FEDERAL COURT OF AUSTRALIA
IMMIGRATION – cancellation of transitional (permanent) visa pursuant to s 109 of the Migration Act 1958 (Cth) - false or misleading information provided in declaration – whether subclass 100 (spouse) visa of wife was automatically cancelled as a result of cancellation of husband’s visa – whether s 140(1) of the Migration Act applies to wife – whether the Minister must exercise statutory power under s 140(2) to cancel wife’s visa – construction of s 140 of the Migration Act and reg 1.12 of the Migration Regulations - whether child of couple acquired Australian citizenship at birth by reason of s 10 of the Australian Citizenship Act 1948 (Cth).
Australian Citizenship Act 1948 (Cth), ss 5A(1)(bb), 10.
Judiciary Act 1903 (Cth), s 39B(1).
Migration Act 1958 - 1994 (Cth), ss 20, 14(2A), 35(2).
Migration Act 1958 (Cth), ss 101, 102, 103, 109, 140, 476(1)(e).
Migration Regulations, regs 1.12, 2.41, Schedule 2, cl 100.
Kim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 75, cited.
Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107, cited.
Gunner v Minister for Immigration and Ethnic Affairs (FCA/Sackville J, 19 December 1997, unreported), cited.
SANTOSH RANI & ORS & MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 394 of 1997
SACKVILLE J
SYDNEY
19 DECEMBER 1997
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
SANTOSH RANI Applicant
jasbir pall second applicant
rohit kumar by his next friend third applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
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THE COURT ORDERS THAT:
1. The decision made by the Immigration Review Tribunal (“IRT”), on 22 April 1997, to affirm a decision made by the Minister’s delegate to cancel the second applicant’s transitional (permanent) visa be set aside.
2. The matter be remitted to the IRT, differently constituted, for determination according to law.
3. Declare that, in the events which have occurred, the first applicant is presently the holder of a valid subclass 100 (spouse) visa.
4. Declare that, in the events which have occurred, the third respondent is an Australian citizen.
5. The respondent pay the costs of the applicants.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
Applicant
JASBIR PALL SECOND APPLICANT
ROHIT KUMAR BY HIS NEXT FRIEND THIRD APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
The Proceedings
The second applicant is an Indian citizen, who has resided in Australia since 1989, although he has visited India on at least two occasions during that period. The first applicant is also an Indian citizen. She married the first applicant in India in February 1995, but has been in Australia since June 1995. The third applicant is a child born in Australia to the first and second applicants on 30 October 1996. The third applicant is a party to the proceedings by his next friend, the second applicant (see Federal Court Rules (“FCR”), O 43, rr 1,2,4,5). I refer to the first applicant as “the wife”, the second applicant as “the husband” and the third applicant as “the child”.
The relief claimed by the applicants is specified in a document entitled (somewhat inaccurately or, at least, incompletely) as “Further Amended Application for an Order of Review”. Each applicant seeks a different form of relief.
· The husband primarily seeks an order, pursuant to Part 8 of the Migration Act 1958 (Cth) (“Migration Act”), setting aside a decision of the Immigration Review Tribunal (“IRT”), made on 22 April 1997, to affirm a decision made by a delegate of the Minister to cancel the husband’s transitional (permanent) visa. The ground relied on is an error of law by the IRT: Migration Act, s 476(1)(e). No relief is sought in relation to the delegate’s decision. Mr Beech-Jones, who appeared for the applicants, accepted that if the IRT’s decision is set aside the delegate’s decision to cancel the husband’s visa would remain operative unless and until the IRT set aside that decision.
· The wife seeks a declaration, pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) (which confers jurisdiction on this Court “in any matter...arising under any laws made by the Parliament”) that, in the events which have occurred, she is the holder of a valid subclass 100 (spouse) visa.
· The child seeks a declaration, pursuant to s 39B(1A)(c) of the Judiciary Act, that, in the events which have happened, he is an Australian citizen.
Ms Wilkins, who appeared for the respondent (“the Minister”), did not dispute that the Court had jurisdiction to grant the relief sought. I shall explain briefly later why I think she was correct not to contend otherwise.
The Facts
Mr Beech-Jones did not challenge the findings of fact made by the IRT. The following account is largely taken from the IRT’s reasons for decision, supplemented by other non-contentious facts.
The husband is an Indian citizen, born on 15 March 1964. He came to Australia on 11 December 1989, on a visitor’s visa. On 8 June 1990, he applied to remain permanently in Australia, on the ground that he had established a de facto relationship with an Australian citizen, Ms Williamson. On 1 September 1991, the husband and Ms Williamson went through a form of marriage.
On 12 June 1993, the husband was granted permanent residency and issued with a class 801 spouse (after entry) entry permit and a class 154 resident return visa. It was common ground that, on the commencement of the Migration Reform Act 1992 (Cth), on 1 September 1994, the husband’s entry permit and visa were taken to be a transitional (permanent) visa, by operation of the Migration Reform (Transitional Provision) Regulation 1994, reg 16.
Prior to the grant of permanent residency in June 1993, the husband had provided the Department of Immigration, Local Government and Ethnic Affairs (the “Department”) with a statutory declaration dated 13 April 1993. In this document, the husband declared, inter alia, that his marriage with Ms Williamson was a strong and happy one. In fact, as the IRT found, the marriage was a sham. The husband had paid $30,000 to Ms Williamson and her friends to support the claims of a de facto relationship and a happy marriage. The husband and Ms Williamson never lived together as a married couple.
On 7 October 1994, an application was made for the dissolution of the marriage between the husband and Ms Williamson. A decree nisi was granted by the Family Court and was made absolute on 22 December 1994.
Following the dissolution of his marriage to Ms Williamson, the husband travelled to India. There he met and, in February 1995, married the wife. She applied for and received a subclass 100 (spouse) visa, on the basis that she was the wife of a permanent resident of Australia. The wife arrived in Australia on 26 June 1995. The child was born in Australia on 30 October 1996.
In 1996 the Department received confidential information suggesting that there had never been a genuine de facto or marital relationship between the husband and Ms Williamson. The Department conducted an investigation and on 31 July 1996 wrote to the husband, advising him that consideration was being given to the cancellation of his transitional (permanent) visa under s 109 of the Migration Act, on the ground that he had made statements to the Department that were false or misleading in a material particular. The husband made submissions in response to this letter.
After considering these submissions, the Department notified the husband on 20 August 1996 that his visa had been cancelled, pursuant to s 109 of the Migration Act. The covering letter also contained the following statement:
“Therefore in accordance with Section 140 of the Migration Act the visa held by [the wife] has also been cancelled”.
