Pousti and Minister for Immigration and Citizenship
[2011] AATA 456
•29 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 456
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0686
GENERAL ADMINISTRATIVE DIVISION ) Re Hamidreza Pousti Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member A K Britton Date 29 June 2011
Place Sydney
Decision The decision under review is affirmed. ....................sgd.......................
Senior Member A K Britton
CATCHWORDS
MIGRATION – citizenship – general residence requirement – whether applicant in Australia unlawfully – applicant held both bridging visa and substantive visa – applicant left Australia and later re-entered Australia - applicant’s substantive visa expired – whether applicant’s bridging visa “ceased to have effect” – decision under review affirmed
STATUTORY INTERPRETATION – Acts of Parliament – Migration Act 1958 (Cth) – contextual approach – operation of ss 68 and 82(2)
Australian Citizenship Act 2007 (Cth) – s 21(2)
Migration Act 1958 (Cth) – ss 5, 29, 30, 31(3), 37, 68(1)-(3), 72, 77, 82(3), 82(8)
Migration Regulations 1994 (Cth) – Sch 2, cl 010.5
Explanatory Memorandum to Migration Reform Bill 1992
Project Blue Sky v Australian Broadcasting Authority (1997) 194 CLR 355; [1998] HCA 28
REASONS FOR DECISION
Senior Member A K Britton
1.The applicant, Mr Hamidreza Pousti, is an Iranian citizen. He first arrived in Australia in 2003 on a sub-class 574 student visa. On 21 June 2006, he was a granted a temporary visa (sub-class 495 Skilled-Independent Regional (Provisional)) for three years.
2.In January 2011 he applied for Australian citizenship. On 14 February 2011, the respondent refused the application on the basis that Mr Pousti had not satisfied the general residence requirement provided by s 21(2) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) because he was found to have been in Australia unlawfully between 22 June and 17 July 2009. Mr Pousti seeks review of that decision by the Tribunal.
3.The reason Mr Pousti was found by the respondent to have been in Australia unlawfully for approximately a month in 2009 was that, according to the respondent, when he left Australia temporarily on 14 May 2009, his sub-class 010 (Bridging A) visa — issued on 2 October 2008 following his application for a permanent visa — “ceased to have effect”.
4.He returned to Australia on 7 June 2009 and on 21 June 2009 his substantive visa expired (the sub-class 495 visa). On 6 October 2009, he was issued another substantive visa (a sub-class 887 Skilled-Regional permanent visa).
5.Bridging visas are issued in different categories. The bridging visa issued to Mr Pousti was in the “Bridging Visa A” category. In an automatically generated email addressed to Mr David Stephens (who I assume was Mr Pousti’s immigration agent), he was informed on 2 October 2008 that the bridging visa had been issued. It outlined a number of important matters concerning the visa relating to rights to work and study and, critically, travel from Australia.
6.It began by stating:
Hamridreza Pousti has been granted a Bridging Visa A as a result of the above visa application.
A Bridging Visa A will permit the applicant to remain lawfully in Australia until the onshore General Skilled Migration visa application is decided. Please note a Bridging Visa A will only come into effect when any other visa expires. The applicant must therefore abide by any conditions of their current substantive visa.
A Bridging Visa A permits the applicant to remain in Australia until 28 days after the notification of the decision on the onshore General Skilled Migration visa application and, if that application is refused, continues to keep them lawful until 28 days after all avenues of merits review have been exhausted.
It is not necessary to have a Bridging Visa A evidenced in a passport. However, this email should be kept as evidence of the grant of this visa.
7.In a section of the email headed “Permission to Travel”, the email outlined the following information:
This Bridging Visa A will cease if the applicant departs Australia. Therefore, unless the applicant has another visa they will be not be able to re-enter Australia. If the applicant needs to travel overseas at any time during processing of their onshore General Skilled Migration visa application, they should apply for a Bridging Visa B visa which permits re-entry to Australia. They must have substantial reasons for travel.
