of s48 given a prior visa cancellation. …
Your client continues to be prevented from making a valid application in light of s48 and the department encloses herein documents re‑submitted by your office in relation to the earlier invalid decision.
At a time which is unclear to me, the applicant was taken into immigration detention. This appears to have occurred in the context of the recent refusal by the Department to issue further bridging visas to the applicant.
A decision to refuse a bridging visa application lodged on 24 May 2010 was made on 27 May 2010. This application was lodged by his solicitor, by seeking a bridging visa E on the ground provided by cl.050.212(2) of the Migration Regulations 1994 (Cth) that:
(2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The applicant’s solicitor presented an itinerary showing that the applicant intended to depart Australia on 24 July 2010. However, the solicitor’s covering letter also referred to pending litigation which had just been commenced in two courts. It is therefore understandable that the delegate refused the application on the ground that he was not satisfied that the applicant would depart on the proposed day (see the annotation at page 39 of the Court Book which appears to explain the formal decision found at page 36).
An application had been filed in this Court on the same day as the bridging visa application, seeking an extension of time under s.477(2) of the Migration Act to apply for orders under s.476 in relation to the Refugee Review Tribunal’s decision in July 2008, affirming the decision to refuse a protection visa. The ground which was ultimately relied on, was that the original notification of the delegate’s decision on the protection visa application did not comply with s.66(2)(d)(iv), upon an argument which was thought to be supported by Hasan v Minister for Immigration & Citizenship (2010) 114 ALD 602, [2010] FCA 375. However, this argument lost any prospects when the Full Court handed down its decision in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 on 30 June 2010. The application in this Court was then dismissed by Lloyd‑Jones FM on 16 July 2010. In effect, his Honour refused an extension of time required under s.477(2) of the Migration Act due to the lack of merit in the matter, and dismissed the application as incompetent.
At the time of making his bridging visa application, the applicant had also commenced a proceeding in the High Court seeking to invoke the High Court’s original jurisdiction under s.75(v) of the Constitution. An initiating process was accepted in the High Court on 30 April 2010. It is headed “Application For An Order To Show Cause”, using a Form 12 pursuant to r.25.01 of the High Court Rules 2004 (Cth). This form applies to applications invoking the High Court’s constitutional writ jurisdiction. The application stated:
THE RELIEF CLAIMED
1.That the defendant show cause why this Court should not make an order enlarging time, to the extent necessary, to permit the plaintiff to commence proceedings for the relief claimed in this application.
2.That the defendant show cause why a WRIT OF CERTIORARI should not issue, bringing the decision of the defendant dated 20 January 2010, refusing to accept the plaintiff’s student visa (the decision) purportedly pursuant to s 137J of the Migration Act 1958, into this Court to be quashed.
3.That the Defendant show cause why a WRIT OF PROHIBITION or AN INJUNCTION should not issue, prohibiting him, his servants, officers and agents from acting upon or giving effect to the decision.
4.That the Defendants show cause why this Court should not order that he pay the plaintiff’s costs.
THE GROUNDS ON WHICH THE RELIEF IS CLAIMED are:
1.The notice purportedly issued on 28 February 2007 pursuant to section 20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) by the plaintiff’s former Education provider IIBIT, upon which the cancellation of the plaintiff’s visa pursuant to s 137J of the Migration Act 1958 was based, was not validly issued.
2.The application for a further student visa lodged by the plaintiff with the Department on 12 January 2010 was validly lodged.
Particulars
(a)The Respondent erred in finding that the applicant was prevented from lodging the further student visa application because of Section 48 of the Act.
(b)The Respondent erred in finding that the Section 20 Notice dated 28 February 2007 issued by his former Education provider IIBIT was valid.
Supporting affidavits were filed in the High Court sworn by the applicant, and by his solicitor. They detailed the applicant’s history in Australia in relation to his cancelled student visa, and his efforts to stay in Australia on a new student visa or after discretionary decisions by the Minister.
The relief by way of a writ of certiorari sought in paragraph 2 of the High Court application did not require any extension of time under High Court Rules r.25.06, and no time limit under the High Court Rules applied in relation to the application for prohibition or for an injunction.
