Sanele v Minister for Immigration and Border Protection
[2022] FedCFamC2G 1013
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sanele v Minister for Immigration and Border Protection [2022] FedCFamC2G 1013
File number(s): SYG 3822 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 6 December 2022 Catchwords: ADMINISTRATIVE LAW – Application for Constitutional writs – futility – discretion to refuse relief. Legislation: Migration Act 1958 (Cth) ss 46, 47, 474
Migration (1993) Regulations r 2.29, sch 2 pts 154, 812, 829
Migration Regulations 1994 reg 40
Migration Reform (Transitional Provisions) Regulations 1994 regs 23, 32
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 26 Date of hearing: 25 November 2022 Place: Sydney Counsel for the Applicant: Mr A. Silva Counsel for the First Respondent: Mr N. Swan Solicitor for the First Respondent: Australian Government Solicitor
Table of Corrections 6 December 2022 In paragraph 11, “A full copy” has been corrected to “Full copies”. ORDERS
SYG 3822 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETERO SANELE
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
6 December 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
Introduction
The applicant, Mr Sanele, is a citizen of Fiji who, relevantly, arrived in Australia on 21 January 1987.
On 28 October 1993 Mr Sanele applied to what is now the Department of Home Affairs for a Temporary Entry Permit (Class 440) and a Permanent Entry Permit (Class 812). Sub‑regulations 2.29(1A) and (1B) of the Migration (1993) Regulations (“1993 Regulations”) as they stood on 28 October 1993, amongst other things, provided that an application for a Class 812 visa had effect also as an application for a Class 829 (Processing (Residence)) Entry Permit and as an application for a Class 154 (Resident Return (A) Visa). The Class 812 permit was available to people illegally in Australia on or before 18 December 1989 who made their application to remain before 19 December 1993, the Class 829 permit was a form of bridging visa which allowed an applicant for, relevantly, a Class 812 visa to remain in Australia pending a decision on that application and a Class 154 visa authorised, before departure, a visa holder’s return to Australia following a departure for foreign travel.
On 11 August 1994 a delegate (“First Delegate”) of the first respondent (“Minister”) refused Mr Sanele’s Class 812 “Extended Eligibility Temporary Permit” application.
On 10 February 1994, that it say before his October 1993 application was determined, Mr Sanele left Australia and returned to Fiji. Once there, he applied through the Australia Embassy in Suva for a Class 100 (Spouse) Visa and Entry Permit but that was refused by a second delegate on 11 August 2014 because s.46 of the Migration Act 1958 (Cth)(”Act”), as it stood at the time, required that an entry permit not be granted unless the applicant was resident in Australia, which Mr Sanele was not.
On 4 April 2017, a further delegate of the Minister (“Third Delegate”) refused to grant the Applicant a Class 812 Permanent Entry Permit, a Class 829 Processing Entry Permit and a Class 154 Resident Return Visa Class A.
Mr Sanele applied to the Administrative Appeals Tribunal (“AAT”) for a review of the Third Delegate’s decision. He was unsuccessful before the AAT and has applied to this Court for judicial review of the AAT’s decision.
In this judicial review proceeding the Court’s task is to determine whether the AAT’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
As at 28 October 1993, s.47 of the Act relevantly provided that a permanent entry permit was not to be granted to a non-citizen after entry into Australia unless the non-citizen was the holder of a valid temporary entry permit.
At the same time, the 1993 Regulations relevantly provided:
154.4 RESIDENT RETURN (A) VISA (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 154 visa after entry is to authorise, before departure, the return travel to Australia of a person eligible to be granted the visa.)
154.41 Application (visa - after entry)
154.411(1) Subject to subclauses (2) and (3), the application must be made in accordance with approved form 759.
(2) An application for a Class 154 visa by a person who is included in the passport of another applicant for a Class 154 visa may be combined with, and lodged at the same time as, the application by that other applicant.
(3) An application for an entry permit other than a Class 154 entry permit also has effect as an application for a Class 154 visa if it is:
(a) an application for a Group 1.2 (permanent resident (after entry)) entry permit; or
(b) an application under the Migration (1989) Regulations made after entry for an entry permit that is a Class 1 entry permit referred to in Schedule 3 of those Regulations; or
(c) an application made after entry before 19 December 1989 for an entry permit other than a temporary entry permit.
…
154.43 Criteria to be satisfied at time of decision (visa - after entry)
154.431 The applicant is the holder of a permanent entry permit.
154.432 The applicant has not previously been the holder of a Class 154 visa.
154.433 The application was made not later than 3 years after the earlier of:
(a) the date on which the applicant entered Australia under the permanent entry permit; or
(b) the date on which the permanent entry permit was granted to the applicant.
…
PART 812 - CLASS 812 (DECEMBER 1989 (PERMANENT)) ENTRY PERMIT (PRIMARY PERSON)
812.1 INTRODUCTION
812.11 Group: 1.2 (permanent resident (after entry)).
812.12Purpose of grant to primary persons: To enable the grant of permanent residence to certain persons illegally in Australia on or before 18 December 1989.
