Vahaakolo v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant in the present proceeding, Mr Moala Vahaakolo, has sought to invoke this Court's jurisdiction under s 486 of the Migration Act 1958 (Cth) ("the Act") and, in the alternative, this Court's jurisdiction under subs 39B(1) of the Judiciary Act 1903 (Cth). In so far as the applicant seeks to invoke this Court's jurisdiction under the Act, he identifies as the decision sought to be reviewed in the proceeding what is said to have been a "decision" made on behalf of the Minister for Immigration and Multicultural Affairs ("the Minister") "to refuse to include" Mr Sione Vahaakolo, who is the applicant's son ("the son"), "as part of" the applicant's "origional [sic] application to remain permanently in Australia". In so far as the applicant seeks to invoke this Court's jurisdiction under the Judiciary Act, he complains of a refusal by the Minister to fulfil a duty to consider a deemed application by the son to remain permanently in Australia. 2 I set out below the circumstances out of which the present application has arisen. 3 On 17 December 1993, the applicant's wife (since deceased), having been illegally in Australia before 18 December 1989, made application to the Minister for what was described on the application form as a "December 1989 (permanent) entry permit". The grounds of that application were two: first, being a special need relative; and, secondly, compassion. The applicant's wife included in her entry permit application the applicant, who was then also in Australia. (Apparently, the applicant was, like his wife, in Australia illegally, but had not been so before 18 December 1989, and therefore could not make his own application for aDecember 1989 (permanent) entry permit.) 4 On 1 September 1994, the applicant's wife's application remaining undetermined, par 23(2)(b) of the Migration Reform (Transitional Provisions) Regulations (Cth) (which commenced on that date: see reg 2 thereof) had the effect that the applicant's wife's application for a December 1989 (permanent) entry permit was taken thereafter to be an application for a "transitional (permanent) visa". (Such deemed application was required to be determined "according to the criteria that applied to the entry permit for which application was made": see subreg 23(3) of the transitional Regulations.) 5 By letter dated 2 June 1998, the applicant's wife and the applicant wrote jointly to the Minister, asserting that they were the only persons included in the applicant's wife's application. The son, who was then in Tonga, was thus not included in the applicant's wife's deemed application for a transitional (permanent) visa. 6 On 22 January 1999, the applicant's wife died, her deemed application for a transitional (permanent) visa still remaining undetermined. 7 On 27 January 1999, the son was granted, in Tonga, a visa to travel to Australia for one month as a visitor (I infer because of his mother's death), subject to a condition (relevantly) that he would not, after entering Australia, be entitled to be granted a substantive visa while he remained in Australia. 8 By letter dated 18 February 1999, the applicant, expressly relying on reg 2.08A of the Migration Regulations (Cth) ("the Regulations"), made a request to the Minister to have the son added to the application which had been made by the applicant's wife in 1993. (Regulation 2.08A had been added to the Regulations by Statutory Rules 1996 No 211, reg 9.1, which had commenced on 1 October 1996: see Statutory Rules 1996 No 211, reg 1.1.) 9 It is convenient now to interrupt my recitation of the material facts in order to set out the relevant portion of subreg 2.08A(1) of the Regulations, which is as follows: "Addition of … dependent children to certain applications for permanent visas 2.08A (1) 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 … a request from the original applicant to have … a dependent child … of the original applicant (in this regulation called "the additional applicant") added to the original applicant's application; and (c) the request includes a statement that the original applicant claims that the additional applicant is the … dependent child … of the original applicant; and (d) at the time when the Minister receives the request, the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class; then: (e) the additional applicant is taken to have applied for a visa of the same class; and (f) the application of the additional applicant: (i) is taken to have been made at the time when the Minister receives the request; and (ii) is taken to be combined with the application of the original applicant; and (iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant." 10 (It will be noticed that subreg 2.08A(1) of the Regulations does not, in terms, confer any decision-making power on the Minister, but merely provides that, if conditions (a)-(d) are satisfied, then events (e)-(f) are taken to have occurred.) 