Ram v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Administrative Appeals Tribunal be removed as the Second Respondent.
3. The Appellant pay the costs of the First Respondent, such costs to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This is an appeal from a decision of the Federal Circuit Court (Ram v Minister for Immigration [2017] FCCA 687), in which the primary Judge dismissed an application for judicial review of a decision of a delegate of the Minister that the appellant's application for a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa was invalid. 2 Before turning to the appeal before this Court, it is useful to consider the background facts and the decision of the primary Judge.

Background 3 The decision of the primary Judge provides a helpful overview of the appellant's background. The appellant is a Fijian citizen who married an Australian citizen abroad. She subsequently applied for an offshore partner visa, being a Partner (Migrant) (Class BC) Subclass 100 visa. After a provisional (Class UF) Subclass 309 visa was granted in 2002, the appellant travelled to Australia where she has since remained. In 2006, a delegate of the Minister for Immigration and Multicultural Affairs (as the office was then known) made a decision to refuse to grant the Subclass 100 visa, and the appellant's application to the Migration Review Tribunal (as it then was) for merits review was unsuccessful. 4 Following the unsuccessful merits review of the delegate's decision, the appellant made an application for two visas in 2016: a Partner (Temporary) (Class UK) Subclass 820 visa and a Partner (Residence) (Class BS) Subclass 801 visa (the Visa Applications). The appellant was notified by an officer of the Department (the Officer) that the Visa Applications were invalid. Relevantly, the notification explained: … Your application for a visa is invalid because it did not meet Item 1124B(3)(e)(i) of Schedule 1 of the Migration Regulations 1994 (the Regulations). As a person to whom section 48 of the Migration Act 1958 (the Act) applies, that provision required that you must not have been refused any of the following visas since last entering Australia: (A) a Subclass 100 (Spouse) visa; (B) a Subclass 100 (Partner) visa; … (Original emphasis.)

Federal Circuit Court decision 5 In the proceedings before the Federal Circuit Court, the appellant sought judicial review of the delegate's finding that the Visa Applications were invalid. The appellant relied on the following grounds of review: 1. The Department failed to accept my application as under s.48 because of previous spouse visa refusal yet my current application should not be considered as invalid because it relates to an application with a sponsor who is my ex-husband and there are compelling and compassionate circumstances which were overlooked by the Department and the Department prevented me from looking at compelling reasons which relate to circumstances which occurred after time of refusal of first application. 2. I rely in this application on Federal Court of Australia decision Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, a copy of which I attach. 3. My application should not be treated as invalid as it is based on a long term relationship which has been in existence for over 25 years. 6 The primary Judge took the view that the critical question was whether there was an obligation on the Minister to consider the Visa Application. In doing so it was necessary to resolve whether the Visa Application was a "valid application" within the meaning of the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1995 (Cth) (the Regulations). His Honour set out the application of the relevant provisions of the Act and Regulations in Ram [2017] FCCA 687 at [8]-[13], such reasoning being relevant to the appeal in this Court and to which I will examine in detail below. 7 In contemplation of the Act and Regulations, his Honour ultimately held in Ram [2017] FCCA 687 at [13] and [17] that the Visas Application was invalid and the appellant's grounds of review were not relevant to determining such validity because: Nowhere in the statutory scheme relating to the validity of applications is there to be found any discretion which in turn turns upon the application of considerations such as "compelling and compassionate circumstances".