The High Court’s original jurisdiction was, however, the subject of a time limitation enacted in the Migration Act:
Part 8A—Restrictions on court proceedings
486ATime limit on applications to the High Court for judicial review
(1)An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
(a)an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Under the 35 day time limit in s.486A(1) the applicant required an extension of time under subsection (2) running from 24 February 2010, that is, 35 days after the Department’s letter of 20 January 2010. The application in the High Court was therefore nine weeks late in relation to that time limit. Assuming the constitutional validity of s.486A, his application would be dismissed as incompetent without the exercise by the High Court of its power to order an extension of time under s.486A(2).
High Court Rules r.25.03 required service on the defendant of not only the application and the affidavit, but also an outline of submissions under r.25.03.2. The rule implies that this will be done before the High Court will give a listing to the matter. There is no evidence before me, and no evidence was presented to the Tribunal considering the bridging visa application, that such submissions were ever filed. There is also no evidence before me that any interim relief has ever been sought from the High Court by the applicant in relation to his continuing detention and threatened removal from Australia. There is also no evidence that the Minister has taken any step in the High Court to move that matter towards final orders being made.
Instead, the applicant and the Minister’s attention has been directed towards finalising the proceedings in this Court in relation to the 2008 protection visa decisions, and in pursuing the delegate’s bridging visa decision in the Tribunal and then in this Court in the present matter.
I have noted that the delegate refused a bridging visa on 27 May 2010. An application for review was lodged in the Migration Review Tribunal on the same day, 27 May 2010.
In his submission in support, the applicant’s solicitor gave emphasis to the then pending litigation, being the applications to the High Court and to this Court in relation to the protection visa application. A different basis for the grant of a bridging visa E was thus invoked, under either cl.050.212(3A) or (4)(a):
(3A)An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)either:
(i)the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or
(ii)the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant’s substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.
(4)An applicant meets the requirements of this subclause if:
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or …
It was contended to the Tribunal that both of the pending matters constituted applications by the applicant “for judicial review” within these provisions. Copies of the applications in the High Court and the Federal Magistrates Court, and the supporting affidavits in both matters, were given to the Tribunal. I have sufficiently recounted their contents above.
The applicant attended a hearing of the MRT accompanied by his solicitor on 7 June 2010, and further submissions were made in relation to his eligibility for a bridging visa. After the hearing, the Tribunal raised with the applicant a concern whether either of the pending proceedings met the description of “applied for judicial review” within either cl.050.212(3A)(b)(i) or (4)(a). This was responded to with further copies of the documents filed in the two Courts.
The Tribunal made its decision on review of the bridging visa decision on 7 June 2010. After recounting the applicant’s immigration history and referring to the two pending proceedings, the Tribunal first addressed whether the applicant had made acceptable arrangements to depart Australia, and indicated that it was not satisfied that he “genuinely intends to depart Australia”. No issue was taken with that finding of the Tribunal.
In relation to an entitlement to a bridging visa on the ground of pending judicial review applications, the Tribunal said:
85.With respect to the applicant’s application filed with the FMC on 25 May 2010, the Tribunal finds that he has applied to the Court for an extension of time to make a late application. This is with respect to the Department’s decision of 9 April 2008, which he claims was not validly notified to him, and to the RRT’s decision of 1 July 2008, where he contends that the RRT lacked jurisdiction to make that decision. In the Tribunal’s view, the applicant has not ‘applied for judicial review’ within the meaning of cl.050.212(3A), in respect of a decision to refuse to grant a substantive visa, at the time of application. He will be able to meet this criterion if and only if the Court grants him an extension of time to do so. The Tribunal therefore finds he does not satisfy cl.050.212(3A) on the basis of this application.
86.With respect to the applicant’s application filed with the High Court in its original jurisdiction on 30 April 2010, the application for an order to show cause relates, relevantly, to (among other things) the requested relief by way of an order ‘enlarging time, to the extent necessary, to permit [the applicant] to commence proceedings for the relief claimed […]’. This relates to the Department’s decision of 14 January 2010 that his Student visa application was invalid. As this is ‘other than a decision to refuse to grant a visa’, the relevant sub‑clause is cl.050.212(4).
87.The Tribunal and the representative had limited information relating to this at the hearing. Section 486A of the Migration Act, and the High Court Rules (eg. Reg. 25.06 in relation to an order for a writ of certiori) impose time limitations on the filing of applications to the High Court in its original jurisdiction. In the Tribunal’s view, the applicant’s application to the High Court seeks orders to permit him to commence proceedings, and it is only if the Court grants these orders that he can be said to ‘have applied for judicial review’ of the Department’s decision deeming his Student visa application invalid.