…
812.5 DECEMBER 1989 (PERMANENT) ENTRY PERMIT - PRELIMINARY
812.51 When and where may application and grant be made?
812.511A Class 812 entry permit may be applied for and granted only after entry.
812.52 Period of validity (entry - entry)
812.521 The entry permit has effect without limitation as to time.
…
812.7 DECEMBER 1989 (PERMANENT) ENTRY PERMIT (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 812 entry permit after entry is to authorise a further period of stay, unlimited as to time, in Australia for an eligible person.)
…
812.72 Criteria to be satisfied at time of application (entry permit after entry)
812.721If the applicant is an illegal entrant, the applicant satisfies illegal entrant criteria 6001 and 6002.
812.722 The applicant:
(a) was a prohibited non-citizen on or before 18 December 1989; and
(b) was in Australia on, and has not left Australia since, 18 December 1989; and
(c) applies before 19 December 1993 for the entry permit; and
(d) has been nominated by the relevant related person referred to in clause 812.723(2),(3),(4),(5) or(6), as the case requires; and
(e) notifies Immigration, without unreasonable delay, of each change of the applicant's residential address.
812.723(1) The applicant satisfies the requirements of subclause (2),(3),(4),(5)
or (6).(2)An applicant satisfies the requirements of this subclause if he or she is in a marital relationship that is both genuine and continuing, that began on or before 15 October 1990, as the spouse of an Australian citizen or Australian permanent resident.
…
812.73 Criteria to be satisfied at time of decision (entry permit - after entry)
812.731 The applicant is the holder of a section 47 temporary entry permit.
812.732 The applicant:
(a)continues to satisfy the criteria in clause 812.723; and
(b)has, since lodgment of the application, notified Immigration without unreasonable delay of any change of his or her residential address.
…
PART 829 - CLASS 829 (PROCESSING (RESIDENCE)) VISA AND ENTRY PERMIT
829.1 INTRODUCTION
829.11 Group: 2.8 (miscellaneous).
829.12 Purpose of grant: To authorise a further period of stay in Australia for a person whose principal application to remain permanently in Australia has not been decided.
…
829.13 Interpretation
829.131 In this Part:
“principal application”, in relation to an application for a Class 829 entry permit, means an application made for one of the following entry permits:
(a) a Class 801 (spouse) (after entry)) entry permit;
(b) a Class 802 (child) (after entry)) entry permit;
(c) a Class 804 (aged parent) (after entry)) entry permit;
(d) a Class 805 (skilled occupation) entry permit;
(e) a Class 806 (family and other close ties (after entry)) entry permit;
(ea) a Class 808 (confirmatory) entry permit;
(f) a Class 812 (December 1989 (permanent)) entry permit;
(g) a Class 820 (extended eligibility (spouse)) entry permit;
(h) a Class 826 (extended eligibility (interdependency)) entry permit.
…
829.4 PROCESSING (RESIDENCE) VISA (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 829 visa after entry is to authorise, before departure, the return travel to Australia of the holder of a Class 829 entry permit within the period of validity of the entry permit.)
…
829.42 Criteria to be satisfied at time of application (visa - after entry)
829.421 The applicant:
(a) is the holder of a Class 829 entry permit; or
(b) is the holder of a processing entry permit (code number 825) granted under the Migration (1989) Regulations as a result of an application for:
(i) an extended eligibility entry permit; or
(ii) a December 1989 (temporary) (code number 440), spouse (after entry) (code number 801), child (after entry) (code number 802), aged parent (after entry) (code number 804), skilled occupation (code number 805), confirmatory (code number 808) or December 1989 (permanent) (code number 812) entry permit; and is in Australia.
829.43 Criteria to be satisfied at time of decision (visa - after entry)
829.431 The applicant continues to hold the entry permit referred to in clause 829.421.
829.432 The Minister is satisfied that the return of the applicant to Australia would not be contrary to the interests of Australia.
829.44 Conditions (visa - after entry)
829.441 Mandatory conditions: Nil.
829.442 Discretionary conditions: The same conditions as those to which the Class 829 entry permit held by the applicant is subject.
829.5 PROCESSING (RESIDENCE) ENTRY PERMIT - PRELIMINARY
829.51 When and where may application and grant be made?
829.511 A Class 829 entry permit may be applied for and granted either:
(a) at the Entry Control Point, if the person is the holder of a Class 829 visa that was granted as a travel-only visa; or
(b) after entry.
829.52 Period of validity (entry permit): Until a decision is made on the applicant's principal application, and the applicant is notified in accordance with regulation 2.8.
…
829.7 PROCESSING (RESIDENCE) ENTRY PERMIT (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 829 entry permit after entry is to authorise a further period of stay in Australia for a person whose principal application to remain permanently in Australia has not been decided.)
829.71 Application (entry permit (after entry)): As provided by subregulation 2.29(1B).
(NOTE: An application for an entry permit of any of the following classes is taken, under subregulation 2.29(1B), to be an application for a Class 829 entry permit:
Class 801 (spouse (after entry));
Class 802 (child (after entry));
Class 804 (aged parent (after entry));
Class 805 (skilled occupation);
Class 806 (family and other close ties (after entry));
Class 808 (confirmatory);
Class 812 (December 1989 (permanent));
Class 820 (extended eligibility (spouse));Class 826 (extended eligibility (interdependency)).)