If the applicant does not obtain a Bridging Visa B while their substantive visa (eg any visitor visa, student visa or temporary residence visa they may hold) is still valid and they depart and re-enter Australia using their substantive visa, they must apply for a replacement Bridging Visa A on return. Bridging Visa B applications can be lodged at any DIAC office in Australia.
[Emphasis added]
8.These facts are not in contest.
The issue
9.The only issue is whether Mr Pousti’s bridging visa ceased to have effect when he left Australia on 14 May 2009 due to the operation of s 82(8) of the Migration Act 1958 (Cth) (the Migration Act).
10.Mr Pousti contends that it did not and that, as a consequence, his presence in Australia as a non-citizen on his return and after the expiration of his 495 visa was lawful. The respondent contends that the bridging visa “ceased to have effect” on 14 May 2009 when he left Australia, thus leaving a gap between 21 June 2009 and the commencement of a fresh lawful visa.
statutory framework
11.The Minister has power under the Migration Act to issue both temporary and permanent visas to non-citizens to enter and remain in Australia: ss 29 and 30.
12.Section 37 of the Migration Act creates a class of temporary visas known as “bridging visas”. Provided that a non-citizen satisfies certain criteria established under the regulations, the Minister may issue a bridging visa: ss 31(3) and 72. Bridging visas can be and frequently are issued in conjunction with other visas or pending resolutions of applications for other visas. The underlying purpose of a bridging visa is to enable non-citizens to remain lawfully in Australia while applications for other visas or for citizenship are processed.
13.A non-citizen holds a visa during a “visa period” which is defined in s 77 of the Migration Act as the period beginning when the visa is granted and, in the case of a bridging visa, “when the visa ceases to be in effect otherwise than under sub-section 82(3)”.
14.Pursuant to s 68(1) a visa “has effect as soon as it is granted” unless the visa is granted subject to a condition that it comes into effect at a later time either on a specific day or when a specific event occurs: see s 68(2).
15.Section 68(3) provides that a visa is only in effect during the visa period. The visa period runs from the time the visa is granted until it ceases to be in effect (with an exception that is irrelevant here, pursuant to s 82(3)): s 5 of the Migration Act.
16.Section 82(8) provides that a bridging visa permitting a non-citizen to remain in Australia, but not to re-enter, ceases to have effect if the holder leaves Australia.
17.Schedule 2 of the Migration Regulations 1994 (Cth) outlines criteria for determining when a visa is in effect. Clause 010.511 indicates that a bridging visa is in effect either from the time of grant (cl 010.511 (a)(i)) or “when the substantive visa (if any) held by the holder ceases” ((cl 010.511 (a)(ii)) until various actions occur or decisions are made relating to the substantive visa or visa application: Schedule 2 cl 010.5.
18.No mention is made in that clause of any termination by virtue of the operation of s 82(8) of the Act.
The contentions:
mr pousti
19.Mr Pousti argues that while in most cases the visa period will coincide with the period that the visa is in effect, “this will not be the case where the visa is granted to come into effect on a date subsequent to the grant”. In Mr Pousti’s case, his Bridging Visa A was to come into effect some time after the visa was granted, namely, when his substantive visa expired if a fresh substantive visa had not by then been issued.
20.According to this argument, s 82 is expressed to apply only to visas that are “in effect”. On its face, the purpose of s 82 is to terminate visas which have come into effect upon certain events occurring. As a matter of logic and grammatical construction, unless a visa is “in effect” it cannot “cease to be in effect”. Therefore, as Mr Pousti’s bridging visa was not yet “in effect” when he left and re-entered Australia on his substantive visa, the bridging visa could not “cease to be in effect”.
21.Mr Pousti argues that the purpose of a bridging visa is to enable non-citizens who do not hold substantive visas of other classes to remain lawfully in Australia and to obviate the need to place them in mandatory detention: see Explanatory Memorandum to Migration Reform Bill 1992 at [51]-[52].
