Minister of State for Immigration and Multicultural Affairs v Harjanto, Rudy
[1998] FCA 703
•18 JUNE 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION LAW – review of decision of Immigration Review Tribunal – respondent granted bridging visa - respondent group member in representative proceeding – whether respondent had applied for judicial review of a decision other than a decision in relation to the grant of a visa.
Federal Court of Australia Act 1976 (Cth), Pt IVA
Migration Act 1958 (Cth), ss 30, 31, 73, 475, 476
Migration Regulations, subcl 050.212(4)(a) of Schedule 2
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1, cited
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v
RUDY HARJANTO
NG 59 of 1998
BRANSON J
SYDNEY
18 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 59 of 1998
BETWEEN:
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
RUDY HARJANTO
RESPONDENTJUDGE(S):
BRANSON J
DATE OF ORDER:
18 JUNE 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal be set aside;
The matter be referred to the Tribunal for further consideration according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 59 of 1998
BETWEEN:
MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPLICANTAND:
RUDY HARJANTO
RESPONDENT
JUDGE(S):
BRANSON J
DATE:
18 JUNE 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
In this case the applicant has sought review of a decision of the Immigration Review Tribunal (“the Tribunal”) made on 31 December 1997 whereby the Tribunal set aside a decision made by the applicant’s delegate refusing the grant of a Bridging E (Class WE) Bridging visa subclass 050 (General) to the respondent, and substituting a decision granting the respondent such visa subject to conditions.
The issue to be considered on this application is that of whether the Tribunal made a reviewable error in concluding that the respondent (“Mr Harjanto”) was a person who “has applied, within statutory time limits, for judicial review of a decision other than a decision in relation to the grant of a visa” (subclause 050.212(4)(a) of Schedule 2 of the Migration Regulations). Mr Harjanto is a group member in the representative proceeding in this Court titled Kagi v Minister of State for Immigration and Multicultural Affairs (Federal Court No. NG 1041 of 1997).
STATUTORY CONTEXT
The Migration Act 1958 (Cth) (“the Act”) provides in s 30 for two kinds of visas to remain in Australia, namely, permanent visas to remain indefinitely and temporary visas which are limited in operation. Section 31 of the Act provides for classes of visas and, by ss (3), authorises the making of regulations which prescribe criteria for a visa or a visa of a specified class.
Section 73 of the Act provides as follows:
“The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.”
It is not here in dispute that Mr Harjanto is an “eligible non-citizen” within the meaning of s 73 of the Act.
Subdivision 050.21 of Schedule 2 of the Migration Regulations specifies the primary criteria that all applicants for a bridging visa (General) must satisfy at the time of application. The criterion specified by clause 050.212(1) is that “[t]he applicant meets the requirements of subclause (2), (3), (3A), (4), (5), (6), (7) or (8)”. The Tribunal was satisfied that Mr Harjanto met the requirements of subclause 050.212(4)(a). Subclause 050.212(4) provides as follows:
“An applicant meets the requirements of this subclause if:
(a)the applicant has applied, within statutory time limits, for judicial review of a decision other than a decision in relation to the grant of a visa; or
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(c)the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b).”
The Tribunal was also satisfied that Mr Harjanto satisfied the other criteria specified by subdivision 050.21 of Schedule 2 of the Migration Regulations, and by subdivision 050.22 which specifies criteria to be met at the time of decision. No issue arises in these regards. It is not necessary to set out the terms of such criteria. The Tribunal imposed conditions upon the bridging visa to be granted to Mr Harjanto pursuant to subdivision 050.6 of Schedule 2 of the Migration Regulations. No issue arises in respect to such conditions. It is not necessary to set out the provisions authorising the imposition of such conditions.
BACKGROUND FACTS
Mr Harjanto was born in Indonesia in 1939. He arrived in Australia on 2 March 1985 as a visitor with permission to remain for two months. He has remained in Australia continuously since that time. It appears that Mr Harjanto may unsuccessfully have sought the grant of a protection visa on the ground that he was a person to whom Australia had protection obligations under the Refugees Convention. He does not hold a substantive visa and was, until the decision of the Tribunal, in immigration detention as a result of the decision of the delegate of the applicant made on 24 December 1997 refusing him a bridging visa.
On 5 December 1997 a proceeding was commenced in this Court in Kagi v Minister of State for Immigration and Multicultural Affairs under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court of Australia Act”). Part IVA allows for the commencement of a representative proceeding where seven or more persons have claims against the same person in respect of, or arising out of, the same, similar or related circumstances and the claims give rise to a substantial common issue of law or fact. Mr Harjanto is a group member in Kagi v Minister of State for Immigration and Multicultural Affairs. The claims for relief in such proceeding are claims under s 39B of the Judiciary Act 1903 (Cth) and s 476 of the Act.
