Minister for Immigration & Multicultural Affairs v Lim

(c) the marriage is recognised as valid for the purposes of the Act;

(d) the applicant is taken instead to have applied for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa on the day Immigration receives notice of the marriage; and

(e) the applications are taken to be validly made."

Regulation 5(4)(a) of the Amended Regulations provides that reg 2.08E applies to an application for a visa "made, but not decided, before 1 November 1999".

2 The facts that give rise to the dispute as to the meaning of "decided" are as follows. On 1 April 1997 the visa applicant applied for a Prospective Marriage (Temporary) (Class TO) visa. On 26 November 1998 a delegate of the applicant decided to refuse to grant the visa. On 3 February 1999 the respondent applied to the Migration Internal Review Office ("the MIRO") for review of the delegate's decision. As of 1 June 1999 the MIRO ceased to exist and the application for review was taken to have been properly made to the Tribunal pursuant to the Migration Legislation Amendment Act (No 1) 1998. On 20 April 2000 the respondent and the visa applicant married in Cambodia, and on 28 June 2000 the Department of Immigration was notified thereof. On 23 November 2000 the Tribunal handed down its decision. The Tribunal decided that by reason of reg 2.08E, as at the date of notification of the marriage to the Department, the visa applicant was to be taken to have applied for a "Partner Migrant (Class BC) visa". It remitted the delegate's decision to the Department for reconsideration, with a direction that the visa applicant satisfies clauses 100.211, 100.212 and 100.221 of Schedule 2 of the Regulations "in relation to the application for a Spouse Migrant (Class BC) visa, subclass 100". The Tribunal occasionally spoke of a "Spouse Migrant (Class BC) visa" rather than a Partner (Migrant) (Class BC) visa, but nothing turns on that. Clause 2.08E could not have the effect described if the phrase "before it is decided" means "before it is decided by the Minister or the Minister's delegate", since the marriage took place after the delegate's decision. But the Tribunal held that "decided" meant "decided by the Tribunal", and the marriage occurred before the Tribunal's decision. 3 I have concluded that the application for a Prospective Marriage (Temporary) (Class TO) visa was not, by force of reg 2.08E, converted into an application for a Partner (Migrant) (Class BC) visa. That is because, in my view, "decided" in reg 2.08E(2)(b) and in reg 5(4)(a) means "decided by the Minister". That is the natural meaning of the word in the context in which it is found ‑ a decision on the application for the visa in question. The Act and Regulations draw a distinction between the word "decided" and the expression "finally determined". Thus s 5(9) provides:

"For the purposes of this Act, an application under this Act is finally determined when either:

(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed."

Part 5 of the Act relates to review by the Tribunal of decisions on applications for visas other than protection visas, and Part 7 relates to review by the Refugee Review Tribunal of decisions on applications for protection visas. The distinction between "decided" and "finally determined" is emphatically made in the very regulations by which reg 2.08E was introduced. Thus reg 5(2) provides:

"The amendments made by items [2109], [2312], [2313] and [2501] of Schedule 2 to these Regulations apply in relation to an application for a visa:

(a) made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 1 November 1999; or

"The amendment made by item [2124] of Schedule 2 to these Regulations applies to an application for a visa:

(a) made, but not decided, before 1 November 1999; or

It is item [2124] that inserted reg 2.08E. The relevant part of reg 5(5) has the same structure as sub‑reg (2)(a).

4 The Tribunal noted that differently constituted Tribunals aided by s 5(9), had distinguished between "decided" and "finally determined", holding that "decided" in reg 2.08C means decided by the delegate, and "finally determined" means decided on review. The Tribunal regarded this distinction as "untenable as there are many instances in the Act where 'decided' is used to refer to a decision on review or must apply to a decision on review". The Tribunal referred to a number of instances in which the word "decision" was not confined to the decision at the primary level but could refer to the decision of the Tribunal itself. These instances relate to the criteria that must be satisfied both at the "time of application" and the "time of decision". On review by the Tribunal, "time of decision" must, of necessity, mean the time of the Tribunal's decision on review and not the decision under review. The context in which the expression "time of decision" appears thus makes it clear that "decision" includes a decision on review. No comparable context exists in relation to reg 2.08E. These instances do not assist in determining the meaning of "decided" in reg 2.08E. The distinction that runs right through the visa provisions is that the delegate decides the visa application and the Tribunal decides the application for review by reviewing the decision of the delegate. 5 The Tribunal referred to the Department's policy in relation to reg 2.08E in which it is said that the three critical dates are the date of marriage, the date the Department is notified of the marriage, and

"the date the visa 300 application is decided (visa granted or refused). A person ceases to be an applicant [regulation 2.08(2)(a)] as of that date and, it follows, regulation 2.08E does not apply."

The Tribunal did not accept this reasoning. It said that "when an application for review is made the applicant's status as an applicant is revived". However, to my mind, this fails to distinguish between an application for a visa and an application for review by the Tribunal of a delegate's decision on the visa application. It cannot be said that the visa applicant has made a new application or revived the decided application. All that has happened is that an application has been made to review the delegate's decision. This distinction is clearly shown where, as in the present case, the applicant for review is not the same person as the visa applicant. Accordingly, I am unable to accept the Tribunal's view that an application for review revives the applicant's status as a visa applicant.

