Manga v Minister for Immigration
[2017] FCCA 1082
•26 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANGA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1082 |
| Catchwords: MIGRATION – Whether the refusal by a delegate (“the first delegate”) to grant the Applicant a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa was a single decision or two decisions, thereby compelling a Tribunal on review to consider the application for both visas, and not only a subsequent decision by a delegate to refuse to grant the Applicant a subclass 801 visa – held that the decision record made by the first delegate recorded two separate decisions in relation to each of the visas – application for judicial review dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 23 Migration Regulations 1994 (Cth), cls.801.22, 801.221, 820.2, 820.21 820.211, 820.221, 820.5, 820.511, 1214C, sch.1, sch.2 |
| Cases cited: Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 |
| Applicant: | MAAN SINGH MANGA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2477 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 6 March 2017 |
| Date of Last Submission: | 19 April 2017 |
Delivered at: | Melbourne |
| Delivered on: | 26 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 6 November 2015 be dismissed.
The Applicants pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 2477 of 2015
| Maan Singh Manga |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 16 October 2015, to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the Applicant a Partner (Residence) (Class BS) Subclass 801 visa (“a Subclass 801 visa”).
As the Applicant’s case is argued on judicial review, this decision requires the consideration of a refusal by a delegate on 7 September 2012 (“the first delegate”) to grant the Applicant a Partner (Temporary) (Class UK) Subclass 820 (“a Subclass 820 visa”) and to refuse to grant the Applicant a Subclass 801 visa. The Tribunal decision which the Applicant seeks to impugn is in relation to a decision of a delegate made on 8 May 2015 (“the second delegate”) refusing to grant the Applicant a Subclass 801 visa.
The critical issue for the Court to decide is whether the refusal by the first delegate to grant the Applicant a Subclass 820 visa and a Subclass 801 visa was, as the Applicant says in his written decision, a “singular decision” or “one composite decision” made with respect to a “singular application”, or whether the refusal by the first delegate to grant the Applicant a Subclass 820 visa and Subclass 801 visa was, as is submitted by the Minister, two decisions made with respect to two respective applications for a Subclass 820 visa and Subclass 801 visa.
Before turning to the background of these proceedings, it is appropriate to first set out the statutory provisions relevant to the grant or refusal of a Subclass 820 visa and a Subclass 801 visa.
Statutory Framework
The relevant provisions are located in Div.3 of Pt.2 to the Migration Act 1958 (“the Act”). In Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 (“Plaintiff M79”), the majority (French CJ, Crennan and Bell JJ) described some of the provisions in Div.3 thus at [21]-[22]:
21. The Minister is empowered by s 29(1) of the Act to “grant a non-citizen permission, to be known as a visa” to travel to and enter and/or remain in Australia. The Act and the Migration Regulations 1994 (Cth) (“the Regulations”) provide for different classes of visa (s.31). Some classes of visa are set out in the Act itself. These are referred to in s 31(2). Others are prescribed by the Regulations (s.31(1)). The Regulations may prescribe criteria for each class (s.31(3)). A visa is a visa of “a particular class” if the Act or the Regulations specify that it is a visa of that class (s 31(5)). All classes of visa share a common purpose reflected in the definition of “visa” in s 29(1). They are granted in order to permit non-citizens to travel to and enter and/or remain in Australia. Subject to specific provisions of the Act and the Regulations, a person who wants a visa has to apply for it and has to apply for a visa of a particular class (s.45). The Minister is obliged by the Act to consider a valid application for a visa (s.47(1)). The Act also provides specifically that the Minister is not to consider an application that is not a valid application (s.47(3)).
22. Regulation 2.01 of the Regulations provides in par (a) that, for the purposes of s 31 of the Act, the prescribed classes of visa are:
“such classes (other than those created by the Act) as are set out in the respective items in Schedule 1”.
The Regulations do not purport to redefine the particular classes of visa created by the Act itself. They do, however, define “subclasses” of such visas for the purpose of attaching, as the Act contemplates they may, different sets of criteria conditioning the grant of such visas in different circumstances or for different purposes.
(Footnotes are omitted, however, where reference is made in the footnote to a particular section of the Migration Act 1958 (Cth) that section is included in the text of the quote in parenthesis)
The Act provides for temporary and permanent visas under s.30 of the Act:
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
As will be seen, a Subclass 820 visa falls within the scope of sub‑s.30(2) of the Act and is a temporary visa, whereas a Subclass 801 visa permits a person holding such a visa to remain in Australia indefinitely and is therefore a permanent visa.
As observed by the majority in Plaintiff M79, s.45 of the Act provides that “a non-citizen who wants a visa must apply for a visa of a particular class”. Section 47 of the Act provides that the Minister “is to consider a valid application for a visa”. Sub-section 46(1) of the Act defines a valid visa application as one that “is valid if, and only if”:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth…
Subsections 46(3) and (4) of the Act provide that:
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made…
Section 65 of the Act relevantly provides that, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 66 of the Act generally prescribes the matters which are to be included in the notification of a decision to refuse to grant a visa. Section 67 of the Act provides:
(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to grant a visa;
(b) a decision to refuse to grant a visa.
(2) The record must state the day and time of its making.
(3) The decision is taken to have been made on the day and at the time the record is made.
…
Schedule 1 to the Migration Regulations 1994 (“the Regulations”) prescribes a 1124B, Partner (Residence) (Class BS) visa and a 1214C, Partner (Temporary) (Class UK) visa. Sub-clause 1214C(3) of the Regulations provides that :
(3) Other:
(a) Application must be made at the same time and place as an application for a Partner (Residence) (Class BS) visa.
