FEDERAL COURT OF AUSTRALIA

 

Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597

 

MIGRATION ­_­– visa – combined application for temporary and permanent spouse visas – whether application not valid – applicant lacked eligibility because of condition in visa he held at the time – whether condition affected validity of application – whether tribunal made reviewable error in finding that temporary visa granted inadvertently – whether tribunal should have considered waiving condition – whether condition ineffective at time of decision because of events subsequent to application – whether application could become a valid application after it was lodged – previous decision to grant temporary visa – tribunal reviewing decision to refuse permanent visa – tribunal found applicant did not meet criterion that he hold a temporary spouse visa because decision to grant that visa a nullity because application not valid – tribunal did not consider validity of application for permanent visa – whether tribunal had jurisdiction to review decision to grant temporary visa – whether decision to grant temporary visa a nullity – whether tribunal bound to consider validity of application on review of decision to refuse permanent visa – whether tribunal misapplied test of a valid marriage

Migration Act 1958 (Cth) ss 12, 41, 46(1), 46(2), 47, 65, 66, 67, 68, 69, 71(1), 82, 93, 338, 349(1), 398, 476, 496

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Migration Regulations 1994 (Cth) regs 1.15A, 2.05(1), 2.07, 2.17, Sch 2 subclasses 676, 801, 806, 820, Sch 8 Item 8503

Marriage Act 1961 (Cth) s 88E

Constitution ch III, ss 72, 75(v)

Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 cited

Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435 discussed

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

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 applied

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523 applied

Hunter Resources Limited v Melville (1988) 164 CLR 234 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 cited

Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 applied

Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, unreported) applied

Ozbunbar v Minister for Immigration & Multicultural Affairs (1998) 55 ALD 163 applied

 

 

ERDINC SEVIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 958 of 2000

GRAY J

12 NOVEMBER 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 958 of 2000

 

BETWEEN:	ERDINC SEVIM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	12 NOVEMBER 2001
WHERE MADE:	MELBOURNE

 

 

THE COURT ORDERS THAT:

 

1. The application for judicial review be dismissed.

2. The applicant 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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 958 of 2000

 

BETWEEN:	ERDINC SEVIM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

 

JUDGE:	GRAY J
DATE:	12 NOVEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

1                     This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), made on 28 November 2000. The Tribunal had before it an application for review of a decision of a delegate, refusing to grant a visa to the applicant. The decision of the Tribunal was to set aside the decision under review and to substitute for it a decision to refuse the grant of a visa. The judicial review must be conducted according to the provisions of s 476 as they stood at the time when the application was filed in the Court, namely 14 December 2000.

2                     The application made to this Court raised two issues. The first is whether the Tribunal made an error in holding the grant of a previous visa (the possession of which was a precondition for an application for a visa of the kind the applicant was seeking) to have been a nullity. The second issue was whether the Tribunal made an error in concluding that the marriage to which the applicant was a party was not a genuine marriage.

The facts

3                     The applicant is a citizen of Turkey. On 13 July 1995, before he came to Australia, he was granted a short stay (visitor) (class TR) visa, subclass 676 (“the subclass 676 visa”), to which a condition described as condition 8503 was attached. At the time of the grant of the subclass 676 visa, s 41 of the Migration Act provided as follows:

“(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

(a) a condition that, despite anything else in this Act, the holder of the visa
will not, after entering Australia, be entitled to be granted a
substantive visa (other than a protection visa) while he or she remains
in Australia; or

(b) a condition imposing restrictions about the work that may be done in
Australia by the holder, which, without limiting the generality of this
paragraph, may be restrictions on doing:

(i) any work; or

(ii) work other than specified work; or

(iii) work of a specified kind.

(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.”

4                     The exercise of the regulation-making power for the purposes of s 41 is to be found in reg 2.05 of the Migration Regulations. Reg 2.05(1) provides as follows:

“For the purposes of subsection 41(1) of the Act (which deals with
conditions that apply to a visa), the conditions to which a visa is
subject are the conditions (if any) set out in, or referred to in, the Part
of Schedule 2 that relates to visas of the subclass in which the visa is
included.”

5                     The subclass 676 visa was granted pursuant to the item headed “SUBCLASS 676 – TOURIST (SHORT STAY)” in Sch 2 to the Migration Regulations. Clause 676.6 provided that, in the case of applicants who met various requirements, the relevant condition “may be imposed”. Conditions are described by numbers. The numbers are references to numbered items in Sch 8 to the Migration Regulations. Item no. 8503 is in the following terms:

“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.”

Thus, when the applicant entered Australia on 1 August 1995, in reliance on the subclass 676 visa, he was subject to a condition that he not be entitled to be granted a substantive visa, other than a protection visa, while he remained in Australia.

6                     On 23 September 1995, the applicant married a woman called Cemile Guvenc. On 18 October 1995, the applicant made a combined application for two different classes of visa. One was an extended eligibility (temporary) (class TK) visa, subclass 820 (Spouse) (“subclass 820 visa”). The second was a general (residence) (class AS) visa, subclass 801 (Spouse) (“subclass 801 visa”).

7                     On 1 November 1995, the subclass 676 visa expired. The applicant remained in Australia on a bridging visa. On 12 November 1996, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) granted the applicant the subclass 820 visa.

8                     On 26 March 1997, Ms Guvenc, who was the nominator of the applicant for the subclass 820 visa and subclass 801 visa, advised the Department of Immigration and Multicultural Affairs (“the Department”) that her relationship with the applicant had broken down, that he had married her only to obtain permanent residence and that she had suffered domestic violence and had to call in the police. On 22 December 1997, Ms Guvenc again wrote to the Department stating that she no longer supported her nomination of the applicant. On 20 January 1998, she telephoned the Department and advised that the applicant had inflicted injuries on her. She expressed the belief that the applicant had done this after having learnt that she had contacted the Department.

9                     On 8 July 1998, a delegate of the Minister made a decision refusing to grant to the applicant a subclass 801 visa. The refusal was on the ground that the nominator no longer supported the application. On 30 July 1998, the applicant applied for review to the Migration Internal Review Office. The Migration Legislation Amendment Act (No 1) 1998 (Cth) made amendments to the Migration Act that came into effect on 1 June 1999. The Migration Internal Review Office and the Immigration Review Tribunal merged, forming the Tribunal. By the amending Act, an application for review that had been made properly was deemed to be an application properly made to the Tribunal.

The legislation

10                  The criteria applicable to a subclass 801 visa are found in Pt 801 of Sch 2 to the Migration Regulations. To the extent to which they are relevant to this proceeding, I set them out:

“Subclass 801 Spouse

801.1 Interpretation

801.111 In this Part:

nominating spouse, in relation to an applicant who is the
holder of a Subclass 820 (Spouse) visa, means the person who
nominated the applicant for the grant of that visa.

 

…

801.22 Criteria to be satisfied at time of decision

801.221 (1) The applicant meets the requirements of subclause (2),
(3), (4), (5), (6) or (8).

(2) An applicant meets the requirements of this subclause
if:

(a) the applicant is the holder of a Subclass 820 visa; and

(b) the applicant continues to be nominated for the grant of
the Subclass 801 visa by the nominating spouse; and

(c) the applicant is the spouse of the nominating spouse;
and

(d) subject to subclauses (6A) and (7), at least 2 years have
passed since the application was made.

