FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Kim [2014] FCAFC 47

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on his amended notice of appeal filed on 5 February 2014.

2.    The appeal be allowed in part.

3.    Orders 2 and 3 made by the Federal Circuit Court of Australia on 3 October 2013 be set aside.

4.    The appellant pay the respondent’s costs of the appeal.

THE COURT DECLARES THAT:

5.    The respondent’s application for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa made on 17 January 2013 was not invalid for the reason that it was prevented by s 48 of the Migration Act 1958 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal is from orders of the Federal Circuit Court of Australia made on 3 October 2013 quashing a “decision” of an officer of the Department of Immigration and Border Protection, as the Department now is, made on 18 January 2013. The orders of the Federal Circuit Court also directed the appellant’s Department to re-determine according to law the validity of the respondent’s visa application.

2    The immediate facts giving rise to the proceedings are that on 17 January 2013 the respondent applied for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. On the next day, an officer of the Department wrote to the respondent informing her that her application for the visa was invalid “because it did not meet s 48 of the Migration Act 1958 … That provision provides that you are not permitted to apply for a Student (class TU) visa because you do not hold a substantive visa and after last entering Australia, you were refused a BU835 visa on 31 [sic] May 2010.”

3    The central legal issue is the meaning and application of s 48 of the Migration Act 1958 (Cth) (the Act) in relation to an application for a particular visa where a non-citizen is in the migration zone and who, after last entering Australia, was earlier refused a visa for which the non-citizen had applied. Associated with that question is the nature of the prohibition to which a non-citizen is subject by s 48 when read with the provisions of s 46 stating that an application for a visa which is prevented by s 48 is not a valid visa application. Those provisions are set out later in these reasons.

4    We turn next to consider the circumstances giving rise to these legal issues.

Background

5    The respondent was born on 11 September 1993 in South Korea and first arrived in Australia with her parents on 12 January 1996.

6    It was common ground that on 24 January 2008 the respondent’s father lodged a valid application for an Other Family (Residence) (Class BU) visa in which the respondent was included as a member of his family unit. That visa application was refused by a delegate of the Minister on 11 May 2010 and the Migration Review Tribunal affirmed the delegate’s decision on 14 February 2011.

7    The issue is whether, in the circumstances in which the Class BU visa was refused, the respondent was refused a visa for which she had applied within the meaning of s 48. It will be apparent that on 24 January 2008, the date of the application for a Class BU visa, the respondent was some 14 years and four months old.

8    It was also common ground that the respondent did not hold a substantive visa. A “substantive visa” was defined in s 5(1) of the Act as a visa other than a bridging visa, a criminal justice visa or an enforcement visa.

The proceedings in the Federal Circuit Court

9    The application to what is now the Federal Circuit Court of Australia, made on 31 January 2013, was for an order that the respondent Minister show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the migration decision made on 18 January 2013 that the application made on 17 January 2013 for the grant of the Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa was not valid. The ground of the application was that the delegate erred in finding that the visa application was invalid because it did not meet s 48 on the basis that the present respondent had been refused a Class BU visa on 31 [sic] May 2010.

10    The primary judge found that the 2008 application for a Class BU visa was one which the respondent did not sign and was an application of which she was unaware; the respondent’s participation in the application was undertaken on her behalf by her father; and whenever a signature appeared above the respondent’s name on the visa application form it was the signature of the respondent’s father and he signed it on the respondent’s behalf.

11    The primary judge held that the relevant question was whether in January 2008 the respondent had achieved an understanding and intelligence sufficient to enable her to understand fully what the 2008 application for a Class BU visa involved and whether, in the circumstances, she might wish to apply for one. That was a matter on which there was no clarity because the Departmental officer made no findings on the question. The primary judge held that the officer was in no position, and failed, to consider whether the respondent’s father had the authority to make a visa application on the respondent’s behalf in January 2008. (The approach of the primary judge appears to have been influenced by the judgment of Gray J in Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; (2002) 122 FCR 578.)

12    As we have said, the orders of the Federal Circuit Court quashed the “decision” and also directed the appellant’s Department to re-determine according to law the validity of the respondent’s 17 January 2013 visa application.

The notice of appeal (as amended)

13    The amended notice of appeal raises in grounds 1 and 2 that the primary judge should not have decided as he did because the issue of a failure to enquire into the respondent’s competence and whether her father had the authority to make the application on her behalf was not pleaded or raised. Ground 3 is that the primary judge erred by holding that the officer was under an obligation to enquire into and/or invite the respondent to make submissions on, and to consider, those issues. Ground 4 is that the primary judge should have held that the officer was entitled to determine the validity of the respondent’s application for a Student (Temporary) (Class TU) visa on the face of the documentation provided by her and on the Departmental records. Ground 6, as added by amendment which was not opposed by the respondent, is that the primary judge erred by granting relief that was directed towards the exercise of a statutory power in circumstances where the application before his Honour was not for judicial review of an exercise of such a power.

