FEDERAL COURT OF AUSTRALIA

Pillay v Minister for Immigration & Multicultural Affairs

[2000] FCA 112

IMMIGRATION – appeal – application for Change in Circumstance (Residence) (Class AG) Subclass 806 (Family) visa – primary judge upheld Tribunal’s refusal to set aside decision of delegate on ground application not validly made within 12 months after relevant date – whether regulation applying time limit valid – whether regulation prescribing time limit prescribed a “criterion” – meaning of “criteria” in its statutory context

Migration Act 1958 ss 31(3), 65, 504

Migration Regulations Schedule 3, cls 3001, 3002

PERUMALL PILLAY, DAVAGEIAMAH PILLAY, RANGINI PILLAY AND PRAGASEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1058 of 1999

WILLIAM BOLEA and MERE ROKOSUKA BOLEA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1044 of 1999

RIYAZ KHAN, KULSUM NAZREEN NISHA and MOHAMMED IHRAAZ ZUYAB KHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1078 of 1999

SAM ROGERS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1077 of 1999

AGYENA BOATENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1076 of 1999

NILAWATI MUNIR and WIDYA ERZAKILA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1074 of 1999

SEMAAN JOSEPH KALKOUL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1075 of 1999

SALA ROGERS KOROI, WATISONI KOROI, MARY PICKERING, MAKERATA TUIDAMA, SARA KOROI and BILL WATSON KOROI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1068 of 1999

BALAMAAL PADAYACHEE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1065 of 1999

JONE MATABEICI TURAGABECI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1067 of 1999

MAHENDRA ANAND SITHLOO, DHOOLENDARI SITHLOO, VILEN SITHLOO and PRISARNIA SITHLOO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1045 of 1999

NEELAMEGUM RAVICHANDRAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1079 of 1999

MARCIANO MARCELO CRUZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1071 of 1999

ANTHONY DAMODARAN GOUNDAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1072 of 1999

JAGDISH KOUR, SATWANT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1069 of 1999

ANTONINA GOMEZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1073 of 1999

KWADWO ANIM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1070 of 1999

CARR, SACKVILLE & R D NICHOLSON JJ

SYDNEY

16 FEBRUARY 2000

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

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

On appeal from a Judge of the Federal Court of Australia

14                  Then follows an itemisation of particular topics, none of which was considered by the primary judge to be presently relevant. He was of the opinion that regulations envisaged by s 31 were clearly within the power conferred by s 504(1) and there was no contention to the contrary before him. Before us there has been no contention to the contrary and we hold the same view.

15                  The Act also provides for the process by which applications for visas are to be made. Section 45(1) provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Subsections (2) and (3), as his Honour stated, envisage the making of regulations prescribing the manner of making applications and related matters. Importantly, the effect of s 46 is that an application for a visa is valid if, and only if, it is made in a manner which complies with the Regulations. Section 47 imposes an obligation on the Minister to consider a valid application for a visa. As his Honour also pointed out, in practice this duty is normally undertaken by a delegate on the Minister’s behalf: s 496 of the Act.

16                  The Minister’s power (and duty) to grant or to refuse an application is provided for in s 65(1), which reads:

“65(1) After considering a valid application for a visa, the Minister:

(a) If satisfied that:

(i)                 the health criteria for it (if any) have been satisfied; and

(ii)               the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)             the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provisions of this Act or of any other law of the Commonwealth; and

(iv)             any English Education Charge under the Immigration (Education) Charge Act 1992 and any charge under the Migration (Health Services) Charge Act 1991 payable in relation to the application have been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.”

(2)               Regulations

17                  Part 2 of the regulations address the question of visas. Regulation 2.01 (described by his Honour as the key provision) reads:

“2.01 For the purposes of section 31 of the Act, the prescribed classes of visas are:

(a)               such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and

(b)               the following classes:

(i)                 transitional (permanent); and

(ii)               transitional (temporary).”

18                  In addition to providing for matters of detail to be set out in Schedule 1, reg 2.02 provides for further detail relating to subclasses to be set out in Schedule 2. That regulation reads:

“2.02 (1) Schedule 2 is divided into Parts, each identified by the word “Subclass” followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.

(2) For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1 that refers to that class of visa.”

19                  The criteria applicable to the visas for which the appellants applied is determined in accordance with the provisions of reg 2.03 which relevantly reads:

“2.03 (1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:

(a)               the primary criteria set out in a relevant Part of Schedule 2; or

(b)               if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

(2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first mentioned criterion.

20                  Regulation 2.07 provides for the purposes of ss 45 and 46 of the Act that, if any application is required for a particular class of visa, the relevant Part of Schedule 1 sets out the approved form (if any), the application charge, and other matters relating to the application.

(3)               Schedule 1 to the Regulations

21                  Schedule 1 is entitled “Classes of Visas” and purports to set out the specific ways in which a non-citizen applies for a visa of a particular class. Part 1 of the Schedule lists permanent visas. They include “Change in Circumstance (Residence) (Class AG)”. A class AG visa must fall within one of four specified subclasses, one of which is “806 (Family)”.

