Oraha v Minister for Immigration
[2020] FCCA 154
•30 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ORAHA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 154 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal misconstrued cl.572.211(2) in Schedule 2 to the Migration Regulations 1994 (Cth) – whether the criterion that an applicant be “the holder of a visa” of a specified class or subclass extended beyond a valid substantive visa to an ostensible but not actual visa represented to the holder by the Department – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.29, 82, 359A Migration Regulations 1994 (Cth), cl.572.211 |
| Cases cited: Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 The Commonwealth v Baume (1905) 2 CLR 414; [1905] HCA 11 |
| Applicant: | CLAUD ORAHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2574 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 5 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Unisaj Legal |
| Counsel for the Respondents: | Mr Swan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2574 of 2016
| CLAUD ORAHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These Proceedings
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 August 2016 affirming a decision of a delegate of the First Respondent not to grant Mr Oraha a Student (Temporary) (Class TU) visa.
As discussed below, the Tribunal found that at the time of his application Mr Oraha did not meet the criterion in cl.572.211(2) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the grant of a Subclass 572 Student visa.
The Applicant’s contention is that, as a matter of law, the then applicable criterion for the grant of a Subclass 572 visa in cl.527.211(2)(a) (which required a visa applicant to be “the holder of a visa of one of the following classes or subclasses…”) extended beyond a valid substantive visa to a permission “to travel to and enter Australia” (see s.29 of the Migration Act 1958 (Cth) (the Act)) purportedly granted by the Minister.
Background
On 15 December 2014, Mr Oraha, a citizen of Germany, was granted an Electronic Travel Authority (ETA) permitting him to enter Australia on multiple occasions within a 12 month period and to remain in Australia after each entry for 3 months. An ETA is a class of visa (Class UD) in which the only subclass is Subclass 601 (see cl.1208A in Schedule 1 to the Regulations).
According to departmental movement records annexed to an affidavit of Nicholas Arthur Anderson (a departmental legal officer who manages the conduct of litigation, maintains the Department’s databases and systems and provides instructions to external panel firms) affirmed on 1 March 2019, on 18 December 2014 Mr Oraha entered Australia as the holder of the ETA granted on 15 December 2014.
On or about 24 February 2015 Mr Oraha applied for what was described on the application form as a “Visitor visa – Tourist stream” that is, a Class FA, Subclass 600 Visitor (Tourist Stream) visa (referred to hereafter as a Visitor visa). This is a different class of visa to an ETA. A copy of this application (signed by Mr Oraha on 20 February 2015) is in evidence as an annexure to Mr Anderson’s affidavit. In the application form Mr Oraha stated that he was applying for this visa while in Australia and wished to extend his stay in Australia until 17 June 2015 to have the opportunity to spend more time with his family. He provided a copy of a page from his passport recording the 15 December 2014 “ETA Approval”.
By letter to Mr Oraha of 25 February 2015 the Department acknowledged that this application was a valid application for a Visitor visa. In addition, Mr Oraha was notified that he had been granted a Bridging A visa on 24 February 2015. The notification letter stated that the Bridging visa was to allow Mr Oraha to remain in Australia during the processing of his application for a Visitor visa, but that it was not in effect at that time because his ETA was in effect.
Mr Anderson’s searches of departmental records also revealed a “Case Assessment” casenote dated 26 February 2015 recording that all requirements for the grant of a Visitor visa were met by Mr Oraha and stating “satisfied for grant until: 19/06/2015”.
There is no evidence before the court of any written notification to Mr Oraha of the grant of a Visitor visa in February 2015. However according to a departmental database screenshot annexed to Mr Anderson’s affidavit, a Visitor visa was granted to Mr Oraha on 26 February 2015 and was in “effect until” 19 June 2015. This record states that the “initial stay date” was “19/06/2015”, that Mr Oraha must not arrive after “19/06/2015” and that the period of stay was “20150619 (sic)”. Mr Anderson believes on the basis of this information that Mr Oraha’s Class FA Subclass 600 Visitor visa was granted on 26 February 2015 and ceased on 19 June 2015. This was not disputed in these proceedings.
Another screenshot from the departmental database relates to the ETA that was granted to Mr Oraha on 15 December 2014. It records that this visa “ceased” and that it had a “status date” and “effect until” 26 February 2015.
Mr Anderson’s unchallenged explanation of this screenshot from the Integrated Client Services Environment (ICSE) database is that he believes on the basis of this information that the ETA granted to Mr Oraha on 15 December 2015 ceased on 26 February 2015 (the date shown in departmental records as the date of grant of a Visitor visa to Mr Oraha). This is consistent with the fact that under s.82(2) of the Act “[a] substantive visa held by a non-citizen ceases to be in effect if another substantive visa… for the non-citizen comes into effect”.
On 18 June 2015 Mr Oraha departed Australia. Departmental movement records show that he did so as the holder of a Visitor visa.
Mr Oraha re-entered Australia on the morning of 19 June 2015, that being the date on which his Visitor visa would expire (at midnight). According to the movement records he entered Australia on 19 June 2015 as the holder of a Visitor visa.
