Minister for Immigration and Multicultural and Indigenous Affairs v Kim

Statutory Framework 3 Subdivision AA of Div 3 of Pt 2 of the Act (ss 44-51) dealt with how a person might apply for a visa. Section 45 provided: (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. 4 Section 47 imposed an obligation on the Minister to consider a valid application for a visa and specified the period for which that obligation continued. It also directed that the Minister was not to consider an application that was not a valid application. The Minister was obliged to grant a visa if satisfied that, inter alia, criteria prescribed by the Act or the Regulations had been satisfied: see s 65(1), but was obliged to refuse to grant a visa if not so satisfied: see 65(2). Section 31 declared that there were to be prescribed classes of visa and authorised regulations prescribing criteria for a visa of a specified class. 5 Section 46 identified the circumstances in which an application for a visa would be valid and provided: (1) Subject to subsections (1A) and (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) it satisfies the criteria and requirements prescribed under this section; and … (d) it is not prevented by section 48 (visa refused or cancelled earlier) …. … (3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. (4) Without limiting subsection (3), the regulations may also prescribe: (a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and …. 6 Section 48 dealt with the position of a non-citizen in the migration zone who had been refused a visa or whose visa was cancelled. Relevantly, it provided that such a person: 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. Section 48 applied to each of the respondents. Accordingly, each could, subject to the Regulations, apply for a visa of a class prescribed for the purposes of s 48 but not for a visa of any other class. Regulation 2.12 prescribed classes of visas for the purpose of s 48. On 1 July 2000 the Special Eligibility (Residence) (Class AO) visa became a class of visa prescribed for this purpose. One of the two subclasses of this visa was subclass 832 (Close Ties). Section 504 conferred on the Governor General power to make regulations for the purposes of the Act. 7 On 1 November 2001 the right of a person on whom s 48 operated, to apply for the Special Eligibility (Residence) (Class AO) visa was qualified by reg 2.12(2). This subregulation required an applicant for the relevant visa to meet the requirements of cl 832.211(3) of the Regulations. In terms, reg 2.12 provided at the time the respondents made their application: 1) For section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed: (a) subject to subregulation (2), Special Eligibility (Residence) (Class AO); … (2) Paragraph (1) (a) applies to a person if he or she meets the requirements of subclause 832.211 (3) of Schedule 2. (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. 8 Subclause 832.211(3) of Sch 2 to the Regulations prescribed one of two alternative criteria to be satisfied at the time of application by an applicant for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa. It is convenient to set out cl 832.211 in full: (1) The applicant meets the requirements of subclause (2) or (3). (2) An applicant meets the requirements of this subclause if the applicant: (a) is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; or (b) is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa. (3) An applicant meets the requirements of this subclause if: (a) the applicant: (i) is a person who: (A) was in Australia on 1 September 1994; and (B) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and (C) has not been granted a substantive visa on or after 1 September 1994; or (ii) is a person to whom section 48 of the Act applies; and (b) the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and (c) the applicant: (i) first entered Australia before the applicant turned 18; and (ii) has never held either of the following: (A) a student visa; (B) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations, for the purposes of a course of study; and (iii) has turned 18; and (iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia; and (v) ceased to hold an entry permit or a substantive visa before turning 18; and (vi) immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa. (emphasis added) It can be seen that one of the criteria for the visa is that an applicant had spent in Australia the greater part of the period that the Minister regarded as the applicant's formative years before turning eighteen.