…
Schedule 2 to the Regulations specifies the criteria to apply to the subclasses of the two types of visa. In respect of each type of visa, only one subclass is prescribed. For the Partner (Temporary) (Class UK) visa, the subclass is Subclass 820, and for the Partner (Residence) (Class BS) visa, the subclass is Subclass 801. The primary criteria for Subclass 820 are set out in cl.820.2 to sch.2 of the Regulations. Clause 820.21 to sch.2 of the Regulations prescribes the criteria the Applicant is required to meet at the time of the Application. Relevantly, in this case, c1.820.211(2) of sch.2 to the Regulations provides that:
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18--by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18--by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Clause 820.511 of sch.2 to the Regulations relevantly provides:
Temporary visa permitting the holder to travel to and enter Australia until:
(a) the holder is notified that his or her application for a Subclass 801 (Partner) visa has been decided; or
(b) that application is withdrawn.
Clause 820.22 of sch.2 to the Regulations sets out the criteria to be met at the time of decision. Under cl.820.221 to sch.2 of the Regulations, the Applicant is required to continue to meet the applicable sub-cls.820.211(2), (5), (6), (7), (8) or (9): sub-cl.820.221(1), or satisfy other criteria, which include that the Applicant or dependent child has suffered family violence committed by the sponsor: sub-cl.820.221(3)(a) and (b)(i) to sch.2 of the Regulations.
With respect to the Subclass 801 visa, the Applicant is required to meet cl.801.22 of sch. 2 to the Regulations at the time of decision. Each of the criteria specified under the subclauses of cl.801.221 require the Applicant to be a holder of, or to have been the holder of, a Subclass 820 visa. Further, unless the sponsoring partner has died: sub‑cl.801.221(5) of sch.2 to the Regulations; or there has been family violence: sub-cl.801.221(6) of sch.2 to the Regulations; or a child has been born: sub-cl.801.221(4) of sch.2 to the Regulations; or the Applicant and the sponsoring partner are in a “long-term partner relationship”: sub-cl.801.221(6A) of sch.2 to the Regulations; then a criterion is that 2 years has passed since the application has been made: cl.801.221(2) of sch.2 to the Regulations.
Background
The Applicant is a citizen of India. On 8 December 2011, he completed a standard application form, Form 47SP. The completed first page of that Form 47SP is set out on the next page (photo redacted) (CB 1).
The particular way in which Item 2 of Part A of Form 47SP is set out, no doubt reflects the requirements of sub-cl.1214C(3) of sch.1 to the Regulations. The fact that an applicant has no choice but to tick one box and thereby apply for both the Subclass 820 and Subclass 801 visa, provides a level of protection to applicants falling foul of sub‑cl.1214C(3) of sch.1 to the Regulations.
Thus, by ticking the appropriate box under Item 2 of Part A of Form 47SP, the Applicant applied for a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa. The Applicant nominated Ms L as his de-facto partner (CB 10), and Ms L completed a standard “Sponsorship for a partner to migrate to Australia” form, nominating the Applicant as her de-facto partner (CB 39).
On 7 September 2012, the first delegate refused “the application lodged on 8/12/2011 by the applicant…” (CB 128). The first delegate was not satisfied that the Applicant and his sponsor were in a de facto relationship and thus found that the Applicant failed to meet the requirements of sub-cl.820.211(2) of sch.2 to the Regulations and, consequently, did not satisfy the criteria for a Subclass 820 visa. The first delegate then found that, as the Applicant was unable to satisfy the prescribed criteria for the grant of a Subclass 820 visa, he was unable to satisfy the prescribed criteria for the grant of a Subclass 801 visa.
On 18 September 2012, the Applicant applied for a review to the then Migration Review Tribunal (“MRT”) in relation to the first delegate’s decision to refuse to grant the Subclass 820 visa (CB 131).
The Applicant appeared before the MRT on 23 January 2014 and said that he was no longer in a relationship with the Sponsor because he had suffered family violence (CB 143 at [8]).
On 21 February 2014, the MRT decided to affirm the first delegate’s decision not to grant the Applicant a Subclass 820 visa (CB 142 to 146). In its decision record, the MRT stated that it accepted that the Applicant and the Sponsor were in a relationship at the time of the visa application, but the relationship had since ceased (CB 144 at [11]). However, it did not accept that the relationship ceased as a result of family violence. It noted that the Applicant sought to establish family violence on the basis of a “non-judicially determined claim of family violence” but found that he had not satisfied the relevant regulations in accordance with the relevant ministerial instrument. It, therefore, concluded that the Applicant did not satisfy sub-cl.820.221(3)(b)(i) of sch.2 to the Regulations and, thus, that he did not meet the requirements of cl. 820.221of sch.2 to the Regulations (CB 146 at [24] and [26]).
On 18 March 2015, the Federal Circuit Court dismissed an application for judicial review of the MRT decision in respect of the Subclass 820 visa: Manga v Minister for Immigration and Border Protection [2015] FCCA 501. The Applicant filed an appeal from the Federal Circuit Court’s decision. Consent Orders were issued by Justice North on 9 July 2015 that the Application for an extension in time to file a notice of appeal be dismissed, with costs.
On 8 May 2015, an officer of the Department of Immigration and Border Protection wrote to the Applicant (CB 172):
I refer to your applications for a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa made on 08/12/2011 and the decisions that were made in respect of those applications on 07/09/2012.