Student visa application
On 26 August 2015 Mr Oraha applied for a Student visa. At that time, the relevant subclass was Subclass 572. It is that application that is the subject of these proceedings. In his application form Mr Oraha stated that he held a “visitor visa” granted on 25 (sic) February 2015. The visa grant number Mr Oraha provided was the number which appears on the Bridging visa grant notice sent to him on 25 February 2015 with the acknowledgement of his Visitor visa application.
At the time of Mr Oraha’s Student Visa application, time of application criteria for a Subclass 572 Student visa were contained in cl.572.211 in Schedule 2 to the Regulations (which has since been repealed). It relevantly provided:
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) An application meets the requirements of this subclause if the applicant is:
(a) the holder of a visa of one of the following classes or subclasses:
…
(v) Electronic Travel Authority (Class UD);
…
(xxi) Subclass 600 (Visitor);
…
(3) An applicant meets the requirements of this subclause if:
(a) the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa; or
(ii) a special purpose visa; or
(iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or
…
(v) a Subclass 497 (Graduate – Skilled) visa; and
(c) the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:
(i) the day when that last substantive visa ceased to be in effect; …
…
and
(d) the applicant satisfies Schedule 3 criterion 3005.
On 15 October 2015 a delegate of the First Respondent refused Mr Oraha’s application for a Student visa on the basis that he did not satisfy cl.572.211(2) in Schedule 2 to the Regulations because his last substantive visa (described in the delegate’s reasons for decision as a Subclass 600 Visitor visa) had ceased on 19 June 2015. Hence Mr Oraha was not the holder of a substantive visa at the time he lodged his Student visa application on 26 August 2015. Further, the delegate found that Mr Oraha did not meet the alternative criteria in cl.572.211(3) in Schedule 2 to the Regulations or satisfy the criteria for any other subclass of Student visa.
Mr Oraha sought review of the delegate’s decision on 28 October 2015.
On 5 April 2016 the Tribunal invited Mr Oraha to attend a hearing on 11 May 2016. On 2 May 2016 Mr Oraha’s agent wrote to the Tribunal claiming that, contrary to the delegate’s decision, he was the holder of a substantive visa at the time of his Student visa application “as he had departed Australia before the end of his visa and re-entered on 19 June 2016”. Mr Oraha provided the Tribunal with a copy of pages from his passport which included the ETA approval. Mr Oraha’s agent asked the Tribunal to re-check his migration status and the validity of his visa at the time of his Student visa application.
Mr Oraha and his migration agent attended the Tribunal hearing.
On 17 May 2016 a Tribunal officer sent an email request for information to the Department, stating that Mr Oraha had advised during the Tribunal hearing that when he entered Australia on 19 June 2015 his “tourist visa” was renewed for another 3 months. However the Tribunal could find no record of this in movement records or in the ICSE departmental records. The email noted that the movement records showed that Mr Oraha had departed Australia on 18 June 2015 and that he was permitted to re-enter on 19 June 2015, although it also showed that his Visitor visa expired on 19 June 2015. The Tribunal officer suggested that it was “unlikely” that the Applicant would have been permitted to re-enter Australia with a visa that was expiring the same day and asked the Department to confirm if the records were correct or if information was missing.
On 31 May 2016 a departmental officer responded that the Tribunal’s request for information had been sent to Movement Records “for confirmation” and observed that the Applicant’s previous “tourist visas (sic)” had allowed for a 3 month stay on each arrival, but that ICSE showed “that the entry and stay period for his FA 600 did cease on 19 June 2016 (sic) (always at midnight)”. It is apparent that the reference to 19 June 2016 is a typographical error and is intended to refer to 19 June 2015.
Later that day the departmental officer advised the Tribunal that Movement Records had advised that Mr Oraha’s “pax card for the 19/06/2015 stated the stay period as being for 3 months. The FA-600 visa was ceased on 19/06/2015”. The departmental officer observed that she was not sure why ICSE was showing the stay period part of the visa as having ceased. The references in this correspondence to a FA-600 visa are references to the Visitor visa granted to Mr Oraha in February 2015.
On 26 July 2016 the Tribunal wrote to Mr Oraha through his agent, inviting him to comment on information under s.359A of the Act. The s.359A letter recorded that at the hearing Mr Oraha had submitted that, contrary to the delegate’s findings that he was not the holder of a substantive visa at the time of his Student visa application of 26 August 2015, he was in fact the holder of a “Tourist Subclass 600” visa [a Visitor visa] on that date. However it was also acknowledged that he had previously submitted, “[i]n support of” that submission, a photocopy of the passport record of the ETA granted on 15 December 2014 which stated that it was valid until 15 December 2015 and allowed multiple entries for periods of stay of 3 months as well as evidence of his departure from Australia on 18 June 2015 and return on 19 June 2015.
The letter recorded that the Tribunal had received information from the Department that Mr Oraha’s Visitor visa in fact ceased on 19 June 2015. It was put to him that this was relevant because this may indicate that he was not granted a further 3 month “entry period” when he arrived in Australia on 19 June 2015 and that at the time he applied for his Student visa he was not the holder of a substantive visa. The letter also suggested that as Mr Oraha’s previous substantive visa (the Visitor visa which the Tribunal described as a “Tourist Subclass 600” visa), was not one of the visa classes listed in cl.572.211(3) in Schedule 2 to the Regulations, this may indicate that he did not satisfy the requirements of cl.572.211.
