MIAC v Khandakar
[2011] FCAFC 22
•28 February 2011
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v Khandakar [2011] FCAFC 22
Citation: Minister for Immigration and Citizenship v Khandakar [2011] FCAFC 22 Appeal from: Khandakar v Minister for Immigration and Citizenship [2010] FMCA 611 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v SAKIB AHMED KHANDAKAR and MIGRATION REVIEW TRIBUNAL File number: NSD 1115 of 2010 Judges: EMMETT, STONE & FOSTER JJ Date of judgment: 28 February 2011 Catchwords: MIGRATION – application to High Court seeking Constitutional writ relief in respect of ministerial decision – whether visa applicant applied for judicial review of a decision in relation to a substantive visa when application was made out of time and without extension – whether in the absence of an order under s 486A(2) of the Migration Act an application is liable to dismissal as being incompetent – whether application’s incompetence precludes it from being an application for judicial review Legislation: Constitution s 75
Education Services for Overseas Students Act 2000 (Cth) s 20
High Court Rules 2004 (Cth) rr 25.03, 25.06
Migration Act 1958 (Cth) ss 29, 31, 37, 48, 73, 116, 137J, 137K, 137L, 137N, 137P, 417, 477, 486A
Migration Regulations 1994 (Cth) regs 2.02, 2.03, 2.12, Schedule 2Cases cited: Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Khandakar v Minister for Immigration and Citizenship [2010] FMCA 611Date of hearing: 15 November 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 48 Counsel for the Appellant: S. Lloyd SC, T. Reilly Solicitor for the Appellant: Sparke Helmore Counsel for the Respondent: L. Karp Solicitor for the Respondent: Parish Patience
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1115 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: SAKIB AHMED KHANDAKAR
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
EMMETT, STONE & FOSTER JJ
DATE OF ORDER:
28 FEBRUARY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1115 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
AppellantAND: SAKIB AHMED KHANDAKAR
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
EMMETT, STONE & FOSTER JJ
DATE:
28 FEBRUARY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EMMETT, STONE & FOSTER JJ:
This appeal concerns the proper construction of a provision of the Migration Regulations 1994 (Cth) (the Regulations), made under the Migration Act 1958 (Cth) (the Act). The relevant provision states the criteria for the grant of a Subclass 050 Bridging (General) visa (a Subclass 050 visa). The relevant criterion is that an applicant for such a visa has applied for judicial review of a decision in relation to a substantive visa. More particularly, the question is whether an application to the High Court of Australia by the first respondent to the appeal (the Visa Applicant) satisfied that description.
The Visa Applicant sought Constitutional writ relief from the High Court in respect of a decision of the appellant, the Minister for Immigration and Citizenship (the Minister). However, the application to the High Court was made outside the time limited by s 486A(1) of the Act. The Minister contends that the criterion should be understood as referring only to the making of a competent application for judicial review of a relevant decision and, unless and until an extension of time is granted from the High Court under s 486A(2), the application to the High Court is incompetent.
GRANT AND REVOCATION OF VISAS UNDER THE ACT
Section 29 of the Act provides that the Minister may grant to a non-citizen permission, to be known as a visa, to do either or both of the following:
·travel to and enter Australia;
·remain in Australia.
Under s 31, there are to be prescribed classes of visas as well as the classes of visas created by the Act itself. Section 37 provides that there are classes of temporary visas, to be known as bridging visas. Bridging visas are granted under Subdivision AF of Division 3 of Part 2 of the Act. Part 2 is concerned with the control of arrival and presence of non-citizens generally and Division 3 is concerned with visas for non-citizens. Under s 73, which is in Sub-Division AF, if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa prescribed under s 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia either during a specified period or until a specified event happens.
Section 31(3) provides that the Regulations may prescribe criteria for visas of a specified class, including bridging visas. Under reg 2.03, the prescribed criteria, for the purposes of s 31(3), are set out in the relevant part of schedule 2 to the Regulations. Regulation 2.02 specifies how parts of schedule 2 are relevant to various subclasses of visas.