The Department has identified an error in the decision to refuse to grant you a Partner (Residence) (Class BS) Subclass 801 (Partner) visa made on 07/09/2012. Therefore, a new decision has been made on your Partner (Residence) (Class BS) Subclass 801 visa application.
Unhelpfully, the correspondence failed to identify the nature of the error in the first delegate’s decision to refuse to grant the Applicant the Subclass 801 visa.
The correspondence enclosed a Decision Record dated 8 May 2015 of a delegate (“the second delegate”), refusing the application for a Subclass 801 visa application on the basis that the Applicant did not meet any of the criteria specified in cl.801.221 of sch.2 to the Regulations, including the fact that he was not the holder of a Subclass 820 visa, because his application for that visa had been refused (CB 176 to 178).
On 19 May 2015, the Applicant applied to the Tribunal for review of the second delegate’s decision refusing to grant the Applicant a Subclass 801 visa (CB 192).
On 16 October 2015, the Tribunal affirmed the second delegate’s decision on the basis that the Applicant was not the holder of a Subclass 820 visa and therefore did not meet the criteria for a Subclass 801 visa (CB 214 to 217).
Judicial Review
The Applicant’s ground of judicial review is as follows:
1. The Tribunal engaged in jurisdictional error by misunderstanding the applicable law and, as a consequence, constructively failing to exercise its jurisdiction.
Particulars
a) The Tribunal erred by finding that the decision of the First Respondent’s delegate, dated 7 September 2012, was not affected by jurisdictional error in relation to both the Subclass 820 and Subclass 801 visa.
b) On 7 September 2012 the delegate of the First Respondent refused the Applicant’s application for a Subclass 820 and Subclass 801 visa.
c) On 8 May 2015, the Department wrote to the Applicant to advise him that it had erred in its decision. A delegate of the First Respondent made a new decision in relation to the Subclass 801 visa, noting that the decision dated 7 September 2012 had been affected by jurisdictional error.
d) The Tribunal erred in failing to find that the decision dated 7 September 2012 was affected by jurisdictional error and was therefore a “decision that lacks legal foundation and is properly regarded, in law, as no decision at all” (see Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11).
In summary, the Applicant’s reasoning in support of this ground of judicial review is as follows:
a)the Applicant made one application for the Subclass 820 and Subclass 801 visas;
b)the Department treated this application in its correspondence to the Applicant dated 15 December 2011 as an application for a “combined” subclass 820 subclass 801 visa (CB 48);
c)the first delegate made a “singular decision” or single decision in relation to the application for the visas. It was communicated in one instrument (CB 120 to 123) which stated (when alerting the Applicant to his review writes) that “this decision can be reviewed”. The reasons for refusing both visas were set out in a singular decision record made on 7 September 2012 (CB 124 to 128);
d)consequently, the Applicant submits, that “while the effect of the first delegate’s decision was to refuse to grant two visas, it was nonetheless, to use the words of Hayne J, “one composite decision”: Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 at [83] (dissenting in the result).”[1]
[1] Applicant’s Outline of Submission filed on 6 July 2016.
From this proposition, that there was a single or composite decision by the first delegate refusing to grant the subclass 820 and subclass 801 visas, the Applicant then argues that the second delegate and the Tribunal reviewing the decision of the second delegate were obliged, on review, to review the Applicant applications for both the subclass 820 visa and the subclass 801 visa. The Applicant has set out in detail various authorities he relies on for the proposition that the Tribunal, having engaged in jurisdictional error when it failed to constructively exercise its jurisdiction to consider on review whether the Applicant satisfied the criteria for both the subclause 820 and subclause 801 visas, had the effect that the decision by the first delegate could not be severed into two separate decisions.
As Counsel for the Applicant properly conceded, the Applicant’s case depends on the Court first accepting that the decision of the first delegate was a single or composite decision refusing to grant the subclass 820 and subclass 801 visas.
At the hearing, Counsel for the Applicant conceded that there was no authority directly on this point. He relied, however, on the dissenting judgment of Hayne J in Plaintiff M79 for his proposition that a decision maker can exercise a power under the Act to grant two different visas in a single decision as, the Applicant submits, the first delegate did on 7 September 2012. Counsel for the Applicant properly acknowledges that the Court is not bound by this judgment but urged the Court to apply the judgment on the basis of the cogent reasoning of Justice Hayne. Counsel for the Applicant submits that, as the majority were silent on this issue, the Court can infer that they too accepted such a proposition.
The circumstances and issues to be determined in Plaintiff M79 were set out by the majority at as follows at [2] to [5]:
2. The Act provides that such asylum seekers who have arrived in designated “excised offshore places” cannot make a valid application for a protection visa unless the Minister exercises a statutory dispensing power. An administrative assessment and independent review process has been created to determine their claims for refugee status so that the Minister can then decide whether or not to consider exercising that dispensing power.
3. In order to enable a number of such persons to be released from detention pending completion of the assessment and review processes, the Minister, exercising a special power applicable to persons in detention under the Act, decided it was in the public interest to grant each of them two visas: a seven-day temporary safe haven visa and a bridging visa of a duration between three and twelve months. The duration of the bridging visa varied according to different categories of asylum seeker. The purpose of granting the seven-day temporary safe haven visas was to enliven a statutory bar, which would survive the expiry of those visas, preventing the asylum seekers from making a valid application for a protection visa unless the Minister exercised another dispensing power. The purpose of granting the bridging visas was to enable the asylum seekers to remain in the community, to work and to access services pending completion of the assessment and independent review of their claims for protection.