The decision record accompanying the notification did not separately address the wife’s position. The statement in the covering letter therefore was based (as Ms Wilkins accepted) on the assumption that the cancellation of the husband’s visa automatically resulted in the cancellation of the wife’s visa, without the need for any further decision by or on behalf of the Minister. It should also be noted that the decision to cancel the husband’s visa was made about two months before the birth of the child, on 30 October 1996.
On 28 August 1996, the husband applied to the IRT to review the decision to cancel his visa. The wife was not a party to this application, nor did she at that stage challenge the Department’s claim that her visa had been automatically cancelled by reason of the cancellation of the husband’s visa.
On 21 April 1997, the IRT affirmed the decision to cancel the husband’s visa. I shall refer to the IRT’s reasons later.
The Legislation
The Migration Act was amended in important respects by the Migration Reform Act 1992 (Cth) (the “Migration Reform Act”). Most provisions of the Migration Reform Act did not come into force until 1 September 1994. Prior to the amendments affected by the Migration Reform Act, s 20(2) of the Migration Act (to which I shall refer as the “Old Migration Act”) provided as follows:
“(2) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:
(a) after entry, an entry permit has been granted to the person authorising the person to remain in Australia; and
(b) in respect of the grant of that entry permit:
(i) ...; or
(ii) ...; or
(iii) the person made or caused to be made, a false or misleading statement in a declaration...”.
Section 14(2A) provided as follows:
“(2A) If:
(a) because of...the making of a statement, in respect of the grant of an entry permit, subsection 20(2) applies to a person who has entered Australia...; and
(b) ...;
then, at and after:
...
(d) the grant of that permit;
...the person is an illegal entrant at any time while he or she:
(e) remains in Australia; and
(f) is not a citizen; and
(g) does not hold a properly endorsed valid entry permit or...visa.”
The husband never held a properly endorsed entry permit or visa, in the sense in which those terms were defined for the purposes of s 14(2A)(g): see s 4 of the Old Migration Act.
Section 35(2) of the Old Migration Act provided as follows:
“(2) Where, because of the operation of subsection 14(2)..., a person is an illegal entrant even though the person holds a valid entry permit, the entry permit shall be taken to have been cancelled:
(a) when the person entered Australia; or
(b) when the entry permit was granted;
whichever is later.”
The effect of these provisions was to cancel automatically the entry permit of a non-citizen who had entered Australia and obtained the permit by making a declaration which was false or misleading. The cancellation took effect from the date the entry permit was granted. There was no need for the Minister or a delegate to make a decision cancelling the entry permit. The cancellation took effect because of the operation of the Migration Act itself: Kim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 75 (FCA/Wilcox J), at 76.
The Migration Reform Act introduced what is now Part 2, Division 3, subdivision C of the Migration Act (ss 97-115). The explanatory memorandum to the Migration Reform Bill described the general effect of the proposed subdivision C as follows:
“Visas based on incorrect information may be cancelled
102 This Subdivision replaces the to be repealed section 20 of the Principal Act with an entirely new process while maintaining its broad thrust. Section 20 provides by operation of law, for a non-citizen to acquire illegal entrant status retrospectively if the non-citizen gave false or misleading information about his or her circumstances in order to gain entry to Australia or to obtain a visa or entry permit.
103 Under the new regime provided for in Subdivision C, there will be an obligation for all non-citizens entering Australia to provide accurate information in application forms and passenger cards and to answer questions asked in those forms correctly. If an inaccuracy is discovered the visa holder will be asked to explain the inaccuracy and to show why his or her visa should not be cancelled. If cancellation of a visa does occur, a non-citizen will acquire unlawful non-citizen status from the date of cancellation. Cancellation decisions will be reviewable on their merits.”
Section 107 of the Migration Act now provides that, if the Minister considers that the holder of a visa did not comply with the statutory obligations to provide correct information in connection with a visa application (ss 101, 104, 105), he or she must give the non-citizen a notice giving particulars of the alleged non-compliance. The non-citizen has fourteen days to provide a written response disputing the allegations and/or showing cause why the visa should not be cancelled (s 107(1)(b)). The Minister is to consider any response and to decide whether there was non-compliance by the visa holder in the way described in the notice (s 108). The power of cancellation of a visa is conferred by s 109:
“109(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.”
Regulation 2.41 of the Migration Regulations, to which I refer later, prescribe the circumstances referred to in s 109(1)(c) of the Migration Act. The husband’s entry permit and visa (deemed to be a transitional (permanent) visa as from 1 September 1994) were of course granted by reason of an application made before the relevant provisions of the Migration Reform Act came into force. Nonetheless, it was common ground between the parties that subdivision C applied to the husband, by reason of s 115(3)(c) of the Migration Act:
“(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:
(a) ...
(b) ...
(c) for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.”
The effect of s 115(3)(c) is to apply the procedures specified in subdivision C to the holder of an entry permit or visa whose application was made before 1 September 1994, where s 20 of the Old Migration Act would have applied to the holder.
The cancellation of a visa under s 109 (as occurred in the case of the husband), may result in the cancellation of a visa held by another person. This is provided for by s 140 of the Migration Act, which was the focus of the argument in this case. Section 140, insofar as relevant, is as follows:
“140(1) If a person’s visa is cancelled under section 109 (incorrect information) or 116, a visa held by another person because of being a member of the family unit of the person (within the meaning of the regulations) is also cancelled.
(2) If,
(a) a person’s visa is cancelled under section 109 (incorrect information) or 116; and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.”
It will be seen that s 140(1) provides for what can be described as the automatic cancellation of the other person’s visa - that is, where a visa held by the first person is cancelled, the cancellation occurs by operation of the sub-section. By contrast, s 140(2) confers a power on the Minister to cancel the visa of the other person where he or she “holds a visa only because the person whose visa is cancelled held a visa”. Section 140(2) is not confined to the situation where the visa holder has a family relationship with the person whose visa has been cancelled. However, cancellation of the visa pursuant to s 140(2) requires specific action by the Minister, even though the Minister’s power can be exercised without notice to the other person.
Section 15 of the Migration Act deals with the effect of cancellation of a visa on the former holder. It provides as follows:
“15. To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.”
The “migration zone” includes the area consisting of the States and Territories (s 5). An unlawful non-citizen is liable to detention (s 189) and to removal from Australia (s 198).
The Migration Regulations
The Migration Regulations came into force on 1 September 1994, the same date as most of the provisions of the Migration Reform Act took effect. It is necessary to refer to several of the Migration Regulations.
The first is reg 1.12, which defines “a member of the family unit of another person”. Regulation 1.12 is of importance to the present case because of the reference in s 140(1) of the Migration Act to “being a member of the family unit of the person (within the meaning of the regulations)”. Regulation 1.12, in its present form, is as follows:
“Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called ‘the family head’) if the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a spouse of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or
(d) a relative of the family head or of a spouse of the family head who:
(i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head; or
(e) a relative of the family head or of a spouse of the family head who:
(i) has never married or is widowed, divorced or separated; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.”