The principal relief claimed in Kagi v Minister of State for Immigration and Multicultural Affairs is as follows:
“(b)A declaration pursuant to section 10 of the Racial Discrimination Act 1975 that, by reason of:-
(i)subclause 3(d) of clause 1216A of Part 2 of Schedule 1,
(ii)subclause (3) of clause 850.212 of Part 2 Schedule 2, and
(iii)clause 850.213 of Part 2 of Schedule 2
of Statutory Rules No 279 of 1997, the applicant and the other group members do not enjoy a right that is enjoyed by persons of another national origin or other national origins or enjoy a right to a more limited extent than persons of another national origin or other national origins and therefore are entitled to enjoy the rights conferred by those regulations to the same extent as persons of that national origin or those national origins.
(c) An order setting aside the decision of the respondent or his delegate to treat the application made by the applicant on 3 December 1997 as invalid and requiring the respondent to consider an application for a Resolution of Status (Residence) (Class BL) visa or a Resolution of Status (Temporary) (Class UH) visa from the applicant and each group member as valid applications notwithstanding that the applicant or any group member does not hold a passport issued by and was not a citizen of or usually resident in a country listed in clause 850 of Part 2 of Schedule 2 of Statutory Rules No 279.
(d)An order restraining the respondent, by himself or his delegates, agents or servants, from removing the applicant or any of the group members from Australia until further order.”
The effect, if made, of the declaration sought by paragraph (b) above would be to entitle the group members in the proceeding to enjoy the same rights to permanent resident status in Australia as certain persons from particular countries who, for humanitarian reasons, have previously been allowed to remain in Australia as long term temporary residents.
Identical relief to that claimed in Kagi v Minister of State for Immigration and Multicultural Affairs was sought in another proceeding brought under Part IVA of the Federal Court of Australia Act, namely Macabenta v Minister for Immigration and Multicultural Affairs (Tamberlin J, 21 April 1998, unreported). By order dated 21 April 1998 Tamberlin J dismissed the application in Macabenta v Minister for Immigration and Multicultural Affairs. An appeal to the Full Federal Court in that matter has been instituted but not yet heard. The final decision in the Macabenta Case will determine the outcome of Kagi v Minister of State for Immigration and Multicultural Affairs.
On 31 March 1998 (ie. after the date of the Tribunal’s decision) Mr Harjanto made an application for a Resolution of Status visa in reliance on the statutory rules the subject of the application for a declaration in Kagi v Minister of State for Immigration and Multicultural Affairs. His application was treated by the respondent as an invalid application.
REASONING OF THE TRIBUNAL
The reasoning of the Tribunal, so far as it is relevant to this application for review, is contained in the following paragraph from the Tribunal’s reasons for decision:
“On 5 December 1997 Mr Harjanto was joined as a member of a class in an application to the Federal Court identified as Kagi and the Minister for Immigration and Ethnic Affairs. The question of whether a similar application was sufficient to satisfy the regulatory criteria in 050.212(4)(a) was considered at length in the recent matter of Re Mohammad (IRT Decision 10963, 18 December 1997). The Tribunal adopts the reasoning in that case and accepts that Mr Harjanto has lodged an application for judicial review of a decision other than a decision in relation to the grant of a visa. He, therefore, satisfies subclause 050.212(4)(a) and hence clause 050.212.”
The reasoning of the Tribunal in the matter of Re Mohammad is contained in the following paragraph from the reasons for decision in that case:
“The first issue is whether or not the application can be considered an application for judicial review of a decision. Having regard to the observations of Branson J at the directions hearing of 19 November 1997 [in the Macabenta Case] and to the effect of the amendments, and in particular to the fact that in the transcript Mr Markus, on behalf of the Minister for Immigration and Multicultural Affairs, seemed to accept that in the words of Branson J at page 11, it would be ‘a farce’ to go through the technicality of requiring all the applicants actually to apply for a decision and be refused, it would seem strongly arguable that this can be characterised as an application for judicial review. It is clear from the wording of the application and from the discussion on 19 November 1997, that the purpose of Mr Mohammad’s involvement in the proceedings is to attempt to secure his right to apply for and perhaps gain a visa. It is the view of the Tribunal that it is appropriate, therefore, to treat Mr Mohammad’s participation in the Macabenta action as an application for judicial review.”
CONSIDERATION
It is appropriate to set out relevant passages from the transcript of the directions hearing in the Macabenta proceeding held before me on 19 November 1997.
“MR MARKUS: Your Honour, I would like to say some things about the Macabenta proceedings in general because I think it is important that your Honour understands what my client’s concerns are in relation to the proceedings. … As I understand Part 4A of the [Federal Court of Australia Act] the group members who are part of the present proceedings have to have a cause of action against my client which is substantially similar and raises significant substantial common issues which are raised in the application by the representative party.
