Pillay v Minister for Immigration and Multicultural Affairs [1999] FCA 1173 | Case summary

REASONS FOR JUDGMENT 1 WILCOX J: Twenty proceedings that raise the same question of law have been argued together. 2 Each of the proceedings is an application to review a decision of the Immigration Review Tribunal affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse to grant an applicant or applicants a Family visa pursuant to subclass 806 of Schedule 1 of the Migration Regulations. Each applicant says that, in coming to the refusal decision, the relevant Tribunal member erroneously had regard to the fact that his or her visa application had not been made within 12 months of "the relevant day", as defined by cl 3001 of Schedule 3 of the Regulations. 3 It seems to be clear, in each case, that the Tribunal member took this course because of a belief that cl 3002 of the Schedule required an application for a Family visa to be made within that time. The applicants say this belief was erroneous because cl 3002 is invalid, at least in relation to an application for a Family visa. The question of law debated, in respect of each case, is whether or not this is so. It is common ground between the parties that, if cl 3002 does govern the subject applications, each of the present proceedings ought to be dismissed; if it does not, each of the applications for review ought to be set aside and the applications to the Tribunal remitted for further hearing and determination. 4 In order to understand the point, it is necessary to engage in a paper chase through the Migration Act 1958 and Regulations. The starting point is s31 of the Act. That section appears in Part 2 of the Act, headed "Control of Arrival and Presence of Non-Citizens" and, in particular, Division 3: "Visas for non-citizens". Section 31(1) and (2) say there are to be "prescribed classes" of visas - that is, visas of classes prescribed by the regulations - as well as visas of the classes provided by ss32 to 38 of the Act. This case is not concerned with visas provided by any of those sections. Subsection (3) of s31 states the "regulations may prescribe criteria for a visa or visas of a specified class …" The regulations themselves are to determine whether a visa is a visa of a particular class (subs (5)). Also, the regulations may prescribe whether visas of a particular class are visas to travel to and enter Australia, or to remain in Australia, or both (subs (4)). 5 Although s31 envisages the making of particular regulations, it does not itself confer power to do so. That role is performed by s504(1) of the Act, which provides: "[t]he Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act". The subsection goes on to itemise particular topics, none of which is presently relevant; but these are itemised "without limiting the generality of the foregoing". It seems to me regulations falling within the envisagement of s31 are clearly within the power conferred by s504(1). There is no contention to the contrary. 6 Section 45 of the Act provides that, subject to the Act and Regulations, "a non-citizen who wants a visa must apply for a visa of a particular class": see subs (1). Subsections (2) and (3) envisage the making of regulations prescribing the manner of making applications and the permissible physical location of the applicant when the application is made. Section 46 makes clear that a visa application is to be regarded as valid only where it complies fully with the regulations. Section 47 imposes upon the Minister a duty "to consider a valid application for a visa". In practice, this duty is normally undertaken by a delegate on the Minister's behalf: see s496 of the Act. Section 65(1) provides: "(1) After considering a valid application for a visa, the Minister: (a) If satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any English Education Charge under the Immigration (Education) Charge Act 1992 and any charge under the Migration (Health Services) Charge Act 1991 payable in relation to the application have been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." 7 Part 2 of the Migration Regulations is entitled "Visas". However, the Part does not contain all the provisions about visas. The drafter consigned much of the detail to Schedules to the Regulations, leaving Part 2 relatively uncluttered and confined to principles of general application and procedural requirements. 8 The key provision of Part 2 is reg 2.01 which reads: "2.01 For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and (b) the following classes: (i) transitional (permanent); and (ii) transitional (temporary)." 9 Schedule 1 identifies numerous classes of visas and sets out what the introductory note to the Schedule calls "specific ways in which a non-citizen applies for a visa of a particular class". Part 1 of the Schedule lists the types of permanent visas. They include a type of visa called "Change in Circumstance (Residence) (Class AG)". In relation to this visa type, there are certain formal requirements. More importantly, for present purposes, four sub-classes are specified. As I understand the position, a Class AG visa must fall within one of the four specified Subclasses. They include "806 (Family)". 10 In order to discover the criteria for this Subclass, it is necessary to go to Schedule 2 of the Regulations. The role of Schedule 2 is explained in reg 2.02: "(1) Schedule 2 is divided into Parts, each identified by the word 'Subclass' followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass. (2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem 'Subclasses' in the item in Schedule 1 that refers to that class of visa." That part of Schedule 2 that relates to Subclass 806 - (Family), consistently with this explanation, is headed "Subclass 806 - FAMILY". It commences with an interpretation provision (subcl 806.1) that is not presently relevant. Subclause 806.2 then prescribes "primary criteria" that must be satisfied by at least one member of a family unit; the other members of the family unit, who are visa applicants, need satisfy only the secondary criteria. Subclause 806.2 is sub-divided into three sub-subclauses (806.211, 806.212 and 806.213) each of which specifies a series of "criteria to be satisfied at the time of application". As I understand the Schedule, these sub-subclauses are discrete; an applicant need only satisfy one of them. I believe this to be common ground between the parties. I also believe it to be common ground that, in each of the subject cases, the only relevant sub-subclause is 806.212 which reads: "806.212 the applicant: (a) satisfies schedule 3 criterion 3002; and (b) either: (i) is the holder of a substantive visa (other than a Subclass 771 visa); or (ii) 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 visa." No question currently arises about para (b) of this sub-subclause. 