Regulation 1.12 in this form incorporates amendments effected by the Migration Regulations Amendment (SR 376 of 1994), but it has not been suggested that anything turns on these amendments for the purposes of the present case.
Secondly, it is necessary to refer to reg 2.41, which prescribes the circumstances to which the Minister must have regard in considering exercise of the power of cancellation of a visa conferred by s 109(1)(c) of the Migration Act. Regulation 2.41 is as follows:
“For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed.
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.”
Thirdly, reference should be made to the qualifications for a subclass 100 (spouse) visa, which the wife was granted in 1995. The requirements for such a visa are specified in Schedule 2 to the Migration Regulations. The parties agreed that, at the relevant time, the requirements for a subclass 100 (spouse) visa were as follows:
“100.2 PRIMARY CRITERIA
[NOTE: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.]
100.21 Criteria to be satisfied at time of application
100.211 (1) The applicant meets the requirements of subclause (2) or (3).
(2) the applicant is the spouse of:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) ....
[NOTE: ’Spouse’ includes a de facto spouse - see the definition of ‘spouse’ in regulation 1.03.]
(3) The applicant meets the requirements of this subclause if:
(a) the applicant intends to marry:
(i) an Australian citizen; or
(ii) an Australian permanent resident; or
(iii) ...; and
(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.
[NOTE: If the applicant is an applicant referred to in paragraph 100.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 100.223.]
100.212(1) If the applicant is an applicant referred to in subclause 100.211(2), the applicant is sponsored:
(a) if the applicant’s spouse has turned 18 - by that spouse; or
(b) ....
100.22 Criteria to be satisfied at time of decision
100.221 The applicant continues to satisfy the criterion in clause 100.211.
100.222 The sponsorship referred to in clause 100.212 has been approved by the Minister and is still in force.
...
100.224 The Minister is satisfied that the marital relationship between the applicant and the applicant’s spouse is genuine and continuing.
100.225 The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009.
100.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002, 5004, 5006, 5008 and 5009 [set out in Schedule 5 to the Migration Regulations].
100.227 If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.
100.228 (1) Each member of the family unit of the applicant who is an applicant is a person who:
(a) satisfies public interest criteria 4001 to 4004 and 4007 to 4009 [set out in Schedule 4 to the Migration Regulations], and
(b) if he or she has previously been in Australia, satisfies special return criteria 5001, 5002, 5004, 5006, 5009 and 5010.
(2) Each member of the family unit of the applicant who is not an applicant is a person who:
(a) satisfies public interest criteria 4001 to 4004; and
(b) satisfies public interest criteria 4007 and 4008, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria.
100.229 If:
(a) the family unit of the applicant includes a dependent child who made a combined application with the applicant; or
(b) a child who:
(i) is usually resident with the applicant; and
(ii) has not turned 18;
made a combined application with the applicant;
the Minister is satisfied that the grant of a subclass 100 visa to the child as a member of the family unit of the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the child.
100.3 SECONDARY CRITERIA
[NOTE: These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.]
100.31 Criteria to be satisfied at time of application
100.311 The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 100.21.
100.312 The sponsorship referred to in clause 100.212 of the person who satisfies the primary criteria includes sponsorship of the applicant.
100.32 Criteria to be satisfied at time of decision
100.321 The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 100 visa.
100.322 The sponsorship referred to in clause 100.312 has been approved by the Minister and is still in force.
100.323 The applicant satisfies public interest criteria 4001 to 4004 and 4007 to 4009.
100.324 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001, 5002, 5004, 5006, 5008 and 5009.
100.325 If the Minister requires an assurance of support in respect of the person who satisfies the primary criteria:
(a) the applicant is included in the assurance of support given in respect of that person, and that assurance has been accepted by the Minister; or
(b) an assurance of support has been given in relation to the applicant, and has been accepted by the Minister.
100.326 If the applicant is the dependent child of a person who is a holder of a subclass 100 visa, the Minister is satisfied that the grant of the visa to the applicant would not prejudice the rights and interests of any other person who has custody or guardianship of, or access to, the applicant.
100.4 CIRCUMSTANCES APPLICABLE TO GRANT
100.411 The applicant must be outside Australia when the visa is granted.
100.5 WHEN VISA IS IN EFFECT
100.511 Permanent visa permitting the holder to travel to and enter Australia for a period of 4 years from the date of grant.”
Australian Citizenship Act
The Australian Citizenship Act 1948 (Cth) (“Australian Citizenship Act”) is relevant to the claim of the child in the present case to be an Australian citizen and to the husband’s application for judicial review of the IRT’s decision. Section 10 relevantly provides as follows:
“(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.
(2) ...a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:
(a) a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or
(b) the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.”
Section 5A(1)(bb) of the Australian Citizenship Act provides as follows:
“(1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act:
...
(bb) in relation to a period on or after 1 September 1994 if:
(i) the person was present in Australia and held a permanent visa; or
(ii) ...”.
The IRT’s Decision
The IRT’s reasons do not explicitly address the source of its jurisdiction to review the delegate’s decision to cancel the husband’s visa. However, the delegate’s decision was an “IRT-reviewable decision”, which the IRT was bound to review under s 348 of the Migration Act: see s 346(1)(d); Migration Regulations, reg 4.09(d).
The IRT made the following factual finding:
“The written statements incorporated in the application form of 7 June 1990 and the statutory declaration made on 13 April 1993 were statements that were made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, and were false or misleading in a material particular. The document and the statements had a direct and fundamental relation to [the husband’s] ability to gain permanent residence in Australia.”
The IRT concluded that the husband had therefore breached s 20 of the Old Migration Act.
The IRT addressed, seriatim, the circumstances prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Migration Act, to which it was bound to have regard in deciding whether to cancel the husband’s visa. Among other findings, the IRT concluded that the husband’s non-compliance with s 20 of the Old Migration Act was a deliberate attempt to deceive the Department, in order to obtain a benefit (Australian residence) to which he would not otherwise have been entitled.
Finally, the IRT considered whether, in the light of these circumstances, it should exercise the discretionary power to cancel the visa. In the course of addressing this question, the IRT referred to the husband’s family ties in Australia:
“If this were a case in which an applicant had a child who was an Australian citizen or permanent resident, or had re-married an Australian citizen or permanent resident, there would be very strong grounds for declining to cancel the visa....
But in this case neither the child nor the spouse is an Australian citizen or permanent resident. The Tribunal is aware that in this case, a decision to cancel the visa will result in great disruption of life and distress not only to [the husband], but also to his wife and child, who are the innocent victims of his fraud. The argument against [the husband] is that to accede to the request that the visa not be cancelled on this ground would be to establish the principle that persons who had established themselves in Australia should not have to suffer the consequences of their fraud. It is also true that, since it is now apparent that [the] wife never had a right to enter or live in Australia, that it would, in a sense, be incongruous to grant her that right.”