…

(6) An applicant meets the requirements of this subclause
if:

(a) the applicant is the holder of a Subclass 820 visa; and

(b) the applicant would meet the requirements of subclause
(2) except that the relationship between the applicant
and the nominating spouse has ceased; and

(c) either or both of the following circumstances applies:

(i) either or both of the following:

 

(A) the applicant;

 

…

has suffered domestic violence committed by the
nominating spouse”.

11                  Also relevant is reg 1.15A of the Migration Regulations. The relevant provisions of this regulation are as follows:

“(1) For the purposes of these Regulations, a person is the spouse of
another person if the 2 persons are:

(a) in a married relationship, as described in subregulation (1A);
or

(b) in a de facto relationship, as described in subregulation (2).

(1A) Persons are in a married relationship if:

(a) they are married to each other under a marriage that is
recognised as valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as
husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and
continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent
basis.

…

(3) In forming an opinion whether 2 persons are in a married
relationship, or a de facto relationship, in relation to an application
for:

(aa) an Extended Eligibility (Temporary) (Class TK) visa; or

…

the Minister must have regard to all of the circumstances of the
relationship, including, in particular:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major
assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources,
especially in relation to major financial commitments;
and

(iv) whether one party to the relationship owes any legal
obligation in respect of the other; and

(v) the basis of any sharing of day-to-day household
expenses;

(b) the nature of the household, including:

(i) any joint responsibility for care and support of
children, if any; and

(ii) the parties’ living arrangements; and

(iii) any sharing of responsibility for housework;

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other
people as being married or in a de facto relationship
with each other;

(ii) the opinion of the persons’ friends and acquaintances
about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake
joint social activities;

(d) the nature of the persons’ commitment to each other,
including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived
together; and

(iii) the degree of companionship and emotional support
that the persons draw from each other; and

(iv) whether the persons see the relationship as a long-term
one.

(4) In forming an opinion whether 2 persons are in a married
relationship, or a de facto relationship, in relation to an application
for a visa of a class other than a class specified in paragraph (3) (aa),
(ab), (ac), (ad) or (ae), the Minister may have regard to any of the
factors set out in subregulation (3).

(5) If 2 persons have been living together at the same address for 6
months or longer, that fact is to be taken to be strong evidence that the
relationship is genuine and continuing, but a relationship of shorter
duration is not to be taken not to be genuine and continuing only for
that reason.”

12                  It will be noted that reg 1.15A(1A)(a) refers to a marriage that is recognised as valid for the purposes of the Migration Act. The only provision of the Migration Act relevant to this definition appears to be s 12, which provides:

“For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.”

13                  Part VA of the Marriage Act 1961 (Cth) relates to the recognition of marriages solemnised in foreign countries. Section 88E imports the common law rules of private international law into the recognition of such marriages where those rules are not required by the other provisions of Pt VA to be recognised as valid. Section 12 of the Migration Act appears merely to exclude those common law rules from consideration for the purposes of determining whether a marriage is to be recognised as valid for the purposes of the Migration Act. In the absence of any other provision of the Migration Act, and of any argument on the question in the present case, I assume that a marriage solemnised in Australia in accordance with the provisions of Pt IV of the Marriage Act 1961 (Cth) is a marriage recognised as valid for the purposes of the Migration Act and therefore satisfies the requirement of reg 1.15A(1A)(a) of the Migration Regulations. The Tribunal appears to have made this assumption.

The Tribunal’s reasons for decision

14                  Although not particularly long, the reasons for decision of the Tribunal are complex and, in some respects, difficult to understand.

15                  After pointing out that the applicant had to satisfy all of the criteria for the granting of a visa, the Tribunal referred to the requirement that an applicant hold a subclass 820 visa. It said:

“As the visa applicant has been granted the subclass 820 visa, the application that is the subject of review before the Tribunal is the application for the subclass 801 visa. This was made on 15 February 1998”.

16                  This reference to 15 February 1998 is plainly erroneous. As I have pointed out, and as the Tribunal itself said earlier in its reasons for decision, the combined application for a subclass 820 visa and a subclass 801 visa was made on 18 October 1995. There is no indication of any subsequent separate application for a subclass 801 visa. As the Tribunal itself recorded earlier in its reasons for decision, on 18 February 1998 the applicant had lodged a further application for permanent residence on the grounds of being a special need relative of an Australian citizen or Australian permanent resident. That application itself is in the documents placed before the Court. It was signed by the applicant on 15 February 1998 and forwarded to the Department with a letter dated 18 February 1998 from the applicant’s solicitors and migration agent. By that application, the applicant sought a family (residence) visa, apparently under subclass 806 in Sch 2 to the Migration Regulations. As the Tribunal recorded in its reasons for decision, that application was subsequently rejected. The decision record of 8 July 1998, containing the decision which the Tribunal was required to review, showed clearly that the delegate of the Minister was refusing to grant a subclass 801 visa, the application for which had been lodged on 18 October 1995. The application to the Tribunal for review made it clear that it was the decision of 8 July 1998, refusing to grant the applicant a subclass 801 visa, that the applicant sought to review. The file number V95/107763 appears in both documents as well as in the Tribunal’s record of its decision. The Tribunal therefore appears to have been under a misapprehension as to the date of the application that led to the decision that the Tribunal was required to review.

17                  It is probable that this misapprehension caused the Tribunal to deal with the review in the way in which it did. The Tribunal considered whether the application made on 18 October 1995 was a valid application in the light of the presence of condition 8503 in the subclass 676 visa. It considered this issue in the context of deciding whether the applicant satisfied the requirement, found in the various subclauses of cl 801.221 in Sch 2 to the Migration Regulations, that he be the holder of a subclass 820 visa. It held that this criterion was not satisfied because the subclass 820 visa had been granted on the basis of an application for a visa for which the applicant was ineligible to apply. The decision to grant it was therefore a nullity and the visa itself was a nullity. The Tribunal did not need to follow this course. All that it needed to do was to consider whether the application made on 18 October 1995 was a valid application for the subclass 801 visa that the Tribunal was considering.

18                  Having embarked on this unnecessary course, the Tribunal proceeded to consider whether the subclass 820 visa had been granted validly. It considered a submission on behalf of the applicant that condition 8503 had been applied “inappropriately” to the visa or had not been placed “appropriately” on the visa label affixed to the applicant’s passport, (by which the grant of the visa was evidenced in accordance with s 71(1) of the Migration Act and reg 2.17 of the Migration Regulations). The Tribunal said that the applicant’s migration agent did not explain what was meant by this submission. The Tribunal considered a submission that the relevant officer of the Department had said nothing to the applicant about the condition until after it was applied. This submission was rejected on the basis that there was no evidence in support of it and it was at odds with an undated file note which read “Residence advised client re condition 8503” and bore a signature. The Tribunal found that it was satisfied that the officer did both explain and seek the applicant’s consent to the application of the condition prior to applying it. It then found that there was no evidence to support a conclusion that the condition was waived, expressly or by implication (pointing out that the statutory provision relating to waiver, to which I refer below, came into effect on 1 March 1999) or that any question of estoppel arose on the facts.