88.On the evidence before it, the Tribunal finds that the applicant does not meet cl.050.212(3A), (4), (4AA), (4AB), (4AAA) or (9).

The Tribunal’s reference in paragraph 88 to subclauses (4AA), (4AB), (4AAA) or (9) do not need to be explained further, since they concern consequential entitlements which did not arise.
The present application to this Court for review of the Tribunal’s decision was filed on 23 June 2010. As were the proceedings before the Tribunal, the proceedings were expedited due to the applicant’s continued detention in immigration detention.
The issue of statutory interpretation raised by the applicant’s grounds of application, concerns the Tribunal’s conclusion that the application which was pending in the High Court could not be characterised as his applying “for judicial review of a decision in relation to a substantive visa”, nor for judicial review of the refusal of a “valid application for a substantive visa”.
The applicant’s counsel argued that the Tribunal’s reasoning proceeded upon a misapprehension of the legal criteria required to be addressed by the Tribunal, and that this constitutes jurisdictional error. In effect, the applicant’s counsel argued that the Tribunal member erroneously characterised the applicant’s application filed in the High Court as not seeking “judicial review”, when at paragraph 87 it pointed to the absence of an order by the High Court exercising the statutory power to extend time under s.486A(2). He argued that this fact was irrelevant to the characterisation required under the regulation.
It clearly was the Tribunal’s opinion that the presence of prayers for an extension of time under that section in the process filed and accepted by the High Court, and for orders in the exercise of the High Court’s original jurisdiction under s.75(v) of the Constitution, did not allow the application to be characterised as an application “for judicial review”, in the absence of an extension of time having been ordered by the High Court at the time of its decision. In effect, the Tribunal proceeded upon an opinion that an application seeking orders by way of judicial review may only be characterised as such within the meaning of cl.050.212(3A), or (4), if the initiating process seeking relief under s.75(v) of the Constitution was competent under s.486A(1) in the opinion of the Tribunal, or had become the subject of a relevant extension of time granted by the High Court under s.486A(2). Counsel for the Minister maintained that this opinion reflected no error.
The Tribunal also appears to have applied identical reasoning in relation to the pending matter in this Court, which at the time of the Tribunal’s decision had not yet been finalised. That matter required a similarly framed extension of time, before it would be competent under s.477(1) of the Migration Act. However, the applicant did not directly attack this part of the Tribunal’s reasoning before me, perhaps because he had been refused an extension of time and his application had been dismissed as incompetent, before today’s hearing.
In relation to the still pending High Court matter, counsel for the applicant submitted that the Tribunal misapprehended the nature of the application which had been filed and accepted by the High Court as initiating process on 30 April 2010. In particular, he submitted that the Tribunal had failed to appreciate the High Court’s rules and procedures encompassed the receipt of a single application incorporating prayers for relief under the constitutional jurisdiction and ancillary orders. In his application, the applicant had included prayers for ancilliary final relief by way of certiorari, and also an ancilliary order for an extension of time under s.486A(2) of the Migration Act. Counsel submitted that the absence at the time of filing of the application in the High Court, and at the time of the Tribunal’s decision, of an order made under s.486A(2) did not render the initiating documents otherwise than an application for the relief set out in the application, including relief under the High Court’s constitutional jurisdiction. It was therefore not open to the Tribunal to characterise the High Court proceeding as not being, or including, an application for judicial review.
It was common ground between counsel that proceedings concerning the grant of relief under s.75(v) could be characterised as “judicial review”. Both counsel also appeared to assume that a prayer for an order under s.486A(2) could not itself be characterised as “judicial review” in relation to a migration decision. Counsel for the applicant submitted, however, that the inclusion of both prayers in the one application allowed the application to be characterised by reference to the substantive relief principally sought by the applicant under s.75(v) of the Constitution.
The references in cl.050.212 to an application “for judicial review” of a migration decision as a criteria for a grant of a bridging visa are not defined nor explained in the regulations or the Act. There is a definition of “judicial review proceeding” found in s.486D(5), but that definition is solely for the purposes of a requirement of disclosure of previous judicial review proceedings. It does not directly assist an understanding of the bridging visa criteria.
I am not sure that an application for an extension of time under the Migration Act cannot, considered in isolation, itself be characterised as an application for “judicial review” of a migration decision, in the absence of any special or defined meaning to that term. However, I am content to decide the present issue on an assumption that it cannot. I accept that the words must, at least, include proceedings for relief by way of Constitutional writs and any other substantive administrative law remedy.