The IRT in this passage clearly expressed the view that the child was not an Australian citizen, even though it referred to the wife and child as the “innocent victims of the husband’s fraud”. This view appears to rest on the unstated assumption that, at the time the child was born (30 October 1996), neither the husband nor the wife was a “permanent resident” of Australia and thus s 10(2) of the Australian Citizenship Act was not satisfied. Presumably, the IRT took the view that s 140(1) of the Migration Act had the effect of automatically cancelling the wife’s visa, by reason of the cancellation of the husband’s visa on 20 August 1996. It may be that the IRT also assumed that the automatic cancellation of the wife’s visa operated retrospectively, since the IRT said that she had “never had a right to enter or live in Australia”. Any such assumption would be incorrect, since the cancellation of a visa now operates prospectively (see ss 15 and 140 of the Migration Act and compare s 35(2) of the Old Migration Act).
In the result, the IRT found that, despite various mitigating circumstances put forward on behalf of the husband,
“it would not be an appropriate exercise of discretion to decline to cancel the visa”.
Jurisdiction
The wife and child invoke s 39B(1A)(c) of the Judiciary Act as the source of jurisdiction to support their respective claims for relief. Section 39B(1A)(c) confers jurisdiction on the Federal Court “in any matter...arising under any laws made by the Parliament”.
Mr Beech-Jones submitted that, in the case of the wife, a controversy exists between the parties (the wife and the Minister) as to whether her spouse visa had been cancelled by operation of s 140(1) of the Migration Act. The wife claims to hold a valid permanent visa which, under the Migration Act, entitles her to remain in Australia: see ss 29(1),(2), 30(1). Her claim raises for judicial determination questions as to rights which owe their existence to the Migration Act, or which can only be enforced by virtue of that Act. This is sufficient to constitute a matter arising under a law of the Parliament: Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, at 468-469, per Gibbs J; Felton v Mulligan (1971) 124 CLR 367, at 391, per Windeyer J; 402-403, per Walsh J.
Section 485(1) of the Migration Act provides as follows:
“485(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.”
This sub-section does not deprive the Court of jurisdiction under s 39B(1A)(c) because there has been no judicially-reviewable decision made in relation to the wife. If the Minister’s contentions are correct, her visa has been cancelled by operation of law, not by a decision made by the Minister or his or her delegate. The fact that the cancellation is said to flow from the decision to cancel the husband’s visa does not mean, in my view, that the wife’s proceedings are “in respect of [a] judicially reviewable decision”.
There is jurisdiction to entertain the child’s claim because he claims to have become an Australian citizen by virtue of s 10 of the Australian Citizenship Act. His claim therefore arises under a law made by the Parliament. Again, s 485(1) of the Migration Act does not apply because there has been no relevant “judicially-reviewable decision”.
Submissions
The husband submitted that the IRT’s decision to cancel his visa was infected with an error of law. Mr Beech-Jones contended that the IRT had erroneously concluded that the child was not an Australian citizen. The IRT had reached this erroneous conclusion by making the erroneous assumption that the wife’s visa had been automatically cancelled when the husband’s visa was cancelled. The error lay in assuming that s 140(1) of the Migration Act applied to the wife. Mr Beech-Jones contended that the wife was not caught by s 140(1), since it could not be said that she held a visa,
“because of being a member of the family unit of [another] person (within the meaning of the Regulations).”
On Mr Beech-Jones’ submission, the wife held her visa because she had satisfied the primary criteria for a subclass 100 (spouse) visa and not because she was a member of the husband’s family unit.
Mr Beech-Jones argued that s 140(1) had been drafted against the backdrop of the Migration Regulations, which came into force on the same day as s 140(1). Under those regulations a clear distinction is drawn between primary and secondary criteria, compliance with which entitles an applicant to a visa. Secondary criteria are frequently framed expressly and explicitly by reference to a person being “a member of the family unit of” the primary applicant. A person relying on his or her membership of the relevant family unit is required to lodge a combined application with the primary applicant. Section 140(1) is intended to refer only to persons who obtained a visa by satisfying the secondary criteria expressly incorporating the phrase “a member of the family unit”. It is not intended to apply to a primary applicant, even if that applicant must show that he or she met one or other of the components of the definition of “a member of the family unit of another person” in reg 1.12, such as demonstrating that he or she is the spouse of a permanent Australian resident. As Mr Beech-Jones put it, s 140(1) of the Migration Act applies only where membership of a family unit is, in terms, the criterion for the grant of a visa, as distinct from a case where the criterion is co-extensive with only one part of the definition of “a member of the family unit” in reg 1.12. To give s 140(1) a broader operation would result in the original decision to cancel a visa having a “domino” effect on other people who might have migrated to Australia at different times on different bases. Moreover, those people would be denied the separate right to apply for review to the IRT, a right each would have if the Minister made a decision to cancel his or her visa under s 140(2) of the Migration Act: see Migration Act s 346(1)(d); Migration Regulations, reg 4.09(d).
It follows, according to Mr Beech-Jones, that the wife’s visa could have been cancelled only by action pursuant to s 140(2) or some other provision in the Migration Act (such as s 116, which confers a power on the Minister to cancel visas in a variety of circumstances). For those provisions to be invoked, the Minister or his delegate must exercise the statutory power to cancel a visa and that course simply had not been followed in the present case. Accordingly, at the time the child was born, the wife held a valid and subsisting spouse visa. This was a permanent visa and thus the wife satisfied the definition of a “permanent resident” in s 5A(1) (bb) of the Australian Citizenship Act. Since she was a permanent resident for the purposes of the Australian Citizenship Act, the child acquired Australian citizenship at birth by reason of s 10(2) of that Act.
The significance of the IRT’s error in relation to the husband’s application was that the IRT exercised its discretion adversely to the husband on the mistaken assumption that, at the time of its decision, the child was an Australian citizen. The IRT’s own reasons showed that it was likely to have reached a different conclusion had it understood that the child was indeed an Australian citizen. Accordingly, the decision to cancel the husband’s visa was the product of an error of law and was liable to be set aside.
Mr Beech-Jones relied on the same point of construction in support of the applications of the wife and child. The wife’s visa had not been automatically cancelled by operation of s 140(1) of the Migration Act. This was the case even if the decision to cancel the husband’s visa was not liable to be set aside. Since the Minister or his delegate had taken no other action under the Migration Act to cancel the wife’s visa, it follows that she held a permanent visa at all material times. For the same reasons, the wife was a permanent resident of Australia for the purposes of s 10(2) of the Australian Citizenship Act, at the time the child was born. Accordingly, the child is an Australian citizen and is entitled to a declaration to that effect.
