Ramos, Antonio v Minister for Immigration and Multicultural Affairs Gaire, Bharat Prasad v Minister for Immigration and Multicultural Affairs

[1998] FCA 1514

FEDERAL COURT OF AUSTRALIA

MIGRATION - Application for order of review - decision of Immigration Review Tribunal upholding delegate - refusal to grant Class WA bridging visa- whether bridging visa application made prior to amendment to Regulations should be determined by reference to law which was in force at the time of application - whether error of law - whether an incorrect interpretation of applicable law - whether applicable provision of regulations used in determination

Migration Act 1985 (Cth) ss 31(3), s 37, ss 40(1), (2), s.45(1),(2),(3) ss 46(1), (6), ss 47(3), (4), s 73, s 74, ss 337, 338(1) ss 476(1)(e), s 504

Migration Regulations  2.03, 2.04, 2.07, SR 010.21, 1128A, 1301(3)(c), Schedules 1, 2, 3, 4, 5

Acts Interpretation Act 1901 (Cth), s 13

Bradley v Commonwealth (1973) 128 CLR 557, cited

Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154, discussed

Abbott v Heidelberg Corporation [1926] VR 199, cited

Gounder v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300, referred

Eremin v Minister for Immigration Local Government and Ethnic Affairs (Wilcox J, Federal Court of Australia, 1 August 1990, unreported), referred

De Silva & Ors v Ruddock (Merkel J, Federal Court of Australia, 19 February 1998, unreported), cited

Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386, quote

Delegated Legislation, Pearce (1977), cited

ANTONIO RAMOS V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 974 OF 1998

BHARAT PRASAD GAIRE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 975 OF 1998

HELY J
SYDNEY
30 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 974 of 1998

BETWEEN:

AND:

ANTONIO RAMOS
APPLICANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

30 NOVEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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 975 of 1998

BETWEEN:

AND:

BHARAT PRASAD GAIRE
APPLICANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

30 NOVEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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 974 of 1998

BETWEEN:

AND

ANTONIO RAMOS
APPLICANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

BETWEEN:

AND:

NG 975 OF 1998

BHARAT PRASAD GAIRE
APPLICANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	HELY J
DATE:	30 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:        The applicant last arrived in Australia on 10 April 1997 as the holder of a visitor visa, with permission to remain for three months.  He has not left Australia since that arrival.  On 7 July 1997 the applicant made application for a Skilled-Australian Linked (Migrant Class AJ) Visa to the Australian Embassy in Manila.  Item 1128A of Schedule I requires that an application for this class of visa must be made outside Australia.  The applicant must also be outside Australia when the visa is granted.  Schedule 2, 105.4.  No decision has yet been made on that application.

On 31 October 1997 application was made for the grant of a Bridging A (Class WA) visa to the applicant.  The date on which the applicantion was made is of significance.  It was the day prior to the amendment to the Migration Regulations effected by Statutory Rules 1997 No 263, which came into effect on 1 November 1997.  The application thus fell to be determined by reference to the law which was in force at the time when the application was made.

Part 3 of Schedule 1, as of 31 October 1997, relevantly provided:

"Other:
(a)      …
(b)      …
(c)       Either:

(i)the applicant has made a valid application, in Australia for a substantive visa that can be granted if the applicant is in Australia and that application has not finally been determined; or

…"

The applicant could not satisfy this condition as his application for a substantive visa was lodged with the Australian embassy in Manila.  It could only be granted if the applicant was outside Australia at the time of the grant. 

Immigration Review Tribunal ("IRT") was of the opinion that Item 1301(3)(c) was valid, and binding on the applicant, as a circumstance or a criterion relevant to the grant of a visa.  As the applicant could not meet the regulatory requirements for the grant of a Class WA bridging visa, IRT affirmed the decision of the Minister's delegate refusing the grant of such a visa to the applicant.

The question before the Court is whether that decision is erroneous in law (s 476(1)(e)).

The Act and Regulations prior to 1 October 1996

Section 31(1) of the Act provides that there are to be prescribed classes of visas.  Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are such classes as are set out in the respective items in Schedule 1.

Section 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visas of a specified class.  Regulation 2.03 provides that for the purposes of s 31(3) the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant part of Schedule 2, (and if a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria) or if a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, the criterion so referred to is effectively incorporated.

Section 40 of the Act enables the Regulations to provide that visas, or visas of a specified class, may only be granted in specified circumstances.  Section 40(2) provides, without limiting subsection (1), that the circumstances may be that, when the person is granted the visa, the person:

"(a)     is outside Australia; or
(b)      is in immigration clearance; or

(c)has been refused immigration clearance and has not subsequently been immigration cleared; or

(d)      is in the migration zone and, on last entering Australia:

(i)        was immigration cleared; or

(ii)bypassed immigration clearance and had not subsequently been immigration cleared."