As counsel for the applicant pointed out, it is common practice for courts exercising a power to extend time so as to allow a precondition to jurisdiction to be satisfied, that the court receives one initiating process seeking both an extension of time and the principal substantive relief. Courts commonly address such combined applications by granting extensions of time “nunc pro tunc” over the period required up until the filing of the out‑of‑time application. They may do this either at interlocutory stages, or at the final hearing for substantive relief. Frequently such a power is exercised when justice requires, where the required extension of time or other leave has been overlooked or misapprehended, and where the court decides that its jurisdiction to make the substantive orders which are sought should be regularised (see Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 131, and cf. Streimer v Tamas (1981) 54 FLR 253).
Such a procedure is commonplace if not normal in this Court in its migration jurisdiction, where the Court’s Approved Form of Application incorporates prayers for substantive relief and an application for extension of time under s.477(2) (see, in relation to the previous time limit: SZICV v Minister for Immigration & Anor (2006) 202 FLR 200 at [27]‑[28], not challenged on appeal: see SZICV v Minister for Immigration & Citizenship (2007) 158 FCR 260). Whenever an assessment of the merits of the principal application appears likely to be a significant consideration for extending time, it is often more efficient to appoint all issues for a final hearing, including the application for extension of time.
Such a practice is less apparent from the High Court rules and forms, and the High Court seems more often to consider applications for extension of time at an interlocutory stage. However, in my opinion, undoubtedly the High Court would have power in the course of the applicant’s present application, whether at an interlocutory hearing or at a final hearing on all issues, to extend time under s.486A(2) of the Migration Act nunc pro tunc up to the date of filing of his application for substantive relief, notwithstanding that the whole application might be liable to dismissal on grounds of incompetence in the absence of such an order.
In this context, it appears to me more likely that the bridging visa criteria intend the characterisation of an application filed in a court as being “for judicial review” to depend upon an assessment of the terms of the relief sought in the application, rather than upon the Minister or his delegate themselves deciding whether the giving of that relief would be within the powers of the relevant court. It seems unlikely that the criteria intended an administrative officer to decide the competency of an initiating process, before that issue was judicially addressed by the relevant court.
This point has particular pertinence, where the relevant court is the High Court of Australia, and the judicial review jurisdiction is its original jurisdiction under s.75(v) of the Constitution. The competency of an application invoking that jurisdiction may not depend merely upon a statutory time limit. This point is illustrated by the background to the enactment of the present s.486A, particularly, the judgment of the High Court in Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651.
In Bodruddaza, the High Court found invalid the previous version of s.486A, because it imposed an inflexible mandatory time limit which allowed no room for a discretionary consideration of reasonable excuses for delay, and a consideration of the overall justice of entertaining applications for relief under s.75(v) of the Constitution. After adverting to the types of situation which s.486A prevented the High Court from considering before deciding whether such relief should be refused, their Honours said:
57The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. The present case where the plaintiff was one day late, apparently by reason of a failure on the part of his migration adviser, is an example.
58It is no answer to say that some unfairness is to be expected and must be tolerated. The above examples are instances where the time limit subverts the constitutional purpose of the remedy provided by s 75(v). Further examples may be suggested from practical experience.
59Considerations of this kind may be dealt with at the level of discretion to grant or withhold the remedy under s 75(v). That is the path taken by the Rules and the case law in this Court. The path taken by the Parliament with s 486A is to deal with these considerations by the application of a rule precluding what is considered by the legislature to be an untimely application for what by hypothesis is a discretionary remedy. As the above discussion of the operation of s 486A illustrates, any attempt to follow that path is bound to encounter constitutional difficulties.
60Section 486A is invalid. It is so drawn as not to permit its reading down so as to sever and preserve any valid operation, and no case for severance was presented.
This suggests that “the path taken” under the new s.486A was intended to recognise and guide the exercise of the High Court of its original jurisdiction, and not to preclude the High Court from a full consideration of the justice of entertaining an out‑of‑time application, and from extending time whenever this appeared to be required. This consideration suggests that there was no intention in s.486A or elsewhere in the migration legislation to allow the characterisation of an application for the exercise of jurisdiction under s.75(v), as not being an application for that relief, even when filed before an extension of time had been granted under s.486A(2). It appears to me that the procedures for obtaining constitutional relief from the High Court, which s.486A was intended to regulate, were understood as encompassing powers of the Court to give extensions of time nunc pro tunc where an application for constitutional relief would otherwise be incompetent by reason of s.486A(1).