The judgment of the primary judge 9 The issue raised before the primary judge was the validity of reg 2.12(2) of the Regulations. Her Honour concluded that reg 2.12(2) of the Regulations was ultra vires. As noted earlier, the only reason given by the Departmental officer for the decision that the respondents applications were not valid, was that the requirements of cl 832.211(3) had not been met. The primary judge quashed the decisions and issued writs of mandamus compelling the Minister to consider the applications. 10 Her Honour began by considering whether the Act disclosed an intention to authorise the making of reg 2.12(2). First, her Honour considered the general regulation-making powers contained in the Act and identified a distinction between the criteria for a visa or visas of a specified class (s 31(3)), criteria that must be satisfied for an application for a visa of a specified class to be a valid application (s 46(3)) and the circumstances that must exist for an application for a visa of a specified class to be a valid application (s 46(4)(a)). 11 It was evident to her Honour that the language of s 31(3) did not authorise the making of regulations prescribing criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Nor was s 40 apt to authorise the making of regulations concerning the circumstances that must exist for an application for a visa of a specified class to be a valid application. Section 46(3), in its terms, authorised the making of regulations that "prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application". However, her Honour concluded cl 832.211(3) was not in terms concerned with the validity of a visa application and accordingly could not be sustained by reference to s 46(3). Her Honour explained (at [24]) that: Subsection 46(3) does not, in my view, disclose an intention to authorise the making of a regulation that ignores the distinction recognised by the Act between criteria to be satisfied by a visa applicant and criteria to be satisfied by a visa application. One effect of sub-reg 2.12(2) is to transmogrify a criterion to be satisfied by a visa applicant into a criterion to be satisfied by a visa application. 12 This was reinforced, in her Honour's view, by the premise on which s 47 was drawn, that the Minister can and must make a decision as to the validity of an application for a visa. If the Minister's decision is that the application is valid then the Minister must consider the application. 13 Central to this reasoning was that the decision the Minister must make concerning the validity of the application is intended to be a decision capable of being made without consideration being given to the content of the visa application. Her Honour referred to the criteria in s 46(1) to illustrate that such a decision called for evaluation against objective standards and not the formation of judgments. In her Honour's view cl 832.211(3)(c)(iv) called for the making of a judgment by the Minister concerning "an issue of some complexity personal to the visa applicant". 14 In relation to merits review available under the Act, her Honour said (at [28]): 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 above kind is, in my view, also confirmed by the provisions of Part 5 of the Act. Part 5 is concerned with review of decisions made under the Act. In broad terms it provides for a procedure of merits review of decisions to refuse to grant non‑citizens visas. It does not provide for merits review of decisions that applications for visas are not valid applications. This may, in my view, be assumed to be because there is no need for merits review of a decision required to be made by reference to objective standards. The decision is either correct or incorrect. If the decision‑maker misapprehends what is required by the standard, judicial review is available to correct his or her error. 15 Her Honour rejected the contention that the power to prescribe a class of visa for the purposes of s 48 necessarily involved the power to impose a qualification on the entitlement to apply for a visa of that class. Her Honour concluded the power to prescribe a class of visa for the purposes of s 48 was not a power to determine criteria that must be satisfied for an application for a visa of that class, made by a non-citizen in the migration zone who satisfied par (a) and par (b) of s 48(1) to be valid. This was compelled by the ordinary meaning of the language in s 48(1), including the ordinary meaning of the word "prescribe"and by the content of s 46 and s 47. 16 Her Honour concluded that the making of reg 2.12(2) was beyond the regulation making power of the Governor-General conferred by the Act.

Consideration 17 A convenient and logical starting point in considering the issues raised in the appeal, is the contention of the respondents 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. This was not a submission made to the primary judge. As was apparent from her Honour's reasons and conclusion, there are compelling arguments that reg 2.12(2) was ultra vires. It is well established that a construction of legislative instruments which does not lead to invalidity, is to be preferred; see Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69 at 75-76. 18 Subregulation 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). 19 There are a number of factors which suggest the latter construction is correct, apart from potentially avoiding invalidity. The first is that the qualification or limitation created by reg 2.12(2) 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. It is true, as the Minister submitted, that the subregulation uses the word "meets" and this might be thought to indicate that the criterion must be met at the time the validity of the application was being assessed. However, the use of the word "meets" does not dictate that conclusion and it does not do violence to the language to treat the meeting of the requirement as arising once the application was being considered as a valid application. 20 The second factor, and it flows from the first, is that the criterion involves a subjective evaluation of a criterion which is in wide and, in a sense, elastic terms. Under the statutory scheme it is 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. 21 To this point an assumption has been made that Branson J was correct in concluding that reg 2.12(2) was ultra vires if it created a condition for a valid application. In my opinion, this assumption is correct. It is unnecessary to repeat or endorse all aspects of the reasoning of Branson J. It is sufficient to point to the terms in which the power is conferred by s 46 to make regulations specifying what is a valid application. Section 46(3) appears to confer a power to make regulations concerning criteria referable to the application and not the applicant. On that footing, reg 2.12(2) would not be authorised by s 46(3) as it is a criterion referable to the applicant. However, s 46(4) is in wider terms and would authorise a regulation creating a condition precedent for a valid application which concerned the circumstances of the applicant. Nevertheless, it is relatively clear from the language of s 46(4) (which speaks of circumstances "that must exist") that the regulation authorises the creation of a condition precedent concerning the applicant which exists at the time of the application. In the present case, the condition created by reg 2.12(2) necessarily arises after the application is made because the condition is the formation of a particular opinion about the applicant. The condition is not the circumstances of the applicant at the time of the application in an objective sense. 22 It is appropriate that the declaration of invalidity be set aside but that the appeal otherwise be dismissed. The appellant should pay the respondents' costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

IN THE FEDERAL COURT OF AUSTRALIA NSD 1180 OF 2004

NEW SOUTH WALES DISTRICT REGISTRY NSD 1181 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Tamberlin j: 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.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