829.72 Criteria to be satisfied at time of application (entry permit - after entry)
829.721 The applicant is not the holder of a Class 771 (transit) visa or entry permit.
829.722 The entry permit or visa (if any) held by the applicant is not subject to a condition that the applicant is not entitled, after entering Australia, to be granted an entry permit or further entry permit while the holder remains in Australia.
829.723 If the applicant is an illegal entrant, the applicant satisfies any illegal entrant criteria to which the entry permit in respect of which the principal application was made is subject.
829.73 Criteria to be satisfied at time of decision (entry permit - after entry)
829.731 (1) The applicant meets the requirements of subclause (2), (3) or (4).
(2) An applicant meets the requirements of this subclause if:
…
(c) the applicant apparently meets the prescribed criteria for the grant of the entry permit to which the principal application relates, other than:
(i) public interest criteria; and
(ii) any requirement to hold a section 47 temporary entry permit.
…
(4) An applicant meets the requirements of this subclause if:
…
(b) the applicant apparently meets the requirements for the grant of the permit (being the requirements continued in force by subsection 6(4) of the Migration Legislation Amendment Act 1989) except:
(i) the requirements relating to health and character; and
(ii) the requirement that the applicant be the holder of a temporary entry permit.
…
Full copies of those parts are reproduced in Attachment A to these reasons.
The 1993 Regulations were replaced by the Migration Regulations 1994: reg.40 Migration Reform (Transitional Provisions) Regulations 1994 (“Transitional Regulations”). The Transitional Regulations relevantly provided:
REG 23Entry permit applications made on or after 19 December 1989 and before 1 September 1994
23. (1) This regulation applies to an application for an entry permit that:
(a)was made on or after 19 December 1989 and before 1 September 1994; and
(b) had not been finally determined before 1 September 1994.
(2)An application to which this regulation applies is taken, on
1 September 1994, to be:
(a)if the application was for a temporary entry permit-an application for a transitional (temporary) visa; or
(b)if the application was for a permanent entry permit-an application for a transitional (permanent) visa.
(3)An application that, under subregulation (2), is taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which application was made.
…
(6)A transitional (permanent) visa that is granted to a non-citizen on the basis of an application to which this regulation applies is a visa:
(a)to travel to and enter Australia for a period of 3 years from the date of grant; and
(b)to remain in Australia permanently; and
(c)that is subject to the conditions (if any) that the Minister imposes, being conditions that the Minister could have imposed if the application had been decided under the old Act and Regulations as in force at the date of the application.
…
REG 32 Criterion regarding section 47 temporary entry permit
32.On and after 1 September 1994, if a review authority is reviewing a decision to refuse a visa for which the application was constituted by an application for an entry permit:
(a)if it was a criterion under the Migration (1993) Regulations for the grant of an entry permit of that class that the applicant hold a section 47 temporary entry permit; or
(b)if under the Migration (1989) Regulations, a criterion for the grant of the entry permit was to the same effect as a criterion referred to in paragraph (a); that criterion does not apply:
(c)to that review; or
(d)if the application is remitted to a decision-maker for reconsideration-to the reconsideration.
…
The AAT’s decision and reasons
I adopt and repeat the Minister’s precis of the AAT’s decision:
8. The Tribunal described the background to the review and the relevant transitional provisions in the Act and Migration Regulations 1994 (Cth).
9.In relation to the Permanent Entry Permit (Class 812), the Tribunal accepted the Applicant’s contention that Reg 32 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) removed a requirement to hold a s 47 entry permit at the time of decision. The Tribunal found that the Applicant did not satisfy the criteria in Clauses 812.723 and 812.732 of the Regulations (relating to being in a genuine and continuing spousal relationship).
10.In relation to the Processing Entry Permit (Class 829), the Tribunal rejected the Applicant’s contention that he was taken to have held such an entry permit by force of the Migration Regulations. The Tribunal found that the Applicant did not hold any entry permit as required by Cl 829.421 of the Regulations.
11.In relation to the Resident Return Visa Class A (Subclass 154), the Tribunal observed that in order to be granted the visa, the Applicant was required to hold a Permanent Entry Permit. However, he did not hold one, and hence did not meet Cl 154.431 of the Regulations.
12.The Tribunal referred to the Applicant’s claim that he had been “misled” by the Department when he travelled to Fiji in 1994. However, the Tribunal did not find these claims to be helpful in assessing the Applicant’s actual eligibility for the various entry permits. The Tribunal also declined to refer the matter to the Minister for Ministerial Intervention pursuant to s 351 of the Act.
13.The Tribunal thus affirmed the delegate’s decision. (references omitted)
Proceeding in this Court
The applicant’s second amended application alleged, all other allegations having been abandoned:
(3)The Tribunal made jurisdictional error in that the Tribunal failed to take relevant considerations into account in making its decision
Particulars
(a)The Tribunal failed to take into consideration in its decision at [15] the fact that the Department mislead [sic] the applicant and was not issued with a correct visa on 10 February 1994 when the Department facilitated his travel to Fiji and it resulted him not being allowed to comeback [sic] and that his relationship suffered because of that.
