FEDERAL COURT OF AUSTRALIA

Ramos v Minister for Immigration & Multicultural Affairs [1999] FCA 934

MIGRATION - application for bridging visa - application for review of Immigration Review Tribunal decision - legal effect of Sch 1, subpar 1301(3)(c)(i), Migration Regulations - whether subparagraph prescribed criterion for grant of bridging visa - whether subparagraph prescribed way for making application for bridging visa - principles for construction of Schedules to legislation.

Migration Act 1958 (Cth) ss 31(3), 37, 45, 46, 476(1), 504(1)

Migration Regulations (Cth) regs 2.03(1), 2.07(1), Sch 1, item 1301(3)(c)(i), Sch 2

Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154, cited

Inland Revenue Commissioners v Gittus [1920] 1 KB 563, applied

Gittus v Inland Revenue Commissioners [1921] 2 AC 81, cited

Re Foley; Channell v Foley (1952) 53 SR (NSW) 31, cited

ANTONIO RAMOS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1395 OF 1998

BHARAT PRASAD GAIRE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1396 OF 1998

TAMBERLIN, SACKVILLE, KATZ JJ

SYDNEY

9 JULY 1999

                                        On appeal from a single Judge of the Federal Court of Australia

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

                                        On appeal from a single Judge of the Federal Court of Australia

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

                                        On appeal from a single Judge of the Federal Court of Australia

                                       On appeal from a single Judge of the Federal Court of Australia

BETWEEN:                 BHARAT PRASAD GAIRE

                                      Appellant

AND:                            MINISTER OF STATE FOR IMMIGRATION &

                                      MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT OF THE COURT

1                     Each of the two proceedings presently before us is an appeal from a judgment of a single Judge of this Court.  The two judgments appealed from were given at the same time by the same Judge.

2                     In each of the two proceedings before the single Judge (which proceedings, like the present appeals, were both heard at the same time), the applicant, a non-citizen, had unsuccessfully sought review under subs 476(1) of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Immigration Review Tribunal (“the Tribunal”).  The Tribunal’s decision had affirmed a decision of a review officer.  The review officer’s decision had in turn affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate had refused the non-citizen’s application for a bridging visa.  In the case of the appellant Mr Ramos, the unsuccessful application had been for a Bridging A (Class WA) visa; in the case of the appellant Mr Gaire, the unsuccessful application had been for a Bridging E (Class WE) visa.

3                     Although both the material facts regarding Messrs Ramos’s and Gaire’s applications for their respective bridging visas and the legislative schemes at the relevant time regarding those two classes of bridging visa differ to some extent, they do not, as was accepted by both appellants, differ in any material respect for present purposes.  It will therefore be sufficient to refer in these reasons for judgment, as the single Judge did in his reasons for judgment, only to the material facts regarding Mr Ramos’s application for a bridging visa and to the legislative scheme at the relevant time regarding the class of bridging visa for which he applied.  The outcome of Mr Ramos’s appeal will necessarily determine the outcome of Mr Gaire’s appeal.

4                     Mr Ramos, who is a Filipino national, arrived in Australia on 10 April 1997 as the holder of a visitor visa, with permission to remain for three months.  On 7 July 1997 (in other words, just days before his visitor visa expired), Mr Ramos made a valid application to the Australian Embassy in Manila for a Skilled-Australian Linked (Migrant Class AJ) visa.  On 31 October 1997, his Manila application remaining undetermined and he still remaining in Australia (although by now as an unlawful non-citizen), Mr Ramos made his application for a Bridging A (Class WA) visa.

5                     At the time when Mr Ramos made his application for a bridging visa, item 1301 of Sch 1 to the Migration Regulations (“the Regulations”) took a certain form, including, in particular, a subpar (3)(c)(i). That subparagraph, in the form which it then took, had been inserted into item 1301 by Statutory Rule 211 of 1996, subreg 13.5.