Schedule 2 to the Regulations provides for a Subclass 572 (Vocational Education and Training Sector) visa (Subclass 572 visa). Clause 572.6 of schedule 2 provides, relevantly, that condition 8202 may be imposed as a condition of a Subclass 572 visa. Condition 8202 is that the holder must meet the requirements of clauses 8202(2) and 8202(3). Relevantly, clause 8202(3) provides that the Minister must be satisfied that the holder attends at least 80% of the contact hours scheduled for each term and semester of the student’s course and that the holder achieves an academic result that is certified by the education provider to be at least satisfactory for each term or semester of the student’s course.
Sub-division GB of Division 3, which consists of ss 137J to 137P inclusive, is concerned with the automatic cancellation of student visas. A Subclass 572 visa is a student visa for that purpose. Relevantly, s 137J applies where a notice is sent to a non-citizen under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (the Overseas Students Act), in relation to a visa held by the non-citizen, even if the non-citizen never receives the notice. Under s 137J(2), the non-citizen’s visa is cancelled by the force of s 137J at the end of the 28th day after the day that the notice specifies as the date of the notice, unless certain events, which are not presently relevant, occur.
Section 20(1) of the Overseas Students Act relevantly provides that certain providers of educational services must send to a student of the provider a written notice (a s 20 Notice) if the student has breached a condition of a student visa relating to attendance or satisfactory performance. Condition 8202 is such a condition. The s 20 Notice must contain particulars of the breach and state that the student is required to attend an interview in person for the purpose of explaining the breach.
Under s 137K(1), a non-citizen whose visa has been cancelled under s 137J, may apply in writing to the Minister for revocation of the cancellation. However, under s 137K(5), a non-citizen cannot apply for revocation of a cancellation if he or she has previously made such an application in respect of the same cancellation.
Section 137L provides that, on an application under s 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister as to the matters there mentioned. None of those matters applies to the Visa Applicant. Importantly, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the s 20 notice or of the effect of s 137J. Under s 137N, the Minister may, on his or her own initiative, revoke the cancellation under s 137J of a particular non-citizen’s visa.
Section 48 of the Act relevantly provides that a non-citizen who does not hold a substantive visa and who held a visa that was cancelled under s 137J may, subject to the Regulations, apply for a visa of a class prescribed for the purpose of s 48, but may not apply for a visa of any other class. Regulation 2.12 prescribes various classes of visa for the purposes of s 48. Relevantly, for present purposes, Protection (Class XA) visas (protection visas) and bridging visas are prescribed. Subclass 572 visas are not prescribed.
Section 137P provides that, if the cancellation of a visa is revoked under s 137L or s 137N, the visa is taken never to have been cancelled under s 137J. However, a revocation under s 137L or s 137N does not otherwise limit or affect any other power to cancel the visa. In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under s 116, which confers on the Minister the power to cancel a visa in certain circumstances.
Schedule 2 to the Regulations provides for Subclass 050 visas. The criteria to be satisfied at the time of an application for a Subclass 050 visa include a requirement that the applicant meet one of the requirements of Subclause 050.212. For present purposes, the only relevant requirement is that contained in clause 050.212(4)(a), namely, that 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. For present purposes, a Subclass 572 visa is a substantive visa.
JUDICIAL REVIEW IN THE HIGH COURT
Section 75(v) of the Constitution relevantly provides that, in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court is to have original jurisdiction. That jurisdiction may not be removed by the Parliament or by the executive government.