Now, what appears to be the situation is that the only person who ever lodged an application for this particular type of visa is the representative party. None of the group members … in fact has made an application. That causes some concerns to my client for a number of reasons: First, there is an issue whether in fact there is a cause of action in relation to any one of the group members. Secondly, it raises issues of standing. …
Now, in addition to that, the applicants are seeking stays in relation to the group members. Unless the group members make an application for a substantive visa, we would say that the court would not grant a stay because the scheme of the Act is that if persons do not have a substantive visa application then there is an obligation on my client to remove these people. Now that obligation arises directly under the Act. There is no decision as such required to be made in relation to the removal of persons.
…Your Honour, … in a way the easiest way to deal with this matter would be to have the Macabenta proceedings continued not as a representative action but as an individual action so that action can run and the issue can be determined whilst these people lodge, within the next few days, applications with my client and then the new action can be commenced which, in effect, properly identifies those people who have a proper causes of action against my client.
…
MS RONALDS: … The Minister put out a press release at the time stating very specifically what the process would be and who could be covered by it. It is abundantly clear that the people, just by looking down the countries, … will not come within the regulation. What my friend seeks is that everyone pay the $2,000 to the Department. The Department then turns around and writes them that letter back; it is notional …
HER HONOUR: Yes. It is hard to work out that much public interest would be gained apart from identifying parties to Mr Markus’s client by doing that, but in a sense they are rather well identified by the schedule.
…
HER HONOUR: And of course section 33K does allow in a representative proceeding, which is different from ordinary proceedings, for reliance to be made on a cause of action that arises after the proceeding is commenced, so that in one sense you could go through that exercise, but it would be something of a farce, Mr Markus, would not it?
MR MARKUS: … Well, with respect, no, your Honour.
HER HONOUR: It is perfectly plain what your client would do. They would write back and say, no, you do not fit within the regulations.
MR MARKUS: That is probably what would happen. … Unless these people have made an application they have got no basis upon which to allege that my client has any obligation to consider their application. It just cannot be arranged by them.
HER HONOUR: Mr Markus, there must be a better way of dealing with this. We have got one firm of solicitors acting for all of these - as I understand it, there are 300 in all, and one of them has made an application, that leaves 299. There is the one solicitor who acts for all of them. One solicitor acts for your client. I would have thought that some appropriate exchange of correspondence could deal with this issue.”
The transcript reveals that Mr Markus demurred to the suggestion that some appropriate exchange of correspondence could deal with the issue of the failure of the group members, other than the party who commenced the representative proceeding, to apply to the Minister for the grant of a Resolution of Status visa. It shows, however, that he did accept that there was a real issue between the parties, and not merely a hypothetical issue.
I have set out the above passages from the transcript of the directions hearing of 19 November 1997 in the Macabenta matter to demonstrate that nothing said either by Mr Markus or me on that day has any relevance to the question of whether or not a person in Mr Harjanto’s position is to be regarded as a person who “has applied for judicial review of a decision other than a decision in relation to the grant of a visa” within the meaning of clause 050.212(4)(a) of Schedule 2 of the Migration Regulations. Mr Markus, in the above passages, was concerned, as I understand him, to raise two broad issues of concern arising out of the admitted fact that 299 of the group members in the Macabenta proceeding had made no application to the Minister for the relevant visa. His first concern was that of standing. It is fair, I think, to conclude that ultimately he made the concession that, if certain uncontentious matters were agreed by the parties, there would be a real, and not a hypothetical, issue between the parties sufficient to give the group members standing. His second concern arose out of the statutory obligation on his client to deport from Australia persons in the position of the 299 group members as none of them held a valid visa and none of them had made an application to the Minister for the grant to him or her of a visa. On this issue Mr Markus made no concession, not even to the extent of accepting that the full formalities of the Act, which include the payment by each applicant for a visa of a fee of $2,000, could be avoided by an appropriate exchange of correspondence between legal advisers. Perhaps more importantly, there is no suggestion in this case that either in respect of Mr Harjanto personally, or the group members in the Kagi proceeding as a group, there has been any such exchange of correspondence.
It is accepted that if Mr Harjanto is to be regarded as a person who “has applied for judicial review of a decision other than a decision in relation to the grant of a visa”, it can only be by reason of his being a group member in the Kagi proceeding. On behalf of Mr Harjanto it is contended first, that the Kagi proceeding is a proceeding for judicial review within the meaning of clause 050.212(4)(a) of Schedule 2 of the Migration Regulations. Secondly, it is contended that such proceeding seeks review of a decision other than a decision in relation to the grant of a visa.
