Singh v Minister for Immigration
[2007] FMCA 1739
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1739 |
| MIGRATION – Whether condition 8534 of Schedule 8 of the Migration Regulations 1994 is a condition made under s.41(2)(a). |
| Migration Act 1958 (Cth), ss.41(2), 46(1A), 474 |
| Inland Revenue Commissioners v Hinchy [1960] AC 748 Re Heydon’s case (1584) 76 ER 637 Anstee v Jennings [1935] VLR 144 Heading v McCubbin [1936] VLR 159 |
| First Applicant: | SANGITA DEVI SINGH |
| Second Applicant: | KAMAL DIP SINGH |
| Third Applicant: | KRIT CRISHAL SINGH |
| Fourth Applicant: | KRISTIKA SHARNEAL SINGH |
| Fifth Applicant: | KAUSHIK KUSHNIL SINGH |
| Sixth Applicant: | KEERTI SANANJANA SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1407 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 24 September 2007 |
| Date of last submission: | 24 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Turner of Parish Patience |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | Ms T. Quinn of DLA Phillips Fox |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1407 of 2007
| SANGITA DEVI SINGH |
First Applicant
| KAMAL DIP SINGH |
Second Applicant
| KRIT CRISHAL SINGH |
Third Applicant
| KRISTIKA SHARNEAL SINGH |
Fourth Applicant
| KAUSHIK KUSHNIL SINGH |
Fifth Applicant
| KEERTI SANANJANA SINGH |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants a Graduate Skilled (Temporary) visa. Background.
On 25 March 2002 the applicants applied to the Department of Immigration and Multicultural Affairs for a Graduate Skilled (Temporary) visa (the first applicant being the primary visa applicant – hereinafter “the applicant”).
The application was refused by a delegate of the first respondent on 7 June 2002 (CB 95) and by the Tribunal on review on 6 April 2005 (CB 155).
The matter is now before this Court pursuant to an application for judicial review filed on 3 May 2007.
Issues for determination
The issues before the Court are as follows:
·Whether condition 8534 in Schedule 8 of the Migration Regulations1994 (Cth) (“the Regulations) is a condition made pursuant to s.41(2)(a) of the Migration Act 1958 (Cth) (“the Act”);
·Whether s.46(1A) applies to condition 8534.
Mr Turner submits for the applicant that:
·A person who obtains qualifications in Australia is entitled to apply to stay in Australia; and
·To remove that right, the condition must comply specifically with the Act.
Condition 8534 deals with the granting of a visa but does not correspond exactly with the words in s.41(2)(a). Section 46 says that an application for a visa is invalid if:
(a)the applicant is in the migration zone;
(b)if a condition in 41(2)(a) is on a visa; and
(c)the Minister has not waived that condition under 41(2A) (CB 93).
Mr Kennett submitted for the first respondent (Transcript 15, line 17) that as condition 8534
is a condition made under or described in s.41(2)(a) of the Act…it doesn’t prevent a 497 visa being applied for, but it does absolutely prevent it being granted.
Mr Kennett submitted that the condition does not take away a fundamental human right or a common law right, and stated further that (Transcript 15-16, from line 36)
What we are dealing with here however is a purely statutory capacity for a non-citizen to apply for the grant of permission to remain in Australia for a further period….it has nothing to say about the revocation or cancellation of an existing right to stay in Australia….the non-citizen doesn’t have any fundamental right to stay in Australia which requires any special legislation formulation for it to be taken away…[the] statutory scheme which needs to be construed according to its terms.
The applicant does not have a statutory right to a visa. She has a statutory right to make an application which, for it to be granted, must meet the requirements of the Act. Condition 8534 is one of those requirements. A right of the applicant is not taken away by that condition.
The application
In his application, the applicant set out the following ground:
(1)The Tribunal erred in law.
Particulars
(a)The Tribunal misapplied the provisions of the Migration Act 1958 s.46(1A) which does not apply to condition 8534.
(b)The Tribunal incorrectly found that the Applicant had not lodged a valid visa for a Class DD visa.
Findings of the Court in relation to the ground in the application
By s.41 of the Act, regulations may provide that a visa is subject to:
(2)(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia;
By s.46(1)(A) an application for a visa is invalid if:
(a)the applicant is in the migration zone; and
(b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c)the Minister has not waived that condition under subsection 41(2A);
Clause 8534 of Schedule 8 “Visa conditions” of the Regulations provides that:
The holder will not be entitled to be granted a substantive visa, other than:
(a) a protection visa; or
(b) a student visa the application for which must be made on form 157P or 157P (Internet); or
(c) a Subclass 497 (Graduate – Skilled) visa; or
(d) a Subclass 580 (Student Guardian) visa;
while the holder remains in Australia.
The effect of s.46(1A) is that an application for a visa is invalid if:
(a)the applicant is in the migration zone; and
(b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c)the Minister has not waived that condition under 41(2A).
Here the applicant is in the migration zone and the Minister has not waived the condition. The question therefore becomes whether the visa the applicant held was “subject to a condition described in s.41(2)(a)”. The applicant submits that as clause 8534 does not contain the words “despite anything else in the Act”, it is not a condition made pursuant to s.41(2)(a) and therefore the visa was not subject to it. This is the central issue in the case. The question is “whether s.41(2)(a) requires regulations made pursuant to it to contain the words ‘despite anything else in the Act’ ” (“the phrase”).
The Court accepts the submission by Mr Kennett (Transcript 16, line 38) that s.41(2)(a) describes something that the regulations may achieve, and does not purport to describe the form of words that has to be used to achieve it. The Court refers to the decision in Inland Revenue Commissioners v Hinchy [1960] AC 748 per Lord Reid at 767: “What we must look for is the intention of Parliament from the words which they used in the Act”.
The Court refers to the following statement in Re Heydon’s case (1584) 76 ER 637 per curiam at [3]:
and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
The intention behind, and purpose of s.41(2)(a), is the making of a condition that the holder of a visa will not after entering Australia be entitled to be granted a substantive visa while he or she remains in Australia, despite anything else in the Act. If the argument advanced for the applicant is accepted, clause 8534 would be rendered ineffective, which would conflict with the intention and purpose of s.41(2)(a). An interpretation which gives operative effect to a provision is to be preferred to one that renders it nugatory, and defeats the intention of the legislature: Anstee v Jennings [1935] VLR 144 per Macfarlan J.
The construction proposed for the applicant would lead to the absurd result that although clause 8534 on its face is intended to operate notwithstanding any other provision in the Act, it would have no effect. As stated by Macfarlan J (dissenting) in Heading v McCubbin [1936] VLR 159 at 166:“…absurd consequences following from an interpretation have always been regarded as legitimate matter for consideration by the Court in determining which is the proper construction”.
The Court rejects the submission for the applicant and holds that clause 8534 is applicable. The Minister has not waived the condition. By s.46(1A)(b) and (c), as the applicant held a visa subject to a condition described in 41(2)(a) and the Minister has not waived the condition (CB 93), the applicant cannot make an application for a visa. Because of clause 8534 the applicant cannot be granted a visa.
The Court finds that the Tribunal made no error of law; It did not misapply the provisions of s.46(1A); the question of whether or not the applicant lodged a valid application for a Class DD visa does not require decision.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 9 November 2007
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