Part 25 of the High Court Rules 2004 (Cth) (the High Court Rules) deals with writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto in the exercise of the original jurisdiction of the High Court under s 75(v). Under Part 25, the form of an application for an order to show cause why such writs should not issue must contain a statement of the relief that the applicant seeks and of the ground or grounds on which the relief is sought. Under rule 25.03.1, the applicant must give notice to the defendant of the hearing of an application for an order to show cause by serving the application, any affidavits in support and a summons returnable before a Justice of the High Court specifying the orders that the Justice will be asked to make. Under rule 25.03.2, the applicant must file and serve with the summons an outline of the submissions that the applicant wishes to make on the hearing of the summons. On the hearing of an application to show cause, a Justice may order that the application be dismissed, that the application be referred for further hearing by a full court or that the defendant show cause why the relief claimed and specified in the orders should not be granted on the grounds specified in the order. Under rule 25.06.1, an order to show cause why a writ of certiorari should not issue to remove an order or other proceeding into the High Court for the purpose of its being quashed must not be granted, unless the application for the order is made not later than 6 months after the date of the order or other proceeding, or within such shorter period as may be prescribed by any law.
RESTRICTION ON JUDICIAL REVIEW IN THE HIGH COURT
Part 8A of the Act deals with restrictions on certain court proceedings. Relevantly, s 486A(1), which is in Part 8A, provides that an application to the High Court for a remedy to be granted in exercise of the High 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. However, the High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
·an application for the order has been made to the High Court specifying why the applicant considers it is necessary in the interest of the administration of justice to make the order, and
·the High Court is satisfied that it is necessary in the interest of the administration of justice to make the order.
While the question of the Constitutional validity of s 486A was raised with counsel for the parties, the Visa Applicant did not contend that the provision is invalid and the Court has proceeded on the basis that there is no challenge to the validity of s 486A.
THE VISA APPLICANT’S APPLICATION FOR A BRIDGING VISA
The Visa Applicant is a citizen of Bangladesh. He was granted a Subclass 572 visa on 7 August 2003 and was subsequently granted several further Subclass 572 visas. On 12 April 2005, he was granted a further Subclass 572 visa. That visa was subject to condition 8202. On 29 March 2007, the visa was cancelled pursuant to s 137J of the Act. The s 20 Notice that gave rise to the cancellation was based on breach of condition 8202 of the Visa Applicant’s Subclass 572 visa. That notice was dated 28 February 2007.
On 21 September 2007, the Visa Applicant applied for another Subclass 572 visa. On 24 September 2007, a delegate of the Minister informed the Visa Applicant that, because his previous Subclass 572 had been cancelled, he was prohibited by s 48 from applying for another Subclass 572 visa.
On 18 January 2008, the Visa Applicant lodged an application for a protection visa. He made no claim to have a well founded fear of persecution in Bangladesh or anywhere else. However, he said that he was making the application for the purpose of asking the Minister to exercise the power conferred by s 417 of the Act. Section 417(1) provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute, for a decision of the Refugee Review Tribunal (the Refugee Tribunal), another decision that is more favourable to the applicant, whether or not the Refugee Tribunal has the power to make that other decision. However, s 417(7) provides that the Minister does not have a duty to consider whether to exercise the power given by s 417(1).
On 7 April 2008, a delegate of the Minister refused the Visa Applicant’s application for a protection visa. On 28 April 2008, the Visa Applicant applied to the Refugee Tribunal for review of that decision. The Refugee Tribunal affirmed the delegate’s decision on 1 July 2008. On 14 October 2008, the Visa Applicant requested the Minister to exercise power under s 417 of the Act. On 7 July 2009, the request to the Minister was finalised on the basis that the Minister declined to consider whether to exercise the power.
On 6 August 2009, the Visa Applicant sought to revive the Subclass 572 visa application that he had made on 21 September 2007. On 21 August 2009, that application was treated as being invalid by the operation of s 48.
On 12 January 2010, the solicitors for the Visa Applicant wrote to the Minister inviting the Minister to accept that the application for a Subclass 572 visa that had been filed on 21 September 2007 was a valid application. The letter requested that, if the Minister took the view that it was not valid, a formal statement of reasons for that decision be given, so that the issue of the validity of the application could be determined on judicial review. The Minister replied on 20 January 2010, saying that the application had previously been found to be invalid in light of the effect of s 48, given the prior visa cancellation. The letter went on to say that the Visa Applicant continued to be prevented from making a valid application in the light of s 48.
