Sultana v MIMA

[1998] FCA 171

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 464 of 1997

BETWEEN:	ANEES SULTANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Immigration Review Tribunal. The issue in the case is a narrow one. It concerns the application and construction of clause 816.724 in Schedule 2 to the Migration (1993) Regulations.

The relevant facts found by the Tribunal may be shortly stated.  The applicant is a citizen of Pakistan.  On 17 February 1991 she was granted a Class 660 tourist visa, which was valid until 17 May 1991 and enabled single travel to Australia and entry for one month.  The applicant arrived in Australia on 4 March 1991 and was granted a temporary entry permit until 4 April 1991.  On 2 April 1991 she was granted a further temporary entry permit enabling her to stay in Australia until 31 May 1991.  The applicant departed Australia on 27 May 1991.

On 3 August 1993 the applicant was granted a Class 670 visa.  She arrived in Australia using that visa on 18 August 1993 and has remained here since that date.  On 13 September 1993 the applicant applied for refugee status.  On 28 July 1994 she applied for a Class 816 entry permit.  Her two children were included in that application.

Part 816 was added to Schedule 2 by SR 1994 No. 11 with effect from 1 March 1994. Class 816 entry permits were intended to provide for permanent residence in Australia by certain persons who had applied for determinations that they were refugees. Division 816.72 set out the criteria to be satisfied at the time of application for such a permit, and clause 816.724 provided:

“816.724        (1)       Subject to subclause (2), if the applicant is a principal applicant, he or she:

(a)was granted a visa (of any class) overseas on or before 12 March 1992; and

(b)used that visa to travel to, and enter, Australia on or before 1 November 1993.

(2)If an applicant:

(a)travelled to, and entered, Australia on or before 1 November 1993 using a visa granted on or before 12 March 1992; and

(b)subsequently left Australia and returned using a visa other than the visa referred to in paragraph (1)(a);

the applicant is taken to meet the requirements of this clause only if the visa used to return to Australia was a return visa.”

Clause 816.131 also provided:

“816.131        In this Part:

. . .

“return visa” includes:

(a)a visa granted in Australia that permits return travel to Australia; and

(b)a visa granted overseas on the basis of a person’s status in Australia immediately before the person’s last departure from Australia;

. . .”

The Tribunal held that the applicant failed to satisfy the requirements of clause 816.724. It said:

“The Visa Applicant was granted a visa overseas on or before 12 March 1992 and she used that visa to travel to, and enter, Australia on or before
1 November 1993.  However, as she subsequently departed Australia and returned to Australia using another visa, the Visa Applicant must have returned using a ‘return visa’ in order to satisfy clause 816.724.

The Visa Applicant travelled to Australia on 3 August 1993 using a Class 670 visa.  There was nothing in the criteria for a Class 670 visa which depended on her status in Australia immediately before her last departure from Australia, nor is there any evidence that she was granted the Class 670 visitor visa on the basis of, her status in Australia immediately before her last departure from Australia.  Accordingly, the Class 670 visa does not meet the definition of a ‘return visa’ and the Visa Applicant does not satisfy clause 816.724.”

The initial submission of counsel for the applicant is to the effect that clause 816.724 has no application to his client because she is not a “principal applicant” within the meaning of subclause 816.724(1). (This does not appear to have been a point taken before the Tribunal by the applicant’s then advisers. The definition of “principal applicant” in clause 816.131 was omitted by SR 1994 No. 87, reg 6.11 with effect from 7 April 1994 and a definition of “principal person” substituted. At the same time the new expression was substituted for “principal applicant” in several provisions of Part 816, but not in subclause 816.724(1).

I do not think that it matters in the slightest that the expression “principal applicant” is no longer defined in Part 816.  There is a presumption that words are not used in legislation without a meaning and are not superfluous: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Mason CJ at 12-13. In addition, it is perfectly permissible to have regard to repealed provisions in order to construe what remains: Mathieson v Burton (1971) 124 CLR 1 per Gibbs J at 26. There can be no doubt that the applicant is a principal applicant for the purposes of subclause 816.724(1). Subclause 816.721(1) contemplates only two types of applicant, the first of which is plainly the principal applicant, even though she also fits the definition in clauses 816.131 of the “principal person”. It would offend common sense to regard one of the applicant’s two children as the principal applicant by virtue of being “a member of the family unit”. It was not necessary for the Tribunal to make a finding on this point, but the initial submission is rejected.

The next argument is that, since the Class 670 visa permitted the applicant to return to Australia after her previous visit here, it should be taken to be a “return visa” within the meaning of that expression in subclause 816.724(2).  This submission must be rejected.  The language of the subclause assumes that a visa used to return to Australia may not be a return visa.  That is why the condition requires that the visa used be of a specific type.  Further, although the definition of “return visa” in clause 816.131 may not be exhaustive, it does require of a visa granted overseas somthing more than that it simply “permits return travel to Australia”.

Finally, counsel for the applicant submits that the Class 670 visa used by the applicant meets the requirements of par (b) of the definition of “return visa” in clause 816.131.  It is pointed out that the application for such a visa must be made in accordance with an approved form which requires details of previous visits to Australia, and further that an applicant, who has previously been in Australia, must satisfy special re-entry criteria.  However that may be, I do not consider that any of those matters indicate that the applicant’s Class 670 visa was granted “on the basis of [her] status in Australia immediately before [her] last departure from Australia”, that is to say in the present case, immediately before 27 May 1991.  Regulation 2.15 of the Migration(1993) Regulations provides for the grant of the kind of visa required by par (b) of the definition of return visa.  Someone who has left Australia but returns, as the applicant did here, on a tourist visa does not meet the requirements of subclause 816.724(2). That was the view of Sackville J in Ge v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 523 at 530, and I respectfully agree.

The application is dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            27 February 1998

Counsel for the applicant:	Tim Reilly
Solicitor for the applicant:	Ramrakha Jenkins
Counsel for the respondent:	A F Backman
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	25 February 1998
Date of judgment:	27 February 1998