SZQAN v Minister for Immigration
[2011] FMCA 501
•4 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAN v MINISTER FOR IMMIGRATION | [2011] FMCA 501 |
| MIGRATION – Application to review decision of a delegate of the Minister for Immigration that a visa application was invalid because it did not meet s.48 of the Migration Act 1958 (Cth) and could not be considered – whether delegate misinterpreted and misapplied the law. |
| Migration Act 1958 (Cth), ss.46, 48 Migration Reform Act 1992 (Cth), s.39 Migration Regulations 1994 (Cth), reg.2.12 |
| Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 51; [2004] FCA 956 Minister for Immigration and Multicultural and Indigenous Affairs v Kim (2004) 141 FCR 315; [2004] FCAFC 329 Pradabsuk and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 584; [2006] FCAFC 66 |
| Applicant: | SZQAN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2332 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie & Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondent: | J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
An order in the nature of certiorari issue quashing the decision of the respondent notified by letter of 27 October 2010 that the applicant’s application for a Medical Treatment (Class UB) subclass 685 (Long Stay) visa was invalid.
An order in the nature of mandamus issue requiring the respondent to consider the applicant’s application of 19 October 2010 for a Medical Treatment (Class UB) subclass 685 (Long Stay) visa.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2332 of 2010
| SZQAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of a delegate of the Minister for Immigration and Citizenship that the applicant’s application for a Medical Treatment (Class UB) subclass 685 (Long Stay) visa was not a valid application. The decision was notified to the applicant by letter dated 27 October 2010.
The applicant is a citizen of Lebanon who arrived in Australia in November 1993. Relevantly, the evidence before the court is that in August 1994 the applicant applied for refugee status and to remain in Australia permanently pursuant to a Protection (Permanent) Entry Permit. Following changes to the legislation which took effect on 1 September 1994, protection visas were introduced for people in Australia seeking protection as refugees. Decision-makers were required to deal with earlier refugee-related applications in the same manner as applications for protection visas (see s.39 of the Migration Reform Act 1992 (Cth)). In such circumstances the applicant is referred to by a pseudonym in these proceedings.
The application for protection was rejected on 18 October 1995.
The applicant sought review by the Refugee Review Tribunal which, by a decision dated 18 June 1997, affirmed the decision not to grant him a protection visa. It found that his claims were “implausible and far-fetched”, vague and inconsistent.
On 31 July 2008 the applicant applied for a Child (Residence) (Class BT) visa. It was a criterion for such a visa that at the time of the application the applicant be under 25 years of age or be incapacitated for work due to total or partial loss of his or her bodily or mental functions. At that time the applicant was 50 years old. In January 2009 the application was refused on the basis of his age and the absence of any evidence of incapacity for work.
The applicant sought review of that decision by the Migration Review Tribunal. On 1 June 2009 the Tribunal determined that the application for review was not a valid application and that the Tribunal had no jurisdiction.
On 19 October 2010 the applicant made the application for a Subclass 685 visa that is in issue in these proceedings. Subclass 685 is one of the two subclasses within Class UB. The other subclass is Subclass 675 (a Medical Treatment (Short Stay) Visa). These visas are temporary visas to enable successful applicants to remain in Australia as visitors for the purposes of medical treatment or for related purposes.
The delegate’s decision
On 27 October 2010, a delegate of the respondent notified the applicant that his application for a Medical Treatment (Class UB) subclass 685 visa, was “invalid because it did not meet s48 of the Migration Act 1958 (the Act).” The letter stated that s.48 provides that:
…you are not permitted to apply for a Medical Treatment (Class UB) Subclass UB 685 visa, because you do not hold a substantive visa and after last entering Australia, you were refused a:
- FTEP – Temporary Resident Extension of Stay on 18/10/1995
- Processing Permit Class 828 on 19/10/1995
- Protection Entry Permit (CL 817) refugee status on 18/10/1995
- Child (Residence) (Full) (BT 802) on 14/01/2009.
The letter continued:
Invalid applications cannot be accepted or processed. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.
The delegate also advised the applicant that there was “no right of merits review of the assessment that an application [was] invalid”.
The application
The applicant commenced proceedings in this court on 28 October 2010 seeking writs of certiorari, mandamus and prohibition, in effect to require the Minister to determine his application for a Class UB (Subclass 685) visa according to law.
There is one ground in the application. It is that “The delegate misinterpreted the applicable law and misapplied the law to the facts”. The particulars to that ground are expressed as follows:
(a) The delegate erred in her understanding and application of the law by finding that the application was invalid because the applicant did not hold a substantive visa and, after last entering Australia, had applications for a substantive visa refused (on 18 October 1995 (Temporary Resident Extension of Stay; and Protection Entry Permit (Class 817)); on 19 October 1995 (Processing Permit Class 828); and on 14 January 2009 (Class BT, Subclass 802)), when
(i) Sub-regulation 2.12(1)(ca) of the Migration Regulations 1994 (‘the regulations’) prescribes a Class UB visa for the purposes of s48.
(b) In the alternative, the application was validly made and had to be considered because r2.12 can add additional criteria for visa grant, but not criteria that go to the validity of an application.