(b)The applicant approached the Department to travel to Fiji to attend his father's funeral. The Department told him that he will be given travel visa back to Australia if he approached the Australian High Commission in Fiji. This is in spite of the fact that he had an application for 825 (equivalent BVB at the moment) outstanding at that time.
(c)He also had subclasses 812, 829 and 154 outstanding at that time as well.
(d)The Department facilitated his travel but he could not come back as the Australian High Commission refused to give him travel visa back to Australia.
(e) The Tribunal failed to consider the fact that the Department made its decision after a very long time (more than 23 years) and delayed making decisions on processing entry permits for a long time and consider their implications on the rights of the applicant in the sense whether the Department denied the applicant procedural fairness.
(f) The Tribunal failed to consider the effect of the inordinate delay combined with the effect of the prejudices it caused to the applicant.
CONSIDERATION
Particulars (a), (b), (c) and (d)
The considerations relevant to the matters that the AAT was called upon to consider in this case related to the criteria for the grant of the various permits or visas that Mr Sanele sought. None of those criteria was concerned with the issues raised by particulars (a), (b), (c) or (d) of the allegation, and none of those issues was amongst the matters that the AAT was required to take into account when undertaking its review. They therefore do not provide a basis to conclude that the Tribunal’s decision is affected by jurisdictional error.
On a factual level, I am not persuaded that the Department gave Mr Sanele advice to the effect of that particularised in para.(b). In his evidence to the Tribunal, Mr Sanele relevantly said:
INTERPRETER: … he needed to go back to Fiji and he asked the advice from the Immigration Department here and they told that my passport will be stamped in Fiji. I was advised from here that as soon as I get into Fiji to go and see the embassy in Fiji so that they can stamp my passport to enable me to come back, and I was unable to come back because of that problem that I had with my visa then. They didn't do it in Fiji …
According to Department records reproduced in the Court Book that was exhibit A, at the time Mr Sanele left Australia on 10 February 1994, he had been without a visa for almost exactly 7 years. The fact that he had overstayed his original visa was undoubtedly the reason why he sought a facilitated departure in 1994, evidenced by the “Departure Facilitation Passenger with Expired Entry Permit” form dated 9 February 1994 reproduced at CB54. As that document stated, after providing it to the “Outwards Immigration Inspector” at the airport, Mr Sanele would:
… then be permitted to make a voluntary departure from Australia without the need for an interview at the airport.
When Mr Sanele applied in Suva for a Class 100 visa, it was refused on the basis that he was subject to a 6 month re-entry preclusion because he had “overstayed” his previous visa. It is not credible that the officer to whom Mr Sanele allegedly spoke and whom he quoted in his evidence to the AAT would, in the circumstances, have provided the advice allegedly given. I am not persuaded that Mr Sanele was misled as he claims.
Particulars (e) and (f)
There is no doubt that the 2017 decision on the 1993 application for permits came long after the application. However, there had been a decision, albeit an apparently incomplete one, in August 1994 and it was not suggested that Mr Sanele had pursued the Department for a more comprehensive decision at any point, including prior to the April 2017 decision. The appropriate inference would appear to be that until 2017 the parties thought the matter had been disposed of in a final manner.
It is to be noted that the practical outcome of the two departmental decisions was the same, in that Mr Sanele was denied the substantive spouse visa he sought and upon which the related permits or visas considered by the Department and the AAT depended. In those circumstances, Mr Sanele suffered no practical prejudice.
Futility
Mr Sanele conceded that the spousal relationship that had been the basis of his Class 812 permit application had foundered since he made his 1993 application. As it is a time of decision criterion for the grant of such a permit, or transitional visa pursuant to reg.23(2) of the Transitional Regulations that the applicant be the spouse of an Australian citizen or permanent resident, and Mr Sanele cannot meet that criterion, even if the matter were remitted to the AAT it could not reach a conclusion on that aspect of the matter different from the one it reached in 2017. It would therefore be futile to remit that aspect of the matter to the AAT for reconsideration.
According to cl.829.12 of the 1993 Regulations, the purpose of Class 829 permits was to authorise a period of stay in Australia for a person whose principal application to remain permanently in Australia had not been decided. In keeping with that purpose, cl.829.52 provided that the duration of any Class 829 permit was:
Until a decision is made on the applicant’s principal application, and the applicant is notified in accordance with regulation 2.8.
In Mr Sanele’s case, his application for a Class 812 permit was a “principal application”.
Given that the substantive visa application has been decided, and that the issue will not be remitted to the AAT, a Class 829 permit or transitional visa is no longer available to Mr Sanele. It would therefore be pointless to remit this aspect of the matter to the AAT for further consideration.
Clause 154.431 of the 1993 Regulations provided that a criterion for the grant of a Class 154 permit was having a permanent entry permit. Mr Sanele did not hold such a permit at the time he applied for the Class 812 permit and he has not suggested that he has held one subsequently, including presently. Absent evidence to the effect that he does, I conclude that he does not hold such a permit or equivalent visa and find that it would be futile to remit this aspect of the matter to the AAT for reconsideration too.