6                     Subparagraph 1301(3)(c)(i), in the form which it took at the time when Mr Ramos made his bridging visa application, was repealed before the making of any of the three successive adverse administrative decisions regarding that application (that is, by the delegate, the review officer and the Tribunal).  Indeed, it was repealed on the very day after Mr Ramos had made his application.  However, it is accepted by both Mr Ramos and the Minister that it had been necessary for all three administrative decisions to be made as if subpar 1301(3)(c)(i), in the form which it had taken at the time of his application, had not been repealed.

7                     We set out below in its entirety (but with emphasis added to subpar (3)(c)(i)) item 1301 in the relevant form:

“1301.Bridging A (Class WA)

(1)       Form: 887, 852, 147, 157Y, 601, 866, 1002, 1003, 1004 or 1005.

(2)       Fee: Nil.

(3)       Other:  

            (a)     Application must be made in Australia but not in immigration clearance.

            (b)     Applicant must be in Australia but not in immigration clearance.

            (c)     Either:

                     (i)      the applicant has made a valid application, in Australia, for a substantive visa that can be granted if the applicant is in Australia and that application has not finally been determined; or

                     (ii)     the applicant has applied, within statutory time limits, for judicial review of a decision to refuse a substantive visa that was applied for in Australia and can be granted if the applicant is in Australia and the judicial proceedings (including proceedings on appeal, if any) have not been completed.

            (d)     Applicant must:

                     (i)      be the holder of:

                               (A)     a substantive visa; or

                               (B)     a bridging (Class A) visa; or

                               (C)    a bridging (Class B) visa; or

                     (ii)     have held a substantive visa when he or she made the substantive visa application referred to in paragraph (c).

            (e)     If the last substantive visa held by the applicant was cancelled, the decision to cancel that visa has been set aside by a review authority.

            (f)      Applicant is not in immigration detention or criminal detention.

            (g)     Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging Class A visa may be made at the same time and place as, and combined with, the application by that person.

(4)       Subclasses: 010 (Class A)”

8                     The outcome of Mr Ramos’s appeal depends upon the legal effect, if any, of subpar 1301(3)(c)(i) as just set out.

9                     By way of introduction to the question of the legal effect, if any, of subpar 1301(3)(c)(i), it is convenient to refer to subs 31(3) of the Act.  That subsection, when read together with s 37 of the Act, had provided at the time of the enactment of subpar 1301(3)(c)(i) in the relevant form that the regulations might prescribe criteria “for” (that is, for the grant of) bridging visas.  (Subsection 31(3) was, of course, to be read with subs 504(1) of the Act, which conferred upon the Governor-General a regulation-making power in a typical form.)

10                  Mr Ramos conceded before us that, by reason of the presence in the Act of subs 31(3), the power conferred by subs 504(1) of the Act could have been used by the Governor-General at the time of the enactment of subpar 1301(3)(c)(i) in the relevant form to prescribe in the Regulations a criterion for the grant of a Bridging A (Class WA) visa, which criterion used language identical to that used in subpar 1301(3)(c)(i).  There is also no dispute that, if subpar 1301(3)(c)(i) in the relevant form amounted to the prescription of such a criterion for the grant of a Bridging A (Class WA) visa, then Mr Ramos had not satisfied that criterion. That is because his application for the substantive Skilled-Australian Linked (Migrant Class AJ) visa had been lodged with the Australian Embassy in Manila and was incapable of being granted to an applicant in Australia.

11                  However, Mr Ramos argued that it should not be inferred that, when purporting to exercise his power under subs 504(1) of the Act by inserting subpar 1301(3)(c)(i) into the Regulations, the Governor-General had intended to rely upon the presence in the Act of subs 31(3).  Instead it should be inferred, so the argument went, that the Governor-General had intended to rely solely upon the presence in the Act of subs 45(2).  This subsection provided as follows:

“(2) Without limiting subsection (1), the regulations may prescribe the way for making:

(a)   an application in specified circumstances; or

(b)   an application for a visa of a specified class; or

(c)    an application in specified circumstances for a visa of a specified class.”

12                  Mr Ramos further argued that, since subpar 1301(3)(c)(i) did not in truth prescribe a way for making an application for a Bridging A (Class WA) visa, the Governor-General’s attempt to rely upon the presence in the Act of subs 45(2) in enacting subpar 1301(3)(c)(i) had miscarried and the subparagraph was therefore invalid.