Regulation 2.04 provides that for the purposes of section 40 of the Act. "and subject to these Regulations" the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.

Section 45(1) of the Act provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class.  Sections 45(2) and (3) provide:

"(2)Without limiting subsection (1), the regulations may prescribe the way for making:

(a)       an application in specified circumstances; or
           (b)       an application for a visa of a specified class; or

(c)an application in specified circumstances for a visa of a specified class.

(3)Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant:

(a)       must be outside Australia; or
           (b)       must be in immigration clearance; or

(c)must have been refused immigration clearance and not have subsequently been immigration cleared; or

(d)       must be in the migration zone and, on last entering Australia:

(i)        have been immigration cleared; or

(ii)have bypassed immigration clearance and not have subsequently been immigration cleared." [emphasis added]

Regulation 2.07 provides that for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa, the following matters are set out in the relevant part of Schedule 1:

"(a)     the approved form (if any) to be completed by an applicant;
(b)      the fee (if any) payable on the application;
(c)       other matters relating to the application."

An application for a visa is valid if and only if it is made in the way required by ss 45(2) and (3).  (S 46(1)(b).)  The Minister is not to consider an application that is not a valid application (s 47(3)).  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 (s 47(4)).  The result is that there is no merits review of such a decision (s 337, 338(1)).  On the other hand, restrictions which apply in certain circumstances when the Minister refuses to grant a visa (eg s 74) do not apply when the only decision is that the application will not be considered on the grounds of its invalidity.

Schedule 1 is introduced by the following note:

"NOTE:This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class.  An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47.  If an item specifies that 2 or more persons may combine their applications, only 1 fee is payable: see r 2.07(2)."

The NOTE does not form part of the Regulations (s 13 of the Acts Interpretation Act 1901 (Cth)) and should not be taken into account as an aid in an exercise of statutory interpretation, Bradley v Commonwealth (1973) 128 CLR 557, 577.

Schedule 1, in relation to the class of visa styled Bridging A (Class WA) provided:

"(1)     Form:  887, 852, 147, 157Y, 601, 866, 1002, 1003, 1004 or 1005.

(2)      Fee:     Nil.

(3)Other:  (a)       Application must be made in Australia but not in immigration clearance.

(b)Applicant must be in Australia but not in immigration clearance.

(c)Applicant has:

(i)made a valid application for a substantive visa that has not finally been determined; or

(ii)applied, within statutory time limits, for judicial review of a decision to refuse a substantive visa.

(d)Applicant must:

(i)be the holder of:

(A)a substantive visa; or

(B)a bridging (Class A) visa; or

(C)a bridging (Class B) visa; or

(ii)have held a substantive visa when he or she made the substantive visa application referred to in paragraph (c).

(e)If the last substantive visa held by the applicant was cancelled, the decision to cancel that visa has been set aside by a review authority.

(f)Applicant is not in immigration detention or criminal detention.

(g)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging Class A visa may be made at the same time and place as, and combined with, the application by that person.

(4)Subclasses:     010 (Class A)."

Schedule 2 in relation to subclass 010 – Bridging Visa A contained the following provisions:

"10.2              PRIMARY CRITERIA
(NOTE:          All applicants must satisfy the primary criteria.)

10.21              Criteria to be satisfied at the time of application

10.211(1)       The applicant meets the requirements of subclause (2), (3) or (4).

(2)An applicant meets the requirements of this subclause if:

(a)he or she has made a valid application for a substantive visa; and

(b)that application has not been finally determined; and

(c)he or she held a substantive visa at the time that application was made; and

(d)he or she has applied for a bridging visa in respect of that application.

(3)An applicant meets the requirements of this subclause if:

(a)he or she applied for a substantive visa and the application was refused; and

(b)he or she has applied, within the time limit to do so, for judicial review of that refusal; and

(c)at the time of that application, he or she held a bridging visa class A or B; and

(d)the judicial review proceedings (including proceedings on appeal, if any) are not completed.

(4)An applicant meets the requirements of this subclause if:

(a)he or she holds a bridging visa class A or B that is subject to condition 8101, 8102, 8103, 8104, 8105, 8107, 8108 or 8111; and

(b)the Minister is satisfied that the applicant has a compelling need to work.

10.22Criteria to be satisfied at the time of decision

10.221The applicant continues to satisfy the criterion set out in clause 010.211.

10.3SECONDARY CRITERIA:  Nil.