In a response of 9 August 2016 the Applicant’s agent advised that Mr Oraha had stated that he arrived in Australia on an ETA on 18 December 2014 which was valid for 1 year and allowed him to stay for 3 months after each entry. He claimed that in February 2015 he had applied for “an extension of 3 months”. It was claimed that although he did not have any “paper” from that application, when he went to make enquiries in March 2015 he was told to check his visa status on the departmental website. He claimed he checked it and realised that “the extension” had been granted. He claimed that “at the end of [his] visa extension period” he had departed Australia and re-entered on 19 June 2015 and then made an application for a Student visa on the basis that he was the holder of a substantive visa. He claimed that he had “nothing to suggest” that his visa had ceased on 19 June 2015.
The Tribunal Decision
In its reasons for decision the Tribunal stated that the issue before it was whether the Applicant satisfied cl.572.211 in Schedule 2 to the Regulations, specifically subclause 572.211(2) or subclause 572.211(3).
The Tribunal referred to the s.359A letter and to the Applicant’s response of 9 August 2016, as well as to his previous submission of 2 May 2016.
The Tribunal noted that the departmental movement records indicated that at the time of his Student visa application (26 August 2015) the Applicant was not the holder of any Australian visa. It recorded that this was because his previous “Tourist visa” had ceased at midnight on 19 June 2015, the day on which he returned to Australia and the next visa he held was a Bridging visa granted on 27 August 2015.
The Tribunal continued:
13. There are a number of somewhat puzzling aspects to the evidence before the Tribunal in this case, among which there is no explanation for the Department’s actions in allowing the Applicant to re-enter the country on 19 June 2015 on a visa which was to cease in a matter of hours, a decision which would almost inevitably lead to him being unlawfully in Australia from the next day. Put alternatively, there is no explanation as to why his visa ceased on 19 June 2015 and not extended for a further 3 months, as it had been extended before and as was provided for in his Electronic Travel Authority. It is possible to speculate that this situation may have been brought about by simple error but, in the absence of further information, the Tribunal accepts that, for reasons which have not been explained, the Department took a deliberate decision not to extend the applicant’s visa when he returned to Australia on 19 June 2015.
14. The Tribunal has some sympathy for the applicant in these circumstances and accepts that he may have been unaware of the situation when he applied for his student visa some two months after his return to Australia. The Tribunal nevertheless finds, having considered his responses and the other information before it, that his student visa application was made in Australia and that he did not hold a visa of any kind at that time. On this basis the Tribunal finds that the applicant does not satisfy the requirements of cl.572.211(2). Further, having reviewed subparagraph (b) of cl.572.211(3) the Tribunal is satisfied that the last substantive visa held by the applicant – a Tourist Subclass 600 visa – is not one of the visa subclasses listed there. The Tribunal finds on this basis that the applicant does (sic) satisfy the requirements of cl.572.211(3). Accordingly, the Tribunal finds that the applicant does not meet cl.572.211 as a whole and cannot be granted a subclass 572 visa.
No issue was taken in relation to the absence of the word “not” in the second last sentence to paragraph 14. It is not disputed that the Tribunal was finding (as clarified in the previous and subsequent sentences) that the Applicant did not meet cl.572.211(3) in Schedule 2 to the Regulations because a Class FA, Subclass 600, Visitor (Tourist Stream) visa was not a visa specified for the purposes of cl.572.211(3).
The ground of review
The Applicant sought judicial review of the Tribunal decision by application filed on 22 September 2016. He now relies on an amended application filed on 3 November 2017. There is one ground in the amended application. It is as follows:
1. The Tribunal made a jurisdictional error by purporting to apply Cl.572.211 (2) of Sch: 1 to the Migration Regulations 1994 (Cth) regulation.
Particulars:
a. The Tribunal found that, as a matter of fact, the Applicant was allowed to re-enter the migration zone on 19th June 2015 as if his Electrical Travel Authority were valid for a further 3 months.(Para:13).
b. The Tribunal nonetheless found that the Applicant did not hold a substantive visa within the meaning of Cl.572.211 (2) of the regulations.
c. The Tribunal misconstrued Cl572.211 (2) of the regulations as, properly understood, the clause extends beyond a valid substantive visa to an ostensible but not actual such visa represented to the holder by the Department.
(errors in original)
Counsel for the Applicant explained that the issue raised in this case was the meaning of the term “visa” in cl.572.211(2)(a) in Schedule 2 to the Regulations. It was pointed out that s.29(1) of the Act contains a general definition of the term “visa”, as follows:
(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
It was acknowledged that it was beyond doubt that cl.572.211(2)(a) used the term “visa” in a primary sense, as meaning a permission validly granted by the Minister as a matter of law.
There was no suggestion that Mr Oraha in fact held a valid visa as at the date he applied for the Student visa. Rather, there was said to be an issue as to whether cl.572.211(2)(a) used the term “visa” in an additional sense, that is, to encompass a permission purportedly granted by the Minister as a matter of fact, even if permission had not been validly granted by the Minister as a matter of law. It was submitted that the visa criterion in cl.572.211(2) ought to be read as extending to a “visa” in this additional sense. The Applicant submitted that it was open to this court to read cl.572.211(2)(a) in this way under the terms of s.29 of the Act, on the basis of reading the grant of “permission” referred to in that section as extending beyond an actual or valid grant of permission to a purported and ostensible grant of permission.