The above considerations lead me to construe the bridging visa criteria as not requiring, or permitting, the administrative decision‑maker to go further than the characterisation of the terms of the relief sought in an application filed and accepted by the High Court, to determine whether it included prayers under s.75(v) of the Constitution. It appears to me that the bridging visa criteria did not contemplate, and it would not be open as a matter of law, for the Tribunal to characterise a pending application in the High Court seeking that relief, as not applying for “judicial review” merely because an extension of time might be required to be ordered by the High Court to render competent the originally filed application. I consider that the intended characterisation is essentially a characterisation of the terms of the documents filed, and it is irrelevant to take into account the decision‑maker’s opinions whether the High Court might or might not extend time, whether under the High Court Rules or s.486A(1) so as to render the application competent.
Neither counsel cited any authority where an application requiring an extension of time has been characterised for the purposes of the bridging visa criteria. My own limited researches have not found any such cases. This is surprising given the volume of migration litigation in all Federal courts, even taking into account that the current Migration Act powers to extend time only came into effect in early 2009.
Counsel for the Minister cited three previous judgments in the Federal Court, where a reference in bridging visa criteria to an application for judicial review had been considered.
The first was Harjanto v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 411. The Full Court considered whether Mr Harjanto was an applicant for judicial review when he appeared only as a represented member of a class of people in relation to which the principal litigant was seeking relief, but where Mr Harjanto was not himself an applicant for that relief. The Full Court upheld an opinion of Branson J that the application for an order setting aside a decision of a delegate was “an application for review made by [the principal applicant] and not by the other group members”. On that basis, entitlement to a bridging visa could not arise. I do not consider that this judgment assists the present issue of construction.
The second judgment was Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 6. Lindgren J gave ex tempore reasons for concluding that an unsuccessful applicant for judicial review at first instance in the Federal Court, who had applied for an extension of time to appeal, did not have pending an “application for judicial review of a decision in relation to a substantive visa”. His Honour’s reasoning is terse, and I have not been able to obtain any illumination from it in relation to the present issue.
I have, however, found assistance from the third judgment cited by the Minister, being a reserved judgment of Ryan J in VFAY v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 402, on appeal from a judgment of this Court. Ryan J explained the legislative background to bridging visas and considered their statutory purpose. He considered principles of interpretation relevant to considering the ambit of the words “applied for judicial review of a decision”. He concluded that a beneficial construction would be appropriately given to these words, on the basis that the scheme of bridging visas was intended to permit somebody to fully exhaust their claims to an entitlement under the Migration Act, including both at administrative and judicial levels.
In the particular matter, the bridging visa applicant had an outstanding application for special leave to appeal to the High Court from an adverse decision of the Federal Court in a migration matter. His Honour’s reasoning can be found in [20] and [21]:
20As there is on foot an application for special leave, the applicant’s substantive application for a visa has not been finally processed. The judicial system in Australia permits a final appeal to the High Court from a judicial determination. The fact that an application for special leave is required as a step in the exercise of that right of final appeal does not mean that the right does not exist unless special leave is granted. Rather, refusal of special leave extinguishes the right.
21The effect of the construction of reg 2.20(7) for which the Minister contends is that even while, to use the expression in Harjanto, an applicant’s application for a substantive visa is being processed, the applicant would not be entitled to a bridging visa. Taking the approach indicated in Chugg, it would, in my view, be more consistent with the purpose of a bridging visa to construe the phrase “application for judicial review” as including an application for special leave to appeal to the High Court rather than limit it to a pending application at first instance or on appeal in this Court or the Federal Magistrates’ Court. The construction which I favour avoids the anomaly that an applicant who had applied for special leave but whose application had not been determined would not be eligible for a bridging visa but the same applicant a few days later, after a grant of special leave, would be entitled to a bridging visa.
His Honour then explained further why he preferred the beneficial construction of the regulations, rather than the restrictive interpretation submitted by the Minister, which was based on the special and unpredictable nature of the High Court’s discretion to grant special leave. His Honour then concluded at [34] that the features of the appellate structure, including the High Court’s power to grant special leave to appeal, “support the conclusion that a non‑citizen who has applied for judicial review within the meaning of [the relevant regulation] includes an applicant for special leave to appeal to the High Court from an earlier refusal to grant judicial review of a visa provided that the application for special leave has not been refused when [the regulation] comes to be applied”.