4. The plaintiff was granted a seven-day temporary safe haven visa and a six-month bridging visa under those arrangements. He subsequently lodged an application for a protection visa. He maintains that there is no bar against him lodging that application because the Minister's special power did not extend to the grant of a temporary safe haven visa to a person who would not have qualified under the provisions of the Act relating to such visas. He also says that the grant of the temporary safe haven visa was for an improper purpose: in effect, to prevent him from making a valid application for a protection visa.
5. The plaintiff applied to this Court seeking certiorari to quash the Minister's decision to issue him with a temporary safe haven visa and mandamus requiring the Minister to consider the plaintiff's application for a protection visa. A special case has been referred to the Full Court posing the questions whether the grant of the temporary safe haven visa was valid and whether the plaintiff's application for a protection visa was valid. For the reasons that follow the answers, adverse to the plaintiff, are “yes” and “no” respectively.
In this case, the Minister had exercised his power to grant the two visas under s.195A of the Act, which relevantly provided:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
…
It is to be noted that sub-s.195A(3) of the Act removes the obligation on the Minister imposed by sub-div.AA, which comprises of ss.44–51 of the Act, which deal with applications for visas, and sub-div.AC, which comprises of ss.65–69 of the Act and deals with the grant of visas generally. These provision are set out and referred to and extracted at [5] and [8]-[11] above.
The majority in Plaintiff M79 held that the grant of the temporary safe haven visa to the plaintiff was a valid application of the power conferred by s.195A(2) of the Act. At [42], the majority said:
It was open to the Minister, in this case, to grant a temporary safe haven visa by reference to its legal characteristics and consequences unconstrained by the purpose for which it was created under the Act. The purposes for which the Minister might grant such a class of visa were those purposes which would serve the public interest as the Minister judged it. In this case those purposes were not shown to be beyond the scope and purpose of the Act, nor the power conferred by s 195A.
Hayne J dissented, holding that the grant of the temporary safe haven visa to the plaintiff was invalid. His Honour then proceeded to consider a submission by the Minister as follows (at [82]-[83]):
82. The Minister submitted that, if the decision to issue a temporary safe haven visa was legally infirm, it followed that the whole decision made in respect of the plaintiff on 12 April 2012, including that aspect of it which dealt with granting the plaintiff a bridging visa, must be quashed. The plaintiff submitted that the Minister made two decisions concerning the plaintiff and that the decisions can and should be severed either by application of s 46 of the Acts Interpretation Act 1901 (Cth) or by application of principles of the general law.
83. It is not necessary to decide whether s 46 of the Acts Interpretation Act applies to the Decision Instrument approved by the Minister. It is enough to observe that the decision recorded in the Decision Instrument was one composite decision: to effect the plaintiff's release from detention by granting him visas of two classes with identified conditions attached to one of those visas. For the reasons that have been given, that decision was legally flawed. It cannot be severed into two separate decisions without radically recasting its nature and effect. The whole of the decision relating to the plaintiff should be quashed.
The Applicant relies on these two paragraphs in support of his proposition that the first delegate made one composite decision on 7 September 2012, which could not be severed into two decisions, in circumstances where the Department identified an error relating to the Subclass 801 visa. The Applicant argues that the second delegate was obliged to reconsider the composite decision to refuse to grant the Subclass 820 and Subclass 801 visas. Likewise, on review, the Tribunal was required to review the single decision to refuse to grant the two visas. The Applicant argues that he Tribunal’s failure to do so involved the Tribunal constructively failing to exercise its jurisdiction and, as a consequence, the Tribunal fell into jurisdictional error.
Counsel for the Applicant provided the Court with a copy of the Minister’s written submissions in Plaintiff M79. Counsel drew the Court’s attention to the part of the submission which dealt with the question, in the event the High Court held that the temporary safe haven was not validly granted, as to whether there was a single decision. As I understood the submissions of Counsel, the following extracts were relied on, as they were said to reflect the submissions the Applicant was making in these proceedings (at [62]-[64]):
62. The Act contemplates that a person may hold two visas at the same time, as the Plaintiff acknowledges. In particular, it expressly contemplates that a person may hold a bridging visa and a substantive visa at the same time; and if the bridging visa does not come into effect or ceases to have effect by reason of s 82(3), it revives upon the substantive visa ceasing to have effect (under s 68(4)).
63. There is nothing in the Act to suggest that two visas that may be held at the same time may not be granted simultaneously by one decision under s 195A. The Plaintiff’s reliance on the use of the singular in s 195A and elsewhere is misplaced – the singular includes the plural, unless the statute evinces a contrary intention. No such contrary intention is evinced in s 195A (or in the Act generally). There is no textual indication of such intention; nor is there any reason to imply a limitation of this kind into s 195A, given that, as discussed above, it is a broad and flexible power.
64. In this case, there is clear evidence that there was a single decision under s 195A simultaneously to grant both the TSH visa and the First Bridging Visa so as to enable the Plaintiff to be released from detention and to preserve the existing assessment process. Further, the nature of the power conferred by s 195A supports the conclusion that there was a single simultaneous grant of both visas, because the power conferred by s 195A is available only with respect to a person who is detained pursuant to s 189 of the Act. For that reason, if visas had been granted sequentially there would be, at the very least, uncertainty as to the power to grant a second visa.