(c) In the alternative, the application was validly made and had to be considered because r2.12(3) merely adds additional criteria for visa grant, not criteria that go to the validity of an application because
(i) a subjective evaluation is required by subregulation 2.12(3) (in conjunction with r 2.12(1)(ca)) whether the Applicant meets, at the time of application, subclause 685.212(6) or (7) of Schedule 2 of the regulations (and in particular, subclause 685.212(6)(d)).
The law
As the solicitor for the applicant submitted, central to his submissions is the operation of s.48 of the Migration Act 1958 (Cth) (the Act). Section 48(1):
A non-citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
Regulation 2.12 of the Migration Regulations 1994 (Cth) (the Regulations) is relevantly as follows:
(1) For section 48 of the Act the following classes of visas are prescribed:
(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(c) Protection (Class XA);
(ca) subject to subregulation (3), Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(n) Resolution of Status (Temporary) (Class UH);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT).
Note Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.
(3) Paragraph (1) (ca) applies to a person if and only if he or she meets the requirements of subclause 685.212 (6) or (7) of Schedule 2.
…
As the class of visa for which the applicant sought to apply was Class UB, the paragraph of reg.2.12(1) of relevance in this case is reg.2.12(1)(ca). Regulation 2.12(1)(ca) is expressed to be subject to subreg.2.12(3) which provides that reg.2.12(1)(ca) “applies to a person if and only if he or she meets the requirements of subclause 685.212(6) or (7) of Schedule 2” to the Regulations.
Schedule 2 to the Regulations sets out the criteria for the various subclasses of visas. The criteria referred to in reg.2.12(3) are criteria for a subclass 685 Visa to be satisfied at the time of application. Clause 685.212(1) requires an applicant for a subclass 685 visa to meet the requirements of one of subclauses (2), (3), (4), (5), (6) or (7).
Subclauses (6) and (7) (which are referred to in reg.2.12(3)) are as follows:
(6) An applicant meets the requirements of this subclause if he or she:
(a) is in Australia; and
(b) has turned 50; and
(c) while in Australia, applied:
(i) for a permanent entry permit before 1 September 1994; or
(ia) for a section 47 temporary entry permit (within the meaning of the Migration (1993) Regulations); or
(ib) for an extended eligibility entry permit (within the meaning of the Migration (1989) Regulations); or
(ii) for a permanent visa on or after 1 September 1994; and
(d) has met all the criteria for the grant of that visa or entry permit other than public interest criteria related to health; and
(e) has been refused the visa or entry permit.
(7) An applicant meets the requirements of this subclause if he or she is a member of the family unit of a person who meets the requirements of subclause (6).
There are no equivalent criteria specified in Schedule 2 in relation to an application for a Subclass 675 (Medical Treatment) (Short Stay) visa, which is the other subclass within Class UB.
The solicitor for the applicant submitted that it could be inferred that the delegate found that the application for a Subclass 685 visa was invalid because of the operation of s.48 of the Act combined with reg.2.12, notwithstanding the absence of any reference to reg.2.12 in the letter notifying the applicant of the decision, having regard to the delegate’s reference to s.48 and to the substantive visas for which the applicant had applied and which had been refused. In other words the applicant’s submissions proceeded on the basis that the decision must have been made in reliance on reg.2.12(3) as Class UB is listed in reg.2.12(1)(ca) as a class of visa for which a person subject to s.48 may apply “subject to” reg.2.12(3). The respondent’s submissions also proceeded on this basis.
Kim’s case
In essence the applicant submitted that reg.2.12(3) did not go to the validity of a visa application and hence that the delegate erred in finding that the visa application was invalid. It was submitted that the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Kim (2004) 141 FCR 315; [2004] FCAFC 329 was relevant to the determination of whether reg.2.12(3) went to the validity of a visa application or imposed an additional criterion for the grant of a visa which had to be met by an applicant to whom s.48 of the Act applied.
The solicitor for the applicant explained that it was not contended that subreg.2.12(1)(ca) and/or reg.2.12(3) were ultra vires and invalid, but rather that the delegate had erred in one of the three alternative ways (set out in the particulars to the ground in the application) in finding that the visa application was invalid.
In contrast, at first instance in Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 51; [2004] FCA 956 what was in issue was the validity of the former reg.2.12(2).
In that case, a delegate had found that two Class AO visa applications made by applicants who were subject to the s.48 restrictions on further visa applications were not valid. Class AO was at that time listed in reg.2.12(1)(a) as a prescribed class of visa as follows:
subject to subregulation (2), Special Eligibility (Residence)
(Class AO)
Regulation 2.12(2) (which has since been repealed) at that time provided:
Paragraph (1)(a) applies to a person if he or she meets the requirements of subclause 832.211(3) of Schedule 2.
In other words, those provisions adopted a similar drafting technique to that in issue in this case, albeit in relation to a different class of visa.
Subclause 832.211(3) of Schedule 2 to the Regulations, as it stood at the relevant time, prescribed one of two alternative criteria to be satisfied by an applicant for a class AO subclass 832 (Close Ties) visa at the time of application. It contained six requirements which related to matters including whether the applicant was in Australia at a particular time, his or her previous visa history, whether the applicant “has turned 18” and (under subcl.832.211(3)(c)(iv)) whether the applicant “before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.” The part of Schedule 2 containing the criteria for the other subclass of visa in Class AO Subclass 831 (Prospective Marriage Spouse) did not include such requirements.