For those reasons, even if I found the AATs decision to be affected by jurisdictional error, I would not exercise the discretion to remit the matter to it.
CONCLUSION
Jurisdictional error on the part of the AAT has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 December 2022
Annexure A
full copies of quoted provisions
Regulation 23 of the Transitional Regulations:
REG 23 Entry permit applications made on or after 19 December 1989 and before 1 September 1994
23. (1) This regulation applies to an application for an entry permit that:
(a)was made on or after 19 December 1989 and before 1 September 1994; and
(b) had not been finally determined before 1 September 1994.
(2)An application to which this regulation applies is taken, on 1 September 1994, to be:
(a)if the application was for a temporary entry permit-an application for a transitional (temporary) visa; or
(b)if the application was for a permanent entry permit-an application for a transitional (permanent) visa.
(3)An application that, under subregulation (2), is taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which application was made.
(4)Subsections 33 (3A) and (3B) and sections 40 and 42 of the old Act continue to apply to and in relation to an application to which this regulation applies as if a reference in those sections to a class of entry permits were a reference to a class of transitional visas for which applications were constituted by applications for entry permits of a specified class under the Migration (1993) Regulations.
(5)A transitional (temporary) visa that is granted to a non-citizen on the basis of an application to which this regulation applies is to be:
(a)in the case of an application for a Class 828 (processing (temporary)), Class 829 (processing (residence)) or Class 830 (1 November 1993 (processing)) entry permit under the Migration (1993) Regulations, or a processing (code number 825) entry permit under the Migration (1989) Regulations-a visa to remain in Australia; or
(b)in any other case-a visa to travel to, enter, and remain in Australia.
(6)A transitional (permanent) visa that is granted to a non-citizen on the basis of an application to which this regulation applies is a visa:
(a)to travel to and enter Australia for a period of 3 years from the date of grant; and
(b)to remain in Australia permanently; and
(c)that is subject to the conditions (if any) that the Minister imposes, being conditions that the Minister could have imposed if the application had been decided under the old Act and Regulations as in force at the date of the application.
(7)A transitional (temporary) visa that is granted to a non-citizen on the basis of an application to which this regulation applies:
(a)has a visa period the same as the period for which the visa would have been in force; and
(b)is subject to the same conditions (if any); as would have been the case if the application had been decided under the old Act and Regulations as in force at the date of the application.
(8) Subdivision AB of Division 3 of Part 2 of the amended Act:
(a)does not apply to an application referred to in this regulation; and
(b)applies under section 342 of the amended Act to an application for review of a primary decision in respect of an application referred to in this regulation only if the review application is made on or after 1 September 1994.
Regulation 32 of the Transitional Regulations:
REG 32 Criterion regarding section 47 temporary entry permit
32On and after 1 September 1994, if a review authority is reviewing a decision to refuse a visa for which the application was constituted by an application for an entry permit:
(a)if it was a criterion under the Migration (1993) Regulations for the grant of an entry permit of that class that the applicant hold a section 47 temporary entry permit; or
(b)if under the Migration (1989) Regulations, a criterion for the grant of the entry permit was to the same effect as a criterion referred to in paragraph (a); that criterion does not apply:
(c)to that review; or
(d)if the application is remitted to a decision-maker for reconsideration-to the reconsideration.
Part 154 of sch 2 to the 1993 Regulations:
PART 154 - CLASS 154 (RESIDENT RETURN (A)) VISA AND ENTRY PERMIT
154.1 INTRODUCTION
154.11 Group: 1.4 (resident return).
154.12 Purpose of grant: To provide a return travel facility for certain persons who were granted permanent residence in Australia within the last 3 years and have not previously held a Class 154 visa and for certain persons who entered Australia within the last 3 years as holders of single entry migrant visas that did not include a re-entry facility.
(NOTE: In relation to Class 154 visas and entry permits, all applicants are primary persons.)
154.2 RESIDENT RETURN (A) VISA - PRELIMINARY
154.21 When and where may application and grant be made?
154.211A Class 154 visa may be:
(a) applied for and granted either before or after entry, but not at the Entry Control Point; and
(b) granted:
(i) before entry either as a travel-only visa or as an entry visa; and
(ii) after entry only as a travel-only visa.
154.22 Period of validity (visa)
154.221 Travel-only visa: Arrival in Australia (on any number of occasions) must be within 3 years after:
(a) the holder's first entry to Australia as the holder of a permanent entry permit; or
(b) the grant to the holder in Australia of a permanent entry permit;
whichever was the earlier.
154.222 Entry visa:
(a) Arrival in Australia (on any number of occasion) must be within 3 years after:
(i) the holder's first entry to Australia as the holder of a permanent entry permit; or
(ii) the grant to the holder in Australia of a permanent entry permit;
whichever was the earlier.
(b) Subject to paragraph (a), operation as an entry permit is without limitation as to time.
154.3 RESIDENT RETURN (A) VISA (BEFORE ENTRY)
(NOTE: The purpose of the grant of a Class 154 visa before entry is, first, to authorise travel to Australia and, second, to authorise entry to Australia (entry visa) or to serve on arrival as an application for a Class 154 entry permit (travel-only visa.)