11 On 22 February 1999, an officer in the Minister's Department wrote to the applicant. The letter said, "I refer to your [sic] application for permanent residence … lodged 17 December 1993. Receipt is acknowledged of the death certificate of your spouse …, who was previously the principle [sic] applicant in this case, as a consequence of her death you have now become the principle [sic]. On the 19 February 1999 you insisted on lodging a request with this office, to include your son … as an additional applicant. It has been determined that the inclusion of Sione Vahaakolo is not valid as Sione last entered Australia as the holder of a visa endorsed with the condition 8503 'No Further Stay'. Therefore the request for inclusion on the application does not satisfy the criteria [sic] at (e) below. The Migration Act specifies that in order for an application for a visa to be valid, the following criteria must be met: … e) the applicant must not have a condition attached to their substantive visa which prohibits the grant of a further substantive visa …; 8503. The holder will not, after entering Australia, be entitled to be granted a substantive visa … while the holder remains in Australia. As the request to include Sione Vahaakolo is invalid, he therefore cannot be considered for the grant of a visa as part of your application. As this decision is not a decision to refuse a visa, there is no right of review." (I assume that what was meant in the last of the sentences which I have just quoted was that there was no right of administrative review, but not that there was no right of judicial review. If so, it would have been better if that had been made plain in the letter.) 12 The reference in the letter to what the Act specified as to the validity of an application was a reference to par 46(1)(e) of the Act, which paragraph, at the relevant time, provided, "46. (1) … an application for a visa is valid if, and only if: … (e) in a case where the applicant is in the migration zone …, the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 41(2)(a)." The reference in par 46(1)(e) of the Act to "the migration zone" may be taken, for present purposes, simply as a reference to Australia. Further, the condition described in par 41(2)(a) of the Act was a condition that, "… the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa … while he or she remains in Australia". 13 I do not find it easy to understand which legal position was being taken in the letter written on the Minister's behalf. There appear to me to be only two real possibilities. First, the legal position was being taken that subreg 2.08A(1) did not have, in relation to the son, the effect set out in pars (e) and (f) thereof, because of the provisions of par 46(1)(e) of the Act, which applied in the circumstances. Secondly, the legal position was being taken that subreg 2.08A(1) did have, in relation to the son, the effect set out in pars (e) and (f) thereof, but that, because of the provisions of par 46(1)(e) of the Act, which applied in the circumstances, the application deemed to have been made by the son pursuant to subreg 2.08A(1) of the Regulations was an invalid application and therefore incapable of being considered by the Minister (see subs 47(3) of the Act, which provides that "the Minister is not to consider an application that is not a valid application"). 14 It is not necessary for me to choose between the two possibilities which I have just mentioned, either of which would, in my view, have been erroneous. 15 It is unnecessary for me to do so, because either error would have been an immaterial one. That is so, because, for at least two, independent, reasons, neither mentioned in the letter written on the Minister's behalf, subreg 2.08A(1) of the Regulations did not have, in relation to the son, the effect set out in pars (e) and (f) thereof. 16 The first of those two reasons is that a condition on the operation of pars 2.08A(1)(e) and (f) of the Regulations which par 2.08A(1)(a) of the Regulations imposes by its use of the word "applies" is that the application to which a dependent child is sought to be added must be one which has been made after 1 October 1996, the date of commencement of reg 2.08A of the Regulations. No good reason appears to treat reg 2.08A of the Regulations as having been intended to have a retrospective operation, in particular, an operation retrospective to 17 December 1993, the date on which the application had been made to which the son was sought to be added. 17 (It may be noted that Statutory Rules 1996 No 211 did specifically include transitional provisions relating to those amendments to the Regulations which, like the new reg 2.08A, commenced on 1 October 1996: see regs 144.1 and 145.1. However, those transitional provisions did not deal with deemed applications for transitional (permanent) visas undetermined as of that date, although they did deal with other applications undetermined as of that date.) 18 The second of those two reasons is that a condition on the operation of pars 2.08A(1)(e) and (f) of the Regulations which pars 2.08A(1)(a) and (d) of the Regulations impose by implication is that an application to which a dependent child is sought to be added must be an application for a permanent visa of a class set out in Sch 1 of the Regulations. A transitional (permanent) visa is not a class of visa set out in Sch 1 of the Regulations. 