Ms Wilkins, on behalf of the Minister, confined her argument to the question of construction of s 140(1) of the Migration Act. She submitted that s 140(1) incorporates the definition of “a member of the family unit” contained in reg 1.12. That definition is clear and unambiguous and includes the spouse of the “family head”. A person is therefore caught by s 140(1) if that person obtained a visa by showing that he or she was the spouse of another person. There is no temporal requirement built in to s 140. It is irrelevant to the operation of s 140(1) whether a member of the family unit obtained his or her visa at the same time as the “family head” whose visa was cancelled. The purpose of s 140(1) is to ensure that all members of a family unit are treated in the same manner as the person whose visa is cancelled.
In this case the wife obtained her subclass 100 (spouse) visa by reason of demonstrating the fact that she was the spouse of the husband. Since the definition in reg 1.12 of “a member of the family unit of another person” includes “a spouse of the family head”, the wife had obtained her visa because she was a member of the husband’s family unit within the meaning of s 140(1) of the Migration Act. It followed that:
· the wife’s visa was cancelled at the same time as the husband’s visa was cancelled, without the need for any further action by or on behalf of the Minister;
· the wife was not a permanent resident of Australia at the time the child was born;
· the child was not a citizen of Australia.
Two propositions were conceded by Ms Wilkins on behalf of the Minister. First, she conceded that, if s 140(1) did not have the operation for which she contended, the wife’s visa had never been cancelled. For this purpose, she accepted that the letter of 20 August 1996 from the Department, which advised that the wife’s visa had been cancelled, was based on the view that s 140(1) of the Migration Act applied to the wife. She also accepted that no separate action had been taken by the Minister to cancel the wife’s visa under s 140(2) of the Migration Act.
Secondly, Ms Wilkins conceded that, if the wife’s visa had not been cancelled, she was a permanent resident for the purposes of the Australian Citizenship Act, at the time the child was born. The Minister’s position depends entirely on the proposition that at the time of consultation of the husband’s visa, the wife’s visa was cancelled automatically by operation of s 140(1) of the Migration Act. Thus, if the wife’s visa had not been cancelled on 30 October 1996, the child is an Australian citizen.
Preliminary Matters
Before assessing the competing constructions of s 140(1) of the Migration Act, some general points should be made about the operation of s 140. These general observations do not resolve the issue of construction, but they provide a context for consideration of the arguments.
First, unlike ss 14, 20 and 35 of the Old Migration Act (under which the making of a false statement in a declaration in connection with the grant of an entry permit automatically resulted in the holder of the entry permit becoming an illegal entrant and in cancellation of the permit from the date it was granted), the cancellation of a person’s visa under s 109 of the Migration Act operates prospectively. It follows that the husband’s visa in the present case was cancelled as from the date of the decision of the Minister’s delegate (20 August 1996).
Whether the wife’s visa was cancelled under s 140(1) by reason of the cancellation of the husband’s visa depends on whether her visa answers the description of
“a visa held by another person because of being a member of the family unit of the person (within the meaning of the regulations).”
Since the visa of the first person referred to in s 140(1) is cancelled as from the date of the delegate’s decision, the reference in s 140(1) to a “visa held by another person” must be a reference to a visa held at the date the first person’s visa is cancelled. Assuming that s 140(1) has the effect of cancelling the second person’s visa, it does so as from the time the first person’s visa is cancelled. As I have already noted, the cancellation of the second person’s visa is effected by operation of the sub-section itself, without the need for any further Ministerial action. In this sense, it is similar to the operation of ss 14, 20 and 35 of the Old Migration Act, discussed by Wilcox J in Kim v Minister, at 76-77; see also Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107 (FCA/French J), at 123-127.
Secondly, in order to determine whether the Minister’s decision to cancel a person’s visa affects the cancellation of another person’s visa, it is necessary to determine whether the other person’s visa was held at the relevant time “because of being a member of the family unit of the [first] person (within the meaning of the regulations).” The word “being” rather suggests a continuing state of affairs. But since the operative event under s 140(1) is the cancellation of the first person’s visa, the question must be whether the second person held a visa for the reason specified in the sub-section at the time the first person’s visa was cancelled.
Thirdly, the use of the word “because” in s 140(1) plainly incorporates the requirement of a causal relationship between the second person’s holding of the visa and her membership of the family unit of the first person. Section 140(2), by contrast, permits the Minister, where a person’s visa is cancelled under s 109, to cancel the visa of another person, to whom s 140(1) does not apply, where that other person holds a visa “only because the person whose visa is cancelled held a visa”. The significance of the word “only” in s 140(2) is not apparent. As both counsel accepted, under the Migration Regulations it is never possible for a person (A) to hold a visa “only because” another person (B) holds or held a visa, in the sense that the only criterion A must satisfy is that B holds a visa. Invariably, an applicant who applies for a visa in reliance upon a family relationship with another visa holder must satisfy other criteria, such as public interest or health requirements, or sponsorship from an Australian citizen or permanent resident. Thus, there does not seem to be anyone who can literally be said to hold a visa “only because” someone else holds or has held a visa.
In supplementary written submissions, Mr Beech-Jones suggested that the word “only” in s 140(2) might serve a different purpose. He pointed out that there are some categories of visa which require the prospective migrant to have a relationship with more than one Australian permanent resident or citizen. For example, the primary criteria for a subclass 804 (aged parent) visa include that the applicant be nominated by an adult child (inter alia) who is a “settled Australian permanent resident”: cl 804.212(b); see definition in reg 1.3. The applicant must also satisfy the “balance of family test”: cl 804.223, under which each of the parents’ children must (relevantly) be resident in Australia or, alternatively, the number of children resident in Australia must be greater than an equal to the total number of children of the parent who are resident overseas: see reg 1.05(2). Mr Beech-Jones suggested that s 140(2) might be concerned with the situation where the visa of the nominating child is cancelled. In such a case, the parent would not satisfy the first limb of the balance of family test but, if the remaining children (or at least half of the total number of children) were resident in Australia, the parent would satisfy the second limb of the test. In these circumstances, so it was said, the parent could not be said to have obtained a visa only because the nominating child was a permanent resident, since the parent satisfied the alternative criterion specified in the balance of family test.
I must confess that I have some difficulty with this suggestion. A parent who qualifies for the subclass 804 (aged parent) visa does not obtain a visa only because he or she is the parent of (say) a settled Australian permanent resident. Other criteria must be satisfied, including (but not limited to) the balance of family test. Since s 140(2) is limited to the case where a person holds a visa only because the person whose visa is cancelled held a visa, it appears not to be attracted if the nominating child’s visa is cancelled, regardless of now many of that child’s siblings remain in Australia.