22.He contends that a bridging visa is not required to become “active”, “operational” or “in effect” until another substantive visa expires, the bridging visa being, as the name implies, a stop-gap measure to enable a person to remain lawfully in Australia during the processing of other visas. He says that to prevent non-citizens becoming “unlawful” by accident or due to processing delays or the unavailability of officials to process applications, the scheme permits the issuing of a bridging visa in advance of the need for it.
23.The crux of Mr Pousti’s argument is that a bridging visa therefore sits “in abeyance”, without coming into effect until the need for it arises. The need for it arises only when the substantive visa expires. Therefore, a bridging visa issued at the time of the application for the substantive visa may never come into effect because a fresh substantive visa may issue before the expiry date of the old substantive visa. On this argument, the bridging visa operates as a sort of “Get Out of Jail Free” card, activated only when needed to maintain the continuity of a non-citizen’s lawful status in Australia.
24.Mr Pousti submits that if the respondent’s position is accepted, visas not yet in effect, because not triggered by a relevant event, would expire “and so result in the very thing that the scheme is trying to avoid by s 68 and the creation of bridging visas” namely making persons unlawful non-citizens immediately subject to mandatory detention.
The respondent
25.In summary, the respondent submits that s 82(8) of the Migration Act applies in this case and effectively determines the end of the visa period which it is necessary for all visas to have. In the case of Bridging Visa As, the submission is that s 82(8) causes them to cease to be in effect if the holder travels overseas. The consequence is that a returning holder of a substantive visa must re-apply for a fresh Bridging Visa A on return or apply for and be granted a Bridging Visa B before leaving. (That, of course, corresponds with the advice given in the email of 2 October 2008 to the migration agent when the bridging visa was issued.)
26.The respondent argues that Bridging Visa As were created “only to serve the very limited purpose of enabling a person (who would otherwise be an unlawful non-citizen) to have temporary lawful status before departing Australia”. He also submits that if Mr Pousti’s construction of the legislation is accepted, a bridging visa “will far surpass its original intention if its visa period cannot be terminated by the critical event of [the holder] having left Australia”.
Discussion
27.If a strictly literal or grammatical approach to statutory interpretation were taken, it appears to me that Mr Pousti’s submission would be unassailable. But the High Court’s decision in Project Blue Sky v Australian Broadcasting Authority (1997) 194 CLR 355 has made it very clear that the proper approach to statutory interpretation is contextual rather than strictly literal. As the principles set out in the judgment are critical for the proper construction of ss 68 and 82(8), it is pertinent to quote them in detail. McHugh, Gummow, Kirby and Hayne JJ said in their joint judgment (at 381-2, 384):
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
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. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a 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"…
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)
28.The arguments in this case should be considered in the light of first principles. What is a visa? Section 29(1) of the Migration Act states that the Minister “may grant a non-citizen permission, to be known as a visa” to travel to and enter Australia or remain in Australia or both. It is important to recognise that a visa is a permission.
29.The visa or permission may be granted for prescribed or specified periods or indefinitely depending on the circumstances of the grant: s 29(2). Multiple categories of visas carrying different conditions have been created. One of the critical features of a Bridging Visa A is that it is a visa only to remain in Australia. Unlike a Bridging Visa B, it does not permit a person to leave and re-enter Australia.
30.Section 82 deals with the various ways visas “cease to be in effect”. This awkward omnibus phrase is employed throughout the Migration Act to explain that visas that expire or are cancelled or are replaced by new visas no longer operate as a permission to enter or remain in Australia. In effect, once the particular circumstances described in s 82 arise, a self-executing revocation of the Minister’s permission occurs. In my view, s 82(8) in particular appears intended to result in the practical forfeiture of the Minister’s permission to stay if the holder of that limited permission choses to leave Australia.