19                  The Tribunal rejected a submission based on s 82(2) of the Migration Act that the subclass 676 visa ceased to be in effect once the subclass 820 visa was granted. It also dealt with a submission, based on s 82(6) of the Act, that the subclass 676 visa ceased to be in effect when the applicant departed from Australia on 23 June 1999 on a bridging visa. The Tribunal rejected both of these submissions, the first in reliance on s 46(1)(e)(i), to which I refer below. The second submission was rejected on the basis that the departure from Australia occurred after the application for the subclass 820 visa. The Tribunal reached the conclusion that:

“As a consequence of this, condition 8503 applies to the application that is the subject of review and the visa applicant was not eligible for the grant of the subclass 820 visa. Notwithstanding this conclusion, the facts of this case justify the Tribunal in reviewing the application and the other issues that were in dispute.”

20                  The Tribunal proceeded to deal with other relevant criteria. It found that the applicant was unable to meet the requirement of reg 801.221(2)(b) that he continue to be nominated by the nominating spouse. It also found a failure to comply with reg 801.221(2)(d) on the basis that the applicant and the nominating spouse had not continued to live together during a two-year period. The Tribunal found, however, that reg 801.221(6) operated to save the applicant from the need to satisfy these two requirements, because the applicant had suffered domestic violence committed by Ms Guvenc.

21                  The Tribunal then considered whether the applicant was at all relevant times the “spouse” of the nominator, as required by reg 801.221(2)(b). It referred to reg 1.15A. It found that the marriage was recognised as valid for the purposes of the Act. It found that the applicant failed to meet the provisions of reg 1.15A(1A)(b)(ii), on the basis that the marriage relationship was not genuine. For this purpose, the Tribunal cited authority with respect to the test for a genuine marriage. It took the view that, for such a marriage, it must be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. It proceeded to consider the factors specified in reg 1.15A(3). It found as follows:

“The nature of the parties’ commitment to each other (regulation 1.15A(3)(d)) is evidenced by the visa applicant’s claims to love his wife and that he wanted the marriage to succeed. There is no evidence of any such overt commitment by the wife at any time after the wedding, nor of any mutual plans for the future. Whilst the visa applicant’s evidence supports a commitment to the relationship, there is no evidence that it was reciprocated except to the limited extent that his spouse was prepared to commit herself solely on her own very limited terms. These facts do not illustrate a commitment to each other (regulation 1.15A(3)(e)).”

22                  The Tribunal then said that it could not find on the evidence that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others, referring to reg 1.15A(1A)(b)(i). The applicant therefore did not meet the definition of spouse within the meaning of reg 1.15A. The Tribunal then pointed out that this was a requirement that had to be satisfied at the time of application for the subclass 820 visa. After discussing the fact that the applicant and his wife had already had significant problems before 18 October 1995, the Tribunal found that the applicant did not meet the definition of “spouse” at that time. It therefore held that he was ineligible for the subclass 820 visa. It referred again to its finding that the applicant was precluded from obtaining the subclass 820 visa in any event because of condition 8503 on his earlier visa. It found that the application was a nullity, citing Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489, and that any decision on the application was of no effect, citing Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435. The Tribunal expressed the view that:

“this reflects the legal distinction between that which is merely voidable (ie: able to be set aside) and that which is void.”

23                  The Tribunal then referred to s 349 of the Migration Act, which provides that the Tribunal may, for the purposes of the review of a decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision. It said:

“The decision at issue here is an MRT-reviewable decision as it is merely voidable, rather than void. The Tribunal can therefore exercise its powers under section 349(2) to either affirm, vary and possibly remit the primary decision or, in either case, its power to set the original decision aside and substitute a new decision. This latter power found favour with the court in Phanouvong’s case [[1999] FCA 1489] and appears from the observations of the Full Court in A’s case to be its preferred course. Both of these decisions were instances of void applications rather than voidable decisions such as in the present instance. Even so, the Tribunal proposes to follow this course by setting aside the decision under review and substituting its own decision (section 349(2)(d)).”

24                  Under the heading “Conclusion”, the Tribunal said:

“The visa applicant is ineligible to be granted the visa for which he has applied, both by reason of section 41(2)(a) of the Act and as he does not meet the criteria for its grant.”

25                  Based on this reasoning, the Tribunal announced the decision to set aside the decision under review and to substitute a decision to refuse the grant of the subclass 801 visa.

The effect of condition 8503

26                  Part 2 of the Migration Act is headed “Control of Arrival and Presence of Non-Citizens”. Division 3 of Pt 2 deals with visas for non-citizens. Within Div 3 is to be found subdiv AA, dealing with applications for visas. Section 45, which is within subdiv AA, provides that, subject to the Migration Act and the Migration Regulations, a non-citizen who wants a visa must apply for a visa of a particular class. As s 45 stood in October 1995, it provided that the Migration Regulations may provide for making applications and may make provision for the circumstances in which such applications can be made, particularly whether an applicant must be outside Australia, in immigration clearance, have been refused immigration clearance, have been immigration cleared or have bypassed immigration clearance. As the Act stood in October 1995, s 46 provided:

“(1) Subject to subsection (2), an application for a visa is valid if, and
only if:

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

(b) it is made in the way required by subsection 45 (2), including
any way required by subsection 45 (3); and

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

(d) it is not prevented by section 48 (visa refused or cancelled
earlier), 48A (protection visa), 91E (CPA and safe third
countries), 161 (criminal justice) or 195 (detainees); and

(e) in a case where the applicant is in the migration zone and the
application is not for a protection visa or a bridging visa, the
applicant has not, since last entering Australia, held a visa
subject to a condition described in paragraph 41 (2) (a).

(2) An application for a visa is also valid if:

(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and

(b) under the regulations, the application is taken to have been validly made.”

27                  That section has been amended in several ways since that time. Of particular importance to the present case is s 46(1)(e), in which reference is made to s 41(2)(a). The relevant provisions of s 41 (which remain in the same form as they were in October 1995) are as follows:

“(2) The regulations may provide that visas, or visas of a specified class,
are subject to:

(a) a condition that, despite anything else in this Act, the holder
of the visa will not, after entering Australia, be entitled to be
granted a substantive visa (other than a protection visa) while
he or she remains in Australia”.

Section 41 is found in subdiv A of Div 3 of Pt 2 of the Migration Act.

28                  Section 47 (unamended since the relevant time) provides:

“(1) The Minister is to consider a valid application for a visa.

(2) The requirement to consider an application for a visa continues
until:

(a) the application is withdrawn; or

(b) the Minister grants or refuses to grant the visa; or

(c) the further consideration is prevented by section 39 (limiting
number of visas) or 84 (suspension of consideration).

(3) To avoid doubt, the Minister is not to consider an application that is
not a valid application.

(4) To avoid doubt, a decision by the Minister that an application is not
valid and cannot be considered is not a decision to refuse to grant the
visa.”

29                  Subdivision AB of Div 3 is headed “Code of Procedure for dealing fairly, efficiently and quickly with visa applications”. It contains a number of provisions dealing with the manner and content of communications between the Minister and an applicant for a visa. It is followed by subdiv AC, which relates to the grant of visas.