Paragraph (c) of the claim for relief in the Kagi proceeding is, in my view, the only claim which could be construed as an application for judicial review. The claims for a declaration and for a restraining order are not claims for judicial review, but claims of a quite different character. Paragraph (c) seeks an order setting aside the decision of the respondent or his delegate to treat the application made by Mr Kagi for a Resolution of Status visa as invalid and requiring the respondent to consider such application as a valid application.
Section 47 of the Act provides as follows:
“(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
Section 475 of the Act classifies as “judicially-reviewable decisions” decisions made under the Act relating to visas. A decision of the Minister that an application for a visa is not valid and cannot be considered is, in my view, a decision made under the Act relating to visas. It is thus a judicially-reviewable decision within the meaning of s 475 of the Act. Such a decision may be the subject of an application for review by the Federal Court on one or more of the grounds specified by s 476 of the Act. Although it may be, although I do not decide that it is, that subclause 050.212(4)(a) of Schedule 2 of the Migration Regulations in speaking of an application for “judicial review” is not limited to applications for review under s 476 of the Act, it must be understood as encompassing such applications. The relief sought in the Kagi proceeding is sought under both s 39B of the Judiciary Act 1903 and s 476 of the Act. No strike out application has been made in respect of any aspect of the originating application in the proceedings. So far as such application seeks an order setting aside the decision of the respondent or his delegate to treat the application made by Mr Kagi for a Resolution of Status visa as invalid and requiring the respondent to consider such application as a valid application, it necessarily involves the jurisdiction of this Court under s 476 of the Act (Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1). To that extent it is, in my view, an application for “judicial review” within the meaning of subclause 050.212(4)(a) of Schedule 2 of the Migration Regulations.
As is mentioned above, the Kagi proceeding is a representative proceeding brought under Part IVA of the Federal Court Act. The proceeding has been brought by Mr Kagi representing all of the group members. That is not to say, however, that every claim for relief made in such proceeding is to be regarded as made by every group member. Section 33C of the Federal Court Act recognises that in a representative proceeding the relief sought may not be the same for each person represented. So far as the claim for relief that the order setting aside the decision of the respondent or his delegate to treat the visa application made by Mr Kagi as invalid and requiring the respondent to treat his application as valid is concerned, such claim must, in my view, be regarded as an application for judicial review made by Mr Kagi and not by the other group members. The other group members have no legal interest in that particular decision. Their interest in paragraph (c) of the claim for relief is in that aspect of the claim that seeks, in effect, an order that the respondent treat such similar applications as the group members may make or have made as valid applications. At the time of the decision of the Tribunal, Mr Harjanto had made no such application.
I conclude that the Tribunal erred in concluding that Mr Harjanto had, by reason of being a group member in the Kagi proceeding, “applied for judicial review of a decision …”.
In such circumstances, it is not strictly necessary for me to reach a decision on whether a decision by the Minister that an application for a visa is not valid and cannot be considered is a decision “in relation to the grant of a visa” within the meaning of subclause 050.212(4)(a). However, as I propose to refer this matter to the Tribunal for further consideration, it may be helpful for me to do so.
The phrase “a decision in relation to the grant of a visa” is not of clear and certain meaning. It is to be construed having regard to the context in which it is found. Other decisions on the same or similar expressions used in a different context will provide little assistance. Consideration must be given to the intended purpose of subclause 050.212(4)(a) within the framework of Subdivision AF of Division 3 of the Act and division 050 of Schedule 2 of the Migration Regulations. The purpose of bridging visas, generally speaking, is to ensure the lawfulness of a non-citizen’s presence in Australia whilst his or her application for a substantive visa is being processed or arrangements for his or her departure are being made. Clause 050.212 discloses, broadly speaking, an intention to encompass, amongst other persons, persons who have sought either merits review or judicial review of visa decisions adverse to them (subclauses 050.212(3), (3A) and (5)). As is mentioned above, a decision of the Minister that a purported visa application is not a valid application is a “judicially-reviewable” decision under the Act. There is no apparent policy reason for denying a person bridging visas whilst such a review is sought. Had subclause 050.212(4)(a) not been intended to apply to such persons, it might be expected that a phrase such as “a decision in relation to an application for a visa” would have been used rather than the phrase “in relation to the grant of a visa”. I conclude that a decision of the Minister that an application for a visa is not a valid application and cannot be considered is not, within the meaning of subclause 050.212(4)(a) a decision “in relation to the grant of a visa”.
CONCLUSION
The decision of the Tribunal will be set aside and the matter referred to the Tribunal for further consideration according to law.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the Applicant: G T Johnson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: C Ronalds Solicitor for the Respondent: Parish Patience Date of Hearing: 20 May 1998 Date of Judgment: 18 June 1998
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