11 The contest between the parties arises out of the reference in para (a) to "schedule 3 criterion 3002". In order to understand that reference, it is necessary to return to the body of the Regulations and, in particular, cl 2.03, which relevantly provides: "2.03(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are: (a) the primary criteria set out in a relevant Part of Schedule 2; or (b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. (2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion. (3) …" 12 Schedule 3 is headed "Additional Criteria Applicable to Unlawful Non-Citizens and Certain Bridging Visa Holders". It is not suggested by the respondent that this Schedule applies directly to any of the applicants; the Schedule is relevant to these cases only because of the reference in sub-subclause 806.212 to cl 3002, which is in Schedule 3. Accordingly, I need not refer to the structure of Schedule 3 or consider it in any detail. It is enough to set out cl 3002 and the preceding clause, cl 3001, which contains a definition without which cl 3002 cannot be understood. These clauses read: "3001(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully. 3002 The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2))." 13 It is now possible to refer to the issues in these cases. 14 The members of the Immigration Review Tribunal who considered the applicants' cases each worked on the basis that it was necessary for one member of the relevant family unit to establish one of the sets of primary criteria set out in subcl 806.21 of Schedule 2 and, sub-subcl 806.212 being relied on in each case, that member needed to demonstrated that the visa application was made within 12 months of the "relevant day", as defined in cl 3001. Mr Neil Williams, counsel for the Minister, supports this approach and contends that both sub-subcl 806.212 and cl 3002 are valid exercises of the regulation making power conferred on the Governor-General by s504 of the Act. 15 Mr Brian Donovan QC, counsel for the applicants, does not attack the Tribunal members' process of reasoning; but he contends their conclusions were flawed by the circumstance that cl 3002 is invalid; it is outside the powers of delegated legislation envisaged by s31(3) of the Act. Mr Donovan argues that cl 3002 does not state a criterion pertaining to an applicant, which it is possible for an applicant to satisfy; rather, the clause imposes a condition or limitation in relation to the making of an application falling within Schedule 3, which the subject applications do not. By way of alternative, Mr Donovan contends that, if cl 3002 is a valid regulation for Schedule 3 purposes, it is at least invalid to the extent that, upon its proper construction, sub-subcl 806.212 imports the requirement of cl 3002 into that sub-subclause, as one of the criteria to be met by an applicant for a Subclass 806 - Family visa. He argues the "criteria for a visa or visas of a specified class" envisaged by s31 of the Act are criteria pertaining to the applicant, not conditions of the application; this is apparent from s65(1) of the Act which requires the Minister to grant a visa if satisfied that the health and other criteria prescribed by the Act or Regulations have been satisfied. Mr Donovan points out the word "criteria" is used in many places in the Act and Regulations. He says this is always in the context of attributes of some person, rather than satisfaction a procedural requirement. While it may be permissible to frame Schedule 2 in such a manner as to pick up a personal attribute of an applicant described elsewhere, such as in Schedule 3, it is not a prescription of "criteria", as envisaged by s31, to pick up something that is not a personal attribute but a limitation on the making of an application. 16 I do not think the applicants' argument can be accepted. As I have already pointed out, s31 does not itself confer power to make regulations; that function is fulfilled by s504. Section 504 is expressed in wide terms. As Mr Donovan accepts, it contains nothing that would restrict the ability of the Governor-General to prescribe cl 3002 as a limitation relevant to Schedule 3 applicants. I agree that s31 is also relevant; it indicates what Parliament envisaged in relation to the prescription of classes of visas. However, s31(3) is itself stated in wide terms. It says the "regulations may prescribe criteria for a visa or visas of a specified class". The subsection does not contain any express limitation on the nature of the relevant criteria; for example, by confining them to personal attributes of an applicant or other person. Nor, I think, is such a limitation to be implied. The word "criteria" is, of course, the plural of "criterion". That word is defined in the Macquarie Dictionary as "a standard of judgment or criticism; an established rule or principle for testing anything". The Oxford English Dictionary contains similar definitions: "An organ, faculty or instrument of judging; A test, principle, rule, canon or standard, by which anything is judged or established; A distinguishing mark or characteristic attaching to a thing, by which it can be judged or estimated". I do not think it is a misuse of language to see an application date for a visa as a standard of judgment about it, or as one of the rules for testing its appropriateness. Accordingly, I reject the contention that cl 3002 is invalid, in itself and as part of Schedule 3 of the Regulations. 17 I also reject the applicants' argument in relation to the use of cl 3002 as an addendum to the criteria specified in sub-subcl 806.212 itself. It will be recalled that provision relevantly says: " the applicant: (a) satisfies schedule 3 criterion 3002." 18 The drafting of para (a) is somewhat elliptic; an applicant cannot himself or herself satisfy a requirement that pertains to an application. However, the meaning of the paragraph is clear. It means: "the applicant is a person whose application satisfies Schedule 3 criterion 3002". Even if it were correct to limit the word "criteria" to personal attributes, I would conclude that, understood in that way, sub-subcl 806.212 specifies criteria. However, I do not accept that limitation. I think it is not an inaccurate use of language to describe a requirement that the application be made within a particular time as a criterion for a class of visa. 19 I do not see any invalidity in the regulations to which I have referred. Nor is there any basis for holding they were misconstrued by the Tribunal members who determined the review applications of the various applicants. 20 Each of the applications must be dismissed with costs. The costs should, of course, be assessed or taxed on the basis that all matters involved but one hearing.

Pillay v Minister for Immigration and Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Parties

Cited By (1)