30                  The first provision in subdiv AC is s 65, which provided at the time that the Tribunal dealt with the applicant’s application for review, and presently provides:

“(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), 500A (refusal or
cancellation of temporary safe haven visas), 501
(special power to refuse or cancel) or any other
provision of this Act or of any other law of the
Commonwealth; and

(iv) any amount of visa application charge payable in
relation to the application has been paid;

is to grant the visa; or

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

(2) To avoid doubt, an application put aside under section 94 is not taken
for the purposes of subsection (1) to have been considered until it has
been removed from the pool under subsection 95(3).”

31                  Section 66 deals with the way in which decisions are to be notified. Section 67 provides that a visa is to be granted by the Minister causing a record of it to be made. Section 68 deals with when a visa is in effect. The last provision in subdiv AC is s 69. Section 69(1) provides, and has provided at all relevant times:

“Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.”

32                  Counsel for the applicant made several submissions to the Court, in an endeavour to persuade the Court that the Tribunal had erred in law in its approach to the issue of condition 8503.

33                  First, counsel for the applicant attempted to argue that condition 8503 was not a condition of the kind described in s 41(2)(a) of the Migration Act. The basis of this argument was that the words “despite anything else in this Act” did not appear in condition 8503. It should be noted that, in all other respects, condition 8503 conforms with s 41(2)(a). There is one other minor difference in wording. The words “he or she” in s 41(2)(a) are rendered as “the holder” in condition 8503. This is not a difference of substance. The argument is bound to fail. Section 46(1)(e) of the Migration Act speaks of “a condition described in paragraph 41(2)(a).” It does not speak of a condition in the precise terms of s 41(2)(a). It would be a travesty of the use of language in legislation to hold that condition 8503 was not a condition described in s 41(2)(a). The effect of the condition is exactly as described in the provision. The plain intention in drafting condition 8503, as part of the Migration Regulations, was to reflect s 41(2)(a) on the face of the documents. Condition 8503 is plainly a condition described in s 41(2)(a).

34                  The application made on 18 October 1995 for the subclass 820 visa and the subclass 801 visa was therefore not a valid application, by reason of s 46(1)(e) of the Migration Act. The applicant was in the migration zone, the application was not for a protection visa or a bridging visa and, since last entering Australia, the applicant had held (and then still held) a visa subject to a condition described in s 41(2)(a), namely condition 8503. See Vahaakolo v Minister for Immigration & Multicultural Affairs [2000] FCA 661 at [8] – [9].

 

35                  Counsel for the applicant then argued that the Tribunal had made an error in its approach to the issue of waiver of the condition. The Tribunal found that the subclass 820 visa had been granted inadvertently. The argument was that the Tribunal did not consider possibilities other than inadvertence. These possibilities included that the delegate had waived condition 8503, had treated it as being of no effect or had resolved to grant the subclass 820 visa despite the presence of the condition. This argument also cannot succeed. The Tribunal expressly found that there was no evidence to support a conclusion that the condition was waived, either expressly or by implication, or that any question of estoppel arose on the facts. The Tribunal was well placed to make such a finding. It recorded in its reasons for decision that it had regard to the documents in the relevant files of the Department. Counsel for the applicant did not contend that the applicant placed before the Tribunal any evidence that would have supported a finding of waiver. The Tribunal also pointed out that what is now s 41(2A) of the Migration Act came into effect after the decision to grant the subclass 820 visa. I discuss this provision below. It introduced an express power to waive a condition, a matter that the Tribunal described as previously “a matter of policy”. In the circumstances, it cannot be said that the Tribunal made an error of a kind justiciable pursuant to s 476 of the Migration Act in making the finding that there had been no waiver. There is nothing in the circumstances of the case to indicate that the Tribunal was required to give any credence to the possibility that the delegate of the Minister who granted the subclass 820 visa might have treated condition 8503 in the applicant’s subclass 676 visa as being of no effect. Still less was there any reason for the Tribunal to regard the delegate as having deliberately flouted the requirements of s 47(3) by considering the application for a subclass 820 visa, knowing that a visa already held by the applicant was subject to condition 8503. The presumption of regularity requires that, in the absence of evidence to the contrary, the delegate must be taken to have acted properly, and not unlawfully. It is not possible in this proceeding for the applicant to overturn the Tribunal’s finding that the subclass 820 visa was granted without the person who made the decision to grant it having adverted to condition 8503.

36                  In the course of the hearing by the Tribunal, the applicant made an oral application to the Tribunal for the waiver of condition 8503. As the Tribunal pointed out, by the time it conducted its hearing, s 41 of the Migration Act had been amended by the addition of a new subs (2A), in the following terms:

“The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).”

37                  The prescribed circumstances for the purposes of s 41(2A) are to be found in reg 2.05(4) of the Migration Regulations, in the following terms:

“For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:

(a) since the person was granted the visa that was subject to the condition,
compelling and compassionate circumstances have developed:

(i) over which the person had no control; and

(ii) that resulted in a major change to the person’s circumstances;
and

(b) if the Minister has previously refused to waive the condition, the
Minister is satisfied that the circumstances mentioned in paragraph (a)
are substantially different from those considered previously; and

(c) if the person asks the Minister to waive the condition, the request is in
writing.”

38                  Any request made by the applicant for waiver was not in writing. The fact that it may have been transcribed, as a result of having been made in the course of the Tribunal hearing, did not cause it to be a request in writing. There was no substantial compliance with the requirement of reg 2.05(4)(c). The request for waiver was therefore not made in prescribed circumstances, for the purposes of s 41(2A). The Tribunal was not obliged to deal with the request. Had it done so, it would have acted without statutory authority. As it showed in its reasons for decision, the Tribunal was well aware of s 41(2A). If it had had before it a request for waiver of condition 8503 that had been made in accordance with the prescribed circumstances, no doubt the Tribunal would have dealt with it. Whether it could have found, on the evidence before it, that compelling and compassionate circumstances had developed since the grant of the subclass 676 visa, within the meaning of reg 2.05(4)(a) is another question. That question does not arise for determination in the present proceeding.

39                  Counsel for the applicant then put again the arguments that were put to, and rejected by, the Tribunal. These arguments were to the effect that events subsequent to the making of the application on 18 October 1995 had operated to render condition 8503 of no effect. The argument relied on some of the provisions of s 82 of the Migration Act as to when visas cease to have effect. The relevant provisions are:

“(2) A substantive visa held by a non-citizen ceases to be in effect if another
substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

…

(6) A visa to travel to and enter Australia (whether also a visa to remain
in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.

(7) A visa to remain in Australia (whether also a visa to travel to and
enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.”

40                  It was put that the subclass 676 visa ceased to be in effect when the subclass 820 visa was granted (subs (2)), when the applicant left Australia for a short period in 1999 and returned while on a bridging visa (subs (6)), or when the period for which the subclass 676 visa was granted expired (subs (7)). All of these events occurred after 18 October 1995 but before the Tribunal made its decision in relation to the application for a subclass 801 visa. Counsel for the applicant argued that, the visa having ceased to have effect, so did the conditions to which it was subject, including condition 8503. The Tribunal was therefore free to proceed on the basis that the application was valid.