On 24 May 2010, the Visa applicant applied for a Subclass 050 bridging visa. The basis for that application was that the Visa Applicant had made an application to the High Court for judicial review of the Minister’s decision of 20 January 2010 to refuse to consider the application for another Subclass 572 visa. It will be necessary to say something more about the application to the High Court relied on by the Visa Applicant.
On 27 May 2010, a delegate of the Minister refused the visa applicant’s application for a Subclass 050 visa. The delegate found that the Visa Applicant was unable to meet any of the criteria in clause 050.212.
THE VISA APPLICANT’S APPLICATION TO THE HIGH COURT
It is common ground that the decision of the Minister refusing to consider the grant of another Subclass 572 visa to the Visa Applicant is a migration decision within s 486A(1) of the Act. Accordingly, s 486A(1) would apply to any proceeding in the High Court for judicial review of that decision.
On 30 April 2010, the Visa Applicant filed an application for an order to show cause in the High Court (the High Court Application). The Minister was named as the defendant and the proceeding was assigned number S111 of 2010.
The Visa Applicant claimed the following relief in the High Court Application:
1.That the [Minister] show cause why this Court should not make an order enlarging time, to the extent necessary, to permit the [Visa Applicant] to commence proceedings for the relief claimed in this application.
2.That the [Minister] show cause why a WRIT OF CERTIORARI should not issue, bringing the decision of the [Minister] dated 20 January 2010, refusing to accept the [Visa Applicant’s] student visa (the Decision) purportedly pursuant to s 137J of [the Act], into this Court to be quashed.
3.That the [Minister] 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 [Minister] show cause why this Court should not order that he pay the [Visa Applicant’s] costs.
He specified the following as the grounds on which that relief was claimed:
1.The notice purportedly issued on 28 February 2007 pursuant to s 20 of the [Overseas Students Act] by the [Visa Applicant’s] former education provider… upon which the cancellation of the [Visa Applicant’s] visa pursuant to s 137J of [the Act] was based, was not validly issued.
2.The application for a further student visa lodged by the [Visa Applicant] … on 12 January 2010 was validly lodged.
Particulars
(a)The [Minister] erred in finding that the [Visa Applicant] was prevented from lodging the further student visa application because of s 48 of the Act.
(b)The [Minister] erred in finding that the s 20 notice dated 28 February 2007 issued by his former education provider… was valid.
Prayer 2 of the claims for relief is nonsensical as it presently stands. The Minister accepts that it should be understood as if the word “application” were to be inserted after the word “visa”. The Visa Applicant’s complaint appears to be that the original Subclass 572 visa was not validly cancelled and that, therefore, s 48 did not preclude the making of a further application for a Subclass 572 visa. Presumably, the original Subclass 572 visa had come to an end according to its terms by the time of the letter of 12 January 2010 from the Visa Applicant’s solicitors. However, if it was validly cancelled under s 137J, s 48 would clearly preclude the making of an application for a further Subclass 572 visa. The High Court Application is singularly unhelpful in identifying why the s 20 Notice that gave rise to the purported cancellation was invalid.
REVIEW OF THE MINISTER’S DECISION TO REFUSE A BRIDGING VISA
On 27 May 2010, the Visa applicant filed an application to the Migration Review Tribunal (the Migration Tribunal) for review of the delegate’s decision of that date refusing to grant him a Subclass 050 visa. On 7 June 2010, the Migration Tribunal made a decision affirming the delegate’s decision. The Migration Tribunal was not satisfied that the Visa Applicant satisfied any of the requirements of clause 050.212. Specifically, the Migration Tribunal found that the High Court Application did not satisfy the requirement of clause 050.212(4)(a).