(footnotes omitted)
Gagelar J, who agreed with the majority in Plaintiff M79, issued a separate judgment. Counsel for the Applicant relies on the following dismissal by his Honour of an argument apparently raised by the Plaintiff (at [105]):
… A further argument that the power cannot be exercised to grant two visas simultaneously is put but faintly by the plaintiff; plainly, it can.
The Minister submits that the first delegate made two separate decisions, to refuse separate visa applications, for a Subclass 820 visa and a Subclass 801 visa. These two separate decisions, Counsel for the Minister pointed out, are contained in the one decision record made by the first delegate.
Minister submits that the language contained in div.3 of pt.2 of the Act uses the singular, referring to “an application” or “a valid application” for “a visa” and to “a decision to grant or refuse to grant a visa”. The Minister submits that the language does not contemplate that there may be a singular application for, or single decision in respect of, multiple visas.
The Minister accepts, however, that it might be said that s.23 of the Acts Interpretation Act 1901 (Cth) has this consequence. That section relevantly provides:
In any Act:
…
(b) words in the singular number include the plural and words in the plural number include the singular.
However, the Minister submits that this section is subject to a contrary intention evidenced by the relevant statute: s.2(2) of the Acts Interpretation Act 1901 (Cth). This contrary intention, the Minister submits, is to be discerned from the statutory scheme as it deals with visa applications, decisions in relation to those applications and reviews of said decisions. Having referred to ss.45 and 46 of the Act, the Minister argues that a “singular application” for multiple visas would often be impossible because the visas in question would need to be applied for in different ways; such as by using different application forms. The Minister argues that, even where the two classes of visa could be applied for in the same way, the “validity criteria”; that is to say, the criteria about which a decision maker must be satisfied in respect of particular visas, might differ. In this circumstance, it was possible that a “singular application” would satisfy the validity criteria for some, but not all of the visas applied for. The Minister reasons that a decision maker could not find that a single application was both valid and invalid. Consequently, the decision maker would be precluded in considering an application in so far as it related to a visa in respect of which all the validity criteria were satisfied. The Minister submits that Parliament could not have intended such a consequence.
Noting that s.65 of the Act requires a decision maker to grant a visa if satisfied of certain matters or to refuse to grant a visa if not satisfied of certain matters, including applicable criteria prescribed by the Act or the Regulations, the Minister argues it is possible that the decision maker would be confronted with an application for multiple visas where the decision maker could reach the state of satisfaction to grant one visa but not the others. This is not contemplated, the Minister argues, under s.65 of the Act, which provides the Minister or delegated decision maker grant or refuse to grant a visa. The Minister argues that this intention under s.65 of the Act is reflected in s.67 of the Act, where the decision maker is required to cause a record to be made of the decision in respect of two categories only: a decision to grant a visa and a decision to refuse to grant a visa. The Minister notes that these provisions provide for only two categories not a third. It should be inferred, the Minister submits, from this that a singular decision cannot relate to multiple visas.
The Minister submits that it is evident from the statutory scheme for review of decisions that different rules apply depending on factors that may differ across visa classes. The Minister argues that the statutory scheme which contemplated a single decision in relation to multiple visas, would need to prescribe which rules apply in cases where two different classes of visa would, considered alone, command different procedures. No such prescription exists. The Minister submits that it could not be assumed that Parliament intended the resultant uncertainty.
Turning to the criteria which apply to the Subclass 820 and Subclass 801 visas, the Minister notes that different criteria apply in respect of each subclass. The Minister accepts that the requirement in the criteria for a Subclass 801 visa must be reconciled with the requirements in cl.1214C(3)(a) of sch.1 to the Regulations. The Minister argues that if, as submitted by the Applicant, an application for the two different subclass visas are to be dealt with by way of a single decision, the inevitable result, given the requirement that the application for the Subclass 801 visa be made 2 years earlier, would necessarily result in applications for the Subclass 801 visa (subject to the specified exceptions) being refused.
The Minister submits that a better view of the task confronting a delegate in circumstances where an Applicant completes a Form 47SP is that:
a)should the Minister refuse the Subclass 820 visa application, then he may immediately proceed to refuse the Subclass 801 visa application, as in fact happened in the present case. Then, as a matter of convenience both for himself and for the Applicant, the Minister may record his reasons for these two related decisions in the same decision record.
b)should the Minister grant the Subclass 820 visa, then he can (and it is implicit in the scheme that, if necessary to enable compliance with the criteria, he will) wait two years before proceeding to determine the application for the Subclass 801 visa.[2]
[2] First Respondent’s Outline of Submissions filed 3 August 2016 at [35].
Counsel for the Minister submits that the Applicant’s reliance on Plaintiff M79 is misplaced because the Minister, in exercising his powers under s.195A of the Act, was not constrained by the requirements imposed by ss.65 to 69 of the Act, as a result of the criteria set out in sub-s.195A(3) of the Act. Absent these requirements, the Minister was at large, provided he was satisfied about the public interest criterion, to grant one or more visas. Counsel for the Minister correctly points out that the majority in Plaintiff M79 did not expressly consider the question of a “single decision” made by the Minister in the exercise of his power under s.195A of the Act. In any event, Counsel for the Minister submits that the statutory scheme in relation to s.195A of the Act and the grant of the particular visas under s.65 of the Act are so different, that no meaningful comparison can be drawn, from what is a dissenting decision, to the circumstances presently confronting the Court.
Did the first delegate make a single decision to refuse two visas?