The delegate had advised each applicant in Kim that the visa application could not be considered as it was not a valid application because on the information provided the delegate was not satisfied that the applicant met the requirements of subcl.832.211(3)(c)(iv) as insufficient evidence had been submitted to demonstrate that the applicant had developed significant ties with the Australian community. In other words the delegate regarded reg.2.12(2) as requiring consideration of the requirements of subcl.832.211(3) in relation to the validity of the visa application.
At first instance in Kim, Branson J was of the view that subreg.2.12(2) was ultra vires and invalid as it was “not a regulation that the [Migration] Act authorised the Governor-General to make” (at [32]). Her Honour also made orders quashing the delegate’s decision and requiring the delegate to consider the application for a Class AO (subclass 832) visa.
Branson J found that if reg.2.12(2) was valid the effect of requiring a non-citizen to whom s.48 applied to meet the requirements of subcl.832.211(3) of the regulations before he or she could apply for a Class AO visa, appeared to mean, among other things, that such a person must meet the requirements of subcl.832.211(3) at the time of application and that “a decision as to whether he or she [did so would be] rendered immune from review by the Migration Review Tribunal” because a decision that an application for a visa was not a valid application was not open to merits review (at [18]).
This conclusion was reached on the basis that reg.2.12(2) rendered “a decision on this question necessary to determination of the validity of the application” (at [18]). Her Honour concluded, at [19] – [32], that the relevant provisions of the Act were not intended to authorise the making of a regulation that had such effects.
Among other things, her Honour expressed the view that the legislature did not intend a decision as to the validity of a visa application to require the making of a judgment of the kind required by a determination as to whether “before turning 18” an applicant “spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia” (at [28]) as distinct from an evaluation against objective standards (at [26] – [28]).
However, on appeal in Kim the matter was decided on the basis of a contention that had not been considered at the first instance. It was that reg.2.12(2) did not operate to create a condition that must be satisfied for an application comprehended by s.48 to be a valid application. Hence reg.2.12(2) was not invalid as ultra vires (Moore J at [21]) or no issue arose as to its validity (Tamberlin J at [23] and Allsop J at [25] – [31]). In effect, the Full Court in Kim concluded that the delegate had erred in taking into account the requirements of reg.2.12(2) (and hence of subcl.832.211(3)) in deciding whether a visa application was valid.
Moore J found (at [18]) that reg.2.12(2) created a “qualification or limitation on an application for a particular class of visa by a person to whom s.48 applies” as follows:
Regulation 2.12(2) does not, in terms, condition the validity of an application otherwise authorised by s 48. Rather, it creates a qualification or limitation on an application for a particular class of visa by a person to whom s 48 applies, that is, a person who is a non-citizen in the migration zone not holding a substantive visa and who had earlier had a visa cancelled or an application for a visa refused (after last entering Australia). What is not clear is whether the qualification or limitation operates when the validity of the application is being considered or operates when the application is being considered. If the former, reg 2.12(2) is invalid on the approach adopted by the primary judge. If the latter, reg 2.12(2) imposes a criterion (the criterion created by cl 832.211(2)) which must be satisfied by a person making application under s 48 for a Special Eligibility (Residence) (Class AO) visa which is additional to those prescribed by the Regulations for that class of visa (except the subclass to which the criterion in cl 832.211(2) was applicable in any event).
His Honour was of the view that such a qualification or limitation operated not when the validity of the application was being considered, but rather when the application was being considered (at [18] – [20]). That such a construction was correct was said to be suggested not only because it potentially avoided invalidity (consistent with the well-established preference for “a construction of legislative instruments which [did] not lead to invalidity” (at [17] and [19])) but also by the fact that the qualification or limitation created by reg.2.12(2) was “in terms, referable to a criterion for the grant of a visa which needs to be satisfied during the Minister's consideration of a valid application” (at [19]) as well as the fact that the criterion “involves a subjective evaluation of a criterion which is in wide and, in a sense, elastic terms.” (at [20]). Moore J was of the view that “[u]nder the statutory scheme it [was] more likely that matters of this type would arise for consideration not at the threshold when determining whether a visa application is valid but rather when considering the application for the visa itself.” (at [20]).
Moore J went on to agree with Branson J that reg.2.12(2) would be ultra vires “if it created a condition for a valid application” (at [21]). In that context His Honour expressed the view that s.46(4) of the Act (which provides, inter alia, that the Regulations may prescribe “the circumstances that must exist for an application for a visa of a specified class to be a valid application”) would “authorise a regulation creating a condition precedent for a valid application which concerned the circumstances of the applicant” (at [21]) but that the condition created by reg.2.12(2) was not of that nature, necessarily arising after the application was made as the formation of an opinion about the applicant and not concerning “the circumstances of the applicant at the time of the application in an objective sense” (at [21]).