Whatever difficulties are presented by s 140(2) - and they were not explored in detail in the argument - s 140(1) appears to contemplate that someone (A) can hold a visa “because of being a member of the family unit of [another] person [B]”, even though A must satisfy other criteria, such as public interest requirements or sponsorship. To put it another way, the word “because” covers a case where A’s membership of B’s family unit is one criterion of two or more that A must satisfy. Whether the word “only” in s 140(2) must receive a construction other than the literal (which may render it nugatory) is a matter that will have to be left to another day.
Fourthly, s 140(1), by the use of the expression “because of being a member of the family unit of the person (within the meaning of the regulations)”, obviously intends to refer to the Migration Regulations. Both Mr Beech-Jones and Ms Wilkins accepted that the words in parentheses require s 140(1) of the Migration Act to be construed by reference to the Migration Regulations. They also accepted that, since the Migration Regulations came into force on the same day as s 140 itself, and since s 140 was clearly drafted with the Migration Regulations in mind, it was appropriate to consider the Migration Regulations (1994), rather than earlier, repealed versions of the Regulations.
I think that this approach is correct insofar as it goes. However, a further point needs to be made. In my opinion, the reference in s 140 to “the regulations” is a reference to the Migration Regulations as amended from time to time. It is true that Acts Interpretation Act 1901 (Cth) does not contain any provision establishing a prima facie rule of construction that a reference in an Act to certain regulations means the regulations as amended from time to time. It is also true that, where a statute adopts by reference “a positive independent enactment” that referential adoption does not convey an intent to incorporate the independent enactment as amended from time to time: Commission for Government Transport v Deacon (1957) 97 CLR 535, at 546, per curiam. However, that principle (which has been overturned by legislation in all Australian jurisdictions: D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed 1996), at pp 162-163) does not apply to a reference in an Act to regulations made under that Act. The Migration Act confers power to make regulations, including a specific power to make regulations about visa criteria (ss 504-505). It must have been understood at the time of enactment of the Migration Reform Act (and at all other material times) that the Migration Regulations would be frequently amended. It would be very surprising indeed if the reference in s 140(1) were intended to be frozen by reference to the Migration Regulations as they stood on 1 September 1994, regardless of changes in the regulatory regime thereafter: see F A R Bennion, Statutory Interpretation: A Code (2nd ed 1992), at 617 ff (“Presumption that updating construction to be given”).
Reasoning
Ms Wilkins submitted that it was necessary only to have regard to reg 1.12 (which defines “a member of a family unit of another person”) and the provisions governing eligibility for a subclass 100 (spouse) visa. She contended that s 140(1), read in conjunction with reg 1.12 and the provisions relating to a subclass 100 (spouse) visa, is clear and unambiguous. Section 140(1) (so she argued) is intended to apply to a case where one of the criteria for a visa (including a primary criterion) is expressed in terms substantially equivalent to any one or more of the sub-paragraphs of the definition in reg 1.12. The primary criteria for a subclass 100 (spouse) visa, at the relevant time, included a requirement that the applicant be the spouse of an Australian citizen or permanent resident. This requirement corresponded with para (a) of reg 1.12(1) (“a spouse of the family head”) and demonstrated that the visa obtained by the wife in the present case is caught by s 140. For his part, Mr Beech-Jones submitted that s 140(1), when considered in conjunction with reg 1.12(1) and the requirements for a subclass 100 (spouse) visa, is ambiguous. It is necessary, according to Mr Beech-Jones to look more carefully at the general structure of the Migration Regulations in order to provide a context for the construction of s 140(1). So construed, the sub-section does not apply to the wife’s visa.
In my view, it cannot be said that s 140(1) is clear and unambiguous, even if attention to the Migration Regulations is confined in the manner suggested by Ms Wilkins. It is true that the statutory language is capable of referring to a visa held “because” a person satisfies a criterion expressed in terms (or to the effect) of one or more of the paragraphs of the definition in reg 1.12. Equally, however, s 140(1) is capable of being read as confined to a visa held because a person satisfies a criterion specifically expressed in terms of a person “being a member of a family unit of [a] person”. The Migration Regulations, both at the time s 140 came into effect and subsequently, have incorporated the very expression “is a member of the family unit of [a] person” as a criterion to be satisfied by applicants for certain kinds of visas. Section 140(1) simply does not employ language making it clear which of these competing interpretations is intended to be adopted. The expression used in s 140(1), “within the meaning of the regulations”, is consistent in my view with either of the competing constructions.
Doubtless, s 140(1) of the Migration Act could have been drafted in a manner that made it clear which of the competing constructions Parliament intended to adopt. For example, the sub-section might have been expressed to apply to a visa obtained
“because the holder satisfied a criterion or criteria expressed in terms substantially to the effect of one or more of the paragraphs of the definition of ‘a member of the family unit of another person’ contained in the Regulations as amended from time to time.”
However, s 140(1) is not drafted in a manner that eliminates the ambiguity. I therefore disagree with Ms Wilkins that the construction issue can be simply resolved on the basis that s 140(1) admits of no relevant ambiguity and that it must therefore be given a literal construction embracing the wife’s visa in the present case.
Having said this, to determine which of the competing interpretations should be adopted is no easy task. It is necessary to examine the context in which s 140 operates, including the structure of the Migration Regulations. In my view, an examination of this kind provides some support for the applicant’s submission that s 140(1) is intended to apply only where a visa holder has qualified for a visa by satisfying an explicit secondary criterion of being “a member of the family unit” of the primary applicant.
The general scheme of the Migration Regulations is that an applicant for a visa must satisfy what are described as “primary criteria”. These criteria identify requirements that must be met if the applicant is to obtain the class of visa for which he or she applies. For example, an applicant for a subclass 845 (established business in Australia) visa must satisfy a number of criteria, including ownership of an Australian business and net assets exceeding a minimum figure (cl 845.21). The Migration Regulations also specify secondary criteria for many classes of visa. As far as I have been able to ascertain (although this was not canvassed in submissions), the secondary criteria so specified, at least in the Migration Regulations in their current form, can be satisfied only by an applicant who can show that he or she “is a member of the family unit of” a person who satisfies the primary criteria for the visa. In other words, the secondary criteria permit the primary applicant to bring into Australia, on the same class of visa, members of his or her family unit and provide for this result by employing the specific expression “a member of the family unit of [a] person”.
For example, the secondary criteria for a subclass 845 (cl 845.32) visa require the secondary applicant, inter alia, to be
“a member of the family unit of a person (in this clause called ‘the non-dependent holder’) who, having satisfied the primary criteria, is the holder of a Sub class 845 visa”.