41                  This argument ignores the terms of s 46(1)(e) of the Migration Act. That provision, in the terms in which it then stood, operated on 18 October 1995 to render the joint application that the applicant made for a subclass 820 visa and a subclass 801 visa not a valid application. At that time, the applicant had last entered Australia on 1 August 1995. The visa he held was the subclass 676 visa, which, as I have held, was subject to a condition described in s 41(2)(a). On the assumption that (as the Tribunal found) there had been no waiver of that condition, s 46(1)(e) (as it then stood) operated to make the application other than a valid application. Section 47(1) imposed a duty on the Minister to consider a valid application for a visa. Section 47(3) made it clear that the Minister was not to consider an application that was not a valid application.

42                  It would be strange if, in these circumstances, a subsequent event by which the subclass 676 visa, and the condition attached to that visa, ceased to have effect could bring about a situation in which the application that was not a valid application became a valid application. Nonetheless, counsel for the applicant argued that this was possible.

43                  There is authority binding on me that, at least in some circumstances, it is possible for an application that is not initially a valid application to become a valid application. The cases are Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 at [19] - [25] per Spender J and [72] and [93] per Gyles J and Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523 at [59] - [69]. Both cases concerned instances of people seeking protection visas. In each case, the application filed was not a valid application by reason of s 46(1)(b) of the Migration Act, which in turn refers to s 45(2). Section 45(2), as it then stood, provided that the Migration Regulations may prescribe the way for making an application in specified circumstances, an application for a visa of a specified class or an application in specified circumstances for a visa of a specified class. The way for making an application is prescribed for the purposes of s 45 in various provisions of the Migration Regulations. In particular, reg 2.07 provides for the making of an application on the approved form, and requires an applicant to complete an approved form in accordance with any directions on it. In each case, the person applying failed to complete the application form. In the case of Yilmaz, the form indicated “statement to follow”. A statement was provided subsequently, containing the information required in the form. In the two cases dealt with by the Full Court in Li, there was a failure to answer certain questions on the approved form. In Mr Li’s case, the form contained the words “SEE ATTACHMENT” and “Statement will be forwarded later.” In the other case, which concerned a Mr Kundu, some questions were answered with the words “Please see my submission which will be provided on later date”, or “Please see my submission.” In Yilmaz, the Full Court, by majority, held that the application had been completed by the subsequent supply of the information, so that by the time it was considered by the Minister’s delegate, it was a valid application. In each case with which the Full Court dealt in Li, the Full Court held that the application was not validated by the subsequent supply of the information, because the information was not sent to the correct destination in accordance with reg 2.10. In both cases, the incomplete form of application was described as an “inchoate” application. See Yilmaz at [19] per Spender J and Li at [71] (referring to the submission of counsel for the Minister to this effect).

44                  It is easy to see an incomplete form of application as an inchoate application, capable of being rendered complete at a later time. Such an application must be contrasted, however, with the application in the present case. There was nothing incomplete or inchoate about the applicant’s application made on 18 October 1995, so far as is apparent from the facts found by the Tribunal. The defect in that application was, as the Tribunal found, that it was made at a time when the applicant held the subclass 676 visa, which was subject to condition 8503. Section 46(1)(e) operated to make the application something other than a valid application (the Act does not use the term “invalid application” so I refrain from using it to describe something which is not a valid application). It is difficult to see how an application that is not a valid application by reason of s 46(1)(e) at the date when it is lodged could become a valid application by reason of any subsequent event. The factor operating to prevent the applicant’s application from being a valid application was not a deficiency from which the application suffered at the time of its lodgment, but was a past event. It was the fact that, since last entering Australia, the applicant had held the subclass 676 visa and that visa had been subject to condition 8503. It may be doubted whether, given the terms of s 46(1)(e) as it stood at the time, which I have quoted above, even waiver of condition 8503 (if waiver were possible as a matter of law) could have enabled the applicant to make a valid application on 18 October 1995. That question was not argued, however. As I have held, the findings of the Tribunal in relation to the issue of prior waiver are binding. On the basis of those findings, it is clear that the application was not a valid application. Because its lack of validity resulted from a previous state of affairs, the lack of validity could not be cured by subsequent events, even if those subsequent events involved the cessation of that previous state of affairs.

45                  Given the findings of fact that it made, therefore, the Tribunal was bound to hold that the application made on 18 October 1995 was not a valid application. The Tribunal did so hold, but only in the context of considering whether the applicant satisfied the criterion that he was the holder of a subclass 820 visa. Since the question whether the Tribunal made an error of law in dealing with that issue was at the forefront of the argument in this case, I should proceed to determine that question. I do so even though, on the view I take, it was unnecessary for the Tribunal to deal with that issue.

46                  The Tribunal is not a court of law. It does not exercise any of the judicial power of the Commonwealth. To do so, it would have to be created in accordance with the requirements of Chapter III of the Constitution and its members would have to be appointed with the tenure required by s 72 of the Constitution. By s 398 of the Migration Act, a member of the Tribunal holds office for such period, not exceeding five years, as is specified in the instrument of appointment, but is eligible for reappointment. This provision is entirely incompatible with s 72 of the Constitution.

47                  Section 338 of the Migration Act specifies the decisions that the Tribunal is able to review. With two exceptions, every such decision is a decision to refuse to grant a visa. The exceptions are a decision to cancel a visa in certain circumstances, and a decision as to the assessed score of a visa applicant under s 93. No provision is made for review by the Tribunal of a decision to grant a visa. The reasons for this are obvious in the structure of the Migration Act. A decision to grant a visa is made by the Minister. The Minister delegates his or her powers pursuant to s 496 of the Migration Act, but most provisions dealing with visas provide in terms that the decision is that of the Minister. Where the decision is a decision to grant a visa, the Minister would have no standing to seek a review of his or her own decision and no interest in doing so. The Tribunal therefore does not have the capacity to review the correctness of a decision to grant a visa.

48                  The Tribunal, however, reached the conclusion that the decision to grant the subclass 820 visa was a nullity, because the application on which the decision was based was not a valid application. In reaching this conclusion, the Tribunal relied on Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435. That was another case in which a person seeking a protection visa had failed to answer all the questions in the form, stating “I will be forwarding a statutory declaration detailing my claims for refugee status soon in response to questions 36-40.” In that case, the statutory declaration was not forwarded at all. A delegate of the Minister made a decision refusing to grant a protection visa. No application for review by the Refugee Review Tribunal was made. The Minister refused to exercise his discretion to allow a further application to be made, pursuant to s 48B of the Migration Act. An application was made to the High Court of Australia for relief under s 75(v) of the Constitution and the case was remitted to the Federal Court of Australia. Merkel J and Finkelstein J both held that the decision of the delegate of the Minister was not a valid decision. The third member of the Court, Emmett J, held that the issue of the validity of the decision of the delegate could not arise in the proceeding as it was constituted, so his Honour did not decide it.