14    Ground 5 was in the following terms:

5.    His Honour should have found that:

(a)     the Respondent did not have the competence to make an application for a remaining relative visa on 24 January 2008 in her own right;

(b)    even if she did, the Respondent authorised her father to do so on her behalf as her common law guardian;

(c)     in any event, there was no evidence before the Court to suggest otherwise, the onus of demonstrating jurisdictional error on the part of the officer being on the Respondent; and

(d)     the Respondent, after last entering Australia, was refused a visa for which she had applied, within the meaning of s 48(1)(b)(i) of the Act,

and his Honour erred by failing so to find.

The statutory provisions

15    Section 46 relevantly provided:

46  Valid visa application

(1)     ... an application for a visa is valid if, and only if:

(a)    it is for a visa of a class specified in the application; and

(b)    it satisfies the criteria and requirements prescribed under this section; and

(ba)    subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c)    any fees payable in respect of it under the regulations have been paid; and

(d)    it is not prevented by section 48 (visa refused or cancelled earlier) …

…

Note:    An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

Section 47 provided:

47  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.

Section 48 provided:

48  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)    either:

(i)    after last entering Australia, 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), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

(2)    …

(3)    For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

16    A Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa was not a visa of a class prescribed for the purposes of s 48: see Migration Regulations 1994 (Cth) reg 2.12(1).

17    As at 24 January 2008 the relevant regulation, cl 1123B(3)(c) of sch 1, provided that an application by a person claiming to be a member of the family unit of a person who is an applicant for an Other Family (Residence) (Class BU) visa may be made at the same time and place as, and combined with, the application by that person.

18    We accept that by reg 1.12(1)(b) a dependent child of the family head was a member of the family unit and that the respondent was a dependent child as defined in reg 1.03, being the natural child of a person (other than a child who had a spouse or was engaged to be married) who had not turned 18.

Submissions

19    The appellant Minister submitted that the critical issue was whether the respondent had previously applied for, and been refused, a Subclass 835 visa and that both of the questions involved in that issue should be answered in the affirmative.

20    In support of this submission the appellant Minister supported ground 5 of the (amended) notice of appeal by contending that the primary judge should have found, and this Court should find, that the respondent did not have the competence to make an application for a visa on 24 January 2008 in her own right, that is, she had not attained sufficient understanding and intelligence to enable her to understand fully what was proposed. The appellant Minister also submitted that the primary judge’s finding that the respondent’s father applied for a remaining relative visa on her behalf had not been challenged by the respondent on appeal and ought not to be disturbed by this Court. Lastly, on this ground, the appellant Minister submitted that the primary judge ought to have found that the respondent applied for the remaining relative visa, albeit through her father, and that she had been refused that visa, thereby satisfying s 48(1)(b)(i).

21    The appellant Minister also submitted that the validity of a visa application under s 48 is an objective question and not a matter to be determined administratively. The departmental officer was, therefore, not purporting to exercise any statutory power, but merely stating an understanding about the operation of s 48. That understanding had no legal force or effect in itself; but if it were wrong (and the visa application were valid), the respondent would be prima facie entitled to mandamus to require the application to be considered. The Minister noted that the Full Court, in two recent cases, treated validity as an issue to be determined by the Court, rather than one for the Minister on remitter: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; Chen v Minister for Immigration and Border Protection [2013] FCAFC 133.

22    The balance of the written submissions on behalf of the appellant Minister focused on the remaining grounds of appeal, being deficiencies in the procedures, reasoning and orders of the primary judge. Nevertheless the appellant Minister accepted that this Court was in a position to, and should, finally dispose of the matter.

23    The respondent submitted that the primary judge was correct. The respondent also submitted that, contrary to the appellant’s submissions, the validity of the visa application was not an objective question to be determined by the Court if it be in dispute, but rather was a matter to be determined by the Minister so that the Minister could either perform his or her statutory duty and consider a valid application for a visa, or perform his or her statutory duty and not consider an application that is not a valid application. The respondent submitted, by reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 and Edelsten v Health Insurance Commission (1990) 27 FCR 56, that the officer’s letter of 18 January 2013 was an administrative decision made under an enactment and it was not for this Court to make a determination on whether in 2008 the respondent had the necessary competence or not or authorised her parents or not. The respondent submitted that those questions should be remitted to the officer to determine in accordance with the duty that the Court identified.