(NOTE:         All applicants must satisfy the primary criteria.)

10.4CIRCUMSTANCES APPLICABLE TO GRANT

10.411The applicant must be in Australia, but not in immigration clearance.

(NOTE:         The applicant must be an eligible non-citizen at the time of grant: see the Act, s 73.)"

The amendment effective 1 October 1996.

By an amendment to the Regulations effected by Statutory Rule No 211 of 1996, Schedule 1 was amended by the omission of paragraph 1301(3)(c) and the substitution of the following:

"(c)     Either:

(i)the applicant has made a valid application, in Australia, for a substantive visa that can be granted if the applicant is in Australia and that application has not been finally determined; or

(ii)the applicant has applied, within statutory time limits, for judicial review of a decision to refuse a substantive visa that was applied for in Australia and can be granted if the applicant is in Australia and the judicial proceedings (including proceedings on appeal, if any) have not been completed."

No amendments were made to Subclass 010 in Schedule 2.

It was the regulations in this form which were considered by Emmett J in Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154, a decision handed down on 18 April 1997. At p 158-9 of the report his Honour said:

"It is very difficult to characterise the language of paragraph 1301(3)(c) as a prescription of the way for making an application in specified circumstances.  To say that an applicant must have made a valid application, in Australia, for a substantive visa that can be granted if the applicant is in Australia and that the application has not been finally determined, is a statement of circumstances in which a visa may be granted.  However, that is not what the regulation, as altered, purports to do.  It purports to be a matter relating to an application for the purposes of section 45.  But that section only authorises a prescription of the way for making an application in specified circumstances, not the circumstances in which a visa may be granted.

Nevertheless, as I have said, the Amendment was apparently made in reliance upon sections 31 and 40 as well as sections 45 and 46.  The authority conferred by section 29 is expressed to be subject to the Act.  If, on the true construction of the Regulations as a whole, there have been prescribed circumstances which must prevail before a visa can be granted, ss 40(1) would authorise such a prescription.  Alternatively, if on the true construction, the requirement in paragraph 1301(3)(c) is a criterion for a visa, that would be authorised by ss 31(3).  Either way, the Regulations, as altered, would be valid.

While the language of the Regulations as altered may not be felicitous, the effect of the Amendment is that there are now additional circumstances prescribed which must prevail before there is an obligation on the Minister to grant a visa.  Alternatively, there are additional criteria which must be satisfied before there is an obligation on the Minister to grant a visa.  An alteration to the Regulations which has either of those effects would be a valid alteration.  It follows that the Amendment is valid."

Whilst Emmett J indicated that he proposed to make a declaration that the alteration to paragraph 1301(3)(c) effected by the Amendments is valid, ultimately he did not do so.  The orders entered on 1 February 1998 did not go beyond a declaration that the application for a bridging visa class WA is not invalid by reason only of the operation of Regulation 1301(3)(c) of Schedule 1.

Thus, in the result, the determination was that para 1301(3)(c) was not a valid prescription of the way for making an application for a bridging visa Class WA, such that the Minister was not entitled by reason of the failure to comply with para 1301(3)(c) to treat the application as invalid.

The Submissions in the Present Case

The applicant submitted that the inclusion of para 1301(3)(c) in Schedule 1 indicated that it was intended to take effect as a specification of an aspect of the way for making an application for a bridging visa.  As it was not a prescription of the way for making an application it could not be sustained by s 45 and Regulation 2.07.  The item, not being a prescription of the way for making an application for a visa, is simply invalid.  It cannot be recast as a criterion for the granting of a visa, or as a prescription of circumstances in which a visa may be granted because these concepts are of relevance at a later stage in the decision making process.  The rights of an applicant (in some circumstances) may differ depending upon whether a matter relates to the validity or the application, or whether it affords a reason for refusing to grant the application.  Schedule 1, and thus paragraph 1301(3)(c), is expressed to be prescribed for the purposes of ss 45 and 46 of that Act.  The highly structured nature of the Act and Regulations supports the view that if it is incapable of operating in that way, it does not have any other, and different operation.  It cannot be assumed that if the paragraph miscarries as a matter going to the validity of the application, it was intended to operate as a matter going to the grant of it.

The observations of Emmett J to the effect that the alteration is valid as a specification of additional circumstances which must prevail, or as an additional criterion which must be satisfied, before there is an obligation on the Minister to grant a visa, are obiter, as the ultimate question in Capistrano, and the only matter actually determined by the decision in that case, was the validity of the application for a bridging visa.