Appeal to the Federal Court 8 The appellant appealed the decision of the Federal Circuit Court, relying on the following grounds: Grounds of appeal 1. The learned judge fell into error in failing to engage with the reasons of the Tribunal and finding that the Appellant was barred by s 48 (erroneously stated in Appellant's Ground 1 in a application prepared by community legal centre) whereas as there was no findings of s 48 bar by the delegate of the First Respondent or the Second respondent Tribunal and the application was considered by the Second respondent on substantive basis. … 2. The learned judge fell into error in failing to find that the Tribunal did not commit jurisdictional error when the Tribunal had failed to and realistically consider the application (and erroneously finding that there was s 48 bar). … 3. The learned judge fell into error in denying the Appellant procedural fairness. … 4. The learned judge fell into error in making decision and orders without supporting evidence. … 5. The learned judge fell into error in making decision in excess of jurisdiction. … 9 In written submissions, the appellant indicated that grounds 3 and 4 were no longer pressed. This was confirmed by Counsel for the appellant at the oral hearing. 10 The appellant sought the following orders: 1. The appeal is allowed. 2. The Orders of the Federal Circuit Court made on 10/3/2017 be set aside; 3. The First Respondent pay all costs of the application incurred in the Court below; 4. The First Respondent pay all costs of the appeal; 5. The decision of the Second Respondent made on 21 April 2016 be set aside; 6. The matter be remitted to the Second Respondent to be dealt with in accordance with the law. 11 At the hearing of the appeal, the appellant was represented by Mr Kumar of Counsel and the Minister for Immigration and Border Protection (the Minister) was represented by Mr Markus of the Australian Government Solicitor. The Administrative Appeals Tribunal (the Tribunal) had filed a submitting notice, save as to costs.

Grounds 1 and 2 12 The appellant made submissions that were substantively the same in relation to grounds 1 and 2. These submissions can be summarised as follows: Section 48 of the Act and reg 2.12 and item 1124B of Sch 1 of the Regulations add qualifications as to who may hold certain types of visas, but they do not go to the validity of the application. As such, the effect of these provisions was not to invalidate the appellant's visa application. The appellant submitted that this was consistent with the approach adopted by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315 (Kim) and that the same approach should be adopted in this case. The legislative scheme should not be interpreted so as to apply retrospectively to the appellant. The appellant submitted that item 1124B of Sch 1 of the Regulations commenced on 1 July 2011 and that it should not operate in relation to the appellant because the relevant visa which would prevent the appellant from applying for the visa the subject of this matter was refused in 2006.

The legislative framework 13 Section 48 of the Act is as follows: Non-citizen refused a visa or whose visa cancelled may only apply for particular visas (1) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) after last entering Australia: (i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or (ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 132 (business visas), 137J (students visas) or 137Q (regional sponsored employment visas); may, subject to the regulation, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf but not for a visa of any other class. … 14 Regulation 2.12 of the Regulations materially provides as follows: Certain non-citizens whose applications refused in Australia (1) For section 48 of the Act, the following classes of visas are prescribed: … (b) Partner (Residence) (Class BS) … 15 Item 1124B(3) outlines other requirements for the making of an application for a Partner (Residence) (Class BS) visa, in addition to the formal requirements outlined elsewhere in the item. In particular, it provides: Partner (Residence) (Class BS) … (3) Other: … (e) Subject to subitem (3A), if the applicant is a person to whom section 48 of the Act applies, the applicant: (i) must not have been refused any of the following visas since last entering Australia: (A) a Subclass 100 (Spouse) visa; (B) a Subclass 100 (Partner) visa; … 16 In determining the question of whether the earlier refusal affects the validity of the application, s 46 of the Act is also relevant. Materially, it provides: Valid visa application (1) Validity - generally Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if: … (d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of the Act: (i) section 48 (visa refused or cancelled); … 17 Finally, the consequence of an application being invalid is set out in s 47 of the Act, which states: Consideration of valid visa application (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) The application is withdrawn; or (b) The Minister grants or refuses to grant the visa; or (c) The further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) 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 the visa. Subsections (3) and (4) are of particular relevance in the circumstances of this case.

