VFAY v Minister for Immigration and Multicultural and Indigenous Affairs

Legislation 8 Section 47(1) of the Act requires the Minister to consider a valid application for a visa. The Minister is specifically prohibited from considering an application that is not a valid application; s 47(3). As previously noted, it is common ground that the applicant has made the Bridging Visa application. Section 73 of the Act provides that: 'If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed by subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia …' 9 Section 72(1) defines an 'eligible non-citizen' as, among others, a non-citizen who is in a prescribed class of persons. The prescribed class of persons for the purposes of s 72(1) is set out in reg 2.20 of the Regulations, and for present purposes can be confined to reg 2.20(7). Sub-regulation 2.20(7) sets out a number of criteria. It was accepted on both sides that the criteria in dispute in this matter are to be found in sub-regulation 2.20(7)(b)(ii)(B) and require that (emphasis added): '(b) … (ii) on or after 20 October 1999: (A) the non-citizen made a Protection (Class XA) visa application that is not finally determined; or (B) the non-citizen applied for judicial review of a decision to refuse a Protection (Class XA) visa; or (C) the Minister has applied for judicial review of a decision in relation to the non-citizen's Protection (Class XA) visa application;'

The competing submissions 10 Fundamental to the applicant's case is that, by applying to the High Court for special leave to appeal from the decision of the Full Court of this Court, the applicant is a 'non-citizen was has applied for judicial review of a decision to refuse a Protection (Class XA) visa' for the purposes of sub-regulation 2.20(7)(b)(ii)(B). Ms Karapanagiotidis, for the applicant, submitted that the meaning of 'judicial review' in sub-regulation 2.20(7)(b)(ii)(B) is illuminated by the purpose for which the bridging visa provisions were included in the Act; s 15AA of the Acts Interpretation Act 1901 (Cth). Further, the interpretation to be given to the expression should not be restrictive having regard to the general and broad language of sub-regulation 2.20(7)(b)(ii)(B). By way of examples of similar language, I was referred to other parts of the Regulations, specifically, Schedule 2, subclass 050. 11 In addition, Ms Karapanagiotidis contended that the Minister's argument draws a distinction between an application for special leave to appeal to the High Court and a substantive appeal in that Court after special leave has been granted. Such a distinction, it was said, erroneously imports into sub-regulation 2.20(7)(b)(ii)(B) a requirement that for there to be an application for judicial review a substantive appeal must be on foot. It fails to recognise that an application for special leave to appeal is an application for judicial review, and is, indeed, a necessary first step in the process of making an application to the High Court. Finally, Ms Karapanagiotidis submitted that the Minister has previously accepted in proceedings before the Federal Magistrates' Court that an application for special leave to appeal to the High Court does constitute an application for judicial review; see Kosi v Minister for Immigration & Multicultural Affairs [2003] FMCA 340. 12 Mr P R D Gray, for the Minister, accepted that the reference to 'application for judicial review' in sub-regulation 2.20(7)(b)(ii)(B) should be construed in light of other relevant provisions of the Regulations. He referred to Schedule 2, subclass 051 which relevantly provides (emphasis added): '051.21 Criteria to be met at time of application 051.211 The applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11). 051.212 The applicant, or a person acting on behalf of the applicant, has signed an undertaking acceptable to the Minister that: … (b) if the application for a protection visa is finally determined and refused, the applicant will depart Australia, or present himself or herself to Immigration for removal, within 28 days after the latest of the following: … (iii) proceedings for judicial review of the visa decision are completed, and the outcome is that the visa decision is maintained; (iv) the applicant withdraws an appeal against the outcome of judicial review of the visa decision; (v) proceedings on an appeal against the outcome of judicial review of the visa decision are completed, and the outcome is that the visa decision is maintained. … 051.5 When visa is in effect … 051.512 In the case of a visa granted to a non-citizen on the basis of judicial review of a decision to refuse a protection visa application - bridging visa coming into effect on grant and permitting the applicant to remain in Australia until: … (b) subject to paragraph (d), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or'

13 Mr Gray submitted that an application to the High Court for special leave is neither a 'proceeding' nor a 'proceeding on appeal'; Collins v The Queen (1975) 133 CLR 120. Further, the grant of special leave is neither an exercise of original jurisdiction nor a decision on appeal but simply an essential preliminary condition to the existence of an appeal; Attorney-General (Cth) v Finch [No 1] (1984) 155 CLR 102.

14 In relation to Kosi, Mr Gray acknowledged that the background facts in that case suggest that the Minister had treated an application for special leave as sufficient for the purposes of Schedule 2, subclass 050-212. However, it was submitted that in that case a detailed analysis of the question had not been necessary, as the application for special leave had been refused in advance of the hearing before the Federal Magistrates' Court.