154.31 Application (visa - before entry)
154.311
(1) Subject to subclause (2), the application must be made in accordance with approved form 759.
(2) An application by a person who is included in the passport of another applicant for a Class 154 visa may be combined with, and lodged at the same time as, the application by that other applicant.
(NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.13 and the fee (if any) specified in clause 154.811 must be paid (Act, subsection 24 (1)).)
154.32 Criteria to be satisfied at time of application (visa - before entry)
154.321
(1) The applicant meets the requirements of subclause (2) or (3).
(2) If the applicant has previously entered Australia:
(a) the applicant, immediately before last leaving Australia, was the holder of a permanent entry permit; and
(b) the application is made not later than 3 years after the earlier of:
(i) the date on which the applicant entered Australia under the permanent entry permit; or
(ii) the date on which the permanent entry permit was granted to the applicant.
(3) If the applicant has not entered Australia, he or she is the holder of a Group 1.1 (migrant) visa that is in force.
154.322 The applicant has not previously been the holder of a Class 154 visa.
154.33 Criteria to be satisfied at time of decision (visa - before entry)
154.331 The applicant satisfies special re-entry criterion 5001.
154.34 Conditions (visa - before entry): Nil.
154.4 RESIDENT RETURN (A) VISA (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 154 visa after entry is to authorise, before departure, the return travel to Australia of a person eligible to be granted the visa.)
154.41 Application (visa - after entry)
154.411
(1) Subject to subclauses (2) and (3), the application must be made in accordance with approved form 759.
(2) An application for a Class 154 visa by a person who is included in the passport of another applicant for a Class 154 visa may be combined with, and lodged at the same time as, the application by that other applicant.
(3) An application for an entry permit other than a Class 154 entry permit also has effect as an application for a Class 154 visa if it is:
(a) an application for a Group 1.2 (permanent resident (after entry)) entry permit; or
(b) an application under the Migration (1989) Regulations made after entry for an entry permit that is a Class 1 entry permit referred to in Schedule 3 of those Regulations; or
(c) an application made after entry before 19 December 1989 for an entry permit other than a temporary entry permit.
(NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.14 and the fee (if any) specified in clause 154.812 (if applicable) must be paid (Act, subsection 24 (1)).)
154.42 Criteria to be satisfied at time of application (visa - after entry): Nil.
154.43 Criteria to be satisfied at time of decision (visa - after entry)
154.431 The applicant is the holder of a permanent entry permit.
154.432 The applicant has not previously been the holder of a Class 154 visa.
154.433 The application was made not later than 3 years after the earlier of:
(a) the date on which the applicant entered Australia under the permanent entry permit; or
(b) the date on which the permanent entry permit was granted to the applicant.
154.44 Conditions (visa - after entry)
154.441 Mandatory conditions: Nil.
154.442 Discretionary conditions: Nil.
154.5 RESIDENT RETURN (A) ENTRY PERMIT - PRELIMINARY
154.51 When and where may application and grant be made?
154.511A Class 154 entry permit may be applied for and granted only:
(a) at the Entry Control Point; and
(b) if the applicant is the holder of a Class 154 visa granted as a travel-only visa.
154.52 Period of validity (entry permit)
154.521 A Class 154 entry permit has effect without limitation as to time.
154.6 RESIDENT RETURN (A) ENTRY PERMIT (BEFORE ENTRY): As provided by regulation 2.30.
154.7 [Resident return (A) entry permit not granted after entry]
154.8 FEES
154.81 Visa applications
154.811 Before entry:
(a) separate application: $60;
(b) application combined with, or constituted by, another application on which the fee (if any) payable is paid: Nil.
154.812 After entry:
(a) separate application: $50;
(b) application combined with, or constituted by, another application on which the fee (if any) payable is paid: Nil.
154.82 Entry permit applications
154.821 Before entry (only): Nil.
Part 812 of the 1993 Regulations:
PART 812 – CLASS 812 (DECEMBER 1989 (PERMANENT)) ENTRY PERMIT (PRIMARY PERSON)
812.1 INTRODUCTION
812.11 Group: 1.2 (permanent resident (after entry)).
812.12Purpose of grant to primary persons: To enable the grant of permanent residence to certain persons illegally in Australia on or before 18 December 1989.
(NOTE: For provisions relating to secondary persons, see Part 012 of Schedule 3.)
812.2-4 (No visa of this class)
812.5 DECEMBER 1989 (PERMANENT) ENTRY PERMIT - PRELIMINARY
812.51 When and where may application and grant be made?
812.511A Class 812 entry permit may be applied for and granted only after entry.
812.52 Period of validity (entry - entry)
812.521 The entry permit has effect without limitation as to time.
812.6 [December 1989 (permanent) entry permit not granted before entry]
812.7 DECEMBER 1989 (PERMANENT) ENTRY PERMIT (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 812 entry permit after entry is to authorise a further period of stay, unlimited as to time, in Australia for an eligible person.)
812.71 Application (entry permit - after entry)
812.711(1) Subject to subclause (2), the application must be made in accordance with approved form 903.