In other words, reg.2.12(2) imposed an additional criterion (the matters specified in cl.832.211(3)) which had to be satisfied by any person making an application under s.48 for a Class AO visa (including an application for a subclass of visa other than Subclass 832 to which such criterion was applicable in any event). However, the criterion in cl.832.211(3) was not a condition of the validity of the visa application (at [18]). This meant that the delegate had erred in determining the validity of the visa application by reference to whether the applicant met the criterion in subclause 832.211(3)(c)(iv) so that the orders quashing the decision and requiring the Minister to consider the Class AO visa application stood. I note that insofar as Moore J referred to cl.832.211(2) at [18] it appears that this was intended to be a reference to cl.832.211(3). No issue was taken in that respect in these proceedings.
Allsop J agreed with the orders proposed by Moore J. However, his Honour stated at [25] – [29]) that:
I agree that the matter is to be resolved by reference to the argument not put to the primary judge and raised in the Notice of Further Contention. Regulation 2.12 of the Migration Regulations is concerned with what classes of visa are prescribed for s 48 of the Migration Act 1958 (Cth) (the "Act"). That is, what the words of subreg 2.12(1) say. Nothing in subregs 2.12(2) or (3) identifies any other purpose. Indeed, subregs 2.12(2) and (3) are to be read with subregs 2.12(1)(a) and (ca) as the respective qualifications to them. The use of the phrases "subject to subregulation (2)" and "subject to subregulation (3)" makes that clear.
Section 48 has within it two references to delegated legislation. The first is in s 48(1), where it is provided that a non-citizen in the migration zone who satisfies paragraphs (a) and (b) "may, subject to the regulations, apply for a visa". These regulations can qualify the statutory permission otherwise given to a non-citizen to do something – apply for a visa. The second is also in s 48(1). It is the prescription of the classes of visa for which application may be made.
Regulation 2.12(1) is, in terms, directed only to the second of those subjects for delegated legislation. It says:
For section 48 of the Act ... the following class of visas are prescribed.
Regulation 2.12(2) does not purport, in terms, to qualify the permission given to the non-citizen to apply for a visa. It provides a qualification to reg 2.12(1)(a) to the class of visa there identified. Subregulations 2.12(1) and (2) can be seen to be read together (as the words "subject to subregulation (2)" require) as identifying the type of visa that may be applied for – a Special Eligibility (Residence) (Class AO) visa with an additional limitation of a criterion to be satisfied at the time of application by reference to the requirements of subcl 832.211(3) of Schedule 2.
Subject to the question of validity of a regulation so worded, the meeting of the requirements of subcl 832.211(3) could have been expressed to be a condition of a valid application. It was not so expressed. It was expressed as a qualification to the identification of the classes of visa that are prescribed, thus limiting that class of visa by the addition of the stated requirement in subreg 2.12(2).
While obiter, Allsop J went on to consider whether reg.2.12(2) would be valid if (contrary to his view), it was to be construed as a condition of a valid application. His Honour agreed with Branson and Moore JJ that on that hypothesis reg.2.12(2) was not supported by the Migration Act (at [33]). It was in that context that His Honour expressed the view (at [44]) that:
…a regulation that suspends the assessment of the validity of an application by reference to an opinion of the Minister which cannot exist until some time after the making of an application is not authorised by s 46 or s 48.
Tamberlin J stated at [23]:
I agree essentially for the reasons given by other members of the Court that, as a matter of statutory interpretation, reg 2.12 is concerned with the class of visa which can be applied for, and not with criteria for validity of an application for a visa. Accordingly, in deciding whether a visa application is valid, the requirements of that regulation need not be taken into account. Logically, the mandate to the Minister, under s 47 of the Migration Act 1958 (Cth) ("the Act") to only consider a valid application for a visa, is predicated on the premise that there must first be a valid application, and when that question is decided the Minister will then proceed to consider the substantive merits of the application. I agree that the question whether an application satisfies the criteria for a valid application must be looked at at the time when the application is made. The validity of an application is not expressed to be dependent on the Minister forming a subjective opinion of the type here under consideration. There is no basis demonstrated to incorporate into the validity requirements for a visa application, which goes to defining the class of visa which can be issued. Therefore, on a proper interpretation, the question of the validity of reg 2.12 does not arise. I agree with the orders proposed by Moore J that the declaration of invalidity be set aside and that otherwise the appeal is dismissed with costs.
As the basis for the delegate’s decision that the visa applications in Kim were invalid was the applicant’s failure to meet the requirements of cl.832.211(3), the orders of Branson J quashing such decision and requiring the Minister to consider the Class AO visa application were left in place.
The applicant’s submissions
In this case the applicant’s contentions were presented on alternative bases. It was submitted first that the delegate erred in her understanding or application of the law by finding that the application was invalid because, on the basis of Kim’s case, subreg.2.12(1)(ca) of the Regulations prescribed Class UB visas for the purposes of s.48 such that the applicant’s visa application was validly made.
Mr Dobbie submitted that reg.2.12 was expressed to be concerned with the class of visa that could be applied for by a person to whom s.48 applied and did not impose a condition for the validity of an application (see Allsop J at [25]) and that Class UB was a prescribed class of visa.