13                  For his part, the Minister conceded that subpar 1301(3)(c)(i) had not prescribed a way for making an application for a Bridging A (Class WA) visa for the purpose of subs 45(2) of the Act.  In making this concession, the Minister accepted the correctness of the opinion to this effect expressed by Emmett J in Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154, at 158-59.  The Minister did, however, argue that subpar 1301(3)(c)(i) had validly prescribed a criterion for the grant of such a visa.

14                  It is helpful to say something of the form which the Regulations took immediately before the insertion into Sch 1 of subpar 1301(3)(c)(i) in the relevant form.

15                  At that time, the Regulations consisted of a series of Parts, divided into Divisions containing numbered regulations, followed by a series of Schedules, divided into Parts. Relevant for present purposes were Divs 2.1 and 2.2 of Pt 2, Pt 3 of Sch 1 and the first (although not so numbered) Part of Sch 2.  (As to the division of Sch 2 into Parts and the headings of those Parts, see subreg 2.02(1).)

16                  Various regulations in Pt 2, Div 2.1, made reference to Schedules to the Regulations. Of particular significance in that respect was subreg 2.03(1).  It provided that, for the purposes of subs 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class were those set out in a relevant Part of Sch 2.

17                  Various regulations in Pt 2, Div 2.2, also made reference to Schedules to the Regulations.  Of particular significance in that respect was subreg 2.07(1).  It provided that, for the purposes of ss 45 and 46 of the Act, if an application was required for a particular class of visa, certain matters were set out in the relevant Part of Sch 1.  Those matters were: the approved form (if any) to be completed by an applicant (par 2.07(1)(a)); the fee (if any) payable on an application (par 2.07(1)(b)); and other matters relating to the application (par 2.07(1)(c)).

18                  Part 3 of Sch 1 was headed “Bridging Visas” and included item 1301.

19                  The first Part of Sch 2 was headed “Subclass 010--Bridging Visa A” and contained criteria for the grant of a Bridging A (Class WA) visa.

20                  Mr Ramos placed reliance on the terms of a note in brackets which succeeded the heading of Sch 1, but which preceded the heading of Pt 1 thereof.  That note read as follows:

“This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class.  An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss. 45, 46 and 47.”

21                  Mr Ramos acknowledged that that note did not form part of the Regulations, but he argued that he could nonetheless rely upon it as an aid to the interpretation of the Regulations.

22                  Mr Ramos’s argument was, in essence, that anything located in Sch 1 to the Regulations must, by reason of the terms of subregs 2.03(1) and 2.07(1) and the note immediately following the heading of Sch 1, have been intended to be a prescription of a way for making an application for a visa, rather than a prescription of a criterion for the grant of a visa, prescriptions of the latter type being located only in Sch 2.  That argument was said to be supported by an expression of governmental purpose for the insertion into item 1301 of Sch 1 of subpar (3)(c)(i).

23                  Mr Ramos’s argument gave no recognition to the fact that subpar 1301(3)(c)(i) had been enacted after both subregs 2.03(1) and 2.07(1) and after the inclusion of the note immediately following the heading of Sch 1 in the text of the Regulations.  Rather, his argument treated all three provisions and the note as if they had been enacted (or, in the case of the note, set out) simultaneously.  It is convenient, in the first instance at least, to proceed upon the assumption underlying Mr Ramos’s argument, even though it is false.

24                  In our view, to construe subpar 1301(3)(c)(i), by reason of the terms of subregs 2.03(1) and 2.07(1) and the note immediately following the heading of Sch 1, as an invalid attempted prescription of a way for making an application for a Bridging A (Class WA) visa, rather than as a valid prescription of a criterion for the grant of such a visa, would be contrary to accepted principles for the construction of Schedules to legislation.

