Fifita v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision made by a delegate of the respondent ("the Minister") on 6 October 2000. The delegate decided that the applicant's application for a Class BU (Subclass 836 (Carer)) visa was invalid and thus could not be processed. The applicant seeks an order setting aside the delegate's decision and remitting the matter for determination according to law. 2 The applicant contends that the delegate's decision is a "judicially-reviewable decision" because it was "made under the [Migration Act], or regulations relating to visas": Migration Act 1958 (Cth) ("Migration Act"), s 475(1)(c). Mr Kennett, who appears for the Minister, accepts that the Court has jurisdiction to review the delegate's decision under s 475(1)(c). In my opinion, the Court does have jurisdiction to review the delegate's decision: see Bagang v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 52, at 53, per Branson J. 3 As I follow the applicant's written submissions, she says that the delegate's decision that the application was invalid was erroneous in law because, contrary to the delegate's view, she was not debarred by s 48 of the Migration Act from applying for a visa. 4 Section 46 of the Migration Act sets out the requirements for a valid visa application: "(1) Subject to subsection (2), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) … (c) … (d) it is not prevented by section 48 (visa refused or cancelled earlier)…". 5 Section 47(1) provides that the Minister is to consider "a valid application for a visa" (emphasis added). Section 47(3) is as follows: "To avoid doubt, the Minister is not to consider an application that is not a valid application." 6 Section 48(1) of the Migration Act provides as follows: "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 … for which the non-citizen had applied (whether or not the application has been finally determined); or (ii) …; 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." (Emphasis added). 7 The applicant last entered Australia on 31 August 1996. On 20 September 1996, she applied for a protection visa. That application was rejected by a delegate of the Minister on 15 April 1997 and the delegate's decision was affirmed by the Refugee Review Tribunal on 2 December 1997. 8 On 6 January 1998, the applicant's bridging visa expired and she became an unlawful non-citizen on that date: Migration Act,s 14(1). It appears that on 27 September 2000 the applicant was taken into immigration detention. 9 On 5 October 2000, the applicant applied on Form 470F for a "Class BU (Carer Other Family - Residence)" visa, claiming that she was required to care for her nephew who suffered from a heart condition. The applicant also applied for a bridging visa. 10 The delegate notified the applicant on 6 October 2000 that her application for permanent residence was invalid, as she was subject to "a s 48 limitation on further applications". On 9 October 2000, the applicant was advised that her application for a bridging visa had been refused. 11 The difficulty confronting the applicant is that, after last entering Australia, she was refused a visa, namely the protection visa for which she had applied in September 1996. The effect of s 48(1) of the Migration Act in these circumstances is that the applicant is permitted only to apply for a visa of a class prescribed. An application for any other class of visa is prevented by s 48 and is therefore invalid: s 46(1)(d); Bagang v Minister, at 59. 12 As I have said, the applicant applied for a Class BU visa. This class of visa includes subclass 836 (Carer): Migration Regulations, Schedule 1, Item 1123B(4). 13 The classes of visa prescribed for the purposes of s 48 of the Migration Act are set out in reg 2.12 of the Migration Regulations. Unfortunately, for the applicant, reg 2.12 does not refer to a Class BU visa, whether subclass 836 or otherwise. 14 The applicant suggests that she was entitled to apply for a "Subclass 806 - Carer" visa. Leaving aside the difficulty that this was not the visa for which she in fact applied, the former Part 806 of Schedule 2 to the Migration Regulations (which provided for a Subclass 806 (Family) visa) was repealed by Migration Amendment Regulations 1999 (No 13), SR 259 of 1999, effective 1 November 1999. 15 The applicant also suggests that she was entitled to apply for a Change in Circumstances (Residence) visa. Mr Kennett points out that the Migration Regulations have not provided for a Change in Circumstances (Residence) visa since 1 July 2000. Prior to that date the Migration Regulations provided for a Change in Circumstances (Residence) (Class AG) visa: Schedule 1, Item 1107. However, Item 1107 was repealed by the Migration Amendment Regulations 2000 (No 2), SR 62 of 2000, Schedule 1, Part 3.2, effective 1 July 2000. 16 I should mention that the applicant, in an affidavit read on her behalf, said that on 31 October 2000, she had obtained a printed information sheet (Form 1026i) from the Department of Immigration and Multicultural Affairs. That information sheet, which was printed in 1999, stated that a person who had been refused a visa could nonetheless apply for a Change in Circumstances (Residence) visa. It is not clear why or under what circumstances the applicant was given an apparently outdated document. But she obtained that document after the delegate's decision on 6 October 2000 and indeed after the present proceedings were instituted on 11 October 2000. The existence of the document cannot bear on the question of whether the delegate's decision involved an error of law. 17 The applicant has not shown any error in the decision made by the delegate. The application must be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.