In the alternative it was submitted that the delegate erred because the Class UB visa application was validly made and had to be considered, as reg.2.12(3) merely added additional criteria for visa grant and not criteria that went to the validity of an application, because otherwise it would be invalid generally or because the criteria referred to in reg.2.12(3) involved a subjective evaluation of whether an applicant met subcl.685.212(6)(d).
In effect, the applicant submitted that reg.2.12(3) was irrelevant to the issue of validity of the visa application, either because on its face reg.2.12(1)(ca) prescribed Class UB for the purposes s.48; or because on the reasoning in Kim reg.2.12(3) did not or could not add criteria that went to the validity of a visa application; or because any criteria for validity could not be dependent on the Minister forming a subjective opinion (as was said to be required by subcl.685.212(6)(d)).
The applicant submitted that reg.2.12 set out the visas prescribed for the purposes of s.48 as visas for which an applicant may apply, notwithstanding a prior refusal of a visa. Paragraph (1)(ca), which is expressed to be subject to subreg.2.12(3), refers to Class UB visas. Subregulation (3) states that paragraph (1)(ca) applies to a person if and only if he or she meets the requirements of subcl.685.212(6) or (7) of Schedule 2.
What is in issue is whether the requirements in subreg.2.12(3) go to whether a person is permitted to make a valid application for a (Medical Treatment) Class UB visa or whether it merely imposes an additional criterion for the grant of a visa to be considered when the application for the visa is considered by a delegate (that is, after the application has been accepted as a valid application).
Mr Dobbie for the applicant confirmed that there was no challenge to the validity of any part of reg.2.12 in these proceedings. He submitted that while there had to be some work for reg.2.12(3) to do, the reg.2.12(3) requirement, read together with reg.2.12(1)(ca), did not go to validity and that it would be inconsistent with the reasoning in Kim were that to be the case. In other words, it was submitted first that subreg.2.12(3) had no relevance at all to the validity of a visa application, but that it was only relevant in determining whether a valid visa application should be granted or refused.
In the alternative, the applicant submitted that in Kim it had been held that a requirement purportedly going to the validity of a visa application (as opposed to the refusal or grant of the visa sought) had to be objectively assessable at the time the visa application was made and that if the requirement was not objectively assessable at the time of the visa application it was to be considered as an additional criterion to be satisfied for the grant of a visa rather than as going to validity (see Moore J at [21], Tamberlin J at [23] and Allsop J at [44]).
Regulation 2.12(3) was said to be of this nature on the basis that subcl.685.212(6)(d) required what were said to be various subjective assessments of a visa applicant’s circumstances on the date the visa application was made, consistent with the wording “has met” in subcl.685.212(6)(d). It was said to be important that the requirement was not that the applicant “had met” visa criteria in the past. Hence it was submitted that this provision required a current assessment to be made at the time of the Subclass 685 visa application as to whether the applicant “has met” the criteria for any permanent visas previously applied for by the applicant.
The applicant in this case had applied for refugee status in 1994 which was assessed by reference to the criteria for a protection visa applicable at the relevant time. A criterion for the grant of a protection visa is that the visa applicant is a person to whom Australia owes protection obligations under the Refugees Convention. It was said that in order to determine whether the applicant “has met” the criterion in subcl.685.212(6)(d) that there had to be an assessment by the delegate of the applicant’s circumstances at the date of the Class UB visa application to determine whether he “has met” all the requirements for a protection visa at any time up to the time of the 2010 visa application for a Medical Treatment (Class UB) visa (other than public interest criteria related to health). A similar assessment would be required in relation to any other visa for which he had applied (such as the Child (Residence) (Class BT) visa).
Thus, it was submitted for the applicant that reg.2.12(3) and subcl.685.212(6)(d) required an assessment by the delegate of the applicant’s history and a determination of whether the applicant has at any time met the criteria for a visa that was refused in the past and that, until the delegate formed an opinion about whether the applicant has at any time met the criteria for other visas for which he or she had applied, it would be impossible to state the validity or invalidity of the application. The criterion in reg.2.12(3) was said not to be one which “enable[d] a judgment to be made whether, from the time of being made and thereafter, the application was valid or invalid” (Allsop J in Kim at [41]). On this basis it was submitted that such a requirement did not go to validity but rather added an additional criterion for the grant of a visa.
The respondent’s submissions
The respondent did not dispute that the proceedings turned in large measure on the proper constitution of regs.2.12(1)(ca) and (3) and subcl.685.212(6)(d) of Schedule 2 to the Regulations. However, it was contended that the requirements imposed by reg.2.12(ca) and 2.12(3) were not merely additional criteria for the visa grant but, properly construed, went to whether or not the application for a visa was valid.
The respondent submitted that the starting point in these proceedings was the premise that reg.2.12(3) was valid, given that there was no challenge to its validity. In that sense this is not a case in which a question arises as to the desirability of construing reg.2.12(3) in a manner which does not lead to invalidity (cf Kim per Moore J at [17]). Nonetheless, it is relevant to consider whether reg.2.12(3) is to be construed in the same way as reg.2.12(2) was construed by the Full Court in Kim.