15 As already identified, the issue in this matter is whether an applicant who has on foot an application for special leave to appeal to the High Court in relation to a decision of the Minister, has 'applied for judicial review of a decision' within the meaning of sub-regulation 2.20(7)(b)(ii)(B) of the Migration Regulations. In the apparent absence of any authority directly on point the issue has to be resolved by application of general principles of statutory construction.

16 Section 15AA of the Acts Interpretation Act provides that "In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object." By s 46(1)(a) of the same Act, s 15AA also applies to delegated legislation made under a Commonwealth Act. The effect of the purposive approach prescribed by s 15AA was discussed by Dawson J in Mills v Meeking (1990) 169 CLR 214. Although Mills involved the application of s 35(a) of the Interpretation of Legislation Act 1984 (Vic), I consider that Dawson J's observations apply with equal force to s 15AA, which is in almost identical terms. His Honour said, at 235:

'The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.'

17 Resort to the purposive approach endorsed by s 15AA has been constrained to some extent by later observations of the High Court in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, where Dawson, Toohey and Gaudron JJ pointed out, at 262:

'The choice directed by s 35(a) of the Interpretation of Legislation Act is not as to the construction which "will best achieve" the object of the Act. Rather, it is a limited choice between "a construction that would promote the purpose or object [of the Act]" and one "that would not promote that purpose or object".' 18 Neither the Act nor the Regulations expressly identify a relevant purpose or object. However, some indication of the purpose of providing for the grant of bridging visas is furnished by s 73 quoted at [8] above and relevant authorities. In Minister of State for Immigration & Multicultural Affairs v Harjanto (unreported, Branson J, 18 June 1998), her Honour noted (emphasis added): 'The purpose of bridging visas, generally speaking, is to ensure the lawfulness of a non-citizen's presence in Australia whilst his or her application for a substantive visa is being processed or arrangements for his or her departure are being made.' 19 Further, in Tutugri v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 592, Lee J said, at 601 [57]: 'The object of the Parliament in providing a right to apply for a Bridging E visa is to bring detention to an end in appropriate circumstances and to have detainees "regularize" their position to enable them to leave Australia with dignity, within an appropriate period and at their own cost: see M Crock, Immigration and Refugee Law in Australia (1998), p 217. If an applicant's circumstances meet the general purpose of such a visa cogent reasons should be demonstrated if a decision is made to refuse to grant the visa' 20 As there is on foot an application for special leave, the applicant's substantive application for a visa has not been finally processed. The judicial system in Australia permits a final appeal to the High Court from a judicial determination. The fact that an application for special leave is required as a step in the exercise of that right of final appeal does not mean that the right does not exist unless special leave is granted. Rather, refusal of special leave extinguishes the right. 21 The effect of the construction of sub-regulation 2.20(7) for which the Minister contends is that even while, to use the expression in Harjanto, an applicant's application for a substantive visa is being processed, the applicant would not be entitled to a bridging visa. Taking the approach indicated in Chugg, it would, in my view, be more consistent with the purpose of a bridging visa to construe the phrase 'application for judicial review' as including an application for special leave to appeal to the High Court rather than limit it to a pending application at first instance or on appeal in this Court or the Federal Magistrates' Court. The construction which I favour avoids the anomaly that an applicant who had applied for special leave but whose application had not been determined would not be eligible for a bridging visa but the same applicant a few days later, after a grant of special leave, would be entitled to a bridging visa. Beneficial legislation 22 Despite the fact that many provisions in the Act and Regulations restrict the granting of bridging visas to applicants who satisfy various criteria, in my view the purpose of enabling the issue of bridging visas is beneficial. In essence, the bridging visa benefits the holder of the visa by conferring the right to remain in the country while his or her application for a substantive visa is being processed. The beneficial nature of the bridging visa is reflected in the terms of s 73 itself and the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), which, in dealing with bridging visas, recites that: 'Another temporary visa class. This visa is needed because of the provision that all persons known or reasonably suspected to be unlawful citizens be detained …The grant of the bridging visa will give the grantee a temporary lawful status so that the requirement to hold the person in detention no longer applies.' 23 If I am correct in regarding the facility to obtain bridging visas as beneficial, the relevant provisions in the Act and the Regulations should be interpreted so as to extend rather than restrict the availability of this benefit. Support for this approach can be found in McAusland v Commissioner of Taxation (1993) 47 FCR 369, at 374, where Gummow J, as a member of a Full Court of this Court held that a section of the Companies (NSW) Code was remedial in nature and concluded that "it should be given a generous construction so as to permit the fullest relief which will be allowed on a fair reading of its language...". 24 On a beneficial interpretation of sub-regulation 2.20(7) an "application for judicial review" would include an application to the High Court for special leave to appeal from a refusal of an application for judicial review. I am mindful of the stricture that an interpretation of a beneficial provision adopted must "be restrained within the confines of 'the actual language' employed and what is 'fairly open' on the words used" (see Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, at 638). However, I consider that the interpretation which I favour is open on the words of sub-regulation 2.20(7). 25 Conversely, the interpretation of sub-regulation 2.20(7) for which the Minister contends is a restrictive one. As already noted it allows the character of an application for judicial review to pending proceedings at first instance in the Federal Magistrates' Court, or this Court or an appeal in this Court but only to proceedings in the High Court after special leave has been granted. With respect, I find it difficult to adopt this construction. It would have been easy for the drafters of the Regulations to include words in sub-regulation 2.20(7) excluding from the concept of 'judicial review' applications to the High Court for special leave to appeal from earlier unsuccessful applications for judicial review but the language of the sub-regulation discloses no attempt to do so.