On 23 June 2010, the Visa Applicant commenced a proceeding in the Federal Magistrates Court, seeking Constitutional writ relief in respect of the decision of the Migration Tribunal. An amended application was filed on 2 August 2010. The only ground relied on in the amended application was that the Migration Tribunal erred in finding that the High Court Application did not satisfy the requirement of clause 050.212(4)(a). The Migration Tribunal was a submitting party before the Federal Magistrates Court. The Federal Magistrate (the primary judge) gave his decision on 9 August 2010 (Khandakar v Minister for Immigration and Citizenship [2010] FMCA 611). The primary judge held that the High Court Application satisfied the requirement laid down in cl 050.212(4)(a) and granted writs of Certiorari and Mandamus.
It was common ground before the primary judge that a prayer for the grant of Constitutional writ relief under s 75(v) of the Constitution could be characterised as an application for judicial review, for the purposes of the requirement of clause 050.212(4)(a). However, the parties proceeded on the basis that a prayer for an order under s 486A(2) could not, of itself, be characterised as an application for judicial review. The Visa Applicant contended that the inclusion of prayers for both kinds of relief in the High Court Application meant that the High Court Application could be characterised by reference to the substantive relief sought under s 75(v) of the Constitution, being the relief claimed in prayers 2 and 3.
The primary judge observed that it is common practice for courts, when exercising a power to extend time, to accept one initiating process seeking both the extension of time and the substantive relief. Courts commonly address such combined applications by granting extensions of time nunc pro tunc. An extension may be granted at an interlocutory stage or on the final hearing of the application for substantive relief. Such a procedure is common place, if not necessarily normal, in the Federal Magistrates Court, in exercising jurisdiction under the Act. The Federal Magistrates Court’s approved form of application incorporates prayers for substantive relief together with a reference to an application for an extension of time under s 477(2) of the Act, which is the equivalent of s 486A in relation to the Federal Magistrates Court.
In the absence of an order under s 486A(2), the High Court Application may be liable to dismissal as being incompetent. Nevertheless, the primary judge held that the High Court would have power, in the course of dealing with the application, either at an interlocutory hearing or at a final hearing on all issues, to extend time under s 486A nunc pro tunc up to the date of the filing of the High Court Application. His Honour was of the view that clause 050.212(4)(a) contemplated that the characterisation of an application to a court for judicial review would depend upon an assessment of the terms of the relief sought in the application, rather than upon the decision maker deciding whether the giving of that relief would be within the power of the relevant court. His Honour was of the view that it was unlikely that the drafter of clause 050.212(4)(a) intended that an administrative officer would decide the competency of a proceeding, before that question was addressed by the relevant court. His Honour considered that that question had particular pertinence when the court in question is the High Court and the judicial review jurisdiction is in that court’s original jurisdiction under s 75(v) of the Constitution, since the competency of an application invoking original jurisdiction under s 75(v) may not necessarily be determined merely by a statutorily imposed time limit.
Section 486A, as originally enacted, imposed an inflexible mandatory time limit, which allowed no room for a discretionary consideration of reasonable excuses for delay and consideration of the overall justice of entertaining an application for relief under s 75(v). That provision was invalid because it purported to preclude the original jurisdiction of the High Court under s 75(v) and, therefore, subverted the purpose of the remedy provided by s 75(v). The question of whether a time limit subverts the Constitutional purpose of the remedy provided by s 75(v) can be dealt with by conferring a discretion to grant or withhold the remedy. That is the approach taken by the High Court Rules and the jurisprudence in the High Court (see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [57] to [60]).
The primary judge postulated that the approach adopted by the current form of s 486A was intended to recognise and guide the exercise by the High Court of its original jurisdiction and not to preclude the High Court from a full consideration of the justice of entertaining an application made out of time and from extending time whenever that appeared to be required. That consideration suggested, in his Honour’s view, that there was no intention expressed in s 486A or elsewhere in the Act to allow the characterisation of an application of 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). His Honour considered that the procedures for obtaining Constitutional writ relief from the High Court, which s 486A was intended to regulate, were understood as encompassing powers of the High Court to give extensions of time nunc pro tunc, where an application for Constitutional writ relief would otherwise be incompetent by reason of s 486A(1).