The respondent contended that one could reconcile a difference between their approach to reg.2.12(3) and that taken in Kim to reg.2.12(2), because subreg.2.12(3) provided an objectively ascertainable criterion that was capable of being determined at the time of application, whereas subreg.2.12(2) was found to involve a subjective assessment of matters that could not be objectively assessed at the time when a visa application was made.
Counsel for the respondent submitted that, unlike the requirements of cl.832.211(3), to which former reg.2.12(2) referred, the requirements of subcl.685.212(6) or (7), to which reg.2.12(3) referred, could be readily and objectively determined, based on facts identified at the time of the visa application as “indicia against which the validity of the [application could] be judged” (Allsop J in Kim at [40]) or as the “circumstances of the applicant at the time of the application in an objective sense” (Moore J at [21]). It was contended that at the time of application for a Class UB visa the criteria met by the applicant in past applications could be readily and objectively determined by reference to material held by the Department (the reasons for refusal of past visas) to determine whether the prior visas in question would have been granted, but for the applicant’s failure to meet public interest criteria relating to health (see Pradabsuk and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 584; [2006] FCAFC 66).
The first respondent submitted that such a provision was quite different to the requirement in subcl.832.211(3)(c)(iv) that there be a determination by the Minister as to whether “before turning 18, [the applicant] spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia” which the Federal Court in Kim regarded as subjective and something that was likely to be determined after the time of the application.It was submitted that, the contention of the applicant that the wording “has met” in subcl.685.212(6)(d) required a current assessment at the time of the application for a Class UB visa of whether the applicant has at any time met stated criteria for permanent visas previously applied for was incorrect. It was submitted that reg.2.12(3) required that the basis for the refusal of any entry permit or visa referred to in subcl.685.212(6)(c) was that the applicant failed to meet public interest criteria relating to health, but that he or she otherwise met all the criteria for the grant of that visa or entry permit. It was contended that such a construction would lead to a sensible objective criterion by which the validity of an application was capable of being judged.
Such a construction was said to be consistent with Kim and supported by the fact that on this view a person subject to s.48 would be able to apply for a medical treatment visa if the reason for prior visa refusal was his or her failure to meet public interest criteria related to health.
On this basis it was contended that reg.2.12(3) could be seen as governing permission to apply for a visa, being directed to matters that went to whether the act of application was permitted or not (see Allsop J in Kim at [43]). The first respondent submitted that the Regulations could be seen as permitting an application for a Class UB visa where the applicant was in Australia, had turned 50, and while in Australia had applied for one of various classes of permanent visas, had met the criteria for the grant of any such visa save for public interest criteria related to health, and had been refused that visa, in circumstances where the assessment of whether such visa criteria were met (and therefore whether or not the application was valid or invalid) could be objectively and readily determined by examining the reasons for the refusal of the applications for prior visas.
Resolution
In contrast to the situation in Kim, on the face of the delegate’s letter of 27 October 2010 no express consideration was given to reg.2.12 or to subcl.685.212(6) or (7). Rather, the letter simply stated that the visa application was invalid because it did not meet s.48 of the Act. While the delegate referred to the application being a Class UB visa, the stated reasons for refusal were that the applicant did not hold a substantive visa (see s.48(1)(a)) and after last entering Australia was refused specified permits and visas (s.48(1)(b)(i)). There was no explanation as to why the applicant could nonetheless not apply for a Class UB visa as a visa of the class prescribed (by reg.2.12(1)(ca)) for the purposes of s.48.
The statement in the notification letter that “You cannot make a valid application for a visa while you are in the migration zone, except if you apply for a limited class of visas. To make a valid application for any other visa, you will need to depart Australia and apply for a visa offshore” is consistent with the possibility that the delegate did not consider the relevance of reg.2.12 to the application in question.Whatever the effect of reg.2.12(3) of the Act, there is nothing to indicate that the delegate considered whether the visa application was for one of the class of visas prescribed for the purposes of s.48.
That section is not expressed simply as a prohibition. Rather it provides that a person who does not hold a substantive visa and after last entering Australia was refused a visa (such as the applicant) “may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class”.
This possibility was not addressed by the delegate. There is nothing to indicate any awareness of the prescription of Class UB visas in reg.2.12(1). The fact that the applicant did not hold a substantive visa and after last entering Australia had visa applications refused did not of itself mean that the application for a Class UB visa was invalid “because it did not meet s.48 of the Migration Act”.
It might be thought that the delegate erred in understanding and application of the law or misconceived the task involved in making the decision (see Allsop J in Kim at [46]) in finding that the visa application was invalid simply because of the applicant’s lack of a substantive visa and the earlier visa refusal. Both parties proceeded however on the basis that the reason for the decision that the application was invalid involved a consideration of the operation of both s.48 and reg.2.12.
As indicated, there are alternative bases for the applicant’s contentions. First it is submitted that on the reasoning of Allsop J (and Tamberlin J) in Kim reg.2.12(3) does not go to validity as a matter of statutory interpretation. Secondly it is submitted that even if a regulation such as reg.2.12(3) could go to validity, it does not do so either generally or because (consistent with what is said to be the reasoning of Moore J in Kim), it involves a subjective evaluation of whether an applicant has at any time met criteria for visas that he or she was refused.
