Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112 | Case summary

Federal Court of Australia|2000-02-16|Before: Nicholson JJ

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a Judge of the Federal Court of Australia

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a primary judge (Wilcox J) given on 25 August 1999 in which he dismissed an application to review a decision of the Immigration Review Tribunal. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the appellants a Change in Circumstance (Residence) (Class AG) Subclass 806 visa. The visa in issue is a "Family Visa" which would be applicable to Mr Perumall Pillay, his spouse, his daughter and his son. The same issue which arises in relation to Mr Pillay and his family arises also in relation to a number of other appeals which it is agreed should be resolved in the same way as this appeal. All appeals have been heard together. 2 The primary application for the visa was lodged on 14 May 1998. A decision refusing the application was made by the delegate on 3 August 1998. The application for review was made to the Tribunal on 10 August 1998. The Tribunal gave its decision on 13 April 1999.

Alleged invalidity in regulation 3 The sole ground of appeal before us is that the primary judge erred in law by holding that clause 3002 of the Migration Regulations, purportedly made under powers conferred upon the Minister under the Migration Act 1958 ("the Act"), was a valid exercise of those powers. 4 Clause 3002 appears in Schedule 3 of the Migration Regulations and reads: "3002 The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2))." 5 The clause assumed that form from 1 November 1995 (SR268 of 1994) and remained in that form until 1 November 1999 (SR259 of 1999). 6 As the reasons of the primary judge recount, each appellant contended before him that, in coming to the refusal decision, the relevant Tribunal member erroneously regarded as fatal the fact that his or her visa application had been made within 12 months of "the relevant day" as defined by clause 3001 of Schedule 3 of the Regulations. That clause reads: "3001 (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."

Reasons of primary judge 7 In his reasons the primary judge traced the context in which clause 3002 appears. After recounting the submissions made before him, he concluded the power to make regulations was not derived from s 31 of the Act (as had been contended for the appellants) but rather from the general regulation-making power conferred by s 504. These sections are set out below. He considered the latter section was expressed in wide terms and contained nothing that would restrict the ability of the Governor-General to prescribe clause 3002 as a limitation relevant to applicants for visas. 8 Furthermore, he considered that s 31(3), which permits the Regulations to prescribe "criteria" for classes of visa, was itself stated in wide terms. He did not consider it a misuse of language to see a time limit for an application for a visa as a criterion, the making of which was authorised by s 31(3). He therefore rejected the contention that clause 3002 was invalid. He also rejected the submission that the word "criteria" was limited to personal attributes. On this point he said: "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." 9 He therefore concluded there was no invalidity in the Regulations and that they had not been misconstrued by the Tribunal members. Accordingly, he dismissed the applications for review.

Legislative and regulatory framework 10 In order to follow the conclusions as well as to decide the present ground of appeal it is necessary to do as his Honour did and to trace how it is that clause 3002 fits into the legislative scheme applicable to the application made by the appellants. Following that, it is necessary to decide whether the primary judge was right in his conclusion that the relevant regulations, including clause 3002, were valid. 11 To do that it is helpful to set out the relevant provisions under the headings which relate to the portion of the legislative framework in which they appear. (1) Provisions of the Act 12 We start where his Honour began and that is with s 31 of the Act. That section appears in Part 2 of the Act, headed "Control of arrival and presence of non-citizens". It appears in Division 3 which is headed "Visas for non-citizens". Section 31(1) provides there are to be prescribed classes of visas. Section 31(2) provides, in addition, that there are the classes provided for in ss 32 - 38, none of which has any present application as the visa applied for by the appellants appears in the prescribed classes in the Regulations. That comes about because s 31(3) provides that "the Regulations may prescribe criteria for a visa or visas of a specified class …". The Regulations may prescribe whether visas of a class are visas to travel to and enter Australia or to remain in Australia or both and whether a visa is a visa of a particular class: ss 31(4) and (5). 13 As has been said, it was the view of the primary judge that s 31 does not itself confer power to make the particular regulations. Rather he considered that such power derived from the general regulation making power appearing in s 504(1) of the Act. That section commences as follows: "504(1) The Governor-General may make regulations, not inconsistent with this act, prescribing all matters which by the Act are required or permitted to be prescribed and which are necessary or convenient to be prescribed for carrying out or giving effect to the Act and, without limiting the generality of the foregoing, may make regulations …" 14 Then follows an itemisation of particular topics, none of which was considered by the primary judge to be presently relevant. He was of the opinion that regulations envisaged by s 31 were clearly within the power conferred by s 504(1) and there was no contention to the contrary before him. Before us there has been no contention to the contrary and we hold the same view. 15 The Act also provides for the process by which applications for visas are to be made. Section 45(1) provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Subsections (2) and (3), as his Honour stated, envisage the making of regulations prescribing the manner of making applications and related matters. Importantly, the effect of s 46 is that an application for a visa is valid if, and only if, it is made in a manner which complies with the Regulations. Section 47 imposes an obligation on the Minister to consider a valid application for a visa. As his Honour also pointed out, in practice this duty is normally undertaken by a delegate on the Minister's behalf: s 496 of the Act. 16 The Minister's power (and duty) to grant or to refuse an application is provided for in s 65(1), which reads: "65(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 provisions 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." (2) Regulations 17 Part 2 of the regulations address the question of visas. Regulation 2.01 (described by his Honour as the key provision) 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)." 18 In addition to providing for matters of detail to be set out in Schedule 1, reg 2.02 provides for further detail relating to subclasses to be set out in Schedule 2. That regulation reads: "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 listed under the subitem "Subclasses" in the item in Schedule 1 that refers to that class of visa." 19 The criteria applicable to the visas for which the appellants applied is determined in accordance with the provisions of reg 2.03 which relevantly reads: "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. 20 Regulation 2.07 provides for the purposes of ss 45 and 46 of the Act that, if any application is required for a particular class of visa, the relevant Part of Schedule 1 sets out the approved form (if any), the application charge, and other matters relating to the application. (3) Schedule 1 to the Regulations 21 Schedule 1 is entitled "Classes of Visas" and purports to set out the specific ways in which a non-citizen applies for a visa of a particular class. Part 1 of the Schedule lists permanent visas. They include "Change in Circumstance (Residence) (Class AG)". A class AG visa must fall within one of four specified subclasses, one of which is "806 (Family)". (4) Schedule 2 to the Regulations 22 Schedule 2 is entitled "Provisions with respect to the grant of subclasses of visas". Its role derives from regulation 2.02. Subclass 806 is entitled "Family". Of these his Honour said: "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 …" 23 That subclause 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(Transit) 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." 24 No question arose before his Honour about para (b) of this sub-clause. 25 The contest between the parties arises out of the reference in para (a) to "Schedule 3 criterion 3002"." (5) Schedule 3 to the Regulations 26 This schedule is entitled "Additional criteria applicable to unlawful non-citizens and certain Bridging Visa holders". Schedule 3 has no relevance to the present case other than that given to it by the reference in subclause 806.212 to clause 3002. That reference is to be given effect in the manner set out in reg 2.03(2) 27 It is against this legislative background that the submissions of invalidity of clause 3002 fall to be considered.