24    In oral submissions the respondent put that the officer had denied her procedural fairness and referred to Kioa v West (1985) 159 CLR 550 and Annetts v McCann (1990) 170 CLR 596.

Consideration

25    In our opinion, the first issue to be decided is whether or not the validity of an application for a visa is an objective question.

26    The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.

27    The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

28    We do not accept the respondent’s analysis which, as we have noted, proceeded by reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and whether the officer’s letter of 18 January 2013 was or evidenced an administrative decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That is not the present question. We do not accept the respondent’s submission that the validity of a visa application is not an objective question to be determined by the Court.

29    A consequence is that the primary judge should have decided this issue on the evidence before him and should not have remitted the matter to the appellant Minister for the purposes of further fact finding.

30    We turn then to the question which arises under s 48 of the Act which is whether the respondent non-citizen had applied for the Class BU visa in which the respondent was included as a member of her father’s family unit. As we have said, that visa application was refused by a delegate of the Minister on 11 May 2010 and the Migration Review Tribunal affirmed the delegate’s decision on 14 February 2011.

31    The issue is one of statutory construction. The parties submitted there was no authority, either binding or of assistance, dealing with the proper construction of the section.

32    There can, in our view, be no doubt that the visa which was refused was applied for on behalf of the non-citizen respondent in the sense that if that visa application had been successful then the respondent would have been granted and would have held a Class BU visa.

33    On one view that is the extent of the question of statutory construction: as at January 2013 the respondent was a non-citizen who had applied for a visa within the meaning of s 48 because an application had been made on her behalf, even in circumstances where as a matter of fact she knew nothing about it.

34    This would, perhaps, accord with s 45 of the Act which 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.

35    We accept that the application for the visa made on behalf of the respondent in January 2008 was valid.

36    The purpose of s 48 is to prevent more than one application for a visa in the specified circumstances. But does this mean an application validly made or is the section directed more to the person making the application?

37    In our opinion the better construction is that it is directed to the person and to an application of which the non-citizen had knowledge, rather than an application which merely validly affected the non-citizen or from which the non-citizen would have benefited.

38    We were not taken to any provision in the legislation which deemed an application of which the non-citizen did not have knowledge to have been made by that non-citizen either for the purposes of s 48 or more generally.

39    In our opinion the question of knowledge is not to be answered merely by reference to whether or not the non-citizen was a minor or was not legally capable of entering into a contract of a particular kind. A person aged 17 may well have made an application within the meaning of s 48 even if it was made on his or her behalf.

40    The question remains: was the visa which was refused a visa which had the character of a visa for which the respondent had applied? In our opinion the answer on the undisputed facts of this case is “No”. It is to be recalled that the primary judge, consistently with the respondent’s affidavit sworn on 31 January 2013, found that the Class BU visa application of January 2008 was an application which the respondent did not sign and of which she was unaware and that her participation in it was undertaken on her behalf by her father.

41    The issue is not, in our opinion, whether the 2008 visa application was valid, as to which compare Minister for Immigration & Multicultural & Indigenous Affairs v WAIK [2003] FCAFC 307, but whether the respondent made the application. We do not accept the submission on behalf of the Minister to the effect that if an application is valid then, within the meaning of s 48, the visa application is made by any person named in the application as a person on whose behalf it was made.

42    We refer next to the legislative history of s 48 of the Act and the mischief to which it was directed. In our view neither the legislative history nor the extrinsic materials are of great assistance to the present task of statutory construction, but for completeness we set them out.

43    It appears that a predecessor to s 48 was s 11T, introduced by s 6 of the Migration Legislation Amendment Act 1989 (Cth) No. 59, 1989 as follows:

11T (1)        This section applies to an illegal entrant who:

(a)    has entered, and remains in, Australia;

(b)    while in Australia, has been refused an entry permit; and

(c)    is not a person to whom section 11S applies because of section 64C.

(2)    Where this section applies to a person, the person is not entitled to make any further application for an entry permit while he or she remains in Australia unless:

(a)     there has been a prescribed change in the person's circumstances since he or she last applied for an entry permit; and

(b)    no deportation order has been made in respect of that person under section 17A.

44    The Explanatory Memorandum (circulated by authority of the Minister for Immigration, Local Government and Ethnic Affairs, Senator the Hon Robert Ray) stated:

58    Where a decision has been made to refuse an entry permit to a person irrespective of whether the person was an illegal entrant at the time or not, a person who is an illegal entrant is only entitled to make a further application for an entry permit where there has been a prescribed change in the person’s circumstances or a notification under subsection 64C(2) has been given and there is no section 17A deportation order in respect of the person. This provision is intended to prevent ‘repeated’ applications made to delay the person’s removal from Australia.