For the following reasons I am satisfied that reg.2.12(3), like former reg.2.12(2), does not operate to create a condition that must be satisfied for an application subject to s.48 of the Act to be a valid application.
First, whatever the construction of reg.2.12(3), it is not in dispute that reg.2.12(1) is concerned with what classes of visa are prescribed for s.48 of the Act, that is, the class of visa that can be applied for notwithstanding the absence of a substantive visa and an earlier visa refusal or cancellation (and see Allsop J in Kim at [25] and Tamberlin J at [23]).
Moreover, while Kim was concerned with regs.2.12(1)(a) and 2.12(2) it is relevant to note that reg.2.12(1)(ca) is in the same format as former reg.2.12(1)(a), which “subject to subregulation (2)” prescribed Class AO as a class of visa for s.48. Similarly reg.2.12(3) is in the same form as the former reg.2.12(2).
What is in issue is whether the approach taken in Kim to former regs.2.12(1)(a) and 2.12(2) is distinguishable. However, in Kim both Allsop and Tamberlin JJ were of the view that reg.2.12 “is concerned with what classes of visas are prescribed for s 48 of the Migration Act” (Allsop J at [25]) and “not with criteria for validity of an application for a visa” (Tamberlin J at [23]).
Insofar as the first respondent submitted that to the extent that such remarks went beyond subregs.2.12(1)(a) and (2) they were, strictly speaking, obiter, as Allsop J explained at [25]:
…Regulation 2.12 of the Migration Regulations 1994 (Cth) is concerned with what classes of visa are prescribed for s 48 of the Migration Act 1958 (Cth) (the Act). That is, what the words of reg 2.12(1) say. Nothing in reg 2.12(2) or (3) identifies any other purpose. Indeed, regs 2.12(2) and (3) are to be read with reg 2.12(1)(a) and (ca) as the respective qualifications to them. The use of the phrases “subject to subregulation (2)” and “subject to subregulation (3)” makes that clear.
In this part of his judgment his Honour was plainly referring to both subregs.2.12(2) and 2.12(3). Similarly, Tamberlin J expressed his view of reg.2.12 “as a matter of statutory interpretation”.
In any event, whether or not such views are, strictly speaking, obiter, I find them compelling. I accept that, consistent with the view of Allsop J (at [29]) in relation to subcl.832.211(3), “[s]ubject to the question of validity of a regulation so worded, the meeting of the requirements of [subcl.685.212(6) or (7)] could have been expressed to be a condition of a valid application”. However, “[i]t was not so expressed”. Rather, “[i]t was expressed as a qualification to the identification of the classes of visa that are prescribed, thus limiting that class of visa” in question (class UB) by “the addition of the stated requirement” in reg.2.12(3) as was held by Allsop J in relation to the similarly worded reg.2.12(2).
Further, such an approach to reg.2.12(3) is consistent with the view of Tamberlin J, who stated that he agreed “essentially for the reasons given by other members of the Court that, as a matter of statutory interpretation, reg.2.12 [was] concerned with the class of visa which could be applied for and not with the criteria for validity of an application for a visa”. Again, I note that his Honour referred generally to reg.2.12, albeit the ratio decidendi of his Honour’s reasons would only go directly to subreg.2.12(2).
As discussed below, I accept the respondent’s contention that the criteria in subcl.685.212(6) and (7) do not involve a subjective evaluation. However, the fact that an objective criterion could be made a condition of validity of a visa application does not compel a conclusion contrary to the clear language of reg.2.12 (as pointed out by Allsop J).
Regulation 2.12(3) is to be read with reg.2.12(1)(ca) as the qualification to it. Moreover, reg.2.12(3) “does not purport, in terms, to qualify the permission given to the non-citizen to apply for a visa” (as Allsop J stated in relation to reg.2.12(2) in Kim at [28]). The same may be said about the current regs.2.12(1) and (3) as was said by his Honour about the former regs.2.12(1) and (2) in Kim at [28].
Those provisions can be seen to be “read together (as the words “subject to subregulation (2)” require) as identifying the type of visa that may be applied for” – a Class UB visa “with an additional limitation of a criterion to be satisfied at the time of application by reference to the requirements of” cl.685.212(6) or (7).Consistent with the approach taken by Allsop and Tamberlin JJ in Kim, I am of the view that as a matter of statutory interpretation, reg.2.12(3) does not create a condition that must be satisfied for an application comprehended by s.48 to be a valid application. Rather, it operates as a qualification to the identification of the classes of visa that are prescribed (limiting Class UB by the addition of the stated requirement in reg.2.12(3)) as Allsop J stated at [29] (and see Tamberlin J at [23]).
Insofar as Moore J can be seen as taking a different approach, I prefer the approach of Allsop J and note that Tamberlin J also saw reg.2.12 as concerned with the class of visa that can be applied for as a matter of statutory interpretation. There is no suggestion of invalidity of reg.2.12(3) in this case and the issue of preferring a construction of legislative instruments which does not lead to invalidity addressed by Moore J does not arise.
In any event, I note that Moore J (like Allsop J) recognised that reg.2.12(2) did not in terms condition the validity of an application otherwise authorised by s.48 of the Act (at [18]). The same can be said about reg.2.12(3). Moreover if reg.2.12(3) is to be seen as creating a qualification or limitation on an application for a particular class of visa by a person to whom s.48 applies, I am of the view that it operates not when the validity of the application is being considered but rather when the application is being considered.