49                  Merkel J stated and applied the test for determining validity enunciated by the High Court of Australia in Hunter Resources Ltd v Melville (1988) 164 CLR 234 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 - 391. That test is to ask whether it was a purpose of particular legislation that an act done in breach of the provision should be invalid. His Honour referred to s 65 of the Migration Act, noting that it provided for the power of the Minister to grant or to refuse to grant a visa to be exercised only after the Minister has considered a “valid application” for a visa. At [48], his Honour expressed the view that s 65, together with s 47(2) (it appears that his Honour intended to refer to s 47(3), which states that the Minister is not to consider an application that is not a valid application), afforded strong support for the view that the legislature intended that a decision made on an application that was not a valid application was an invalid decision. At [49], his Honour expressed the view that s 69 did not, of itself, operate to validate a decision purportedly made under s 65 on an invalid application. Because making a decision on an application which was not a valid application was a non-compliance with s 65, and s 65 is found in subdiv AC of div 3 of Pt 2 of the Migration Act, in his Honour’s view it could not be said that there had been a non-compliance with subdiv AA or AB, so s 69 did not purport to validate the decision. Section 65 revealed a clear intention that the Minister was not to have the power to grant or to refuse to grant a visa on an invalid application. At [52] - [53], Merkel J said:

“The language of the relevant provisions and the scope and object of the Act lead me to conclude that it was the purpose of the legislature that a decision to grant or refuse to grant a visa applied for on an invalid application is a decision which was made without power and is invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. For example, in addition to decisions whose validity is preserved, at least for the purpose of review, by s 69(1), it is plain that judicially-reviewable decisions, for the purposes of Pt 8, include decisions made without authority under the Act or without jurisdiction: see s 476(1)(b) and (c). Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act.

A further example relates to the grant of a visa which occurs when a record of it is made: see s 67. The visa “has effect” after it is granted (s 68) but can be cancelled in the circumstances provided for, inter alia, in subdiv C of Div 3, Pt 2 of the Act. One such circumstance is that the visa should not have been granted because the grant was in contravention of the Act: s 116(1)(f). Thus, a visa granted pursuant to an invalid decision is intended to have effect as a visa until cancelled in accordance with the Act.”

50                  His Honour went on to consider whether s 48A, which prohibits the making of a further application for a protection visa after the grant of the visa has been refused, unless the Minister gives a notice pursuant to s 48B, permitted such further application. His Honour concluded that s 48A did not preclude the respondent from making a further application for a protection visa because the decision to refuse to grant him a protection visa was, for the purposes of s 48A, not a valid or operative decision to refuse to grant a protection visa.

51                  The reasoning of Finkelstein J was slightly different. His Honour held that, as the application was not a valid application for a visa, the Minister was not entitled to consider it. If there were no application for a visa, one could not be refused. A decision to refuse to grant a visa could only be made after a valid application for a visa has been considered, by virtue of s 65. Although the delegate decided to refuse to grant the visa, that was not a proper characterisation of what the delegate did. The delegate made no decision at all. His act was devoid of legal content. Section 69 did not affect his Honour’s conclusion, because it only applied in the case of a decision to grant or to refuse to grant a visa and there was no such decision, and because s 69 could only apply where there had been a non-compliance with the provisions of subdiv AA or subdiv AB in relation to a valid visa application and not a purported or invalid application.

52                  If the only relevant authority at the time when the Tribunal made its decision in the present case had been Minister for Immigration & Multicultural Affairs v A, the Tribunal could only have found that the decision to grant the subclass 820 visa was a nullity if it had followed the reasoning of Finkelstein J. On the express reasoning of Merkel J, in the passage I have quoted above, the decision would be regarded as valid, notwithstanding that the application was not a valid application. The Tribunal did not appear to recognise that this was so. It treated the decision as authority for the proposition that the decision of the delegate of the Minister to grant the subclass 820 visa was of no effect.

53                  As it turns out, the reasoning in Minister for Immigration & Multicultural Affairs v A had been the subject of further pronouncement by a Full Court in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495, to which the Tribunal did not refer. At [3], Spender J expressed his agreement with Gyles J as to the operation of s 69 of the Migration Act. At [46] - [48], Marshall J expressed his agreement with the reasoning of Finkelstein J in Minister for Immigration & Multicultural Affairs v A. His Honour also stated that Merkel J had expressed a similar view in Minister for Immigration & Multicultural Affairs v A. Gyles J held that the Refugee Review Tribunal had jurisdiction to review the decision of the delegate of the Minister in Yilmaz, notwithstanding the invalidity of the application for a protection visa. At [77], his Honour described Minister for Immigration & Multicultural Affairs v A as “a difficult case from which to extract a ratio decidendi.” At [81], Gyles J said:

“Section 69(1) relates to non-compliance by the Minister with, inter alia, subdiv AA not rendering the decision invalid. When that subdivision is analysed, the only section which imposes a mandatory obligation upon the Minister is s 47, which is set out above. All of the other provisions are permissive, and non-compliance could not lead to invalidity. It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time. It might be assumed that a grant would not have been made without a proper basis in fact, leaving aside formal invalidity of the application. The same principle should apply to refusal of the application if the deemed validity ensures a right to review on the merits. Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant.”

54                  After quoting s 65, his Honour said at [83] - [84]:

“It seems to me that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements (apart from the existence of the application) which must be met before a visa can be granted.

The opinion of Merkel J to the contrary in Minister for Immigration and Multicultural Affairs v A at 446 [49]-[51]; 604 [49]-[51] is based upon a view as to the construction of s 65 which I cannot share. In the same case, Finkelstein J dealt with the point on a different basis, at 460-461 [122]; 618-619 [122]. In my respectful opinion the first basis disclosed is inconsistent with the authorities I shall examine shortly on the alternate basis for jurisdiction in the RRT. The second basis disclosed does not grapple with the fact that s 47 is the only provision binding the Minister in subdiv AA. It is not clear to me what operation either of their Honours would give to s 69 in relation to a failure to comply with subdiv AA.”

55                  His Honour went on to hold that, in accordance with authorities such as Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, a purported exercise of a decision-making power gave rise to a right of review, even if the exercise was in relation to an invalid application. His Honour held that s 69 of the Migration Act is intended to have the same effect as the principle applied in those cases.

56                  In the present case, if not bound to follow the majority in Yilmaz, the Tribunal was at the very least obliged to choose between the conflicting decisions of Full Courts in Minister for Immigration & Multicultural Affairs v A and Yilmaz. In my view, the reasoning of Gyles J, with the support of Spender J, in Yilmaz is to be preferred to either the reasoning of Merkel J or the reasoning of Finkelstein J in Minister for Immigration & Multicultural Affairs v A. This is particularly apparent in the context of the present case. Both Minister for Immigration & Multicultural Affairs v A and Yilmaz were concerned with decisions to refuse to grant protection visas. Section 69 is not limited to decisions refusing to grant visas. It relates also to a decision to grant a visa. It is plain that the legislative intention behind s 69 is that, if a decision has been made to grant a visa, such a decision is to be treated as valid, notwithstanding that there was a non-compliance with s 47 because the Minister considered an application which was not a valid application. It is unthinkable that the legislature could have intended that such a decision could be treated at any time as a nullity. The consequence would be that a person who had been granted a visa entitling him or her to remain in Australia, upon an application that was not a valid application, would be liable to be expelled at any time, without any action being taken to cancel the supposed visa in accordance with s 116 of the Migration Act. While s 69 does not validate a decision purportedly made under s 65 for all purposes and in all circumstances, it is clearly designed to validate such a decision when the only invalidity that attends it is the fact that the Minister did not consider a valid application, because of the operation of s 46.

