FEDERAL COURT OF AUSTRALIA

Vahaakolo v Minister for Immigration & Multicultural Affairs [2000] FCA 661

MOALA VAHAAKOLO v MINISTER FOR IMMIGATION & MULTICULTURAL AFFAIRS

N 1512 OF 1999

BEAUMONT, R D NICHOLSON & HELY JJ

23 MAY 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1                     On 17 December 1993, the appellant’s wife (since deceased), made application to the Minister for what was described on the form of application as a “December 1989 (permanent) entry permit”.  Her husband, the present appellant, was included in the application.  There were three children of the marriage, including Sione Vahaakolo to whom reference will later be made.  At the time of the application, the children were resident in Tonga.  The section of the form which ought to have been completed if children in Australia were to be included in the application as family members was simply endorsed: “N/A” (see RD10).

2                     In September 1994 the Migration Act 1958 (Cth) (“the Act”) was substantially amended.  The effect of Reg 23(2)(b) of the Migration Reform (Transitional Provisions) Regulations (Cth) is that on and from 1 September 1994 the appellant’s wife’s application was taken thereafter to be an application for a “transitional (permanent) visa”.

3                     By letter dated 2 June 1998 the appellant’s wife and the appellant wrote jointly to the Minister, in response to a Departmental enquiry, stating that they were the only persons included in the applicant wife’s application.

4                     On 22 January 1999 the appellant’s wife died, her deemed application for a transitional (permanent) visa still remaining undetermined.

5                     On 27 January 1999 the son, Sione Vahaakolo, was granted in Tonga, a visa to remain in Australia for one month from the date of his arrival, subject to a condition endorsed on the visa (AB61):

“Conditions Mig. Regs, Sched 8

...

8503    No further stay”

Schedule 8 to the Migration Regulations, item 8503 is a visa condition that:

“The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.”

6                     The son arrived in Australia on 29 January 1999 to attend his mother’s funeral which took place the following day.  On 19 February 1999 the appellant lodged with the Department a letter bearing date 18 February 1999.  The letter included the following:

“I wish to request that my dependent child Mr Sione Vahaakolo to be included as part of my original application for residence visa pursuant to Regulation 2.08A effective 1 October 1996 under Statutory Rule 211.”

7                     Regulation 2.08A was inserted into the Migration Regulations by Statutory Rule No 211 of 1996, so as to commence on 1 October 1996.  Relevantly, it provides as follows:

“Addition of ... dependent children to certain applications for permanent visas

2.08A(1)  If:

(a)               a person (in this regulation called ‘the original applicant’) applies for a permanent visa of a class for which Schedule 1 permits combined applications ...; and

(b)               after the application is made, but before it is decided, the Minister receives ... a request from the original applicant to have ... a dependent child ... of the original applicant (in this regulation called ‘the additional applicant’) added to the original applicant’s application; and

(c)               the request includes a statement that the original applicant claims that the additional applicant is the ... dependent child ... of the original applicant; and

(d)               at the time when the Minister receives the request, the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;

then:

(e)               the additional applicant is taken to have applied for a visa of the same class; and

(f)                the application of the additional applicant:

(i)                 is taken to have been made at the time when the Minister receives the request; and

(ii)               is taken to be combined with the application of the original applicant; and

(iii)             is taken to have been made at the same place as, and on the same form as, the application of the original applicant.”

8                     By letter dated 22 February 1999 a departmental officer advised the appellant that the request to include Sione in the application “is invalid, he therefore cannot be considered for the grant of a visa as part of your application.”  The reason the request to include Sione was said to be invalid is that he “last entered Australia as the holder of a visa endorsed with the condition 8503 ‘No Further Stay’”.

9                     Section 46 of the Act sets out the circumstances in which an application for a visa is a valid application.  Section 47(3) of the Act provides that the Minister is not to consider an application for a visa that is not a valid application.  One of the criteria for a valid application for a visa, in the circumstances of the present case, is that the applicant has not, since last entering Australia, held a visa subject to condition 8503: s 46(1)(e).  Sione could not satisfy that requirement.

10                  It was, apparently, in reliance on these provisions that the departmental officer advised the appellant of the invalidity of the request to include Sione in the application.

The proceedings at first instance

11                  The primary judge noted that subreg 2.08A(1) does not, in terms, confer any decision-making power on the Minister, but merely provides that, if conditions (a)-(d) are satisfied, then events (e)-(f) are taken to have occurred.