In considering the Applicant’s submission that the first delegate made a single decision to refuse two visas, I have refrained from deciding whether the scheme of the Act displaces the application of s.23 of the Acts Interpretation Act 1901(Cth). I do so because, in my view, it is unnecessary to the determination of the issue in dispute. I note that in Minister for Immigration and Citizenship v Nystrom (2006) 228 CLR 566, Gummow and Hayne JJ stated at [30]:
The respondent's argument was that the Principal Act reflected a policy that a person should not hold two “substantive visas” at the one time. That argument is framed too broadly. The question is not whether the Principal Act evinces a general policy against a person concurrently holding two “substantive visas”. The question is more narrowly focused upon the two visas in question.
The issue raised by the Applicant, as the Counsel for the Applicant notes, is not one on which there is direct authority.
In considering the Applicant’s ground of judicial review and, in particular his reliance of the judgment of Hayne J in Plaintiff M79, I concur with the Minister’ submission that the exercise of power by the Minister under s.195A of the Act is to be distinguished from the exercise of jurisdiction under s.65 of the Act. The former power is not contingent on an Applicant having applied for a visa, and satisfying criteria for the visa under the Act or the Regulations. Under s.195A of the Act, the Minister is merely required to be satisfied that the grant of a visa to a person in detention is in the public interest. This much is apparent from the majority judgment in Plaintiff M79. In my opinion, the Applicant’s reliance on the judgment of Hayne J in Plaintiff M79 is misconceived, because it fails to take into account the very different statutory schemes.
Turning to the statutory scheme applicable to the application for and the grant of a Partner (Residence) (Class) Subclasses 801 and 820. The Subclass 820 visa and Subclass 801 visa are prescribed in the Regulations, along with the criteria which an Applicant must satisfy for each of the visas in order for the grant of the visa in accordance with sub-s.65(1)(a)(ii) of the Act. Where an Applicant does not satisfy the criteria prescribed for either of the visas, the Minister must refuse to grant the visa: sub-.65(1)(b) of the Act. The scheme under the Regulations creates two types of substantive visas for an Applicant applying in Australia for a Partner visa. The first is a temporary visa, the Subclass 820 visa, and the second is a permanent visa, the Subclass 801 visa.
A particular criteria for the Subclass 820 visa is that the Applicant must have made an application for the permanent Subclass 801 visa at the same time and place: cl.1214C(3) to sch.1 of the Regulations. As I have earlier said, this requirement is reflected in the somewhat unusual way in which Form 47SP is structured (see [18]-[19] above). The result of the particular format of Form 47SP is that an Applicant, by ticking one box under Item 2, Part A, applies for a Subclass 820 visa and a Subclass 801 visa at the same time.
I reject the Applicant’s written submissions (at [1]) that he applied for “a combined” Subclass 820 and Subclass 801 visa. There is no category of a combined Subclass 820 and Subclass 801 visa prescribed in sch.1 to the Regulations. Under sch.1 to the Regulations, there are only two separate categories of the visas prescribed (see [12] above). I also reject the Applicant’s submission that there was a “singular application”[3] made by the Applicant on 30 November 2011, when he completed Form 47SP. Common sense dictates that, whilst the Applicant completed one standard form, that being Form 47SP, the Applicant in fact applied for two separate visas. This is evident from the nature and criteria attached to the visas.
[3] Applicant's Outline of Submissions filed 6 July 2016 at [13].
Although the criteria prescribed in the Regulations require that an application for the temporary Subclass 820 visa be made at the same time and place as the application for the permanent Subclass 801 visa, it does not follow that both visas can be held at the same time. In fact, they cannot. The Subclass 820 visa can only be granted to, and held by, an Applicant first and then, in specified circumstances or after a period of time, the Subclass 801 visa may be granted to an Applicant. Once the Applicant is granted a Subclass 801 visa, the Subclass 820 visa ceases to have effect: cl.820.5 of the Regulations.
I am satisfied that the prescribed criteria in the Regulations envisage the grant of the two visas, by two separate decisions, having regard to differing criteria.
The question then becomes, is a different conclusion warranted where a decision is made to refuse to grant a visa because the decision maker is not satisfied that the Applicant meets the relevant criteria. In my opinion, it does not, for the following reasons.
Firstly, confronted with a completed form that, by its format, requires the making of two applications for two different visas, a decision maker must proceed firstly to decide whether he/she is satisfied that the Applicant meets the criteria applicable to the grant of a Subclass 820 temporary visa. Those criteria apply only to the Subclass 820 visa and are different to the criteria applicable to the Subclass 801 visa. Where the delegate is not satisfied that the Applicant meets the Subclass 820 visa criteria, as occurred when the first delegate considered the application for the Subclass 820 visa, the delegate must refuse to grant that visa. That refusal is one decision. A decision regarding the Subclass 801 permanent visa cannot be made until the decision maker performs his/her statutory duty in respect of the decision to grant or to refuse to grant the Subclass 820 visa.
The fact that it follows, because of the criteria for the grant of the Subclass 801 visa, that a decision to refuse to grant the Subclass 820 visa will inevitably result in the criteria for the Subclass 801 visa not being met is, in my opinion, irrelevant. It still remains the case that the decision maker, having made a decision to refuse to grant the Subclass 820 visa, proceeds to make a decision whether or not to grant or to refuse to grant the Subclass 801 visa. That is what the decision maker is required to do under s.65 of the Act.