In other words, it was contended that if the Minister gave “every appearance” of having granted permission of the nature referred to in s.29(1) of the Act, then that appearance was enough to satisfy cl.572.211(2)(a) in Schedule 2 to the Regulations.
The Applicant submitted that there was good reason for construing the word “visa” in s.29 of the Act with such suggested amplitude, to extend to a purported and ostensible grant of permission, on the basis that a harsh result could be an “adequate foundation” for favouring the meaning of language appearing in legislation. Ahmad v Minister for Immigration and Border Protection (2015) 237 FCR 365; [2015] FCAFC 182 at [110] was cited in support of this proposition. Such a harsh result was said to arise in this case because the conduct of the Minister towards a person indicated that that person was the holder of a visa but, beyond the knowledge of the person and with no indication from the Minister, the person was not in fact the holder of a valid visa.
Mr Oraha contended that if the court accepted this argument, the matter should be remitted to the Tribunal to apply the suggested construction and that the Tribunal could receive additional evidence from him as to his state of mind upon entry into Australia. There is no evidence before the court as to Mr Oraha’s state of mind upon entry into Australia on 19 June 2015, apart from what appears in the courtbook. It was submitted, however, that it was enough for the purpose of these proceedings for the Applicant to state that if his construction was accepted it was possible that the facts of his situation could result in him satisfying the criterion in cl.572.211(2)(a) of the Regulations.
There was some apparent confusion about the difference between an ETA and a Visitor visa in the Applicant’s initial submissions, in so far as it was submitted that each entry to Australia under an ETA gave rise to a Tourist Subclass 600 visa (that is, a Visitor (Tourist Stream) visa). However in oral submissions counsel for Mr Oraha acknowledged that each ETA entry did not give rise to a Visitor (Subclass 600) visa. It was also accepted, on the basis of the Departmental records referred to in and annexed to Mr Anderson’s affidavit, that when Mr Oraha arrived in Australia in December 2014 as the holder of the ETA (Subclass 601) visa he was only permitted to remain for up to 3 months on each entry and that it was apparent that he had in fact applied for a Visitor, Subclass 600 (Tourist Stream) visa in February 2015, not an extension of his ETA.
It also appeared to be conceded that, given that Mr Oraha did not depart Australia until 18 June 2015 (when the ETA granted in December 2014 allowed a stay of only 3 months), he must be taken to have known that for the 3 months prior to 18 June 2015 he was not present in Australia on the ETA and that although there was no evidence in the material before the court of notification to him of the grant of the Visitor visa in February 2015, it might be inferred that Mr Oraha knew that he was present in Australia on a Visitor visa during the period from late February to 18 June 2015.
It was nonetheless submitted that it was relevant that on its face the ETA granted in December 2014 was valid until 15 December 2015. While it was accepted that as a matter of law Mr Oraha’s ETA in fact ceased to be in effect upon the grant to him of a Visitor visa in February 2015 (see s.82(2) of the Act), counsel for Mr Oraha pointed out that there was no evidence of any express communication to that effect by the Department to Mr Oraha. It was contended that in these circumstances a question arose as to what Mr Oraha could reasonably take from having been permitted to enter Australia on 19 June 2015 in the absence of evidence of any explicit communication that his ETA had ceased. Mr Oraha submitted that he could reasonably take it that he still held the ETA and that therefore, pursuant to the ETA, upon being granted entry he could lawfully remain in Australia for up to 3 months. Such representation was said to arise as a matter of fact.
Counsel for Mr Oraha acknowledged that his case depended, on a factual level, on there being what might be described as a “representation” at the moment of Mr Oraha’s re-entry into Australia on 19 June 2015 that he was lawfully present in Australia at least for a period beyond midnight on that day and, it was suggested, for a period of up to 3 months. It was suggested that, without some explicit indication that Mr Oraha was only going to be lawfully in Australia until midnight on the day of his arrival, what he could reasonably have taken from the administrative conduct of allowing his re-entry to Australia was that he was lawfully present in Australia for a period of up to 3 months. It was conceded that if the court was not persuaded as a matter of fact that the Department’s administrative conduct could reasonably be understood in this way then the point of law relied on in the ground of review would not arise.
It was clarified that Mr Oraha was not contending that the act of being granted entry to Australia and the understanding that could be derived from the circumstances of his entry of itself granted him lawful status. It was conceded that what had occurred did not alter the fact that Mr Oraha was an unlawful non-citizen from midnight on 19 June 2015, whatever he might have believed. There was said to be no suggestion that the binary status referred to by Hayne J in Plaintiff M47/2002 v Director General of Secretary (2012) 251 CLR 1; [2012] HCA 46 at [176] – [178] (that one is either a lawful non-citizen or a unlawful non-citizen) was displaced.