The whole Act 26 Counsel for each party submitted, and I accept, that sub-regulation 2.20(7) must be construed in light of the Act and Regulations as a whole. Both counsel referred me specifically to Schedule 2, subclasses 050 and 051, although it was agreed that subclass 051 is the relevant subclass for the purposes of the applicant's Bridging Visa application. Subclass 051, which so far as is relevant is set out at [12] of these reasons, establishes the criteria required to be satisfied by an applicant at the time of application, at the time of the decision (on whether to grant the visa) and while the visa is in effect. 27 Counsel for the Minister submitted that the words used in sub-regulation 2.20(7) differ slightly from those used in subclass 051. Specifically, while sub-regulation 2.20(7) refers only to 'a non-citizen who has applied for judicial review of a decision', subclass 051 uses the phrases 'proceedings for judicial review' and 'proceedings on appeal'. Mr Gray contended that subclass 051.212 draws a distinction between various stages of judicial review proceedings being the initial judicial review of a decision to refuse an application for a visa and a subsequent appeal against a refusal of relief on the initial judicial review. Sub-regulation 2.20(7) refers only to 'judicial review of a decision' and not to proceedings by way of appeal. The phrase 'judicial review' is therefore, Mr Gray contends, confined to an application at first instance for judicial review. 28 With respect, I find this analysis unconvincing. The phrase 'proceedings on appeal' can reasonably be regarded as having been inserted in subclass 051 out of an abundance of caution to ensure that 'judicial review' comprehended appeals from applications for judicial review at first instance. It does not follow that a failure to insert the words 'proceedings on appeal' into sub-regulation 2.20(7) requires that provision to be read down to refer only to applications at first instance. Such an interpretation would not, in my view, be consistent with the beneficial purpose to be imputed to the introduction of a facility to obtain a bridging visa.