25                  In Inland Revenue Commissioners v Gittus [1920] 1 KB 563 (affirmed sub nom Gittus v Inland Revenue Commissioners [1921] 2 AC 81), the English Court of Appeal was concerned with a Schedule to Parliamentary legislation (although there would have been no relevant difference for present purposes if the Court had been there concerned instead, as here, with a Schedule to delegated legislation).  At 576, Lord Sterndale MR set out the correct approach to the construction of such Schedules:

“It seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and schedule.  If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it [that is, the schedule] beyond that purpose you ought to do it.  But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used.  You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act.”

26                  The passage from the reasons for judgment of Lord Sterndale MR just set out was afterwards quoted with approval by Roper CJ in Eq in Re Foley; Channell v Foley (1952) 53 SR (NSW) 31 at 36.

27                  The application to subpar 1301(3)(c)(i) of the approach of Lord Sterndale MR is destructive of Mr Ramos’s case.  On his own case, that subparagraph did not, contrary to the words of the note immediately following the heading of Sch 1, set out a “specific way[ ] in which a non-citizen applies for” a Bridging A (Class WA) visa. Further and, again, on his own case, that subparagraph did not, contrary to the words of subreg 2.07(1), set out a matter “[f]or the purposes of sections 45 and 46 of the Act”.  Therefore, to adapt the language of Lord Sterndale MR, one finds in the language of subpar 1301(3)(c)(i) words which went clearly outside the purpose of the Schedule as stated in the note immediately following the heading of Sch 1 and in subreg 2.07(1).

28                  Effect must be given to the language of subpar 1301(3)(c)(i) and that language is not limited by the purpose for which subpar 1301(3)(c)(i) was prima facie to be used, as mentioned either in the note immediately following the heading of Sch 1 or in subreg 2.07(1).  One cannot refuse to give effect to the clear words of subpar 1301(3)(c)(i) simply because, prima facie, they seem to have been limited by the definition of the purpose of the Schedule contained either in the note immediately following the heading of Sch 1 or in subreg 2.07(1).

29                  Nor is the conclusion which we have just expressed affected by the fact that subreg 2.03(1) provided that, for the purposes of subs 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class were those set out in a relevant Part of Sch 2. Any negative implication from subreg 2.03(1) about the presence in Sch 1 of such a criterion must give way to the language of subpar 1301(3)(c)(i), in the same way as must the positive statements of the purpose of Sch 1 contained both in the note immediately following the heading of Sch 1 and in subreg 2.07(1).

30                  The obvious means of giving effect in the circumstances to the words of subpar 1301(3)(c)(i) is to treat them as having been a valid intended prescription, pursuant to subs 504(1) of the Act read together with subs 31(3) of the Act, of a criterion for the grant of a Bridging A (Class WA) visa.  That, after all, was something which Mr Ramos conceded before us could have been done by the very words used in subpar 1301(3)(c)(i), if those words had been located in Sch 2 to the Regulations, rather than located in Sch 1.

31                  We have already referred to the fact that Mr Ramos sought to rely in support of his argument upon an expression of governmental purpose for the insertion into item 1301 of Sch 1 of subpar (3)(c)(i).  A question arises whether the conclusion as to the proper construction of subpar 1301(3)(c)(i), namely, that it was a valid prescription of a criterion for the grant of a Bridging A (Class WA) visa, rather than an invalid attempted prescription of a way for making an application for such a visa, is affected by that expression of governmental purpose for its enactment.

32                  Before setting out that expression of governmental purpose, it is convenient to say something more of the circumstances of the insertion of subpar 1301(3)(c)(i) into the Regulations.  We have already mentioned that that subparagraph was inserted into the Regulations by subreg 13.5 of Statutory Rule 211 of 1996. Subregulations 13.6 to 13.9 respectively of that Statutory Rule also inserted into Pt 3 of Sch 1 to the Regulations subparagraphs similar in effect to subpar 1301(3)(c)(i) in respect of each of the four classes of bridging visa other than the Bridging A (Class WA) visa.