45    Then s 26P of the principal Act was introduced by s 10 of the Migration Reform Act 1992 (Cth), No. 184, 1992 in the following terms:

26P (1)     A non-citizen in Australia who:

(a)     does not hold a substantive visa; and

(b)     either:

(i)     made an application for a visa, other than a bridging visa, that was refused after he or she last entered Australia (whether or not the application has been finally determined); or

(ii)     held a visa that was cancelled under section 45 (incorrect information), 50AB (general power to cancel); or section 50A (business visas);

may apply for a visa in a class prescribed for the purposes of this section or a bridging visa but not for any other visa.

(2)    One of the criteria for a visa in a class prescribed for the purposes of this section is that there has been a prescribed change in circumstances since the refused application or cancellation.

46    Of this provision the following appears in the Explanatory Memorandum (circulated by authority of the Minister for Immigration, Local Government and Ethnic Affairs, the Hon Gerry Hand, MP):

45    This provision is intended to limit repeat applications by persons seeking to delay departure or removal from Australia, where there is no serious basis for making a further application. Non-citizens in Australia affected by this provision will have no general right to apply for another visa. Affected non-citizens are unlawful non-citizens and bridging visa or criminal justice visa holders, who have been refused a visa, other than a bridging visa, since entering Australia, or have had a visa cancelled under sections 45, 50A or 50AB.

46     A small number of visas classes will be created to cater for those circumstances where it would be inappropriate to require the non-citizen to leave Australia. A non-citizen will be able to apply for one of these classes or for a bridging visa. One of the criteria for each of these classes is that the applicant has had a specified change of circumstances since the last application. This criterion will allow quick determination of applications which have no serious basis.

47    Section 26M provided that an application for a visa was valid if, and only if, amongst other things, it was not prevented by s 26P.

48    Section 26P was repealed and the following substituted by s 18 of the Migration Legislation Amendment Act 1994 (Cth), No. 60, 1994:

26P     A non-citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    either:

(i)    after last entering Australia, was refused a visa, other than a bridging visa, 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 45 (incorrect information), 50AB (general power to cancel), 50A (business visas) or 180A (special power to refuse or cancel);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

49    Of this substituted provision the following appears in the Explanatory Memorandum (circulated by authority of the Minister for Immigration and Ethnic Affairs, Senator Nick Bolkus):

46    This clause provides for the repeal and substitution of section 26P to overcome technical problems with the section.

Section 26P    Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

47    The substituted section 26P has the same substantive effect as the repealed section. The section is intended to limit repeat applications by persons seeking to delay departure or removal from Australia, where there is no serious basis for making a further application.

48    The major technical defect in the to-be-repealed section is in subsection 26P(2) which provides that one of the criteria in a class prescribed for the purposes of section 26P is that there has been a prescribed change in circumstances since the events referred to in subsection 26P(1) occurred. It is arguable that the effect of the section is that all relevant visas must have a criterion to the effect that ‘there has been a prescribed change in circumstances since the refused application or cancellation’. This would introduce a complexity into the regulations which was not intended. The amendment ensures that there is scope to prescribe classes of visa for the purposes of section 26P, the criteria for which may particularise the changes of circumstances that must have occurred since the happening of the events referred to in subsection 26P(1).

49    The classes to be prescribed for the purposes of section 26P will include the protection visa.

50    The other technical defect in the section which is remedied by the amendment is the inclusion of a reference to the cancellation power in section 180A in subsection 26P.

50    In our opinion, the legislative history and extrinsic material do not clearly show, one way or the other, what the legislature intended by the words of the present statutory provisions. We observe, however, that there is some emphasis on non-citizens making repeat applications which may tend to suggest that the mischief was narrower than the mere validity of such earlier applications.

Conclusion

51    We have set out above what, in our view, is the correct construction and application of s 48 in the circumstances of this case. It follows that the respondent’s application for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa made on 17 January 2013 was not invalid for the reason that it was prevented by s 48. An appropriate declaration is that the respondent’s application for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa made on 17 January 2013 was not invalid for that reason.

52    In our opinion, the appellant Minister is correct to submit that this Court is in a position finally to dispose of the matter. It follows that the other issues raised in the amended notice of appeal and in the appellant’s submissions, such as the ground of denial of procedural fairness, do not need to be considered by this Court. It also follows that orders 2 and 3 made by the primary judge should be set aside.

Orders

53    The orders we make are to allow the appeal, to set aside orders 2 and 3 made by the primary judge on 3 October 2013, to make an appropriate declaration (see [51] above) and to order that the appellant pay the respondent’s costs of the appeal.

Associate:

Dated:    24 April 2014