6 The Tribunal argued that if "decided" refers to the primary decision, no one could ever be successful on review of a decision refusing to grant a subclass 100 visa given that it is a criterion for the grant of such a visa that the applicant hold a subclass 309 visa at the time of decision. The subclass 309 visa would have ceased at the time of the refusal of the subclass 100 visa. This argument overlooks subclause 100.221(4A) of Schedule 2. The criteria to be satisfied at the time of decision are that the applicant meets the requirements of subclauses (2), (3), (4) or (4A). The applicant meets the requirements of subclause (2) if, inter alia, he is the holder of a subclass 309 (Spouse Provisional) visa. An applicant meets the requirements of subclause (4A)

"(a) if the applicant held a Subclass 309 (Spouse (Provisional)) visa that ceased on notification of a decision of the Minister to refuse a Subclass 100 visa; and

(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa; or

(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 100 visa apart from the criterion that the applicant hold a Subclass 309 visa."

The Tribunal advanced a similar argument in relation to a subclass 801 visa. However subclause 801.222(8) is to the same effect as subclause 100.221(4A).

7 The Tribunal relied on s 15AA of the Acts Interpretation Act 1901, which by reason of s 46 of that Act applies to regulations made under an Act as well as to sections of an Act, saying that its interpretation of "decided" promoted the object and purpose of reg 2.08E, which it said was "directed to couples who may want to marry during the processing period due often to the lengthy delays that are involved". Section 15AA requires a court to prefer one construction to another. Such a requirement can only have meaning where two constructions are open. As Burchett J said in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162, the section is not a warrant for redrafting legislation so that it comes closer to an assumed desire of the legislature. In order for the section to be applied, "a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the Act, must be found in the words of Parliament". See also Comcare v Thompson (2000) 100 FCR 375 at 382. In the context in which it is found, the text of reg 2.08(e) is capable of only one meaning, namely that in order for the consequences in pars (d) and (e) to follow, the applicant must have married the prospective spouse after the application for a Prospective Marriage (Temporary) (Class TO) visa is made but before it is decided by the Minister or his delegate. I do not think the construction of reg 2.08E favoured by the Tribunal is a construction that is fairly open on the language used. 8 The Tribunal also relied on the observations of Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 where his Lordship acknowledged that regulations addressed to practical people skilled in a particular trade or industry should be construed in the light of practical considerations, rather than by the meticulous examination of their language that might be appropriate in construing a statute. He said (at 183):

"difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result."

See also Pearce and Argument, Delegated Legislation in Australia 2nd ed (1999) par 30.2 and Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 at 580‑581. As I have said in par 7, I do not think that, on a fair reading, the language of reg 2.08E is capable of more than one interpretation. 9 The approach I have taken is consistent with that adopted in relation to reg 2.08A(1), which provides that certain consequences ensue if:

"(a) a person (in this regulation called 'the original applicant') applies for a permanent visa of a class for which Schedule 1 permits combined applications …; and

(b) after the application is made, but before it is decided, the Minister receives, in writing in accordance with Division 2.3 a request for the original applicant to have the spouse, or a dependent child, of the original applicant … added to the original applicant's application …."

The emphasis is mine. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 Weinberg J considered an argument that reg 2.08A could be invoked at any time before a final decision on the merits is made by the Refugee Review Tribunal. His Honour said (par 36) "that is not what the regulation, in its plain terms, states". He pointed out that the scheme of the Act provides for the Minister to decide whether or not to grant a protection visa (ss 65 and 66), and that ss 45, 46 and 47 strongly suggest that the regulation is intended to allow an additional applicant to be added to an original application prior to the decision upon that application being made by the Minister, and not thereafter.

10 In later proceedings in the same case French J took the same view: Cabal v Minister for Immigration and Multicultural Affairs (No 4) [2000] FCA 1806. His Honour said (par 41):

"In my opinion however, the words of the regulation are clear. The requirement for joinder of a spouse must be received by the Minister 'after the application is made but before it is decided'. The decision which defines the time limit for a requirement for joinder is that of the Minister or his delegate. True it is, that where the Tribunal varies or substitutes a new decision for that under review, the varied or substituted decision is taken to be a decision of the Minister (s 415(3)). But the Tribunal may affirm the decision under review. In so doing there is no new ministerial decision to refuse a protection visa. The original decision is affirmed. It cannot be said that the initiation of the Tribunal process somehow sets a new time limit for a request under reg 2.08A defined by the time of the Tribunal's decision".

11 For the reasons I have given the Tribunal's construction of reg 2.08E is unsound. For the same reasons, reg 2.08E does not apply to the visa application made on 1 April 1997. That is because the application was both made and decided before 1 November 1999. See reg 5(4)(a). The visa was refused on 26 November 1998, and the application was thereby "decided". The Tribunal's decision must be set aside, and the matter remitted to it for determination in accordance with law. The Minister did not seek an order for costs. The respondent's solicitors, who were also the solicitors for the applicants in the Peniche and Cabal matters, informed the Court that the respondent would not be entering an appearance and would abide by any order of the Court. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Applicant: Australian Government Solicitor

Date of Judgment: 4 May 2001