19 (It may be noted that the Regulations expressly recognise the distinction between, on the one hand, the classes of visas set out in the respective items in Sch 1 of the Regulations and, on the other hand, the class of transitional (permanent) visas: see reg 2.01 of the Regulations, dealing with classes of visa (and note also reg 1.06 of the Regulations, dealing with references to classes of visas).) 20 (There may be, as well, a third independent reason why subreg 2.08A(1) of the Regulations did not have, in relation to the son, the effect set out in pars (e) and (f) thereof. In order that those paragraphs may have effect in relation to a dependent child, there must have been a request for the addition of that dependent child to the application of "the original applicant", which request was made by that applicant. It is not clear to me that the applicant in the present proceeding was "the original applicant" for the purpose of subreg 2.08A(1) of the Regulations. However, it is unnecessary that I decide that question for present purposes.) 21 Because of the two, independent, reasons which I have set out above as to why subreg 2.08A(1) of the Regulations did not have, in relation to the son, the effect set out in pars (e) and (f) thereof, it will be obvious why I have said above that the second of the two possible legal positions taken on the Minister's behalf in the letter of 22 February 1999 would have been erroneous. I should, however, explain why I take the view that the first of those two possible positions would also have been erroneous. It is that par 46(1)(e) of the Act was logically a provision which operated only after one already had in existence an actual or deemed application in fact; it could not prevent an actual application in fact from coming into existence, nor did it purport to prevent a deemed application in fact of the sort provided for by reg 2.08A of the Regulations from doing so. 22 The applicant (who was represented before me, by leave, by a person not legally qualified), was aware of the possibility that I would conclude, for the two reasons which I have given above, that subreg 2.08A(1) of the Regulations did not have, in relation to the son, the effect set out in pars (e) and (f) thereof. However, in his submissions, he did not seek to deal with either of those reasons, but instead focused on other matters. 23 One of the matters to which his submissions were directed was whether there had been unlawfulness in the imposition on the son's visa of the condition that he would not, after entering Australia, be entitled to be granted a substantive visa while he remained in Australia. However, the lawfulness or otherwise of the imposition on the son's visa of such a condition would have no bearing on the question whether subreg 2.08A(1) of the Regulations had, in relation to the son, the effect set out in pars (e) and (f) thereof. 24 Another of the matters to which his submissions were directed was whether the son should have been given an opportunity to make submissions to the Minister on the question whether the Minister should waive the condition imposed on the son's visa (assuming, contrary to the applicant's submission to which I referred in the preceding paragraph, that the imposition of the condition on the son's visa had been valid). That submission was based on the fact that, on 1 March 1999, a new version of par 46(1)(e) of the Act had commenced operation, conferring on the Minister by implication a power to waive such a condition. Again, however, any failure on the part of the Minister of the sort alleged would have no bearing on the question whether subreg 2.08A(1) of the Regulations had, in relation to the son, the effect set out in pars (e) and (f) thereof. 25 The final matter which I will mention as one to which the applicant's submissions were directed was the effect of the Convention on the Rights of the Child, in particular, of Article 3 thereof. It was submitted that the Minister, in his actions concerning the son, had failed to treat the best interests of the son as a primary consideration. However, that submission presupposed the conferral on the Minister in the present matter of some discretionary power in which the best interests of the son had been capable of being treated as a primary consideration, which discretionary power had been exercised on behalf of the Minister without those interests having been treated as a primary consideration. In fact, there was relevantly no such discretionary power exercised, certainly not the discretionary power impliedly conferred on the Minister by the new version of par 46(1)(e) of the Act. That discretionary power was not yet in existence on 22 February 1999, the date on which the letter was written to the applicant on the Minister's behalf. 26 Finally, I should say that it has not been necessary to me to decide which of the two possible sources of jurisdiction identified by the applicant in making his application to this Court I have exercised in the present proceeding, since I am satisfied that, if the jurisdiction under the Act was not available (compare Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107 at 123-27 (French J)), then the