57                  In the present case, the Tribunal was therefore obliged to hold that the applicant was the holder of a subclass 820 visa. The Tribunal could not review the decision to grant that visa, because it had no jurisdiction to do so. Even if, not being a court, the Tribunal had power to determine whether the decision to grant the subclass 820 visa was a nullity, it was, in my view, bound by s 69 to treat it as a valid decision. This conclusion does not resolve the matter. As I have said, the Tribunal was dealing with the very same application as had been dealt with by the delegate who had granted the subclass 820 visa. That application was not a valid application. Although the Tribunal could not reach the conclusion that it was not a valid application in order to impugn the grant of the subclass 820 visa, the question arises whether the Tribunal could look at the validity of the application in the context of its own consideration of the decision to refuse to grant a subclass 801 visa, and whether it was bound to do so. On the view that I take, s 69 of the Migration Act has the result that the Tribunal was properly seised of the matter before it. That is to say, the decision of the delegate of the Minister to refuse to grant a subclass 801 visa was a decision that the Tribunal could review, even though the application on which that decision was based was not a valid application. The question therefore arises whether the Tribunal, in performing its review function, was limited to reviewing the merits of the decision, or whether it could examine the application, for the purpose of determining whether it was valid.

58                  Section 349(1) of the Migration Act provides that the Tribunal may, for the purposes of the review of a decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision. This provision may be thought to supply the answer to the issue of the breadth of the Tribunal’s powers. If the original decision-maker (the delegate of the Minister) could look at the application for the purpose of determining whether it was valid, the Tribunal would have that power. The difficulty is that the Tribunal’s power is limited by the phrase “for the purposes of the review of an MRT-reviewable decision”. If such a review is limited to an examination of the merits, ie to the question whether on the material disclosed to the Tribunal the correct or preferable decision is to grant, or to refuse to grant, a visa, then the Tribunal possesses only the powers of the original decision-maker with respect to that subject. To determine the issue, it is therefore necessary to go to the authorities.

59                  Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 involved an appeal on a question of law from the Administrative Appeals Tribunal (“the AAT”). A decision had been made by an officer of the Department of Social Security, reviewed by a review officer, and further reviewed by the Social Security Appeals Tribunal (“the SSAT”). An application for review of the decision of the SSAT was made to the AAT. Instead of determining the matter on the merits, the AAT determined it on the basis that the officer who made the original decision did not have authority to do so. There was therefore no valid decision for the AAT to review. The Full Court held that the AAT was in error in so deciding and that a right of review by the AAT of a decision of the SSAT existed where an administrative decision had been made in the purported exercise of the powers conferred by the relevant legislation. The right existed whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. At 220, von Doussa J (with whom the other two members of the Court agreed) said:

“The SSAT in performing its function concentrated on the merits of the proposed recovery from the respondent including the merits of the contention that the debt should be waived, and did not consider the question of Mr Rodda’s authority. In the manner in which the review was conducted before the SSAT, his authority was not raised as an issue. Had it been, and if the SSAT had concluded that the decision made on 31 July 1991 was made in excess of the authority of the decision-maker, the SSAT had power to substitute its own decision in place of an earlier ineffective decision. Likewise the AAT would have jurisdiction and power to substitute its own decision if it concluded that an earlier decision-maker in the process of decision-making and review had acted in excess of authority: Secretary, Department of Social Security v Hodgson [(1992) 37 FCR 32] at 39 – 40”.

It seems that the Full Court was deciding that, once the SSAT was properly seised of a decision to review, the scope of its review included the question of the authority of the original decision-maker to make the decision made.

60                  In Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 178 ALR 523, as I have said, the Full Court was dealing with two cases in which applications for protection visas had been made that were not valid applications because of s 46(1)(b) of the Migration Act. The substance of the Full Court’s decision was to hold that the invalidity was not cured by the subsequent supply of material, because the material had not been supplied in accordance with the Migration Regulations. The Court was looking at the question whether the Refugee Review Tribunal had power to deal with the reviews before it of the decisions, made on the invalid applications, to refuse protection visas. In deciding that the Refugee Review Tribunal could not consider the later material, the Full Court at [82] said:

“Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.”

61                  Section 415(4) of the Migration Act provides that the Refugee Review Tribunal must not, by varying a decision or setting aside a decision and substituting a new decision, purport to make a decision that is not authorised by the Migration Act or the Migration Regulations. The equivalent provision relating to the Tribunal is s 349(4), which is in identical terms to s 415(4). It seems to follow from this provision that the Tribunal had no power to make a decision on an application that was not a valid application, even though it had power to review a decision of the delegate of the Minister purportedly made on the same application.

62                  Viewed either from the approach of Alvaro, or from the approach of Li, it appears that the Tribunal had power to determine whether the application made on 18 October 1995 was valid. On the approach in Alvaro, part of the review of the merits of a decision involved the determination whether it was a legally ineffective decision. On the approach in Li, the Tribunal had no power to make a decision beyond the power of the original decision-maker. On the latter approach, the Tribunal was bound to look at the validity of the application, in order to satisfy itself that it had power to conduct the review on the merits.

63                  I am therefore of the view that the Tribunal in the present case was bound to determine whether the application made on 18 October 1995 was valid, for the purpose of determining whether the decision of the delegate of the Minister to refuse the subclass 801 visa was legally effective. The Tribunal did not do this. Instead, it determined that it was not satisfied that the applicant fulfilled the criterion that he be the holder of a subclass 820 visa, on the basis that the decision to grant the subclass 820 visa was a nullity, because the application on which the decision was made was not a valid application.

64                  Ordinarily, if an error of this kind were made, the appropriate order would be an order pursuant to s 481(1) of the Migration Act, setting aside the decision of the Tribunal, and an order under s 481(1)(b), referring the matter to which the decision relates to the person who made the decision for further consideration. A direction to consider the validity of the original application might be appropriate. In the present case, however, such an order would be pointless. The Tribunal has made the necessary findings of fact. The challenge to those findings before me has failed. In those circumstances, the Tribunal was bound to affirm the decision it was reviewing, albeit that it was determining the matter on a different basis.

65                  I am aware that the Tribunal did not make a decision to affirm the decision it was reviewing. It set aside the decision of the delegate of the Minister and substituted a new decision refusing the grant of a visa. In doing this, the Tribunal appears to have failed to understand that it was reviewing a decision, and not the reasons for a decision. If the Tribunal found that the original decision was the correct or preferable one, albeit for different reasons from those relied on by the original decision-maker, the Tribunal’s duty was to affirm the decision. Strictly speaking, it might be said that the Court should set aside the Tribunal’s decision, and refer the matter back to the Tribunal member who made the decision, with a direction to affirm the decision of the delegate of the Minister. Given that the Tribunal’s decision to refuse the grant of the subclass 801 visa is to the same effect as the delegate’s decision, no purpose would be served by going through such a process. It is preferable simply to affirm the Tribunal’s decision.

