Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya”

[1996] FCA 906

CATCHWORDS

ADMINISTRATIVE LAW - challenge to administrative decision that application for a visa not a valid application - effect of s39 of Migration Reform Act 1992 (Cth) - whether visa is one for which the applicant "had applied" for the purposes of s48(b)(i) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss 5(9), 34, 45, 46, 48
Migration Reform Act 1992 (Cth) s 39
Migration Legislation Amendment Act 1994 (Cth)
Migration Regulations (Cth) reg. 117A

Dai Xing Yao v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (unreported Full Federal Court, 18 September 1996)

OLIULLAH KHAN v
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 909 of 1995

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     18 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 909 of 1995
GENERAL DIVISION                 )

BETWEEN:     OLIULLAH KHAN
  Applicant

AND:         MINISTER OF STATE FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     18 OCTOBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision that the application for a visa made by the applicant on 28 July 1995 was not a valid application for a visa is affirmed.

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. NG 909 of 1995
GENERAL DIVISION                 )

BETWEEN:     OLIULLAH KHAN
  Applicant

AND:         MINISTER OF STATE FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS
  Respondent

CORAM:    BRANSON J
PLACE:    SYDNEY
DATE:     18 OCTOBER 1996

REASONS FOR JUDGMENT

THE APPLICATION

By an amended application for review, the applicant challenges a decision that an application for a visa made by him on
28 July 1995 was not a valid application for a visa ("the decision").  He seeks the following substantive orders:

"1.An order that the decisions under review be set aside.

2.A declaration that the applicant's application for a visa lodged with the Australian Consulate-General in Auckland, the subject of the decision, was a valid application pursuant to s46 of the Migration Act 1958.

2A.An order that a writ of mandamus issue directing the respondent to consider the applicant's said

application for a visa according to law and under the Migration Act 1958."

The parties were in agreement that the decision is a "judicially-reviewable decision" within the meaning of s475 of the Migration Act 1958 (Cth) (see s475(1)(c)). As such, the decision is reviewable only under Part 8 of that Act (Dai Xing Yao v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (unreported Full Federal Court, 18 September 1996)).

BACKGROUND

On 30 November 1992, the applicant filed an application ("the first application") for a domestic protection (temporary) entry permit pursuant to s34 of the Migration Act as then in force and reg. 117A of the Migration Regulations as then in force.  A criterion for the grant of such an entry permit was that, when a decision on the application for the permit is made, the applicant has been determined by the relevant Minister to have refugee status. 

On 24 May 1993, the entry permit sought by the applicant was refused.  On 22 June 1993, the applicant sought a review of the decision to refuse him a domestic protection (temporary) entry permit.

By reason of amendments made to the Migration Regulations, which amendments came into force on 1 March 1994, the first

application had effect also as an application for a "class 817 entry permit", a permanent entry permit. By reason of the coming into operation on 1 September 1994 of s39 of the Migration Reform Act 1992 ("the Migration Reform Act") the first application was to be taken from 1 September 1994 to be an application for a protection visa within the meaning of the Migration Act as in force on 1 September 1994.

Section 48 of the Migration Act also came into force on 1 September 1994.  It provides as follows:

"48.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 bridging visa, 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) or 501 (special power to refuse or cancel);

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."

By letter dated 22 June 1995, the Refugee Review Tribunal notified the applicant of its decision of 20 June 1995.  Such decision was in the following terms:

"The Tribunal finds that the applicant is not a refugee.  The decision under review is varied so that the decision now has effect as a decision to refuse to grant the applicant a protection visa."

On 28 July 1995, the applicant made application ("the second application") to the Australian Consulate-General in Auckland, New Zealand, to migrate to Australia. The second application was made pursuant to s45 of the Migration Act. The class of visa sought by the second application was an "independent" migration visa also known as a "subclass 126" visa. By letter dated 3 November 1995, the application received advice from the Principal Migration Officer, Australian Consulate-General, Auckland, that his application for a sub-class 126 visa was not a valid application by reason of the operation of s39 of the Migration Reform Act and s48 of the Migration Act.  It is this decision which is the subject of the present application for review.

ISSUE

The only substantive issue arising on this application is that of the proper construction of s48 of the Migration Act and s39 of the Migration Reform Act. The terms of s48 are set out above. Section 39 of the Migration Reform Act, as amended by the Migration Legislation Amendment Act, No. 60, 1994 (Cth), provides as follows:

"39. If:

(a)  an application for:

(i)a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or

(ii)an entry permit (within the meaning of the Principal Act as in force immediately before that date), a criterion of which is
that the Minister has made such a determination in relation to the person, or in relation to a member of the family unit of the person (within the meaning of the regulations);

was made before that date; and

(b)before that date, the application has not been finally determined (within the meaning of the Principal Act);

then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date)."