Accordingly, the primary judge concluded, clause 050.212(4)(a) should be construed as not requiring the administrative decision maker to go further than the characterisation of the relief claimed in an application to the High Court, to determine whether that relief included prayers under s 75(v) of the Constitution. His Honour considered that the clause did not contemplate that a decision maker should characterise a pending application to the High Court as not being an application for judicial review, merely because an extension of time might be required to render that proceeding competent. His Honour held that the intended characterisation was essentially a characterisation of the terms of the document filed, and that it was irrelevant to take into account the decision maker’s opinion as to whether the High Court might or might not extend time, either under rule 25.06.1 of the High Court Rules or under s 486A(2) of the Act, so as to render a proceeding competent.
The primary judge concluded that the decision of the Migration Tribunal was affected by jurisdictional error, in misconstruing the clause 050.212(4)(a). Accordingly, orders were made on 9 August 2010 that:
·a writ of certiorari issue directed to the Migration Tribunal, to quash the decision of the Migration Tribunal made on 7 June 2010.
·a writ of mandamus issue directed to the Migration Tribunal, requiring the Migration Tribunal to determine according to law the application for review of the decision of the Minister’s delegate dated 27 May 2010.
The form of the first order is curious. A writ of certiorari does not quash a decision. A writ of certiorari would do no more than bring the record of an inferior tribunal into the Court for the purpose of considering whether or not to quash a decision of the tribunal. The appropriate order would have been that the decision of the Migration Tribunal in question be quashed or set aside.
THE APPEAL
The Visa Applicant’s claim is that the decision of 20 January 2010, refusing to grant a new Subclass 572 visa, was made on an erroneous basis, namely, that his original Subclass 572 visa was validly cancelled under s 137J. He claims that the relevant s 20 Notice was invalid, although the reasons why the s 20 Notice was not valid have not been articulated. The material before the Court does not disclose when the Visa Applicant’s Subclass 572 visa expired. No argument has been advanced as to what the position might have been had the original Subclass 572 visa still been on foot at 20 January 2010 and had not been validly cancelled under s 137J. It seems unlikely that it would have been open to grant a second Subclass 572 visa while the original one was still on foot. Whatever the position may be as to that question, the Minister accepts, for the purposes of this appeal, that, but for the absence of an extension of time under s 486A(2), the High Court Application would, by reason of the inclusion of prayers 2 and 3, be an application for judicial review of a decision in relation to a substantive visa.
However, by his amended notice of appeal, the Minister contends that the Federal Magistrates Court erred in finding that the Migration Tribunal had committed jurisdictional error, by misconstruing clause 050.212(4)(a). The Minister says in the amended notice of appeal that, unless and until an extension is granted by the High Court pursuant to s 486A(2) of the Act, the High Court Application is not an application for judicial review within clause 050.212(4)(a) but is only an application for an extension of time within which to make an application for judicial review. The Minister says that the Migration Tribunal was correct so to hold and that the Federal Magistrates Court was in error in holding that the Migration Tribunal had erred.
RESOLUTION OF THE APPEAL
If s 486A(2) were invalid, there could be no doubt that the requirement of clause 050.212(4)(a) was satisfied. However, as indicated above, there is no challenge to the validity of s 486A(2). Further, it has not been suggested by the Minister that the High Court would not or could not grant an extension under s 486A(2). Nor did the Minister suggest that, if an order were made under prayer 1 of the High Court Application, the competence of the High Court Application would in any way be in question.