Submission for appellants 28 The submissions for the appellants are confined to one critical point. They press the view that the primary judge was in error in finding that the time limit for lodging an application imposed by clause 3002 is a "criterion" within cl 31(3) (and hence within s 504). A submission made to the primary judge that a time limit is not a criterion but rather a qualifying condition is renewed before us. It is submitted that a criterion involves some judging, weighing, assessing and evaluation, whereas a time limit prescribes a condition precedent involving none of those judgmental acts. These submissions are said to be supported by reference to Fowlers Modern English Usage 2nd ed and The New Lexicon Webster's Dictionary. The error made by the primary judge is therefore said to be to having equated a requirement with a criterion. Put another way, it is said a requirement of a time limit is a calculation, not a criterion, because it does not involve any element of judgement.

Our reasoning 29 We do not consider that these arguments for the appellants can succeed. The use of the word "criteria" in s 31(3) is to be ascertained in its statutory context. In our view it demands a wide meaning. 30 We agree with the primary judge that s 504 is the source of the regulation making power and that it is expressed in wide terms. In our opinion the primary judge was correct in concluding that it contains nothing that would restrict the ability of the Governor-General to prescribe clause 3002 as a limitation relevant to applicants for visas. The limitation that regulations be "not inconsistent with this Act" does not avail the appellants because of the wide view we take of the use of the word "criteria" in s 31(3). 31 Section 31(3) itself does not contain any express limitation on the nature of the relevant criteria that may be imposed by regulation. Other provisions in the Act reinforce the view that Parliament intended s 31(3) to have a broad operation. Section 40(1), for example, provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. Section 40(2) sets out some such circumstances "without limiting subsection (1)". It would be surprising if the Act were subject to an implied limitation that prevented regulations addressing such basic matters as age and residence requirements. Yet this seems to be the consequence of the appellants' submissions. 32 The case for a wide meaning of ss 31(3) and s 504 of the Act is also supported by other factors. Firstly, the ordinary meaning of the word "criteria" supports a wide construction. The Oxford English Dictionary Second Edition, Vol IV, p 29 defines "criterion" as meaning "a test, principle, rule, canon or standard, by which anything is judged or estimated". The Macquarie Dictionary, revised edition at p 437 defines "criterion" as "a standard of judgment or criticism; an established rule or principle for testing anything". These definitions are sufficiently broad to embrace a time limit for the lodging of a visa application. 33 Secondly, there is no reason why a requirement ceases to be a test or standard, or a rule or principle for testing, because it allows for a straightforward answer. The act of judging or weighing, in such an instance, may be brief but it is not eliminated. We therefore share with the primary judge the view that it is not a misuse of language to see a time limitation for visa applications as a matter involving an element of judgment and the application of a standard. For example, the time limit specified in cl 3002 cannot be applied in a particular case without ascertaining the "relevant day", a task that may be far from straightforward. 34 Thirdly, in s 39 of the Act, Parliament uses the word "criterion" to refer to a requirement that a grant of a visa must not cause the number of visas of a class in a particular financial year to exceed whatever number is fixed by the Minister as the maximum number of such visas that may be granted in that year. This is precisely the type of requirement the appellants' contentions would characterise as a condition precedent, rather than as a criterion. There is no foundation for the submission that "criteria" in s 31(3) should be read more narrowly than in s 39 simply because it relates to the making of regulations. 35 Fourthly we accept the respondent's submission that the fact that the Minister has no residual discretion once satisfied the applicant satisfies the statutory and prescribed criteria suggests that the term "criteria" in s 31 should be given a broad construction.

Conclusion 36 Accordingly, we are of the opinion that the primary judge was correct to conclude that cl 3002 is a valid exercise of the regulation-making power conferred by s 504 of the Act. As cl 3002 was properly understood by the members of the Tribunal who determined the review applications, there is no basis upon which to find any error of law in the judgment of his Honour. 37 We, therefore, consider that this appeal (and each of the related appeals) must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate: Dated: 16 February 2000 Counsel for the Appellant: Mr M Newman

Solicitor for the Respondent: Australian Government Solicitor

Pillay v Minister for Immigration & Multicultural Affairs

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Judgment (58 paragraphs)

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