CONTENTIONS

Mr Hilton S.C., counsel for the applicant, conceded that his client was at the relevant time a "non-citizen in the migration zone" who did "not hold a substantive visa" within the meaning of s48 of the Migration Act. He further conceded that the second application was an application for a visa of a class other than a class of visa prescribed for the purposes of s48 of the Migration Act. He contended, however, that although the applicant had, after last entering Australia, been refused a visa other than a bridging visa, such visa was not one for which he "had applied" (see s48(b)(i)).

It is, of course, common ground that the first application was in terms an application for an entry permit and not an application for a visa.

Mr Williams, counsel for the respondent, contended that, for the purposes of s48 of the Migration Act, the applicant has been refused a visa, other than a bridging visa, for which he has applied. He placed reliance upon the terms of s39 of the Migration Reform Act which are set out above. The reference in s39(b) to an application which has not been finally determined is to be understood by reference to s5(9) of the Migration Act. Section 5(9) of the Migration Act provides as follows:

"5.(9)  For the purposes of this Act, an application under this Act is finally determined when either:

(a)a decision that has been made in respect of the application is not, or is no longer subject to any form of review under Part 5 or 7; or

(b)a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed."

Mr Williams contended that as all of the pre-conditions for the operation of s39 of the Migration Reform Act are satisfied in this case, the effect of s39 is that the first application is to be regarded an application for a protection visa for all purposes of the Migration Act.

SECTION 39 OF THE MIGRATION REFORM ACT

I mean no disrespect to the thorough submissions of counsel in this case by saying that, in my view, the issues here raised are not complex.

Section 39 of the Migration Reform Act is concerned with applications made before 1 September 1994. That is, it is concerned, to use the language of s48 of the Migration Act, with things for which a "non-citizen had applied".  It provides, in the circumstances of this case, that on and after 1 September 1994 the provisions of the Migration Act apply to applications such as the first application as if such applications were applications for a protection visa within the meaning of the Migration Act as in force on 1 September 1994.  It is not in dispute that the applicant made the first application. 

In my view, the clear intent of s39 of the Migration Reform Act is that on and after 1 September 1994 the Migration Act is to apply as if any person who had made an application such as the first application had applied for a protection visa.  In other words, I accept the submission of the respondent that:

"Where the preconditions [of s39] are satisfied, the effect of s39 is that the application becomes an application for a protection visa for all purposes of the Migration Act."

SECTION 48 OF THE MIGRATION ACT

The above construction of s39 of the Migration Reform Act leads necessarily to the conclusion that the words "for which the non-citizen had applied" appearing in s48(b)(i) of the Migration Act are not to be understood as limiting the operation of the section in the way for which the applicant contends. Having regard to the terms of s39 of the Migration Reform Act, the applicant is, in my view, for the purposes of s48, to be taken to be a non-citizen who, by the making of the first application, applied for a visa other than a bridging visa. Such application was, as is conceded, refused.

OTHER MATTERS

If the relevant statutory provisions are not ambiguous, as, in my view, they are not in this case, the fairness or otherwise of their impact is not a matter for this Court.  I shall not deal in terms with the submissions put to me on behalf of the applicant on this topic. 

I shall also deal only shortly with the submissions made on the basis that the construction of s48 of the Migration Act for which the respondent contended, gives to the section a retrospective operation. Assuming for present purposes, but without deciding, that such construction has the consequence that the section has a retrospective operation, the presumption against retrospectivity is, in my view, overridden by a contrary intention disclosed by the terms of the section read with the terms of s39 of the Migration Reform Act.

Although the precise issue raised in this case was not required to be considered by the Full Court of this Court in Dai Xing Yao v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, the approach which I have taken to the construction of s39 of the Migration Reform Act is, in my view, consistent with the approach taken by Black CJ and Sundberg J, and also by Davies J, to the construction of the same section in that case.

The decision will be affirmed.

This and the preceding eight (8) pages are a true copy of the reasons for judgment of the Honourable Justice Branson

Associate:

Date:                  18 October 1996

Counsel for the applicant:           Mr J. Hilton SC

Solicitors for the applicant:             Parish Patience

Counsel for the respondent:          Mr N. Williams

Solicitors for the respondent:       Australian Government
  Solicitor

Hearing date:  9 October 1996