In other words, the Applicant acknowledged that even if the Department’s conduct gave every indication of conveying that a person was a lawful non-citizen, this did not alter the fact that such person was an unlawful non-citizen if that was the case under the Migration Act. It was explained that the contention relied on in these proceedings was limited to the effect of a representation of the nature contended for, in circumstances where what was in issue was an application for a visa, a criterion for which was the holding of a visa. In this case there was said to be no indication that could reasonably be taken from the circumstances, other than that the Applicant had been permitted to enter under the ETA for a further 3 months and that his course of conduct, including the timing of his application for a Student visa, was consistent with such a view.
Mr Oraha submitted that to the extent that a person applied for a subsequent visa, a condition of which was that the applicant was the holder of a visa at the time of the application (as here), if the Minister gave every appearance of having granted permission within s.29 of the Act conveying that the applicant was the holder of a visa, then that sufficed for the purpose of satisfaction of a criterion for the grant of a visa such as the criterion in cl.572.211(2)(a) in Schedule 2 to the Regulations.
According to the Applicant, the question of construction was a question of the ambit of the term “visa” in cl.572.211(2)(a) in Schedule 2 to the Regulations. It was submitted that it was not a question of the meaning of the word “holder” (which, it was accepted, had to be read in light of other statutory provisions which referred back to the grant of a visa). The point in issue was said to depend first on the court finding that the Applicant could reasonably have understood that he was being permitted to enter on the ETA and secondly on the question of law raised in relation to the ambit of the term “visa”.
The Applicant submitted that in addition to its primary sense of a validity granted permission to remain in Australia, “visa” ought to be read in the context of cl.572.211 as including, in order to avoid harsh consequences that would otherwise follow, the secondary sense of a purported or ostensible permission.
It was submitted that it would be a harsh result for the Applicant to be placed in a position where he thought he held a visa and then, when that status became necessary for the grant of a further visa, to be told that in fact his visa status was not what he reasonably understood it to be.
The First Respondent submitted first that there was nothing in the evidence before the Tribunal or the court to establish such a suggested purported or ostensible grant of a visa.
The fact that Mr Oraha was permitted to enter Australia on the last day his Visitor visa was in effect was said not to be conduct indicating the grant of some further visa or that his visa continued to be in effect. In particular, the Minister submitted that the court should not accept that the fact that the Applicant was allowed to enter Australia in itself amounted to a representation that he could stay for 3 months, in circumstances where he had applied in February 2015 for a Visitor visa which did not provide for such an extension period and where he in fact held a lawful Visitor visa on the date on which he was allowed to re-enter Australia.
The First Respondent also made the point that entry into Australia under an ETA did not give rise to a Subclass 600, Visitor visa, which was a separate class of visa. It was submitted that the Applicant had not established any error in the Tribunal’s finding that the last substantive visa held by him was a Visitor (Subclass 600) visa that ceased on 19 June 2015. It was pointed out that under s.82(2) of the Act, the effect of the grant of the Visitor visa in February 2015 was that Mr Oraha’s ETA ceased to be in effect and that, as the Applicant had accepted in written submissions, he entered Australia on 19 June 2015 as the holder of a Visitor visa that ceased at midnight that day.
In any event, the First Respondent also submitted that there was no textual support for the construction of the Regulations suggested by the Applicant and that the contention that the phrase “the holder of a visa” in cl.572.211(2)(a) extended to an ostensible or purported grant of a visa was contrary to the scheme of the Act and its binary structure (see Plaintiff M47/2012 at [176] – [178]) and unsupported by any authority.
Consideration
Mr Oraha departed Australia on 18 June 2015 as the holder of a Visitor visa. It is not in dispute that his previous ETA had ceased to be in effect when that Visitor visa was granted in February 2015. When Mr Oraha re-entered Australia on 19 June 2015 his Visitor visa was valid and in effect, notwithstanding that it was to expire at midnight that day. Departmental records indicate that he entered Australia as the holder of that Visitor visa. There is no evidence or suggestion that he was in fact granted a fresh ETA or some other class of visa (or that he could be or was in fact granted a further Visitor visa or that his Visitor visa in fact permitted entry for a further 3 months).
As the holder of a Visitor visa when he came into Australia on 19 June 2015, Mr Oraha was a lawful non-citizen within the s.13 definition (as a non-citizen in the migration zone who held a visa that was in effect). In so far as it appears that the Visitor visa Mr Oraha was granted in February 2015 permitted him to travel to and enter Australia on one or more occasions until a date specified by the Minister, it also appears from the departmental records that a date was specified, in that the Applicant had permission to be in Australia until 19 June 2015. In any event, there is no contention in this case that Mr Oraha in fact held a Visitor visa after 19 June 2015 (or, indeed, that there was a representation to that effect).
As the First Respondent pointed out, and as both the delegate and Tribunal found, the last visa in fact held by Mr Oraha prior to lodging the Student visa application was the Visitor visa which ceased at midnight on 19 June 2015. No error had been suggested or established in that finding. It is consistent with departmental records.
Had Mr Oraha not held any visa when he was permitted to enter Australia on 19 June 2015 there would have been some strength in the argument that there was a purported and ostensible grant of permission to enter Australia (whether under the ETA granted in December 2015 or otherwise). However that is not the case. At the time he entered Australia on 19 June 2015, Mr Oraha was the holder of the Visitor visa granted to him in February 2015 (notwithstanding that it was to cease at midnight on 19 June 2015).