(2)An application by a member of the family unit of an applicant for a Class 812 entry permit may be combined with, and lodged at the same time as, the application by that other applicant.
(NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.28 and the fee (if any) specified in clause 812.821 paid (Act, subsection 34(1)).)
812.72 Criteria to be satisfied at time of application (entry permit after entry)
812.721If the applicant is an illegal entrant, the applicant satisfies illegal entrant criteria 6001 and 6002.
812.722 The applicant:
(a) was a prohibited non-citizen on or before 18 December 1989; and
(b) was in Australia on, and has not left Australia since, 18 December 1989; and
(c) applies before 19 December 1993 for the entry permit; and
(d) has been nominated by the relevant related person referred to in clause 812.723(2),(3),(4),(5) or(6), as the case requires; and
(e) notifies Immigration, without unreasonable delay, of each change of the applicant's residential address.
812.723(1) The applicant satisfies the requirements of subclause (2),(3),(4),(5)
or (6).(2)An applicant satisfies the requirements of this subclause if he or she is in a marital relationship that is both genuine and continuing, that began on or before 15 October 1990, as the spouse of an Australian citizen or Australian permanent resident.
(3) An applicant satisfies the requirements of this subclause if he or she has, since 15 October 1990, been the dependent child of an Australian citizen or an Australian permanent resident.
(4) An applicant satisfies the requirements of this subclause if:
(a)the applicant has been, since 15 October 1990, an aged parent of an Australian citizen or an Australian permanent resident; and
(b)on 15 October 1990 and continuously since that date the applicant satisfied the balance of family test in regulation 1.5.
(5)An applicant satisfies the requirements of this subclause if on
15 October 1990 and continuously since that date, the applicant was:(a) an aged dependent relative; or
(b) an orphan relative; or
(c) a special need relative; or
(d) a remaining relative;
of a settled Australian citizen or of a settled Australian permanent resident.
(NOTE: The various kinds of relative mentioned in subclause (5) are defined in regulation 1.3.)
(6)An applicant satisfies the requirements of this subclause if, subject to subclause (7):
(a)there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and
(b)the compassionate ground continues to exist.
(7)For the purposes of subclause (6), “compassionate ground” does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant's country of citizenship or of usual residence.
812.73 Criteria to be satisfied at time of decision (entry permit - after entry)
812.731 The applicant is the holder of a section 47 temporary entry permit.
812.732 The applicant:
(a)continues to satisfy the criteria in clause 812.723; and
(b)has, since lodgment of the application, notified Immigration without unreasonable delay of any change of his or her residential address.
812.733The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009.
812.734If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.
812.736(1) Each member of the family unit of the applicant who is an applicant for a Class 812 entry permit satisfies public interest criteria 4001 to 4004 and 4007 to 4009.
(2) Each member of the family unit of the applicant who is not an applicant for a Class 812 entry permit:
(a) satisfies public interest criteria 4001 to 4004; and
(b) satisfies public interest criteria 4007 and 4008, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria.
812.737The Minister is satisfied that the grant of the entry permit would not prejudice the rights of any person who has custody or guardianship of, or access to, a dependent child of the applicant.
812.74 Conditions (entry permit - after entry): Nil.
812.8 FEES
812.81 (No visa of this class)
812.82 Entry permit applications
812.821 After entry (only):
(a) application preceded by the withdrawal by the applicant of any application for an entry permit made by the applicant before 15 October 1990: Nil;
(b) application combined with and lodged at the same time as another application for a Class 812 entry permit on which any applicable fee has been paid: Nil;
(c) any other application: $370
Part 829 of the 1993 Regulations:
PART 829 - CLASS 829 (PROCESSING (RESIDENCE)) VISA AND ENTRY PERMIT
829.1 INTRODUCTION
829.11 Group: 2.8 (miscellaneous).
829.12 Purpose of grant: To authorise a further period of stay in Australia for a person whose principal application to remain permanently in Australia has not been decided.
(NOTE: In relation to Class 829 visas and entry permits, all applicants are primary persons.)
829.13 Interpretation
829.131 In this Part:
“principal application”, in relation to an application for a Class 829 entry permit, means an application made for one of the following entry permits:
(a) a Class 801(spouse)(after entry)) entry permit;
(b) a Class 802(child)(after entry)) entry permit;
(c) a Class 804(aged parent)(after entry)) entry permit;
(d) a Class 805(skilled occupation) entry permit;
(e) a Class 806(family and other close ties(after entry)) entry permit;
(ea) a Class 808(confirmatory) entry permit;
(f) a Class 812(December 1989(permanent)) entry permit;
(g) a Class 820(extended eligibility(spouse)) entry permit;
(h) a Class 826(extended eligibility(interdependency)) entry permit.
829.2 PROCESSING (RESIDENCE) VISA - PRELIMINARY
829.21 When and where may application and grant be made?
829.211 A Class 829 visa may be:
(a)applied for and granted only within Australia, but not at the Entry Control Point; and
(b)granted either as a travel-only visa or as an entry visa.