ALLSOP J: 24 I have had the advantage of reading the reasons of Moore J in draft. I agree with the orders proposed by his Honour. His Honour's reasons enable me to express my reasons shortly. 25 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. 26 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. 27 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. 28 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. 29 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). 30 If reg 2.12 is to be construed as a condition of a valid application, the issue on the appeal is the validity of reg 2.12(2). The primary judge was of the view that reg 2.12(2) was not supported by the Act. 31 The matter was fully argued, and though expressed as obiter, it is appropriate to deal with the matter on the hypothesis that the construction of reg 2.12 is contrary to that which I think to be correct: see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 at [105]. 32 Section 504(1) of the Act empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permittedto be prescribed or which are necessary or convenient to be prescribed for carrying and orgiving effect to the Act. If subreg 2.12(2) is to be read as providing that it is a condition of the validity of the application (in the sense referred to in s 47 of the Act) that the requirements of cl 832.211(3) be met the possible bases of support propounded were ss 46(1), (3), (4) and 48(1) of the Act. It was not argued that absent support in ss 46 and 48, s 504(1) had any independent supportive operation. 33 I agree with the conclusions of both the primary judge and Moore J that reg 2.12(2) (on the hypothesis upon which I am now working) is not supported by the Act, though I would express my reasons slightly differently to them. 34 I will deal with ss 46 and 48 separately. 35 In my view s 46 is not to be construed in such a way as to permit the question of the validity of the application to depend upon an opinion or view to be arrived at by the Minister: in this case what the Minister regards as the period of the applicant's formative years before the age of 18: subcl 832.211(c)(iv). 36 An application is a request. Generally in a context such as the present, it is manifested in a document, but it is the request that is made to the Executive and which subsists as a request until dealt with. 37 If an application is made, it is necessary to understand how validity is to be judged, so that the Minister may obey the will of Parliament in s 47 - to consider it or not to consider it. In order to answer this question one goes to the Act and Regulations. 38 The terms of s 46(1)(a), (ba), (c) and (d), (1A) and (2) refer to facts presently identifiable at the time of making the application or any time later. 39 The terms of s 46(4)(b), (c) and (d) refer to facts presently identifiable at the time of the making of the application. 40 Section 46(3) and s 46(4)(a) can be seen to be of the same character - to deal with facts presently identifiable at the time of the application being made and at any time thereafter. Section 46(4)(a) uses the present tense "exist". Section 46(3) uses a word "criteria", which, standing alone, is wide enough to accommodate a criterion by reference to an opinion or view of the Minister to be formed later. However, s 46(3), as with the balance of s 46, concerns the prescription of indicia against which the validity of the request can be judged. The request, it seems to me, was intended by s 46 to be either valid or invalid when made. The ascertainment of that may take time, but it is a state referable to the application as made and thereafter as subsisting. 41 If the respondent's contention is correct, the application when made and until the Minister forms his or her opinion about the period of the formative years of the applicant, is neither valid nor invalid. It is until that point impossible to state the validity or invalidity of the application. This is in a statutory context that states that an application is either valid or invalid. In my view, given this statutory context, the criteria that may be prescribed for the purposes of s 46(3) are criteria which enable a judgment to be made whether, from the time of being made and thereafter, the application was valid or invalid. That cannot be known if the question is dependent on the formulation at some time after the application is made of an opinion or view by the Minister about the applicant's history. 42 Thus I do not see s 46 as supporting reg 2.12(2). 43 Section 48(1) contemplates regulations that regulate the non-citizen applying for a visa. It is the permission to apply that is subject to the regulations here. Whether or not a non-citizen has the permission granted by s 48 to apply is something that is to be judged from the time of the purported taking advantage of the permission: that is, the making of the request. Thus, the regulations governing that permission to apply are to be seen as directed to matters which go to whether the act of application is permitted or not, that is, whether the non-citizen may apply or may not apply. So understood, the regulations contemplated by s 48(1) are concerned with indicia which can be assessed by reference to the time of the making of the application. Only in that way will it be able to be known whether the non-citizen has or does not have the permission granted by s 48(1); that is, whether the application when made was valid or invalid. 44 For these reasons, 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. The relevant regulations under the Act, as presently drafted, are limited to regulations setting out criteria ascertainable as existing as at the making of the application and thereafter and which therefore provide criteria or circumstances which enable an assessment to be made as to whether an application is valid or invalid at the time of being made and thereafter. 45 Nothing in these reasons is inconsistent with Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 or Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352. 46 Finally, turning to the Notice of Contention, in my view, the delegate of the Minister misconceived the task involved in making the decision. The subject for opinion was not whether significant ties had been developed with the Australian community by the appellant, but the matters in subcl 832.211(3)(c)(iv): whether before turning 18 the appellant had spent the greater part of the period that the Minister regarded as the applicant's formative years in Australia. The approach of the delegate does not merely reflect a question of fact approached in a way with which one may be disagree. The correct question of fact was not dealt with at all. Someone could spend many of his or her formative years in Australia developing few if any community ties. The development of community ties may be relevant to the proper question, but it is not the issue for opinion.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 22 December 2004 Counsel for the Appellant: NJ Williams SC with GR Kennett

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondents: J Basten QC with C Jackson

Solicitor for the Respondents: Christopher Levingston & Associates