There is little evidence as to what actually occurred when Mr Oraha re-entered Australia on 19 June 2015. In his subsequent Student visa application of 26 August 2015 he claimed to hold a “visitor visa” granted on 25 February 2015 (not the ETA granted in December 2014). It is the case that the Department advised the Tribunal that Mr Oraha indicated on his passenger card of 19 June 2015 that he intended to stay in Australia for 3 months. The entry stamp in his passport of that date merely records his arrival on 19 June 2015. There is no evidence from Mr Oraha. There is no suggestion or claim that he in fact sought or was granted a fresh ETA on 19 June 2015 or, indeed, that he in fact incorrectly understood that he had permission to enter for 3 months, whether on the ETA granted in December 2014, the Visitor visa granted in February 2015, a fresh ETA or Subclass 600 Visitor visa or otherwise.
The Applicant’s submission appears to be that the fact that a person was permitted to enter Australia on the last date on which he in fact held a substantive visa in itself amounted to an ostensible grant of permission to stay beyond the actual expiry of the current substantive visa on an ETA which was no longer in effect.
On the face of the record of the grant of the ETA in Mr Oraha’s passport, it permitted multiple entries. There is no evidence of written notification of the grant of the Visitor visa to Mr Oraha under s.66 of the Act (but now see reg.2.16), but on his evidence to the Tribunal he became aware of the grant of that visa (albeit he understood it was an “extension”).
However, even if it may not seem likely that the Department would allow a person to re-enter Australia on a visa which would cease to be in effect in a matter of hours, Mr Oraha held such a visa on 19 June 2015 and was permitted to enter Australia. It is possible that he (and perhaps also the departmental officer who stamped his passport) could have incorrectly assumed that his Visitor visa would allow entry for a further 3 months (although that was not suggested in these proceedings). It is possible (although contrary to what Mr Oraha stated in his subsequent Student visa application) that he could have incorrectly assumed that his ETA visa had been in abeyance and would come back into effect after his Visitor visa ceased. Given the apparent absence of a record of the February 2015 grant of the Visitor visa in Mr Oraha’s passport, it is also perhaps not inconceivable that a departmental officer could have made a simple error in assuming that the ETA evidenced in Mr Oraha’s passport (which on its face permitted multiple entries until December 2015) was still in effect and hence permitted a further 3 months stay. However, in this case the departmental records state that Mr Oraha re-entered Australia on 19 June 2015 as the holder of the Visitor visa granted in February 2015 and do not indicate that he entered on the ETA or that he was granted permission to stay beyond that date.
While I have some sympathy for Mr Oraha, I am not persuaded that the mere fact that a person was permitted to enter Australia on the last day on which his substantive visa was in effect in itself constituted “conduct” or a representation by the Minister that the person was being granted some other permission, not only to enter, but also to stay in Australia for a period of up to 3 months, let alone to do so on a visa that had in fact ceased to be in effect. I note that the Applicant’s contention was presented on this basis, not on the basis of what actually occurred when Mr Oraha re-entered Australia.
In any event, even if Mr Oraha could reasonably have understood that he was being permitted to re-enter Australia and stay for 3 months on the ETA he had been granted in December 2014 or, indeed, on some other (purported) visa, and even if that was attributable to the conduct of or a representation by a departmental officer at the airport, I am not persuaded that, as a matter of construction, the visa criterion in cl.572.211(2)(a) in Schedule 2 to the Regulations includes the holder of a purported or ostensible grant of permission to stay in Australia. Nor, in so far as the Applicant maintained that contention, am I satisfied that the definition of visa in s.29 of the Act extends to a purported and ostensible grant of permission.
As the First Respondent submitted, there is no proper statutory basis for the Applicant’s proposed construction of cl.572.211(2) in Schedule 2 to the Regulations or of s.29 of the Act.
The parties referred to the remarks of Hayne J in Plaintiff M47/2012 in relation to the binary structure of the Migration Act. In Plaintiff M47/2012 the High Court was considering the validity of a visa criterion prescribed in the Migration Regulations (in particular, whether it was inconsistent with provisions in the Act). Hayne J noted (at [171] – [175]) long-standing principles of statutory construction which are also of relevance in the present context.
His Honour pointed out (at [172]) that the Act “must be construed in a way that gives due weight to two related considerations”. The first of these is the oft-cited statement from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] that:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions …
(Footnotes omitted)
In other words, although it has been said that the task of statutory construction begins and ends with the text, it is a task that is to be undertaken with regard to context and purpose.
The second consideration referred to by Hayne J in Plaintiff M47/2012 (at [172]) is the “known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent” (see The Commonwealth v Baume (1905) 2 CLR 414; [1905] HCA 11 at 414 citing R v Berchet (1690) 1 Show KB 106 [89 ER 480]; Project Blue Sky at [71] and also see French CJ in Plaintiff M47/2012 at [41]).
Further, such principles “begin from the premise… that the Act must be read as a whole” (Plaintiff M47/2012 at [173]). Relevant to the present case, regulations made under s.504 of the Act must be “not inconsistent with” the Act and, in any event, must not “vary or depart from the positive provisions made by the Act or … go outside the field of operation which the Act marks out for itself” (as observed in Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42 at 410 and see Plaintiff M47/2012 at [54] – [56] per French CJ and at [174] and [211] per Hayne J).
