Ly v Minister for Immigration and Multicultural Affairs

[2000] FCA 217

FEDERAL COURT OF AUSTRALIA

Ly v Minister for Immigration & Multicultural Affairs [2000] FCA 217

IENG LY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 72 OF 2000

NORTH J
24 FEBRUARY 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 72 OF 2000

BETWEEN:	IENG LY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	24 FEBRUARY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The motion, notice of which was filed by the applicant on 23 February 2000, is dismissed.

2.        Costs reserved.

3.        A directions hearing is fixed for 10.15 am on 6 March 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 72 OF 2000

BETWEEN:	IENG LY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	24 FEBRUARY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is a 32-year-old Cambodian who came to Australia in October 1998. On 27 February 1999 she married an Australian citizen. On 4 May 1999 she applied for a permanent visa as the spouse of an Australian citizen (the spouse visa). This application was refused on 10 February 2000 on the ground that the applicant did not pass the character test as required by s 501 of the Migration Act 1958 (Cth) (the Act). The applicant was then taken into and remains in immigration detention.

2. On 14 February 2000 the applicant applied to the Administrative Appeals Tribunal (the Tribunal), seeking a review of the refusal to grant the spouse visa.  On the same day she lodged an application for a subclass 050 bridging visa under Schedule 2 of the Act and claimed to satisfy the criteria in subclause 050.212.3A which provides:

   "(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 a merits review of a decision under section 501 of the Act to refuse to grant the visa; or

   (ii)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

   (iii)the Minister is satisfied that the applicant will make an application of the kind referred to in subparagraph (i)."

3. On 16 February 2000 the Minister for Immigration & Multicultural Affairs (the respondent) refused to consider the applicant for a bridging visa on the basis that it was not a valid application for a bridging visa.  On 23 February 2000 the applicant filed an application in this Court for review of the decision of the respondent to refuse to consider the application for a bridging visa.  The applicant filed a notice of motion in that application, seeking interim orders as follows:

   "1.An order that pending the hearing and determination of the application the respondent release the applicant from Immigration Detention.

   2.An order directing the respondent to take such steps as necessary to secure the applicant’s release from Immigration Detention.

   3.A declaration that the applicant is entitled to the grant of a bridging visa pursuant to s75 of the Migration Act 1958.”

4. The determination of the motion depends on the construction of s 501E of the Act, which provides:

   "(1)A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:

   (a)at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and

   (b)the decision was neither set aside nor revoked before the application time.

   (2)Subsection (1) does not prevent a person, at the application time, from making an application for:

   (a)a protection visa; or

   (b)a visa specified in the regulations for the purposes of this subsection."

   [bold emphasis in original]

5. The respondent contends that the bridging visa for which the applicant has applied is not a visa "specified in the regulations for the purpose of this subsection" (see s 501E(2)(b)), and, consequently, the applicant is prevented from making the application for the bridging visa by operation of s 501E(1). Mr Gray, who appeared as counsel for the respondent, argued that for a visa to be specified in the regulations it had to be referred to in the regulations in some way by reference to s 501E and that the bridging visa is not referred to in the regulations in such a way. Indeed, he pointed out that subclause 050.212.3A commenced operation in its present form on 1 November 1997 well before s 501E came into effect on 1 June 1999.

6. Mr Gray also demonstrated that where sections of the Act refer to matters which are to be prescribed by the regulations, the regulations make express reference to the linkage with the Act.  He gave the example of s 48, which provides that a person may apply for a visa of a class "prescribed for the purposes of the section", and reg 2.12 which commences with the necessary linkage by providing, "For the purposes of section 48 of the Act … the following classes of visa are prescribed…".

7. I agree with Mr Gray that the same scheme was envisaged by s 501E(2)(b). Contrary to the submission of Mr Niall, who appeared as counsel for the applicant, there is no relevant difference between the use of "prescribed" in sections such as s 48, and "specified" in s 501E(2)(b).

8. The construction for which the respondent contends means that applicants who challenge visa refusals, where the refusals are made under s 501 for failure to fulfil character requirements, cannot apply for bridging visas and will therefore be subject to immigration detention until the challenge to the refusal is completed. The policy which underlies this provision seems harsh but it is mitigated by some very strict time limits within which decisions must be made in respect of the refusal. I was told that, for instance, the Tribunal is required to determine such an application within 84 days of the lodgment of the application. This time limit was imposed when s 501E was introduced. The explanatory memorandum to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) states that one of the intended effects of the amendments was to permit "temporary detention of a visa-holder where a section 501 or 501A cancellation decision is being considered".

9. The present application is interlocutory in nature. I need only determine that the applicant has a seriously arguable case that s 501E does not prevent her making a valid application for a bridging visa. In my view, no such serious issue has been demonstrated. It is therefore not necessary to determine whether the court has power to make the types of orders sought.

10. One can readily understand the heartache and pain caused to the applicant by reason of her detention.  She is a few months' pregnant and very concerned for her own wellbeing and that of her baby.  The stress of detention is not a welcome addition to the trials of pregnancy she is experiencing.  The respondent did not argue that, if there was power to release the applicant from detention, the court should not do so.  However, Parliament has enacted a regime which does not give the Court power to do so, even in compelling circumstances.

11. The hearing of the challenge to the refusal of the spouse visa is listed for hearing before the Tribunal on 12 and 13 April 2000.  Apparently the particular circumstances of the applicant have not yet been brought to the attention of the Tribunal.  It may be that when that is done an earlier hearing date can be arranged.  It seems that that is the best the applicant can hope for in the current state of the law.  The motion, notice of which was filed by the applicant on 23 February 2000, must be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             24 February 2000

Counsel for the Applicant:	Mr R M Niall
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr P R D Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 February 2000
Date of Judgment:	24 February 2000