The Minister accepts that it would be open to the High Court to deal with prayer 1 prior to dealing with prayers 2 and 3 or to deal with prayers 1, 2 and 3 at one substantive hearing. The High Court might dispose of the matter by refusing an extension of time and then dismissing the application without consideration of the substantive question raised by prayers 2 and 3. Alternatively, the High Court might extend the time, give consideration to the merits of prayers 2 and 3 and then either grant the relief claimed or dismiss the application, on the basis that no jurisdictional error had been demonstrated or that, in the exercise of its discretion, the relief claimed would not be granted.
The essence of the Minister’s contention is that the phrase “has applied for” in clause 050.212(4)(a) should be construed as meaning “has made a competent application for”. He says that, at the time when the application for a Subclass 050 visa was made, there was no competent application before the High Court because an extension had not, at that time, been granted under s 486A(2), notwithstanding that it may well be open to the High Court to grant such an extension, which would thereby render the High Court Application competent. Such an order would operate nunc pro tunc, such that the High Court Application would be treated as competent from the time when it was filed.
The Minister drew attention to the distinction, in relation to time limitations on applications for judicial review, between a limitation that bars an existing cause of action and a limitation that imposes a condition, which is the essence of a new right (see Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364 at [20] to [23]). The Minister accepts that s 486A(1) is of the former kind, since the right to seek a remedy in the High Court’s original jurisdiction is created by s 75(v) of the Constitution and not by s 486A or any other provision of the Act.
The Minister contends that the effect of s 486A(1) is that an application for judicial review must be made within the period there stated and an application for judicial review may not be made outside that period. Thus, the provision imposes a constraint on the making of judicial review applications. It follows, he says, that once the period stated in s 486A(1) has expired and before an extension of time has been ordered, no valid or lawful application for judicial review can be made in the High Court. All that can be made is an application for an order under s 486A(2). While, in practice, the application may be in the form of an application to show cause, indicating the grounds of review that would be pursued if an extension is ordered, he says that such an application is not an application for judicial review that has been competently made, until such time as an extension has been granted.
The Minister says that, if a person has not made a competent application for judicial review, then that person has not applied for judicial review. One can only apply for judicial review by making an application to a court with jurisdiction to give a judicial review remedy. However, he says, until such time as the Visa Applicant is granted an extension under s 486A(2), it cannot be said that he has applied for judicial review: it is only when an extension is granted that the Visa Applicant could be said to have applied for judicial review within the meaning of clause 050.212(4)(a). If the extension is not granted, the High Court Application will be dismissed as incompetent because it is out of time, not because it is an application for judicial review that has been rejected. Such a dismissal would be interlocutory and would not determine rights that may have been determined in a judicial review proceeding.
The Minister says that to treat an application for an extension of time as an application for judicial review gives no effect to the key words of s 486A(1). That may be correct, if there were no prayer for substantive relief appended to the application for an extension of time. However, that is not the question.
The approach that should be adopted in construing a statutory provision such as clause 050.212(4)(a) is to consider the relevant language in context at the outset and not only after some perceived ambiguity has arisen. That context includes the object of the clauses of schedule 2 in specifying criteria for the grant of visas, including Subclass 050 visas. The clear object of the grant of a sub-class 050 visa, on the basis of that provision, is that a non-citizen who wishes to challenge, by way of a proceeding for judicial review, a decision to refuse to grant a substantive visa, will be permitted to remain in Australia, and not be subject to compulsory removal under the Act, until there has been final judicial determination of that challenge. Clause 050.212(4)(a) makes no reference to the bona fides of the proceeding for judicial review or to the merits or prospects of success of such a proceeding. The only requirement is that such a proceeding has been commenced and is still on foot.
Clause 050.212(4)(a) should not be given an overly technical construction that involves reading it as though it is only where there has been a competent application, or one that is not precluded by s 486A(1) or s 477(1), that the requirement will be satisfied. The reasoning of the primary judge was correct. The High Court Application satisfies the requirement that the Visa Applicant has applied for judicial review of a decision in respect of a substantive visa.
CONCLUSION
The appeal should be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Stone and Foster. Associate:
Dated: 28 February 2011
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