In the context of considering the issue of statutory construction that arose in Plaintiff M47/2012, Hayne J pointed out (at [176]) that (subject to some qualifications not of immediate importance):
… the Act has a binary structure in that its central provisions posit a choice between two outcomes. Non-citizens are divided into “lawful non-citizens” and “unlawful non-citizens” according to whether the non-citizen in question holds a valid visa. The Minister must decide to grant or refuse to grant a valid application for a visa according to whether the Minister is satisfied certain requirements are met.
(Footnotes omitted)
Of particular relevance in this case, as Hayne J also observed at [178] in Plaintiff M47/2012 “The Act provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen”. In other words, as his Honour continued (at [178]), consequences under the Act:
… follow once the central question has been answered: is the person a lawful non-citizen or an unlawful non-citizen? That question depends upon whether the Minister grants or refuses to grant a visa or, if a visa has previously been granted, whether that visa has since been cancelled.
The same may be said in relation to a visa criterion specified in the Regulations which requires a visa applicant to be the holder of a visa of a specified class. Contrary to the Applicant’s contention, I am not persuaded that the phrase “the holder of a visa” in the visa criterion in cl.572.211(2)(a) can be satisfied on the basis that the Department “purportedly” or “ostensibly” granted a visa by allowing entry into Australia. That would be contrary to the scheme of the Act.
As Hayne J pointed out Plaintiff M47/2012 at [176] – [178], the Act has a “binary structure” that posits a choice between two outcomes. Non-citizens are either “lawful non-citizens” or “unlawful non-citizens”. There is no middle ground. Under s.13(1) of the Act a lawful non-citizen is a person who holds a visa that is in effect. Whether a person is a lawful non-citizen or an unlawful non-citizen turns on whether the person has been granted a visa which remains in effect (see Plaintiff M47/2012 at [178]).
The power to grant or refuse to grant a visa arises under s.65(1) of the Act (subject to exceptions not relevant in the present circumstances in relation to visas granted by the Act itself or by the Minister under the non-compellable personal power). As the Full Court stated in SZ v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 342; [2000] FCA 836 at [32], under s.65(1) of the Act “all entitlements to visas under the Act are dependent upon Ministerial satisfaction” of the applicable criteria for a visa. The Minister may only exercise the power in s.65(1) to grant a visa after considering a valid application for a visa.
In so far as the Applicant sought to rely on s.29 of the Act as creating the possibility that a “visa” extended to an ostensible grant of permission, this overlooks the introductory words to that section. It provides: “Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa”. On the clear and unambiguous words of the Act, the granting to a non-citizen of permission to be in Australia is subject to the Act. This, and the binary structure of the Act, indicates that there is no scope for a course outside the Act to give force to some form of representation or conduct by an officer at the point of entry. The Act is very specific. As pointed out in SZ, the method by which a person can be granted a visa is by virtue of particular provisions in the Act, most notably s.65 (see SZ at [30] – [32]).
The text of cl.572.211(2)(a) was clear and unambiguous. Consistent with the unity of the Act and the Regulations, it was a criterion for the grant of a Subclass 572 visa that an applicant, at the time of application, must be “the holder of a visa of one of the following classes or subclasses…”. Clause 572.211(2) specified over 20 classes and subclasses of visas (named in the same terms as used elsewhere in the Regulations). Although the parties made no submissions about the legislative history of this provision, it is apparent that at times it was amended to reflect changes in nomenclature of visa classes and subclasses. It is also apparent that the criterion was intended to ensure that, subject to the limited exception provided for in cl.572.211(3), only current holders of specified classes or subclasses of visas could apply for Subclass 572 Student visas.
As counsel for the First Respondent pointed out, the phrase used in cl.572.211(2) was “the holder of a visa”. The Applicant’s focus on the word “visa” in this context is unduly narrow. In addition to being contrary to the binary structure of the Act, it does not have regard to the provisions in the Act in relation to the concept of “holder”.
Under s.5 of the Act, “holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted”. Section 77 of the Act provides that: “To avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa”. Under s.5 of the Act the “visa period” in relation to a visa relevantly “means” the period “beginning when the visa is granted” and ending “when the visa ceases to be in effect”.
Hence, a visa applicant would only be “the holder of a visa” (for the purposes of cl.572.211(2)(a)) in the period beginning when a visa was granted to that person and ending when it ceased to be in effect.
The construction of cl.572.211(2)(a) contended for by the Applicant would render the word “holder” in that clause superfluous. As pointed out in Plaintiff M47/2012 at [172], a construction is to be preferred whereby no word “shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent”.
The text of cl.572.211(2) is consistent with the purpose of requiring applicants for a Subclass 572 Student visa to “hold” a specified class of visa at the time of application and with the binary structure of the Act. There is nothing in its text, context or purpose to support the construction contended for by the Applicant.
