NACO v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant was born on 12 March 1968. He first arrived in Australia on a visitors visa on 12 February 1997, when he was 28 years of age. 2 On 11 February 1998 the applicant applied for a Family (Residence) Class AO visa. The application was refused by the Minister's delegate on 14 August 1998. On 6 November 1998 the Migration Internal Review Office affirmed the primary decision. 3 On 19 November 2001 the applicant lodged another application for a Special Eligibility (Residence) Class AO visa. There are two Subclasses for a Class AO visa, namely Subclass 831 (Prospective Marriage Spouse) and Subclass 832 (Close Ties). The application was with respect to Subclass 831 (Prospective Marriage Spouse). On 22 November 2001 the applicant was informed by letter that the Minister's delegate had determined that the applicant had not made a valid application, hence it could not be considered. The applicant was informed that as this was not a decision to refuse a visa, there was no right of review. 4 The precise respect in which the application was invalid does not emerge, or does not emerge with any clarity, from the delegate's letter of 22 November 2001. The reason assigned in the letter for the invalidity of the application does not make sense. The letter also described the visa application as being an application for a "Special Eligibility (Prospective Marriage Spouse) Class 832. As noted above, it is Subclass 831 which relates to "Prospective Marriage Spouse" and the delegate was in error in referring to Subclass 832. 5 By application lodged with the Court on 28 November 2001 the applicant sought review of the decision of the delegate of the Minister given on 22 November 2001. The application invoked "s 476", presumably of the Migration Act 1958 (Cth)("the Migration Act") and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On the morning of the hearing, over opposition from counsel for the Minister, I allowed an amended application to be filed in Court. The amended application also invoked s 39B of the Judiciary Act 1903 (Cth)("the Judiciary Act"). I allowed the amended application to be filed without prejudice to the respondent's entitlement to submit that the amended application should be dismissed under Federal Court Rules Order 20 rule 2. The grounds contained in the amended application are as follows: "1) The delegate was not acting in good faith in making the decision. 2) The decision does not relate to the subject matter of the legislation. 3) Section 39B of the Judiciary Act 1903 is a source of original jurisdiction of Federal Court of Australia to review the decision sought to be challenged. 4) The application for a substantive visa by the applicant was not barred by section 48 of the Act. 5) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made." 6 On 12 December 2001 the respondent lodged a Notice of Objection to Competency of the original application on the ground that the relevant decision is not a decision of an administrative character pursuant to s 474(1) of the Migration Act, or s 3 of the ADJR Act, and as such the Federal Court has no jurisdiction to review the determination. 7 Section 46(1)(d) of the Migration Act provides, relevantly, that an application for a visa is valid if and only if it is not prevented by s 48. Section 47(3) provides that, to avoid doubt, the Minister is not to consider an application that is not a valid application. Section 47(4) provides that, to avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant a visa. 8 Section 48(1) provides that a person in the position of 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. 9 Regulation 2.12 prescribes classes of visas for the purpose of s 48. Regulation 2.12 was amended on 1 November 2001. Prior to the amendment, a Special Eligibility (Residence) (Class AO) visa was prescribed for the purposes of s 48 without any qualification. After the amendment, Regulation 2.12(1) provides, insofar as is relevant: "for the purposes of s 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: subject to subregulation (2), Special Eligibility (Residence) Class AO." (emphasis added) Subregulation (2) provides that par (1)(a) applies to a person if he or she meets the requirements of subclause 832.211(3) of Schedule 2. That requirement is applicable whether the visa sought is within Subclass 831 or 832. 10 Subclause 832.211(3) of Schedule 2 is as follows: "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) has turned 18; and (ii) ceased to hold an entry permit or a substantive visa before turning 18; and (iii) immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and (iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia." 11 As the present application was made on 28 November 2001 it falls to be determined under the more restrictive conditions of Regulation 2.12 in its amended form. The applicant does not fall within par (a)(i) of Clause 832.211(3) if only because the applicant was not in Australia on 1 September 1994. Nor does the applicant fall within par 3(a)(ii) if only because the applicant does not satisfy the requirements of par (c)(ii) or par (c)(iv). Hence, the Minister's delegate correctly determined that the Minister was precluded by s 47 from considering the application for a Class AO visa, although the advice to the applicant wrongly identified the number of the applicable Subclass, and did not state the real reason for the invalidity of the application. 12 The applicant submitted that: "The 831 Prospective Marriage Spouse subclass in which the applicant applied is one of the few prescribed under Regulation 2.12 for which those who have previously been refused a visa are eligible to apply". The submission does not correctly or sufficiently state the effect of Regulation 2.12. Irrespective of whether the application is for Subclass 831 or 832, after 1 November 2001, an application for a Class AO visa will only be a valid application if the applicant meets the requirements of subclause 832.211(3) of Schedule 2. The applicant did not meet those requirements. 13 Thus there is no arguable case that the application was a valid application such that the Minister's delegate made an error of law in determining that the application could not be considered. In the circumstances of the present case, the decision (assuming it was a decision) to which the Minister's delegate came was a decision which he was required to reach by operation of law. The Notice of Objection to Competency provides: "5. Given that the applicant was aged 28 upon his last arrival in Australia (and that occurred after 1 September 1994), he cannot, under any circumstances, satisfy the requirements of subclause 832.211(3) of Schedule 2 of the Regulations." That statement is incontrovertibly correct. In those circumstances, none of the grounds on which the decision is challenged could possibly be made out, and the proceedings are doomed to failure. The application should be dismissed pursuant to Order 20 rule 2, even if the Court has jurisdiction to entertain it.