The consequence of the applicant's submissions is that para 1301(3)(c) is either ineffective or invalid because it was included in Schedule 1.  Had it been included in Schedule 2 it would have been both valid and effective as a criterion for the grant of a visa, or possibly as a prescription of circumstances in which an application may only be granted.  If there is a distinction between the two, it lies in the fact that s 73 (which deals with the grant of bridging visas) refers to the applicant satisfying the criteria referred to in s 31(3), but does not advert to the circumstances referred to in s 40(1).

The Minister's response, shortly put, is that the amendment to the regulations introduced a geographical requirement which was to be satisfied before an applicant would be entitled to a bridging visa.  Sections 31(3), 40 and 504 are broad statements of regulation making power which are capable of sustaining the paragraph in question.  There is nothing in the Act which requires that regulations made for carrying out, or giving effect to those provisions should appear in Schedule 2 or in Schedule 1.

It was common ground both before the IRT, and before me, that Item 1303(3)(c) cannot be characterised as a way for making an application, and there was no challenge to the correctness of the decision in Capistrano in that respect.

The object of the Amendment
The IRT identified the intention underpinning Item 1301(3)(c) in the following terms, which have not been the subject of any challenge:

"…it is clear that the intention in promulgating this particular regulation, (Item (1301(3)(c)) was that applicants would not be eligible for a Class WA bridging visa unless they had already validly applied for a substantive visa that could be applied for, and granted, in Australia.  The policy behind such a provision is also clear.  It is designed to prevent persons in Australia from converting their temporary stay into a permanent one on the basis of an application made overseas with the benefit of a bridging visa.  The policy reflects the view that, as far as possible, all applications for permanent residence in Australia should be made outside of Australia and considered within the context of the broader migration program.  The Regulations clearly distinguish between visas that can be applied for, and granted, in Australia; visas that must be applied for, and granted, outside Australia; and visas that can be applied for and granted within or outside Australia."

Mr Williams, counsel for the applicant, frankly acknowledged that his point was a technical one, but maintained nonetheless that it was a "good" technical point.  However, the consequence of its acceptance would be that Item 1301(3)(c) in Schedule 1 would simply have no work to do.  The criterion for granting a visa would include a requirement that there be a valid application for a substantive visa (Schedule 2 010.21), but there would be no requirement that the application for the substantive visa be made in Australia, or that the visa be of a type that can be granted if the applicant is in Australia.

The evident purpose of the maker of the regulations, as identified by IRT, would thus miscarry because the Item was placed in the wrong schedule.

Decision

In my opinion the matters referred to in Item 1303(3)(c) are capable of being prescribed as either criteria required to be satisfied for the grant of a bridging visa as is envisaged in s 31(3), or, alternatively as a specification of circumstances in which a visa may only be granted as is envisaged in s 40(1).  I do not think that it matters whether it is one or the other or both.  Although s 73 specifically adverts to s 31(3), in my opinion, if the regulations provided that a bridging visa may only be granted in specified circumstances, a prescription to that effect would bind the Minister in the exercise of his powers under s 73.  Both s 37 (which creates the class of bridging visa) and s 40 appear within the same subdivision of the Act.  There is simply no reason to assume that s 40 is of no application to a bridging visa.

Schedule 1 does not have a self-contained operation.  Reference back to the body of the regulations is required in order to give content to the items specified in it.  When reference is made to Regulation 2.07 the following emerges:

"… for the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a)      the approved form (if any) to be completed by an applicant;
(b)      the fee (if any) payable on an application;
(c)       other matters relating to the application."

Capistrano establishes that paragraph 1301(3)(c) is not capable of operating as a prescription for the purposes of ss 45(2) and 46 of the Act.  In the view I take it is capable of operating as a prescription for the purposes of section to 31(3) and s 40 of the Act.  The issue then is whether in the light of Capistrano, the introductory words of Regulation 2.07 produce the result that the item sought to be introduced by the amendment has no operation at all. There is or may be a further issue as to whether the regulation can be sustained under s 45(1) and s 504.

Abbott v Heidelberg Corporation [1926] VR 199 concerned a by-law purporting to be made under a particular power in the Local Government Act 1915 (Vic), which could not support it.  An attempt was made to argue that in fact the by-law could have been made under another section which was not recited in the by-law itself.  Cussen J rejected the argument that the by-law could be supported as an exercise of the power not referred to.

The decision has been criticised.  Pearce, Delegated Legislation (1977) [240] – [243].  In my opinion, one would ordinarily assume that the regulation maker intended to invoke whatever statutory powers were necessary and available to enable the achievement of his objective ut res magis valeat quam pereat.  A mere erroneous recital of the source of power, would not, in my opinion, ordinarily be regarded by modern courts as sufficient to nullify the intention of the regulation maker if it was otherwise sufficiently clear.  The position might be different if there was a demonstrated presence of a positive intention not to exercise some particular enabling power without which the regulation could not take effect.