(4)               Schedule 2 to the Regulations

22                  Schedule 2 is entitled “Provisions with respect to the grant of subclasses of visas”. Its role derives from regulation 2.02. Subclass 806 is entitled “Family”. Of these his Honour said:

“That part of Schedule 2 that relates to Subclass 806 – (Family), consistently with this explanation, is headed “Subclass 806 – FAMILY”. It commences with an interpretation provision (subcl 806.1) that is not presently relevant. Subclause 806.2 then prescribes “primary criteria” that must be satisfied by at least one member of a family unit; the other members of the family unit, who are visa applicants, need satisfy only the secondary criteria. Subclause 806.2 is sub-divided into three sub-subclauses (806.211, 806.212 and 806.213) each of which specifies a series of “criteria to be satisfied at the time of application”. As I understand the Schedule, these sub-subclauses are discrete; an applicant need only satisfy one of them. I believe this to be common ground between the parties. I also believe it to be common ground that, in each of the subject cases, the only relevant sub-subclause is 806.212 …”

23                  That subclause reads:

“806.212 the applicant:

(a)               satisfies Schedule 3 criterion 3002; and

(b)               either:

(i)                 is the holder of a substantive visa (other than a Subclass 771(Transit) visa); or

(ii)               is not the holder of a substantive visa and immediately before ceasing to hold a substantive visa), was not the holder of a Subclass 771 visa.”

24                  No question arose before his Honour about para (b) of this sub-clause.

25                  The contest between the parties arises out of the reference in para (a) to “Schedule 3 criterion 3002”.”

(5)               Schedule 3 to the Regulations

26                  This schedule is entitled “Additional criteria applicable to unlawful non-citizens and certain Bridging Visa holders”. Schedule 3 has no relevance to the present case other than that given to it by the reference in subclause 806.212 to clause 3002. That reference is to be given effect in the manner set out in reg 2.03(2)

27                  It is against this legislative background that the submissions of invalidity of clause 3002 fall to be considered.

Submission for appellants

28                  The submissions for the appellants are confined to one critical point. They press the view that the primary judge was in error in finding that the time limit for lodging an application imposed by clause 3002 is a “criterion” within cl 31(3) (and hence within s 504). A submission made to the primary judge that a time limit is not a criterion but rather a qualifying condition is renewed before us. It is submitted that a criterion involves some judging, weighing, assessing and evaluation, whereas a time limit prescribes a condition precedent involving none of those judgmental acts. These submissions are said to be supported by reference to Fowlers Modern English Usage 2^nd ed and The New Lexicon Webster’s Dictionary. The error made by the primary judge is therefore said to be to having equated a requirement with a criterion. Put another way, it is said a requirement of a time limit is a calculation, not a criterion, because it does not involve any element of judgement.

Our reasoning

29                  We do not consider that these arguments for the appellants can succeed. The use of the word “criteria” in s 31(3) is to be ascertained in its statutory context. In our view it demands a wide meaning.

30                  We agree with the primary judge that s 504 is the source of the regulation making power and that it is expressed in wide terms. In our opinion the primary judge was correct in concluding that it contains nothing that would restrict the ability of the Governor-General to prescribe clause 3002 as a limitation relevant to applicants for visas. The limitation that regulations be “not inconsistent with this Act” does not avail the appellants because of the wide view we take of the use of the word “criteria” in s 31(3).

31                  Section 31(3) itself does not contain any express limitation on the nature of the relevant criteria that may be imposed by regulation. Other provisions in the Act reinforce the view that Parliament intended s 31(3) to have a broad operation. Section 40(1), for example, provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. Section 40(2) sets out some such circumstances “without limiting subsection (1)”. It would be surprising if the Act were subject to an implied limitation that prevented regulations addressing such basic matters as age and residence requirements. Yet this seems to be the consequence of the appellants’ submissions.

32                  The case for a wide meaning of ss 31(3) and s 504 of the Act is also supported by other factors. Firstly, the ordinary meaning of the word “criteria” supports a wide construction. The Oxford English Dictionary Second Edition, Vol IV, p 29 defines “criterion” as meaning “a test, principle, rule, canon or standard, by which anything is judged or estimated”. The Macquarie Dictionary, revised edition at p 437 defines “criterion” as “a standard of judgment or criticism; an established rule or principle for testing anything”. These definitions are sufficiently broad to embrace a time limit for the lodging of a visa application.

33                  Secondly, there is no reason why a requirement ceases to be a test or standard, or a rule or principle for testing, because it allows for a straightforward answer. The act of judging or weighing, in such an instance, may be brief but it is not eliminated. We therefore share with the primary judge the view that it is not a misuse of language to see a time limitation for visa applications as a matter involving an element of judgment and the application of a standard. For example, the time limit specified in cl 3002 cannot be applied in a particular case without ascertaining the “relevant day”, a task that may be far from straightforward.

34                  Thirdly, in s 39 of the Act, Parliament uses the word “criterion” to refer to a requirement that a grant of a visa must not cause the number of visas of a class in a particular financial year to exceed whatever number is fixed by the Minister as the maximum number of such visas that may be granted in that year. This is precisely the type of requirement the appellants’ contentions would characterise as a condition precedent, rather than as a criterion. There is no foundation for the submission that “criteria” in s 31(3) should be read more narrowly than in s 39 simply because it relates to the making of regulations.

35                  Fourthly we accept the respondent’s submission that the fact that the Minister has no residual discretion once satisfied the applicant satisfies the statutory and prescribed criteria suggests that the term “criteria” in s 31 should be given a broad construction.

Conclusion

36                  Accordingly, we are of the opinion that the primary judge was correct to conclude that cl 3002 is a valid exercise of the regulation-making power conferred by s 504 of the Act. As cl 3002 was properly understood by the members of the Tribunal who determined the review applications, there is no basis upon which to find any error of law in the judgment of his Honour.

37                  We, therefore, consider that this appeal (and each of the related appeals) must be dismissed with costs.

Associate:

Dated: 16 February 2000