The decision in Kim 18 In submitting that item 1124B(3) did not go to the validity of the visa application, the appellant relied primarily on the decision of Kim. That case concerned the validity of reg 2.12 of the Regulations and the effect of subcl 832.211(3)(c)(iv) of Sch 2 to the Regulations. Clause 832.211(3)(c) of Sch 2 to the Regulations contained two criteria that the applicant was required to meet in order to satisfy the clause. The specific criterion the subject of consideration in Kim was: … (iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia; and … 19 The primary Judge found that reg 2.12 was ultra vires because the language of the Act did not support the making of regulations that imposed a qualification on the entitlement of a person to make an application for a particular class of visa. Importantly, the primary Judge considered that a decision of the Minister concerning the validity of an application is intended to be a determination that can be made without giving consideration to the merits of the content of the application. Clause 832.211(3)(c)(iv), however, did require the Minister to consider material and reach a conclusion as to the whether the visa applicant had spent the greater part of the period that the Minister regarded as the applicant's former years in Australia. 20 On appeal, the Full Court held that reg 2.12 was not ultra vires, but that cl 832.211(3)(c)(iv) could not be read as imposing a requirement that affected the validity of the application. This was principally because "the criterion involves a subjective evaluation of a criterion which is in wide and, in a sense, elastic terms" (at [20] per Moore J). As stated by Allsop J (as his Honour then was) (at [43]-[44]): 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. 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. (Emphasis added.) 21 The appellant submits that the Court should adopt the same approach to item 1124B as was adopted by the Full Court to cl 832.211 in Kim. Although Kim concerned a different provision of the Regulations, the appellant submits that there is no reason why the Court should depart from the reasoning of the Full Court. The effect of such a course would be that the restriction in item 1124B(3)(e)(i) could not affect the validity of a visa application but would only be a qualification on whether the appellant was entitled to the grant of the visa. As a result, the Minister would be obliged to consider the appellant's visa application, which he did not do in this case. 22 The Minister argues that the decision in Kim is distinguishable from the present case. In particular, the Minister submitted that, in contrast to the situation in Kim, item 1124B(3)(e)(i) required the Officer to consider an objectively and readily ascertainable fact, being whether or not the appellant had been refused a Subclass 100 visa since last entering Australia. 23 It is also of relevance that item 1124B appears in Sch 1 to the Regulations, which contains the formal requirements for particular classes of visa. By comparison, the relevant provision in Kim appeared in Sch 2 to the Regulations, which deals generally with the criteria an applicant must meet in order to be granted a particular visa. 24 In this way, the interpretation of the relevant provisions of the Act and the Regulations proposed by the Minister is not contrary to the outcome in Kim. Indeed, it is consistent with the finding of the Full Court that the Regulations are capable of restricting the classes of visas for which a person who has previously had an application refused may apply, pursuant to s 48, and that such provisions can affect the validity of an application by virtue of s 46. Here, the requirement in item 1124B(3)(e)(i) goes to something that was objectively ascertainable at the time the application for the partner visa was made. Item 1124B(3)(e)(i) is therefore a provision of the kind that the Full Court in Kim considered could affect the validity of a visa application. In my view, the Minister is correct in his submission that the decision in Kim does not prevent item 1124B(3)(e)(i) from affecting the validity of the application for a partner visa.

Interaction between the Act and the Regulations 25 In line with the above analysis of the decision of the Full Court in Kim, the cumulative effect of ss 46 to 48 of the Act, and reg 2.12 and item 1124B(3) of the Regulations, vis-à-vis the appellant, can be stated as follows: Section 48 of the Act contemplates that the Regulations can prescribe the types of visa for which the appellant was entitled to apply, given that she had previously been refused a visa. There has been no suggestion by the appellant that reg 2.12 or item 1124B are ultra vires or go beyond what was contemplated by s 48 of the Act. The placing of restrictions, by regulation, as to who may apply for certain classes of visas was precisely the intention of s 48 of the Act. The provisions of reg 2.12 and item 1124B reflect this. Regulation 2.12 prescribes the classes of visa which are prescribed by s 48. Included in that list is the visa of the class for which the appellant applied. Item 1124B, which concerns the validity requirements for an application for a partner visa, further qualifies the prescriptions as to the classes of visa for which an individual affected by s 48 may apply. It outlines the requirements for the making of a valid application for a Partner (Residence) (Class BS) visa. Specifically, Subitem (3)(e) outlines as a requirement for the validity of an application that the appellant has not been refused a Subclass 100 visa. The requirement in item 1124B(3)(e) is concerned with something that can be ascertained objectively. It follows that the appellant is a person to whom s 48 of the Act applies, and the effect of the relevant provisions in the Regulations ultimately means that s 48 prevents the appellant from making an application for the class of visa for which she has applied. Section 46(1)(d) then operates such that the appellant's application is not considered to be valid. Finally, s 47(3) of the Act precludes the Minister from considering an application that is not a valid application. 26 The primary Judge was not in error in finding that item 1124B(3)(e)(i) could go to the validity of the application and, consequently, that the Minister was not permitted to consider the merits of the appellant's partner visa application.