It is clear to me that the maker of the Regulations intended to bring about the result that a matter relating to an application for a bridging visa, is that at the time of the application, the applicant has to have made a valid application in Australia, for a substantive visa that can be granted if the applicant is in Australia.

If account were taken of the NOTE introducing Schedule 2, one might conclude that the regulation maker wrongly assumed (in the light of Capistrano) that this objective could be achieved by the prescription pursuant to s 45(2) of a way in which an application for a bridging visa should be made.  On this basis there would at least be a respectable argument that a court could not overcome the effects of that erroneous assumption by treating Regulation 2.07, and Schedule 1, as a prescription (pursuant to s 30(3) and 40) of the circumstances which must prevail, or the criteria which must be satisfied before there is an obligation on the Minister to grant a visa.  That is primarily because:

• different consequences flow where there is non-compliance with a matter going to the validity of the application, as opposed to non-compliance with the circumstances or criteria relating to the grant.

• Of the highly structured nature of the Act and the Regulations, whereby particular prescriptions are expressed to be made for the purposes of specified sections of the Act, rather than for the purposes of the Act generally.

As Burchett J said in Gounder v Minister for Immigration, Local Government and Ethnic Affairs (1994) 54 FCR 300 at p 308:

"To put the matter slightly differently, the misconceptions of the maker of a regulation, or of a legislator, do not make law.  Legislation that proceeds on the basis of a misconception may simply be ineffective."  (citations omitted)

If there was a misconception as to the route by which an objective could be achieved, a court may not be able, by a process of construction, to substitute another and different route for the ineffective route chosen, simply because adoption of it would enable the desired end to be achieved.

However, if the NOTE is left out of account, as I believe it should be, one simply has a regulation expressed to operate "for the purposes of sections 45 and 46 of the Act (dealing with application for a visa)", not one whose operation is confined to s 45(2) or s 46(1)(b).

Section 45 is oddly drafted.  Subsection (1) provides:

"Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class."

Subsections (2) and (3) provide that "without limiting subsection (1)" the regulations may prescribe specified matters.

In my opinion, these introductory words to 45(2) and (3) were intended to ensure that the range of permissible regulation with respect to an application for a visa is not restricted to regulations made pursuant to 45(2) and 45(3).  There is no other apparent reason for the introductory words.  The general regulation making power (s 504 – "convenient to be prescribed for carrying out or giving effect to this Act") would sustain a regulation to the effect that a matter relating to an application for a bridging visa, is that at the time of the application, the applicant has to have made a valid application in Australia for a substantive visa that can be granted if the applicant is in Australia.

It does not matter that a regulation to this effect may also be characterised as a specification of a circumstance in terms of s 40, or criteria in terms of s 30(3).  Nor does it matter that it is not appropriately characterised as a way for making an application in terms of s 45(2).

Section 504 of the Migration Act 1958 confers a broad power upon the Governor-General to make regulations prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act. This power (as formerly contained in section 33 of the Act in materially identical terms) has been described as being "framed in wide terms" and "indicates an intention of leaving it to the Governor-General to work out (the) policy (of the Migration Act) by specific regulations": Eremin v Minister for Immigration Local Government and Ethnic Affairs (unreported, 1 August 1990, Wilcox J), cited with approval by Merkel J in De Silva & Ors v Ruddock (unreported, 19 February 1998).

In Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, 396 Merkel J quoted the following observation of Lord Diplock in "The Courts as Legislators":

"If … the courts can identify the target of Parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed."

In my opinion, those observations are apposite to the circumstances of the present case.  The intention of the regulation maker is, in my view, plain; the objective sought to be achieved is clear.  There is ample power in the statute to underpin its achievement.  There is no reason for confining that objective to a specification of the way in which an application must be made.  It is nonetheless capable of characterisation as a matter relating to the application in a more general sense.  If the note is disregarded, Regulation 2.07 Schedule 1 is not expressed to be only a specification of the way in which an application for a visa is to be made.  There is no reason to assume that the regulation maker only intended the item in question to have force if it went to the validity of the application.

The result is that in my opinion the decision of IRT was not infected by any error of law, and the application for an order of review should be dismissed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:             30 November 1998

Counsel for the Applicant:	N J Williams with S Lloyd
Solicitor for the Applicant:	Nigel Dobbie Parish Patience
Counsel for the Respondent:	A Bell
Solicitor for the Respondent:	R Cheetham Australian Government Solicitor
Date of Hearing:	19 November 1998
Date of Judgment:	30 November 1998