The possibility of a harsh effect suggested by the Applicant is not such as to warrant interpreting this provision in a manner that would depart from and be contrary to the binary structure adopted in the Act. The Applicant’s reference to Ahmad at [110] does not assist. That case concerned the jurisdiction of the Tribunal. The Full Court of the Federal Court had regard to the legislative regime in relation to Subclass 457 visas, sponsorship and nomination and the interaction of applicable provisions in concluding in relation to a provision conferring jurisdiction on the Tribunal that the expression “decision not to approve the sponsor” included both the approval of the sponsor and the approval of the nomination of an occupation in relation to a visa applicant by a sponsor. Such a construction was said to maintain the symmetry of the jurisdictional provision (s.338(2)(d) of the Act), to be consistent with the legislative purpose as described in an explanatory memorandum and with the past legislative history of the provision in issue. It also avoided construing the provision in question as if it contained unexpressed words, permitted it to do the work intended for it and (that is, in addition to the issues of context and purpose of the legislation) did not produce the anomalies and harsh results that would be produced by a contrary construction. In that context the Full Court of the Federal Court remarked at [109] that “clear language in the relevant provisions would be required to produce” the harsh and improbable anomalies which the construction suggested by the Minister in that case would produce.
However the court in Ahmad did not go as far as to find (at [110]) that a harsh result can be “an adequate foundation” in itself for favouring a particular construction. Rather, it found first, that for reasons given, “the text of the relevant provisions, when viewed in context” supported the applicant’s suggested construction and then that: “The reference to the harshness of the consequences produced by the Minister’s construction is a secondary consideration which serves to reinforce the conclusion that the proper construction is … [as the Court found]” (Ahmad at [110]).
However in this case the text of cl.572.211 when viewed in context does not support the construction suggested for the Applicant and, notwithstanding that one may feel some sympathy for Mr Oraha, who it appears thought that he held a substantive visa when he applied for his Student visa, the suggested harshness is not a basis on which to adopt the construction suggested.
As indicated, the Act itself sets out the requirements to make an application for a visa and adopts a binary structure. These provisions are inconsistent with the submission that a visa could be ostensibly granted that would be such as to satisfy the visa criterion in cl.572.211 in Schedule 2 to the Regulations. The Applicant’s suggested construction is inconsistent with the scope and operation of the Act.
Mr Oraha was granted an ETA on 15 December 2014. This was in itself a class of visa (Class UD, Subclass 601). Each entry to Australia did not give rise to a separate type of visa (such as a Class FA, Subclass 600, Visitor visa). Rather, each entry into Australia by the “holder” of an ETA gave rise to a permission to remain in Australia for 3 months as the holder of an ETA.
As counsel for the First Respondent submitted, under s.68(1) of the Act, a visa such as the ETA granted to Mr Oraha in December 2014 would come into effect as soon as it was granted in December 2014 (as none of the alternatives in s.68(2) of the Act would apply). Under s.77 of the Act, for the purposes of this Act, Mr Oraha was the holder of the ETA at all times “during the visa period for the visa”. The “visa period” for the ETA was the period beginning when the ETA was granted and ending (as this was a visa other than a bridging visa) when the ETA ceased to be in effect.
The Visitor visa granted on 26 February 2015 (on the application of Mr Oraha) was a substantive visa of a different class to the ETA. Under s.82(2) of the Act the effect of the grant of the Visitor visa in February 2015 was that the Applicant’s ETA ceased to be in effect.
In other words, on the grant of the Visitor visa Mr Oraha was no longer the holder of an ETA. It was not a visa that could be re-activated (cf. s.68(4) in relation to a reactivated Bridging visa). The outcome of this was that between December 2014 and February 2015 Mr Oraha was the holder of an ETA granted in December 2014, but from 26 February 2015 onwards he became the holder of a Visitor visa which was in effect until midnight 19 June 2015.
The evidence is that Mr Oraha entered Australia on 19 June 2015 as the holder of his Visitor visa which ceased at midnight on 19 June 2015 and that this was the last substantive visa he held prior to applying for a Student visa.
There is no evidence or suggestion of any application for a visa by Mr Oraha on or around 19 June 2015. Had there been such evidence, it may have been open to him to contend that he had been granted a fresh ETA or, indeed, some other visa which permitted him to remain in Australia beyond 19 June 2015. Contrary to the particulars to the ground of review the Tribunal did not “find that, as a matter of fact, the Applicant was allowed to re-enter the migration zone” on 19 June 2016 “as if” his ETA “were valid for a further three months”. Rather, in paragraph 13 of its reasons it understood that he re-entered on the Visitor visa which was to cease at midnight. While it is possible that the Tribunal did not appreciate that under s.82(2) of the Act the ETA ceased to be in effect on the grant of the Visitor visa in February 2015, relevantly, it understood that the only visa held by the Applicant on 19 June 2015 ceased at midnight that day and that the next visa he held was a Bridging visa granted on 27 August 2017.
On the evidence before it and before the court, the Tribunal was correct to find as a matter of fact that Mr Oraha was not “the holder of a visa” at the time he lodged his application for a Student visa on 26 August 2015 and that hence he did not satisfy cl.572.211(2) in Schedule 2 to the Regulations.
It has not been established that the Tribunal misconstrued cl.572.211(2) in the manner contended for by the Applicant.
The ground of review is not made out. The application must be dismissed.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 30 January 2020
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