Futility of appeal 27 The Minister further noted that the proposed course by the appellant, whereby the earlier refusal of the visa was a disqualifying criterion as opposed to a bar to bringing a valid application, would be futile in any event. Even if the delegate were required to consider the application, the delegate would be unable to grant the visa to the appellant. The appellant has never disputed that she was earlier refused the relevant visa and as such could not be granted that visa, even if the appellant's interpretation of the Regulations were accepted. Although this submission by the Minister may detract from the utility of Court proceedings brought by the appellant, it is not determinative of the question of whether the actual application was valid. However, as I have already found, in these circumstances the earlier refusal of the Subclass 100 visa was an issue going to the validity of the application, such that the Officer could make the determination that the application was not valid and could not be considered to determine whether the applicant should be granted a visa.

Retrospectivity 28 In response to the appellant's argument that the Act and Regulations should not be interpreted in a manner that would apply retrospectively to the appellant, the Minister submitted that such an argument is misconceived. I agree. In these circumstances there was no retrospective operation of the provisions. The relevant application, being the application the subject of this appeal, was made in 2016, after item 1124B had been inserted and came into effect. The fact that the appellant had been denied a visa in 2006 did not mean that the Regulations were operating retrospectively, since the operation of item 1124B was to invalidate an application made after its enactment, albeit by reference to a past event.

Conclusion as to grounds 1 and 2 29 It follows that there was no error by the primary Judge in either of the manners identified by the appellant in grounds 1 and 2.

Ground 5 30 The appellant contended in ground 5 that the Federal Circuit Court exceeded its jurisdiction as granted by s 476 of the Act and that the Federal Circuit Court did not have power to deal with the decision of the Officer in relation to the validity of the appellant's visa application. In the appellant's submission, this was because the decision as to the validity of the application was a "primary decision" as defined in s 476(4), which is a decision in relation to which the Federal Circuit Court has no jurisdiction because of s 476(2). 31 The Minister's submission that the decision of the Officer was a "primary decision" such that it could not be reviewed by the Federal Circuit Court is correct. Section 476(4) of the Act is as follows: (4) In this section: primary decision means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b) that would have been reviewable if an application for such review had been made within a specified period; or (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). 32 The determination by the Officer was not a decision to grant or refuse a visa based on the substantive merits of the visa application and as such was not a decision that could be appealed to the Tribunal pursuant to the provisions identified in s 476(4). It was not a decision to grant or refuse to grant a visa because of the existence or otherwise or certain visa criteria, but was simply a determination that no valid application had been made. 33 Section 47(4) of the Act makes so much clear as it states: 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 the visa. 34 A determination of this kind is not a "primary decision" within the meaning of s 476(4). It follows that s 476(2) of the Act did not foreclose the possibility of review of the determination by the Federal Circuit Court. The Federal Circuit Court did not act outside of its jurisdiction in dismissing the appellant's application before it.

The inclusion of the second respondent 35 The appellant concedes in written submissions that the Tribunal should not have been named as the second respondent to these proceedings and that this inclusion was erroneous. The appellant at no stage applied to the Tribunal for merits review and there was no second respondent to the Federal Circuit Court proceedings. It is therefore appropriate to make an order removing the Tribunal as the second respondent to these proceedings.

Conclusion 36 In the circumstances of the case the proper order is that the appeal be dismissed, with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.