The secondary criteria for the subclass 100 (spouse) visa, as in force at the time the wife obtained her visa, required the applicant to be “a member of the family unit of, and [to make] a combined application with a person who satisfies the primary criteria [for the visa]” (cl 100.311). There are many other examples of secondary criteria framed in a similar manner, for example, a subclass 101 (child) visa (cl 101.31), a subclass 102 (adoption) visa (cl 102.31), a subclass 103 (parent) visa (cl 103.31), a subclass 104 (preferential family) visa (cl 104.31), a subclass 124 (distinguished talent (Australian support)) visa (cl 124.31) and a subclass 202 (global special humanitarian) visa (cl 202.31). An applicant who satisfies secondary criteria expressed by reference to membership of a family unit must also satisfy other criteria. Typically, as I have already noted, the additional criteria impose public interest, health and sponsorship requirements.
Mr Beech-Jones submitted that the distinction drawn by the Migration Regulations, between primary and secondary criteria, was crucial in construing s 140(1) of the Migration Act. He contended that the Migration Regulations differentiate between persons who are included in an original application for a visa which includes a false statement and persons (like the wife in the present case) who apply for a visa separately, in reliance on a relationship with an existing permanent resident. This differentiation, according to Mr Beech-Jones, suggests that s 140(1) of the Migration Act is intended to result in automatic cancellation only of visas obtained by applicants who satisfy the express criterion of membership of a family of another person, and who lodged an application together with that of the other person (the primary applicant).
The force of Mr Beech-Jones’ submission, at least in the precise form in which he put it, is diminished somewhat by two difficulties. The first is that, as Mr Beech-Jones acknowledged in his written submissions, there is at least one class of visa the primary criteria for which require the applicant to show that he or she is a member of the family unit of another person. The primary criteria for a subclass 866 (protection) visa include the following:
“866.21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class AZ) visa.
866.22 Criteria to be satisfied at time of decision
...
866.222 In the case of an applicant referred to in paragraph 866.211(b):
(a) the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a ‘claimant’); and
(b) that claimant has been granted a Protection visa.”
[Emphasis added.]
It should be noted that an application by a person claiming to be a member of the family unit of the “claimant” may, but need not, be combined with an application by the claimant: Migration Regulations, Schedule 1, cl 1126.
The subclass 866 (protection) visa provides at least one example of a class of visa in respect of which the applicant may satisfy primary criteria by showing that he or she is a member of the family unit of another person. Furthermore, the applicant for a protection visa need not combine his or her application with that of the claimant (that is, the person who has made specific claims under the Convention). It is not entirely clear whether Mr Beech-Jones intended to argue that a successful applicant for a protection visa, who relied on membership of the family unit of the claimant in order to obtain that visa is caught by s 140(1) of the Migration Act, should the claimant’s visa ultimately be cancelled under s 109 of the Migration Act. It is, however, a little difficult to see why the cancellation of the claimant’s protection visa should not automatically cancel the visa of another person who qualified for a protection visa by showing that he or she was “a member of the same family unit as [the claimant]”. It must be borne in mind that a person who obtained a different visa by satisfying a secondary criterion expressed in identical terms is subject to automatic cancellation of that visa by the operation of s 140(1). On the other hand, if a protection visa, obtained by reason of the applicant’s membership of the claimant’s family unit, is caught by s 140(1), it can not be said that the operation of s 140(1) is exclusively confined to secondary criteria.
Secondly, Mr Beech-Jones’ argument appeared to assume that an applicant who claims to satisfy secondary criteria, by reason of his or her membership of the family unit of the primary applicant, must always lodge a joint application with the primary applicant. In general, this is the case: see, for example, cll 101.31 (child visa); 102.31 (parent visa). However, the secondary criteria do not always require a joint application to be made, although it seems that a joint application can always be made. For example, the secondary criteria applicable to the subclass 100 (spouse) visa in its present form, as distinct from the criteria applicable at the time the wife in the present case obtained her visa, contemplate that the secondary applicant may, but need not lodge a joint application with the primary applicant (the spouse). In other words, the spouse visa can be granted to a person who lodges an application after the primary applicant (the spouse) has lodged his or her application: see Migration Regulations, Schedule 1, Part 1, cl 1129(3)(e) (application may be combined with a primary application).
These difficulties may well require some modification of the applicant’s submissions, but I do not think that they detract substantially from the basic point made by Mr Beech Jones. This is that s 140(1) was drafted at a time when it was clearly contemplated that the secondary criteria for many classes of visa would be specifically expressed to include a requirement that the applicant be “a member of the family unit of” the primary applicant. It was also contemplated at that time that applicants satisfying this requirement would usually, if not invariably, apply at the same time as the primary applicant.
In my opinion, the structure of the Migration Regulations supports the view that s 140(1) was intended to apply only where a visa holder obtained his or her visa by satisfying a criterion explicitly framed in terms of being “a member of the family unit” of another person whose visa is later cancelled. It may be (although it is not necessary to direct in the present case) that s 140(1) applies even where the criterion is expressed to be one of the primary criteria for a visa (as distinct from being one of the secondary criteria). In other words, s 140(1) may apply to a person who acquired a visa by satisfying a primary criterion expressed specifically in terms of being a “member of the family unit” of another person whose visa is later cancelled. But I think the better view is that s 140(1) was not intended to effect the automatic cancellation of the visa held by a person who obtained the visa because he or she satisfied the description in any one of the sub-paragraphs of the definition contained in reg 1.12 of the Migration Regulations.
There are two further considerations that support this conclusion. First, the Minister’s submissions, if accepted, would lead to anomalous results. As Mr Beech-Jones pointed out, the primary criteria for a number of visas included a requirement that the applicant be “a member of the immediate family” of an Australian permanent resident who holds a visa: see, for example Migration Regulations, Schedule 2, cl 209.211(3) (“citizens of the former Yugoslavia (displaced persons)”); cl 212.211(3) (“Sudanese”); cl 215.211(3) (“Sri Lankan (Special Assistance)”); cl 217.211(5) (“Vietnamese”). Regulation 1.12AA, inserted in 1997 (and commencing on 1 July 1997), provides as follows:
“1.12AA For these Regulations, a person “A” is a member of the immediate family of another person “B” if:
(a) A is a spouse of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B is not 18 years or more.”
Sub-paragraphs (a) and (b) of this definition have counterparts in sub-pars (a) and (b) of the definition of “member of the family unit” in reg 1.12. But sub-par (c) of reg 1.12AA has no counterpart in reg 1.12. Consider, therefore, the following situation. An applicant, A, applies for a visa which requires the applicant to be “a member of the immediate family” of a permanent resident, B. B’s visa is subsequently cancelled under s 109 of the Migration Act. On the Minister’s argument, if A falls within par (a) and (b) of the reg 1.12AA (that is, he or she is a spouse or dependent child of B), A’s visa is automatically cancelled by the operation of s 140(1). However, if A is a parent of B and B’s visa is subsequently cancelled, A’s visa is not affected by s 140(1), since a parent is not one of the categories specified in reg 1.12, at least in the absence of special circumstances. It is difficult to see a sensible basis for a distinction of this kind. (I appreciate that reg 1.12AA(c) refers to a parent of a child who is not 18 years of age or more. Nonetheless, a child’s visa can be cancelled by the operation of s 109, since knowledge that incorrect information has been given is not a prerequisite for s 109 to apply: see s 100.)