66                  That conclusion is sufficient to dispose of the application for judicial review. Because the Tribunal’s application of the test for a valid marriage was also challenged before the Court and was argued, it is appropriate that I should deal with that issue as well.

The valid marriage issue

67                  It appears from the Tribunal’s reasons for decision that it also considered this issue in the context of its determination of the question whether the applicant should have been granted the subclass 820 visa. In so doing, the Tribunal acted outside its powers. For the reasons I have already expressed, the Tribunal had no jurisdiction to review a decision to grant a visa. On no view could an error of fact on the part of the delegate of the Minister who made the decision to grant the subclass 820 visa be regarded as bringing about the result that the decision was a nullity. The question of the validity of the marriage was, however, relevant to the task of the Tribunal in reviewing the decision to refuse to grant the subclass 801 visa. The criterion found in cl 801.221(2)(c) in Pt 801 of Sch 2 to the Migration Act required that the Tribunal consider whether the applicant was the spouse of the nominating spouse, even if only as a step to considering whether the criterion in clause 801.221(6)(b) was met, namely that the relationship between the applicant and the nominating spouse had ceased. The Tribunal therefore again considered the right question in the wrong context and for the wrong purpose.

68                  The Tribunal stated correctly the test for determining whether a marriage is genuine. It quoted the passage from Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon (Federal Court of Australia, Full Court, 8 May 1990, unreported) at 11 as follows:

“people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.”

69                  In Ozbunbar v Minister for Immigration & Multicultural Affairs (1998) 55 ALD 163, Kiefel J said with respect to what was then reg 126 of the Migration Regulations, which contained provisions as to when a visa applicant was to be regarded as the spouse of an Australian citizen or permanent resident:

“Regulation 126 is concerned with whether there is a genuine marriage relationship. A reference to the reasons why a person married will not be determinative of that question. It has been said that where persons marry for perceived advantages, such as qualification for migration entry, that would not exclude the possibility that the marriage is, nevertheless, genuine: Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Full Court, Federal Court, 8 May 1990, unreported). It is not necessary in this case to address that aspect of the question. The focus of this application is upon how the relationship is tested. It was held in Dhillon’s case that the test of such a relationship is whether, at the time the matter has to be decided, it can be said that the parties have a mutual commitment to a shared life as husband and wife, to the exclusion of others. That has been applied in connexion with regulation 126: Jones v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 454, 457 (Hill J); (1995) 63 FCR 32, 45, 49 (Full Court). The central enquiry will usually be as to the parties’ commitment and, as Branson J pointed out in Singh v The Minister for Immigration and Ethnic Affairs (29 April 1996, unreported) whilst there may be some objective facts relevant to, or consistent with, mutual commitment, often times it will require consideration of the parties’ stated intentions. The true position will only be known to them. In these circumstances credibility will often assume importance. Reference to decided cases bears this out.”

The element of a mutual commitment to a shared life as husband and wife to the exclusion of all others emerges in the legislation now, in reg 1.15A(1A)(b)(i), quoted above.

70                  Counsel for the applicant contended that, having stated the test correctly, the Tribunal then proceeded to misapply it. He referred to the following passage in the Tribunal’s reasons for decision:

“Whilst the visa applicant’s evidence supports a commitment to the relationship, there is no evidence that it was reciprocated except to the limited extent that his spouse was prepared to commit herself solely on her own very limited terms.”

71                  If this were a finding in the application of the test to which I have referred, it would be indicative of error on the part of the Tribunal. It would indicate that the Tribunal had taken the view that a genuine marriage required some parity of commitment between the parties, instead of a commitment by each to the other, as husband and wife, to the exclusion of others. There must be many marriages the parties to which have different levels or degrees of commitment, or in which the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of the test. As long as each party has a commitment of the kind described in the test, the marriage will be genuine even if such differences exist.

72                  The context of the passage I have quoted from the Tribunal’s reasons indicates, however, that the Tribunal was not there purporting to apply the test. The passage appears in the course of the discussion of the application of the criterion found in reg 1.15A(3)(d). That criterion specifically examines “the nature of the persons’ commitment to each other”. It is plain that the Tribunal’s finding was directed to this criterion. The sentence I have quoted was followed immediately by:

“These facts do not illustrate a commitment to each other (regulation 1.15A(3)(e)).”

The reference to “(e)” is an obvious error. There is not a par (e) in reg 1.15A(3). It is clear that the Tribunal was intending to refer again to reg 1.15A(3)(d). The Tribunal then went on to make a specific finding that it could not find on the evidence that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others. It referred in terms to reg 1.15A(1)(b)(i), but must be taken to have intended to refer to reg 1.15A(1A)(b)(i), because there is no subpar (i) in reg 1.15A(1)(b). It concluded that the applicant did not meet the definition of spouse within the meaning of reg 1.15A at the time of the application for the subclass 820 visa. The Tribunal therefore concluded that the applicant did not meet the definition of “spouse” in the criterion in item 801.221(2)(b) of Sch 2 to the Migration Regulations. He was therefore ineligible to be granted a subclass 801 visa.

73                  There is no error of a kind that would fall within one of the grounds in s 476 of the Migration Act apparent in this reasoning of the Tribunal. Although it considered the issue of the validity of the marriage for the wrong purpose, namely the validity of the decision to grant the subclass 820 visa, the Tribunal also recognised the relevance of that issue for the purpose of the task before it. The extraneous consideration of the validity of the decision to grant the subclass 820 visa was an error, but it was not an error affecting the Tribunal’s decision. The decision that the applicant was not entitled to a subclass 801 visa would have been the same in any event.

Conclusion

74                  For these reasons, it is appropriate to dismiss the application for judicial review.

75                  The question of costs is not an easy one. Had the Tribunal approached the issue of the effect of condition 8503 on the correct basis, by being aware that the decision it was required to review was the decision of the delegate of the Minister to refuse to grant a subclass 801 visa, on the application lodged on 18 October 1995, the applicant may have been induced not to seek judicial review of the decision. Similarly, had the Tribunal not considered the validity of the applicant’s marriage in the context of its purported review of the decision to grant the subclass 820 visa, the applicant might have accepted the decision. This suggests that there might be some unfairness in ordering the applicant to pay the respondent’s costs of this proceeding in the Court. It is also true, however, that it was necessary for the applicant to overcome the Tribunal’s reasoning in relation to several issues, in order to succeed. I have rejected the applicant’s arguments relating to the inapplicability of condition 8503, the finding that the subclass 820 visa was granted inadvertently, waiver of the condition and validation of the application by subsequent events. I have held that the applicant has failed in his challenge to the Tribunal’s determination that he was not a “spouse” for the purposes of the relevant criterion for a subclass 801 visa. For these reasons, he would have been unsuccessful in the proceeding in any event. The applicant would have lost even if the
Tribunal had approached the two main issues on the correct basis. It is therefore appropriate to order the applicant to pay the Minister’s costs of the proceeding.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 12 November 2001

Counsel for the Applicant:	Mr C Fairfield
Solicitor for the Applicant:	Blake Dawson Waldron
Counsel for the Respondent:	Mr R Niall
Solicitor for the Respondent:	Erskine Rodan & Associates
Date of Hearing:	12 July 2001
Date of Judgment:	12 November 2001