31.A strictly literal or grammatical construction of ss 68 and 82(8) together could, however, lead to a very different result, which, indeed, Mr Pousti urges on the Tribunal. In my view, this is a case in which I am required to alleviate the latent conflict between ss 68(2) and 82(8) “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.” (per Project Blue Sky at 382)
32.Sections 68 and 82(8), read together, appear not to contemplate or provide for situations of the type that have occurred in this case. The language of the Act and Regulations is difficult and to some degree ambiguous. Section 68 of the Migration Act is concerned with the commencement of the effect of a visa. Section 82 is concerned with ending the visa’s effect. They are intended to “book-end” the period in which a visa may have effect.
33.Section 68 is only concerned with the triggering of a visa’s effect. If a visa is granted on the proviso that it will come into effect when, for example, a substantive visa expires, it may never have to come into effect because a fresh substantive visa may overlap with an old one or may commence operation the moment the previous one ceases effect, leaving no gap to be bridged. The bridging visa is therefore a form of legislative safety device which may never be needed.
34.Bridging Visa As are issued subject to a condition that they may be used only to remain in Australia and not to re-enter Australia.
35.In my view, it is highly likely that the legislative policy intended by the creation of Bridging Visa A and Bridging Visa B was to create, in the first case, a type of visa that would not survive the holder leaving Australia and, in the second, a more beneficial type of visa that would do so. Clauses 010.5 and 020.5 of Schedule 2 work in tandem with and are subordinate to the provisions of the Act. Section 82(8) specifically refers to visas “to remain in, but not re-enter, Australia”. The wording of s 82(8) evidences a statutory policy to terminate such visas if the holder leaves Australia and therefore applies to Bridging Visa As.
36.How then can a Bridging Visa A which has not come into effect because the triggering event has not occurred (as in Mr Pousti’s case) be said to “cease to be in effect” pursuant to s 82(8)? The respondent’s answer is that a grammatical construction of s 82(8) makes it clear that this was the legislative intention. In my view, it is a contextual, not a grammatical reading, that leads to the appropriate result. The context is that Bridging Visa As are intended for use in limited circumstances and are subject to the strict condition (as the email of 2 October 2008 made clear) that if the holder leaves Australia the permission to remain in Australia is withdrawn. They are not “Get Out of Jail Free” cards.
37.A more theoretical (or casuistical) approach might be to analyse the problem as follows: once a visa is granted, if only to have effect if and when a specified event occurs at some future time, it contains within that grant of permission a provisional benefit that remains latent until triggered. That the benefit does not come into effect immediately and may never do so is, nevertheless, a legal reality. It remains dormant until either triggered into effect or some other event occurs to cause it to cease to have any effect, latent or overt. In the case of a Bridging Visa A one such event, as I have said, is for the holder to leave Australia.
38.Although I have rejected Mr Pousti’s argument, it appears to me to have exposed a real problem in the drafting and operation of the Migration Act. There is a genuine ambiguity in the Act which is confusing and may lead to unfair consequences. The Tribunal has been forced to wrestle with the problem of statutory construction it presents. It is regrettable therefore that Mr Pousti’s application for citizenship has been rejected because he fell foul of such poorly drafted and ambiguous legislation.
39.Further, I recommend that the relevant sections of the legislation be clarified and preferably expressed in clear English so as not to mislead those who are subject to its provisions, to enable their legal advisers to offer appropriate advice and courts and Tribunals to avoid having to contort the language to construe the provisions in accordance with the legislative intent.
40.There is no discretion available to waive the “residency requirement” contained in the Citizenship Act. For the reasons as given Mr Pousti does not meet that requirement. I must therefore affirm the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
Signed: ..........sgd.....................................................................
Associate to Senior Member BrittonDate of Hearing 21 June 2011
Date of Decision 29 June 2011
Special Counsel for the Applicant R Kessels
Solicitor for the Applicant F. Varess, Fragomen Global
Solicitor for the Respondent L. Leerdam, DLA Piper
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