It is true that reg 1.12AA was not in the Migration Act when s 140 came into effect, on 1 September 1994. However, as I have explained, the reference in s 140(1) to “the regulations” is to the Migration Regulations as amended from time to time. The fact that the Migration Regulations have been amended to incorporate the concept of “a member of the immediate family” is precisely the kind of development that was to be expected at the time s 140 was drafted and came into force.
A further illustration of anomalous results flowing from the Minister’s construction is provided by primary criteria expressed in the following form:
“217.212 The applicant has a near relative (being a spouse, parent, daughter, son, brother, sister, aunt, uncle, nephew or niece of the applicant) who:
(a) was an...Australian permanent resident...on 1 January 1994; and
(b) continues to be an...Australian permanent resident...; and
(c) is usually resident in Australia; and
(d) gives the Minister a written undertaking [concerning support of the applicant]”.
Clause 217.212 concerns a subclass 217 (Vietnamese) visa. See also, for example, cl 209.213 (Citizens of the former Yugoslavia (displaced persons)); cl 212.213 (Sudanese); cl 215.215 (Sri Lankan (special assistance)). Section 140(1) may be invoked if the sponsoring relative’s visa is subsequently cancelled. On the Minister’s contentions, whether the visa of the person described in cl 217.212 as “the applicant” is automatically cancelled would seem to depend on the precise relationship between the applicant and the sponsoring relative. If the applicant is the spouse or dependent child of the sponsoring relative, the applicant’s visa would be automatically cancelled, since a spouse and dependent child are covered by pars (a) and (b), respectively, of reg 1.12. However, an applicant who is a parent, sibling, aunt, uncle or niece of the sponsoring relative would not be subject to automatic cancellation of his or her visa by reason of cancellation of the sponsoring relative’s visa (unless, in particular circumstances, they can be brought within reg 1.12(d) or (e)). It is difficult to see a rational basis for this distinction.
I appreciate that, on the Minister’s construction, there may be an argument as to whether a person satisfying criteria in the form of cl 217.212 can be said to hold a visa “because of being a member of the family unit of [the sponsoring relative]”. But the illustration shows the capricious results that can follow from giving s 140(1) the broad construction supported by the Minister.
A second factor supporting the more limited construction of s 140(1) of the Migration Act is that it tends to minimise what otherwise would be a harsh operation on persons who themselves may be entirely innocent of wrongdoing. The effect of s 140(1) is to cancel a person’s visa by operation of law. The cancellation takes place regardless of whether the person concerned participated in or even had knowledge of the events which led to cancellation of what might be described as the primary visa. Moreover, since the cancellation takes effect without the need for a separate Ministerial decision, the person affected has no entitlement to seek review by the IRT.
By contrast, even though a decision made under s 140(2) can be made without notice to the person “who holds a visa only because the person whose visa is cancelled held a visa”, the person affected by such a decision may seek review from the IRT, which may exercise all the powers and discretions conferred by the Migration Act on the primary decisionmaker: Migration Act, ss 346(1)(d) (cf ss 346(4), 338(3); 349(1) and (2)); Migration Regulations, reg 4.09(d). It might reasonably be expected that, on any such review, the IRT would consider the particular circumstances of the person affected by the Ministerial decision and take into account, inter alia, his or her knowledge of the circumstances giving rise to the cancellation of the primary visa.
I have referred elsewhere to the need to exercise “scrupulous care” in construing legislation which curtails liberties, including laws which deprive people of their “right of community”: Gunner v Minister for Immigration and Ethnic Affairs (FCA/Sackville J, 19 December 1997, unreported) at 31, citing Minister for Immigration v Sciascia (1991) 31 FCR 364, at 372, per Burchett and Lee JJ. It is, of course, true that the task is ultimately to ascertain the intention of Parliament. Thus, if the statutory language is unmistakable and unambiguous, the Court (subject to any constitutional issues) must give effect to the language, even if the consequence is that the legislation detracts from basic rights and immunities: see Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (FCA/FC), at 23 ff, per Sackville J; cf Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 (FCA/FC), at 206-207. In this case, however, as I have explained, s 140(1) is ambiguous. It should be given a construction which minimises rather than expands the likelihood that innocent permanent residents will have their entitlement to remain in this country taken away without any opportunity to have their case considered on its merits.
I should add one further comment about s 140(2) of the Migration Act. For the reasons I have given, there are some uncertainties about its scope and operation. If the inclusion of the word “only” limits the practical utility of the subsection - a matter on which I express no final view - I do not think the present case is affected. On either of the competing constructions, there may be a gap in the legislation.
Remittal of the Husband’s Matters
Ms Wilkins argued that, even if the IRT had erred in concluding that the wife was not a permanent resident and the child was not a citizen, the matter should not be remitted to the IRT for further determination. As I understood the submission, she contended that the IRT acted on the basis that any entitlement of the wife or child to remain in Australia had been obtained only as the result of the husband’s fraudulent conduct. In these circumstances, she suggested that the IRT would be very likely, if not certain, to reach the same conclusion on the application by the husband to review the decision to cancel his visa.
It is not a matter for me to predict what the IRT will do upon a reconsideration of the husband’s application for review. It is clear that the IRT regarded the “fact” that neither the wife nor the child was an Australian citizen or permanent resident as an important consideration in the exercise of its the judgment required under s 109 of the Migration Act. It is for the IRT to reassess the case in the light of the conclusion I have reached as to the status of the wife and child.
Conclusion
It follows from what I have said that the decision of the IRT in the husband’s case should be set aside and the matter remitted to the IRT for further consideration according to law.
It was not suggested that the wife’s visa had been cancelled by reason of anything other than the operation of s 140(1) of the Migration Act. Accordingly, I think it appropriate to make a declaration that, in the events which have occurred, she is presently the holder of a valid subclass 100 (spouse) visa. The word “presently” indicates that it may later be open to the Minister to cancel that visa, if grounds are lawfully available for that course of action to be taken.
Similarly, I think a declaration should be made that, in the events which have occurred, the child is an Australian citizen.
The Minister should pay the applicants’ costs.
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I certify that this and the preceding thirty one (31) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville |
Associate:
Dated: 19 December, 1997
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Counsel for the Applicant: |
Mr R. Beech-Jones |
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Solicitor for the Applicant: |
Goldsmiths Lawyers |
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Counsel for the Respondent: |
Ms E. Williams |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
20 November, 1997 |
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Date of Judgment: |
19 December, 1997 |