12                  His Honour found that subreg 2.08A(1) did not have, in relation to the son, the effect set forth in pars (e) and (f) thereof for two reasons, neither of which had been referred to in the departmental officer’s advice of 22 February 1999.  Those reasons are:

(i)                  Regulation 2.08A(1) was inserted into the Regulations with effect from 1 October 1996.  Its operation is only enlivened if a person “applies” for a particular class of visa.  It follows from the use of the word “applies” and the absence of relevant transitional provisions, that the application to which a dependent child is sought to be added must be one which has been made after 1 October 1996.  “If a person applies” cannot be read as “if a person has applied”.

(ii)                A condition on the operation of pars 2.08A(1)(e) and (f) of the Regulations which pars 2.08A(1)(a) and (d) of the Regulations impose by implication, is that an application to which a dependent child is sought to be added must be an application for a permanent visa of a class set out in Sch 1 of the Regulations.  A transitional (permanent) visa is not a class of visa set out in Sch 1 of the Regulations.  The Regulations (eg Reg 1.06 and 2.01) expressly recognise the distinction between, on the one hand, the classes of visas set out in the respective items in Sch 1 of the Regulations, and, on the other, the class of transitional (permanent) visas.

13                  His Honour disagreed with the view expressed in the departmental officer’s advice of 22 February 1999, on the ground that the operation of s 46(1)(e) is not such as to prevent the deemed occurrence of events (e) and (f) if conditions (a)-(d) of Reg 2.08A are satisfied.  Section 46 takes the application as it finds it; s 46(1)(e) simply provides a criterion which must be satisfied if an application is to be valid.

The proceedings on appeal

14                  The first ground of appeal is:

“1.       The applicant’s son Sione Vahaakolo was included as a dependent child in the original application lodged with department in 1993.”

15                  That is not correct.  The joint letter of the appellant and his deceased wife confirmed that they alone were the persons included in the application.

16                  The second ground of appeal is:

“2.       Statutory Rules 1996 No 211 is relevant to the present case.”

Clearly, that is so as it was SR No 211 of 1996 which inserted Regulation 2.08A into the Migration Regulations.  However, the issue is whether the primary judge was correct in his conclusion that the regulation did not operate, in the circumstances of the present case, to deem the appellant’s son to have applied for a “transitional (permanent) visa”.

17                  The appellant did not seek to demonstrate any error on the part of the primary judge in this respect.  Nonetheless we have independently considered the primary judge’s reasons with which we agree.

18                  The third ground of appeal is:

“3.       The respondent Minister has discretionary power under the Act to waive condition 8503 based on new version of s 46(1)(e) effective 1.3.99.”

19                  On 1 March 1999 the Act was amended so as to provide the Minister with a discretion to waive a condition such as 8503.  If that discretion is exercised, then the existence of the condition does not render the application for a visa invalid.  See s 41(2A), s 46(1)(e)(ii) and Reg 2.05(4).

20                  This amendment was made after the decision under challenge, and is irrelevant.

21                  Ground 4 is as follows:

“4.       Justice Katz failed to take into account in the making of his judgment the effect of the UN Declaration of the Rights of the Child and other international treaties as ratified by Australia.”

That ground is supplemented by an Amended Notice of Appeal which asserts that it is unconstitutional for Parliament to enact legislation in the form of the Act, which is either inconsistent with treaty obligations, or which authorises the making of regulations which have an unjust effect on individuals.

22                  There is no substance in any of these contentions.  Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 decides that there is no basis under Australian law for declaring invalid legislation or a regulation because it is said to be inconsistent with Australia’s obligations under an international agreement ratified by this country but not incorporated by legislation into domestic law.  Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 197 decides that there is no principle that empowers a court to declare invalid Commonwealth legislation and delegated legislation on the ground that it considers the law unjust.  In any event, it was not explained why, in the circumstances of the present case, the Act or Regulations should be characterised as unjust laws.

23                  The appellant’s written outline of submissions contends that the “no further stay” condition 8503 was invalidly imposed on the visitor visa granted to the appellant’s son on 27 January 1999.  It is not that decision which is the subject of review, nor was it shown that the condition was invalidly imposed.  In any event, as the primary judge correctly held, the lawfulness or otherwise of the imposition of such a condition on the son’s visa would have no bearing on the question whether subreg 2.08A(1) had, in relation to the son, the effect set out in pars (e) and (f) thereof.

24                  The appellant appeared in person with the assistance of an interpreter.  In oral argument he invited the Court to take into account his family situation consequent upon the death of his wife, and changes in Tonga to the arrangements for the care of his son.  Although understandable concerns, they are not matters which the law entitles this Court to take into account in the determination of this appeal.

25                  The appeal should be dismissed with costs.

Associate:

Dated:              23 May 2000