Any such “qualification or limitation created by reg.2.12(3) is, in terms, referable to a criterion for the grant of a visa which needs to be satisfied during the Minister’s consideration of a valid application” (as Moore J pointed out in relation to reg.2.12(2) at [19]). The fact that (in contrast to the criterion in subcl.832.211(3) and as discussed below), the criterion in subcl.685.212(6) does not involve a subjective evaluation of a criterion expressed in wide or elastic terms that would clearly be more likely to arise for consideration when considering the application for the visa itself, rather than at the threshold when determining whether a visa application was valid (cf Moore J in Kim at [20])) does not compel a conclusion that reg.2.12(3) operates to create a condition that goes to the validity of an application in the face of its clear expression as a qualification to the class of visa identified in reg.2.12(1)(ca).
The respondent relied on the references by Allsop J to the need for criteria relating to validity of a visa application to be ascertainable at the time of application (at [40] – [44]). However, these remarks were made in the context of a consideration of whether reg.2.12(2) was invalid if, contrary to the view of Allsop J, such provision was to be read as providing that it was a condition of the validity of the visa application that the requirements of cl.832.211(3) were met. As reg.2.12(3) is not a condition of validity of a visa application (and as no issue of possible invalidity is raised in this case) these issues are not determinative.
While the regulations could impose a condition concerning the circumstances of the applicant existing at the time of the visa application in an objective sense which qualified the permission given to a non-citizen to apply for a visa, in light of the clear language of regs.2.12(1)(ca) and 2.12(3) (and the approach taken to the same form of language in the former regs.2.12(1)(a) and 2.12(2) by Allsop and Tamberlin JJ) I am not persuaded that as a matter of statutory interpretation reg.2.12(3) relates to the validity of a visa application.
On the approach taken by Moore J the effect of reg.2.12(3) is to impose a limitation or qualification on the class of visa which must be satisfied by a person making an application under s.48 for a Class UB visa which is additional to the criteria prescribed by the regulations for that class of visa (albeit the criteria in cl.685.212(6) or (7) are in any event applicable to a subclass 685 visa). In other words, an applicant for a Class UB subclass 675 visa within s.48 of the Act would also have to meet one of these additional criteria.
Hence it is not necessary for a delegate assessing the validity of a visa application to consider the requirements of reg.2.12(3). Insofar as the delegate’s decision on validity in this case is seen as being based on the applicant’s failure to meet the criteria in subcl.685.212(6) that involves a jurisdictional error because as a matter of statutory interpretation reg.2.12(3) does not add criteria that go to the validity of an application.
“Has met”
For the sake of completeness I note that I am not persuaded by the applicant’s contention that the basis for a conclusion that reg.2.12(3) merely adds additional criteria for a visa grant is that a subjective evaluation is required as to whether at the time of a Class UB Medical Treatment visa application the applicant meets stated criteria for permanent visas previously applied for by the applicant. As the first respondent submitted, subcl.685.212(6)(d) provides an objective criterion. It is not such as to require the delegate considering an application for a Class UB visa to determine whether at any time, prior to and up to the time of application for the medical visa, the applicant would have met the criteria other than health criteria for all prior visas applied for (notwithstanding that he or she did not do so at the time of the decision in relation to any such prior visa).
The words “has met” in subcl.685.212(6)(d) involve an examination of why those visas were refused at the time they were refused, by considering the decision that had been made to determine if the applicant was refused because he or she failed to meet public interest criteria relating to health, but met all the other criteria. There is nothing in the expression “has met” that dictates that it speaks to the present and to every point in time between the time of the application for such prior visas and the time of determination of the application for a medical treatment visa.
The applicant’s interpretation of “has met” would produce a construction which, in the context of an application for a medical treatment visa, would effectively require a delegate to re-determine every other visa application that an applicant had ever applied for and to reconsider all changes in circumstances over the period of time from the original visa application to the time of the determination of the application for a medical treatment visa. Such a reassessment of any and all visas which had been applied for is unlikely to have been the intended result of the statutory scheme allowing an applicant to apply for a medical treatment visa, having regard to the general limit on application for a visa in Australia once one has been refused or cancelled.
Discretion to refuse relief
As set out above, jurisdictional error has been established. The first respondent submitted that even if there was some defect in the way the delegate considered the validity of the Class UB visa application, the court should decline to grant relief as it would be futile. It was submitted that on the evidence before the court and on a proper construction of the Regulations, it was clear that the applicant could not succeed in such a visa application as he could never meet the criteria in subcl.685.212(6) or (7) so that it would be futile for the matter to be remitted with a direction that the delegate consider the visa application.
However, what is in issue in these proceedings is a decision as to whether or not a visa application was valid. I am not persuaded that in such circumstances it is appropriate to engage in a consideration of whether the applicant would in fact meet the criteria for the visa in question and that relief should be refused on that basis.
The respondent should be required to consider the applicant’s application for a Medical Treatment (Class UB) subclass 685 (Long Stay) visa.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 July 2011
3
3