An applicant aggrieved by the first decision to refuse to grant him a Subclass 820 visa may seek a merits, or indeed a judicial review, in which case a decision maker will reconsider the decision whether to grant the Subclass 820 visa. It would be at odds with the process of the review if the person or Court undertaking the review considers a single decision about the refusal of the two visas. It can only consider the first decision because, if the Applicant is successful on review, the basis for refusing the Subclass 801 visa falls away. If, on review, the Applicant satisfies the criteria for the Subclass 820 visa, it is apparent that a decision about the Subclass 801 visa cannot be made at the same time because of the particular criteria applicable to the Subclass 801 visa, which is that in specified circumstances or after a period of time, the Subclass 801 visa may be granted to an Applicant.
With respect, I have not been assisted by the reliance of the Applicant on the judgment of Hayne J in Plaintiff M79. Firstly, it is a dissenting judgment. The majority in Plaintiff M79 were not required to, and did not deal, with that particular question as to whether there was a composite decision, which was not severable in the event one aspect of the decision was invalid. I do not accept the argument made by Counsel for the Applicant that the silence of the majority on this question indicates acquiescence with the opinion of Haynes J. All that can be said is that the majority did not decide that point and there is no binding authority on that point. In any event, as the Minister points out, Plaintiff M79 concerned a somewhat unique statutory scheme which the majority found excluded the application of s.65 of the Act and thereby relieved the Minister of the requirement (other than the public interest criterion) to be satisfied as to the existence or not of criteria prescribed in the Act or Regulations. The Minister was empowered to exercise his discretion under s.195A of the Act, guided by the public interest criterion only. Furthermore, Hayne J used the phrase “composite decision” in relation to a substantive and bridging visa which is permitted, by the applicable criteria, to be granted at the same time. This is in stark contrast to the criteria described in the Regulations in relation to the Subclass 820 visa and Subclass 801 visa.
For the reasons set out above, I find that two separate decisions were made by the first delegate and contained in one decision record made on 7 September 2012. The first decision was a decision to refuse to grant the Applicant a Subclass 820 visa and the second decision was a decision to refuse to grant the Applicant a Subclass 801 visa.
The fact that a second delegate of the Minister, sometime after this decision record was issued, made a further decision in relation to the Applicant’s application for a Subclass 801 visa because of an unspecified error in the first delegate’s decision, is in my view, a mere curiosity of this case and does not assist the Applicant’s case. The second delegate, in reality, having identified an error in the first delegate’s decision to refuse to grant the Applicant a Subclass 801 visa, proceeded to make a decision, having regard to the relevant applicable criteria. Counsel for the Applicant argued that the second delegate’s decision was an exercise in futility, because the Applicant was not a holder of a Subclass 820 visa. This argument overlooks the fact that the refusal to grant the Subclass 801 visa by the second delegate flowed from his finding that the Applicant did not satisfy the relevant criteria. It has no bearing, in my view, on the question as to whether or not the first delegate’s decision record comprised one decision or two separate decisions. I note here that it would be a strange result if, in circumstances where the Applicant’s merits and judicial review had been unsuccessful in relation to the first delegate’s decision to refuse to grant him a Subclass 820, a delegate then proceeded to reconsider and issue a new decision in relation to the Applicant’s same applications for both the Subclass 820 visa, as well as the Subclass 801 visa. It would create uncertainty which could not have been contemplated by Parliament.
In light of my findings, it is unnecessary to consider the further submissions of the Applicant, which depend on the Court finding that a single decision was made by the first delegate.
The decision in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
After the conclusion of the hearing, the Applicant’s solicitor, by email to my Chambers, drew the Court’s attention to a decision not referred to earlier. The decision is Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 (“Plaintiff S4/2014”).
The Applicant and First Respondent were invited to make written submissions on the relevance of this decision to the substantive proceedings.
The facts of this case are set out by the High Court as follows at [1] to [5]:
1. The plaintiff had no visa permitting him to enter or remain in Australia. On arrival in Australia, at Christmas Island, the plaintiff was lawfully taken into immigration detention. His detention was authorised by, but subject to, the Migration Act 1958 (Cth) (“the Act”). Section 46A(1) of the Act prevented him from making a valid application for any visa.
2. The Minister decided to consider whether to exercise his power under s 46A(2) of the Act to permit the plaintiff to apply for a protection visa. The Minister's department, following procedures the Minister had approved, inquired into whether the plaintiff would be eligible for a protection visa. The plaintiff remained in detention for more than two years while those inquiries were made.
3. The department determined that the plaintiff was “grant ready”. That is, the department determined that the plaintiff was a refugee and satisfied relevant health and character requirements for the grant of a protection visa.
4. Although the plaintiff had been detained for more than two years while the Minister caused inquiries to be made about whether to permit the plaintiff to make a valid application for a protection visa, the Minister made no decision to permit or refuse to permit the making of a valid application. Instead, the Minister, acting of his own motion under s 195A(2), granted the plaintiff two visas: a temporary safe haven visa and a temporary humanitarian concern visa. The temporary safe haven visa was valid for seven days. It is, therefore, convenient to refer to it as “the seven-day visa”. The other visa (“the THC visa”) was valid for three years.
5. The seven-day visa was of a type which engages the provisions of subdiv AJ (ss 91H-91L) of Div 3 of Pt 2 of the Act. One of those provisions, s 91K, prevents the plaintiff making, so long as he remains in Australia, a valid application for any visa other than a temporary safe haven visa. It was not disputed that the Minister granted the seven-day visa for the purpose of engaging the prohibition on making a valid application for any visa other than another temporary safe haven visa.