In my opinion, this reasoning points towards, rather than against, treating an initiating application for relief under s.75(v) of the Constitution, which includes an express or implicit application for an extension of time, as evidencing that the bridging visa applicant has “applied for judicial review”. Perhaps more strongly than in relation to an application for special leave to appeal, such an applicant has a ‘right’ under the Constitution to invoke the jurisdiction of the High Court, and “the fact that an application for [an extension of time] is required as a step in the exercise of that right … does not mean that the right does not exist unless [an extension of time] is granted”.
In my opinion, I am bound to follow the approach to statutory construction in relation to the bridging visa criteria adopted by Ryan J, and I would respectfully do so even if I were not bound. I consider that it leads to the same conclusions in this case, as in that case.
In my opinion, the bridging visa criteria should be construed as intending to encompass the applicant’s presently pending application to the High Court, regardless of the facts that he had not obtained an extension of time prior to commencing that application nor prior to the decision on the bridging visa application.
I am therefore satisfied that the present Tribunal decided the applicant’s eligibility to a bridging visa upon an erroneous construction of the meaning of the bridging visa criteria. As a result, it characterised the present application to the High Court in a manner which was not open to it as a matter of law. I am therefore satisfied that its decision is affected by jurisdictional error, and that the applicant has made out an entitlement to relief by way of certiorari and mandamus directed at the Tribunal’s decision and the Tribunal.

The Minister’s counsel submitted that this relief should be refused as a matter of discretion. He argued, in effect, that the matter pending in the High Court is doomed to failure and might even be characterised as an abuse of process. He submitted that the applicant’s arguments about the validity of the automatic cancellation of the original student visa in 2007 was academic, because the applicant would always be precluded from the grant of further substantive visas while he remained in Australia by reason of s.48(1)(b)(ii) and the refusal of a protection visa in 2008. On that basis, it was submitted that, notwithstanding that the High Court had not yet addressed the application filed in that Court, I should myself form an adverse opinion as to its lack of prospects.
Counsel referred to the accepted grounds for refusing relief in the face of a jurisdictional error, which were referred to by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]. One ground is “if no useful result could ensue”. Counsel submitted that I should form that opinion in the present case.
However, in my opinion, this submission confused the prospects of the applicant’s High Court application, with the prospects of his obtaining a bridging visa while it is still pending. I am by no means satisfied that “no useful result could ensue” as a result of my remitting the bridging visa application to the Tribunal for further consideration.
I accept that the purpose of bringing the bridging visa application was to procure the release of the applicant from detention pending the outcome of his further litigation in the High Court, and possibly also further attempts to obtain an exercise of discretion from the Minister under s.417. That immediate purpose has not been shown to me to be one which is impossible to obtain if I remit the matter. To reach such a conclusion would require me to decide the merits both of the bridging visa application and the High Court application.
The present Tribunal member addressed only one of the criteria for the bridging visa, and also did not address what appears to be a broad discretion to decline a bridging visa notwithstanding satisfaction of the criteria in the schedule (see s.73, which appears to give a discretionary power). Whether in fact the Minister ever exercises such a discretion is obscure to me, particularly in the light of the recent history of abusive immigration proceedings motivated by the Department’s too ready granting of bridging visas (cf SZASP v Minister for Immigration & Citizenship [2007] FCA 771).
On the evidence and submissions before me in the present matter, I would not conclude that “no useful result could ensue” in relation to further consideration of the bridging visa application. It may be that the bridging visa application would become hopeless if finality were reached in the High Court proceeding. The Minister’s submissions, in effect, ask me to assume that this is inevitable at some unknown time in the future. However, I do not consider it appropriate in exercising my discretions in the present case to form any predictive opinion as to the likely course, duration and outcome of proceedings in the High Court. I note that the parties at this time appear to have been content to take no action to progress the High Court proceedings for several months, and it may be that this state of inactivity in the High Court will continue for many further months.
I am not persuaded that the applicant will inevitably be refused a bridging visa, if the Tribunal is now ordered to reconsider the application for that visa according to law. I consider that the applicant should be given the opportunity to obtain a lawful determination in the Tribunal as to his entitlement to a bridging visa. I therefore do not accept the Minister’s submission that I should decline relief in the present case.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 19 August 2010