Nature of special leave application 29 Considerable reliance was placed by Counsel for the Minister on the nature of an application for special leave to appeal to the High Court, referring to Collins and Finch cited at [13] above. In Collins, the issue before the High Court was whether an applicant for special leave was a 'party' for the purposes of s 78 of the Judiciary Act. Section 78 provides that "In every Court exercising federal jurisdiction the parties may appear personally or by such barristers or solicitors …". The High Court held, at 122, that "until the grant of leave or special leave, there are no proceedings inter partes before the Court" and that "the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court." 30 In Finch, the issue was whether a refusal to grant special leave constituted a decision that "was given on appeal from a decision of the Supreme Court of a State" for the purposes of s 3(1) of the Privy Council (Limitations of Appeals) Act 1968 (Cth). Section 3(1) relevantly provided that "Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that - (a) was given on appeal from a decision of the Supreme Court of a State …". In finding that a refusal to grant special leave to appeal to the High Court was not a requisite decision for the purposes of s 3(1), the whole High Court said, at 105, that: 'There is a clear distinction between an appeal and an application for special leave to appeal. Where a right of appeal is conditional on the grant of special leave to appeal, there can be no appeal until special leave is granted. The grant is an essential preliminary condition to the existence of the appeal. Refusal on the other hand denies the existence of an appeal.' 31 In neither of these cases was the High Court required to consider whether an applicant for special leave was a person who has applied for judicial review. Rather, the judgments were relied upon by Mr Gray to support the argument that an application for special leave could not be 'proceedings on an appeal'. As already noted, the term 'proceedings on an appeal' appears in Schedule 2 subclass 551. However, it does not appear in sub-regulation 2.20(7). While I have accepted that the wording of subclass 551 is relevant to a construction of sub-regulation 2.20(7), it must be remembered that the phrase used in sub-regulation 2.20(7)is 'applicant for judicial review'. It is this phrase that must be interpreted. 32 That is not to say that authorities on the nature of an application for special leave cannot provide useful guidance as to whether such an application constitutes an application for judicial review. In Smith Kline & French Laboratories v The Commonwealth (1991) 173 CLR 194, the High Court considered, amongst other things, whether in entertaining an application for special leave the Court is exercising 'judicial power'. The whole Court said, at 217-218 (footnotes omitted): 'From time to time statements have been made which draw attention to the unusual character of an application for special leave to appeal. Such an application has special features which distinguish it from most other legal proceedings. It is a long-established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention. Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons. It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal … Notwithstanding these special features, an application for special leave to appeal, like an application for leave to appeal, is an accepted and long-standing curial procedure in this country. The procedure calls for a hearing, whether orally or on written materials, and a determination in the form of a curial order. If the application be refused, the order dismissing the application is the final curial act which brings the litigation between the parties to an end. An application for special leave to appeal therefore involves the exercise of judicial power.' 33 Further, in Coulter v The Queen (1988) 164 CLR 350, Deane and Gaudron JJ said, at 359-360: 'On the other hand, the application for leave or special leave to appeal commonly possesses a number of special features which set it apart from at least some other judicial proceedings. First, it involves the exercise of an extremely wide judicial discretion. Secondly, and notwithstanding that refusal of the application ordinarily involves the final determination of the particular litigation, that wide discretion can commonly be exercised without the provision of detailed or, sometimes, any reasons. Thirdly, if the application is to the court which will hear the appeal if leave is granted, there is a risk that the ordinary appearance of judicial disinterest in the outcome of proceedings may be, albeit wrongly, seen as qualified in that the workload of what will ordinarily be an already overburdened bench will vary according to the number of successful applications. Fourthly, it is inevitable that a refusal of leave will be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court in his face rather than as an examination and reasoned rejection of his claim that he has been the victim of a miscarriage of justice in the court or courts below. The effect of these special features of judicial proceedings dealing with applications for leave to appeal is not to lessen the importance of the ordinary safeguards of the administration of justice. To the contrary, the effect is to emphasize the importance that they be observed. Among those safeguards is the ordinary rule that judicial proceedings should take place in open court…' 34 Both Smith Kline and Coulter, I consider, support the view that the determination of an application for special leave involves a judicial proceeding, during which a judicial discretion is exercised. Further, the application for special leave is an accepted curial procedure in the Australia court system and if the application is dismissed, the litigation between the parties is at an end. These features, in my view, support the conclusion that a non-citizen who has applied for judicial review within the meaning of sub-regulation 2.20(7) includes an applicant for special leave to appeal to the High Court from an earlier refusal to grant judicial review of a visa provided that the application for special leave has not been refused when sub-regulation 2.20(7) comes to be applied.

Kosi decision 35 I deal finally with the applicant's argument that the Minister has previously accepted in Kosi that an application for special leave constitutes an application for judicial review. Two comments can be made in relation to this contention. In the first place, the concession on behalf of the Minister in Kosi related to Schedule 2 subclass 050.212, not to sub-regulation 2.20(7) or even subclass 051. Secondly, there was no finding by the Federal Magistrate that an application for special leave constituted an application for judicial review. Rather, Driver FM merely noted as part of the background to the reasons for decision that such a concession had been made. The fact that a litigant makes a concession in one matter about a legal issue does not, in a legal sense, preclude the same litigant from advancing a contrary argument in later litigation involving a different adversary. Accordingly, I have not regarded the concession in Kosi as of assistance in the task of interpretation on which I have been engaged.

Conclusion 36 For the reasons which I have endeavoured to explain, I have concluded that, by virtue of having lodged an application for special leave to the High Court from a decision of a Full Court of this Court affirming the Minister's refusal to grant the applicant a protection visa (Class XA), the applicant has 'applied for judicial review' for the purposes of sub-regulation 2.20(7)(b)(ii)(B). 37 Accordingly, I shall order that the decision of the delegate of the Minister of 25 September 2003 be set aside and that the Minister reconsider and determine, according to law, the Bridging Visa application. The Minister must pay the applicant's costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 21 January 2004 Counsel for the Applicant: Ms N Karapanagiotidis (Pro Bono)

Solicitor for the Respondent: Blake Dawson Waldron