(footnotes omitted)
The High Court found that the grant of the seven day visa was invalid because the Minister had not decided, under s.46A of the Act, whether to permit the plaintiff to make a valid application for a protection visa. It held that s.195A of the Act did not empower the Minister to grant a visa, which precluded the plaintiff making a valid application for a protection visa: Plaintiff S4/2014 at [7]. The High Court said at [7] to [9]:
7. The grant of the seven-day visa was invalid. The Minister's decision to consider whether to exercise his power under s 46A(2) to permit the plaintiff to make a valid application for a protection visa prolonged the plaintiff's detention for so long as was necessary to make relevant inquiries and then make a decision under s 46A. So long as the Minister had not decided, under s 46A, whether to permit the plaintiff to make a valid application for a protection visa, s 195A did not empower the Minister to grant a visa which precluded the plaintiff making a valid application for a protection visa.
8. The decision to grant both the seven-day visa and the THC visa was a single decision which cannot be severed and treated as if there had been two separate decisions. Accordingly, the grant of the THC visa falls with the grant of the seven-day visa.
9. Counsel for the plaintiff accepted that the consequence of these conclusions was that the plaintiff would revert to the status of an unlawful non‑citizen, liable to detention. Regardless of whether the plaintiff is detained again, the decision whether to exercise power under s 46A(2) must be made as soon as reasonably practicable.
The Applicant, in his supplementary written submission, observes that the High Court delivered a unanimous judgment, of which Hayne J was a member, which characterised the decision to grant both the 7 day visa and THC visa as a single decision which could not be severed. The Applicant relied on paragraphs [7]-[9] of the judgment in Plaintiff S4/2014. The Applicant contended that the fact of there being a “single decision” to grant two visas was further discussed at [53]-[56] of Plaintiff S4/2014 as follows:
53. The Minister did not have power, in the events that had happened in this case, to grant the plaintiff the seven‑day visa which engaged the bar under s 91K to making a valid application for any visa except a further temporary safe haven visa. The grant of that visa was invalid.
54. The plaintiff submitted that the decision to grant him the THC visa can and should be severed from the decision to grant him the seven‑day visa. The plaintiff submitted that the decisions can be severed by application of s 46 of the Acts Interpretation Act 1901 (Cth).
55. It is not necessary to decide whether s 46 of the Acts Interpretation Act applies to the decision instrument which the Minister approved. The decision recorded in that instrument was a composite decision in the sense that to sever it into two distinct decisions would radically recast its nature and effect. Because that is so, if severance is possible, this is not a case in which the decision can be severed into two separate parts, one valid and the other beyond power.
56. It follows that the decision to grant both disputed visas should be quashed.
The Applicant’s supplementary written submissions as to the relevance of Plaintiff S4/2014 to the substantive proceedings are as follows:
9. The significance for the instant case is that a unanimous High Court has now applied the same reasoning of Hayne J in Plaintiff/M79. In other words, a unanimous High Court has expressly held that there may be a single “decision” under the Migration Act to grant two visas, contrary to the Minister’s principal submission in this Court.
10. The Applicant submits that, given Plaintiff S4/2014 is authority for the proposition that two visas may be granted by a single decision under the Migration Act, it is but a small step for this Court to conclude that two visas may be refused by a single decision under the Migration Act, and that is what occurred in the instant case.
11. Plaintiff S4/2014 is significant for the Applicant’s case as it effectively converts what were supportive observations of a dissenting justice in Plaintiff/M79 into unanimous authority of the High Court.
I have not, with respect, found this decision of assistance in determining these proceedings. It seems to me that Plaintiff S4/2014 was concerned with the improper exercise of the Minister’s power under s.195A of the Act and that, consequently, the invalidity of the grant of one visa tainted the other visa. In Plaintiff S4/2014, the Court noted at [5] that:
… It was not disputed that the Minister granted the seven-day visa for the purpose of engaging the prohibition on making a valid application for any visa other than another temporary safe haven visa.
I concur with the Minister’s supplementary written submissions:
7. It is also relevant to note that in Plaintiff M79 there was evidence that the Minister would not have exercised his power under s 195A of the Act if he had not been able to grant a Temporary Safe Haven visa to the plaintiff simultaneously with the grant of a Bridging E visa because the grant of the Bridging E visa on its own would have enabled the plaintiff to lodge a valid application for a protection visa without the restriction of s 46A of the Act: Plaintiff M79 at [11].
These circumstances, underlying the making of a composite decision, are clearly to be distinguished from those in the present proceeding. Furthermore, as I have reasoned earlier in respect of Plaintiff M79, the judgment in Plaintiff S4/2014 reflects the particular statutory provisions under s.195A of the Act, which are separate to and distinct from those under consideration in this matter.
As to the question of severance, I agree with the Minister’s supplementary written submissions that:
9. Further, the fate of the Subclass 801 visa cannot be said to have any bearing on the grant of the Subclass 820 visa which the applicant now seeks to have set aside on the basis that it is vitiated by jurisdictional error. It is the grant of the Subclass 820 visa which is contingent on the applicant satisfying the criteria in relation to the grant of the 801 visa, not the other way around. Therefore, it cannot be said that to “sever” the refusal to grant the 801 and 820 visa decisions into two distinct decisions, would “radically recast its nature and effect.”
Accordingly, I find that no jurisdictional error was engaged in by the Tribunal.
Conclusion
For the reasons set out in this judgment, I will dismiss the Applicant’s application for judicial review and make an order that the Applicant pay the First Respondent’s costs in a fixed amount.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 26 May 2017