829.22 Period of validity (visa): As individually determined by the Minister.
829.3 (Processing (residence) visa not granted before entry)
829.4 PROCESSING (RESIDENCE) VISA (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 829 visa after entry is to authorise, before departure, the return travel to Australia of the holder of a Class 829 entry permit within the period of validity of the entry permit.)
829.41 Application (visa - after entry)
829.411 The application must be made in accordance with approved form 43.
(NOTE: Before an application will be considered, it must be lodged in accordance with regulation 2.14 and the fee specified in clause 829.81 must be paid (Act, subsection 24(1)).)
829.42 Criteria to be satisfied at time of application (visa - after entry)
829.421 The applicant:
(a) is the holder of a Class 829 entry permit; or
(b) is the holder of a processing entry permit (code number 825) granted under the Migration (1989) Regulations as a result of an application for:
(i) an extended eligibility entry permit; or
(ii) a December 1989 (temporary) (code number 440), spouse (after entry) (code number 801), child (after entry) (code number 802), aged parent (after entry) (code number 804), skilled occupation (code number 805), confirmatory (code number 808) or December 1989 (permanent) (code number 812) entry permit; and is in Australia.
829.43 Criteria to be satisfied at time of decision (visa - after entry)
829.431 The applicant continues to hold the entry permit referred to in clause 829.421.
829.432 The Minister is satisfied that the return of the applicant to Australia would not be contrary to the interests of Australia.
829.44 Conditions (visa - after entry)
829.441 Mandatory conditions: Nil.
829.442 Discretionary conditions: The same conditions as those to which the
Class 829 entry permit held by the applicant is subject.829.5 PROCESSING (RESIDENCE) ENTRY PERMIT - PRELIMINARY
829.51 When and where may application and grant be made?
829.511 A Class 829 entry permit may be applied for and granted either:
(a) at the Entry Control Point, if the person is the holder of a Class 829 visa that was granted as a travel-only visa; or
(b) after entry.
829.52Period of validity (entry permit): Until a decision is made on the applicant's principal application, and the applicant is notified in accordance with regulation 2.8.
829.6 PROCESSING (RESIDENCE) ENTRY PERMIT (BEFORE ENTRY): As provided by regulation 2.30.
829.7 PROCESSING (RESIDENCE) ENTRY PERMIT (AFTER ENTRY)
(NOTE: The purpose of the grant of a Class 829 entry permit after entry is to authorise a further period of stay in Australia for a person whose principal application to remain permanently in Australia has not been decided.)
829.71 Application (entry permit (after entry)): As provided by subregulation 2.29(1B).
(NOTE: An application for an entry permit of any of the following classes is taken, under subregulation 2.29(1B), to be an application for a Class 829 entry permit:
Class 801 (spouse (after entry));
Class 802 (child (after entry));
Class 804 (aged parent (after entry));
Class 805 (skilled occupation);
Class 806 (family and other close ties (after entry));
Class 808 (confirmatory);
Class 812 (December 1989(permanent));
Class 820 (extended eligibility (spouse));Class 826 (extended eligibility (interdependency)).)
829.72 Criteria to be satisfied at time of application (entry permit - after entry)
829.721The applicant is not the holder of a Class 771(transit) visa or entry permit.
829.722 The entry permit or visa(if any) held by the applicant is not subject to a condition that the applicant is not entitled, after entering Australia, to be granted an entry permit or further entry permit while the holder remains in Australia.
829.723 If the applicant is an illegal entrant, the applicant satisfies any illegal entrant criteria to which the entry permit in respect of which the principal application was made is subject.
829.73 Criteria to be satisfied at time of decision (entry permit - after entry)
829.731 (1) The applicant meets the requirements of subclause (2),(3) or(4).
(2) An applicant meets the requirements of this subclause if:
(a)the principal application was made on or after 19 December 1989; and
(b) any entry permit held by the applicant at the time of lodging the Class 829 application has expired, or may expire, before a decision is made on the principal application; and
(c) the applicant apparently meets the prescribed criteria for the grant of the entry permit to which the principal application relates, other than:
(i) public interest criteria; and
(ii) any requirement to hold a section 47 temporary entry permit.
(3) An applicant meets the requirements of this subclause if:
(a) the principal application was made on or after 19 December 1989; and
(b) the applicant is included as a family unit member in the principal application; and
(d) any entry permit held by the applicant at the time of lodging the Class 829 application has expired, or may expire, before a decision is made on the principal application.
(4) An applicant meets the requirements of this subclause if:
(a) the principal application is an application made before 19 December 1989 for an entry permit other than a temporary entry permit; and
(b) the applicant apparently meets the requirements for the grant of the permit(being the requirements continued in force by subsection 6(4) of the Migration Legislation Amendment Act 1989) except:
(i) the requirements relating to health and character; and
(ii) the requirement that the applicant be the holder of a temporary entry permit.
829.733 If the applicant is included as a family unit member in the principal application, a Class 829 entry permit has been granted to the applicant who made the principal application.
829.74 Conditions (entry permit - after entry)
829.741 Mandatory conditions: Nil.
829.742 Discretionary conditions: Any applicable conditions set out in Schedule 9.
829.8 FEES
829.81 Visa applications: $50.
829.82 Entry permit applications: Nil
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