33                  The appellants invited us to conclude that the government’s purpose in inserting all five of those subparagraphs into Pt 3 of Sch 1 to the Regulations had been in accordance with an explanatory memorandum prepared by the Minister.  This memorandum accompanied a minute recommending (to, we assume, the Federal Executive Council) the enactment of what became Statutory Rule 211 of 1996.  Details of the proposed Regulations were in an attachment to the memorandum and p 3 of that attachment said this:

“Subregulations 13.5 to 13.9 make amendments to items 1301, 1302, 1303, 1304 and 1305 respectively, the bridging visa classes.  The purpose of these amendments is to prevent people applying for bridging visas while in Australia on the basis of applying for a visa at an overseas post where that visa can only be granted overseas.

It is intended that people can make applications at overseas posts while temporarily in Australia - for example, so that a business visitor can initiate migration processing prior to the completion of his/her stay.  The Migration Regulations therefore allow a person in Australia to make an application to an overseas post for all but a small number of classes.  It is not intended that such a person should be automatically entitled, through the grant of a bridging visa, to remain beyond the period of effect of his/her temporary substantive visa and for the duration of processing the offshore visa.”

34                  Accepting that statement as an accurate one of the government’s purpose in enacting, in particular, subpar 1301(3)(c)(i), the question is whether that expression of purpose affects the proper construction of the subparagraph.

35                  For his part, Mr Ramos placed particular reliance upon that part of the material quoted above in which it was said that the purpose of the proposed amendments was “to prevent people applying” for bridging visas while in Australia on the basis of their having applied overseas for a substantive visa which could only be granted overseas.  The use of those particular words showed, according to him, that what became subpar 1301(3)(c)(i) had been intended to be a prescription of a way for making an application for Bridging A (Class WA) visa, rather a prescription of a criterion for the grant of such a visa.  The use of those particular words showed such intention, he said, because failure by a person to comply with a prescription of a way for making a particular visa application meant that the person’s application was invalid and invalidating a person’s bridging visa application prevented that person from applying for such a visa.

36                  We do not accept this argument.  Of course, it would have been impossible by legislation actually “to prevent people applying” for bridging visas while in Australia on the basis of their having applied overseas for a substantive visa which could only be granted overseas.  The most that could be done by way of legislation would have been to provide, subject to penalty, that the making of such applications for bridging visas was prohibited. In that way, an attempt could be made “to prevent people applying”.  However, it is plain that that was not what was being done by the amendments, whether they be treated as having been prescriptions of ways for making applications for various bridging visas or as having been prescriptions of criteria for the grant of such visas.  Thus, the statement that the purpose of the proposed amendments was “to prevent people applying” for bridging visas in certain circumstances cannot be taken literally.

37                  Instead, the quoted words were inserted to convey that the proposed amendments were designed to discourage people from applying for bridging visas by making it futile for them to do so.  That purpose could be achieved either by making such applications invalid or by making them fail because of non-satisfaction of a criterion for their grant.  Thus, the particular words relied upon by Mr Ramos were, in truth, neutral as to the construction to be given to subpar 1301(3)(c)(i) and do not alter the construction which we would have given to the subparagraph in their absence.

38                  Finally, we have thus far proceeded upon the false assumption implicit in Mr Ramos’s argument that subpar 1301(3)(c)(i) had been enacted simultaneously with the enactment of subregs 2.03(1) and 2.07(1) and with the setting out of the note immediately following the heading of Sch 1.  Even so, we have concluded that subpar 1301(3)(c)(i) was a valid prescription of a criterion for the grant of a Bridging A (Class WA) visa, rather than an invalid attempted prescription of a way for making an application for such a visa.

39                  However, when one takes account of the fact that subpar 1301(3)(c)(i) was enacted after subregs 2.03(1) and 2.07(1) and the setting out of the note, Mr Ramos’s position is even less tenable.  To give effect to his argument in the actual circumstances of the enactment of subpar 1301(3)(c)(i) would be to ignore the ability of the Governor-General impliedly both to amend subregs 2.03(1) and 2.07(1) and to supersede the note immediately following the heading of Sch 1 by the later enactment of subpar 1301(3)(c)(i).

40                  For these reasons, the appeals of Messrs Ramos and Gaire should be dismissed with costs.

Associate:

Dated:              9 July 1999