FEDERAL COURT OF AUSTRALIA

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1117

MIGRATION – illegal non-citizen in immigration detention following refusal of visa under s 501 on character ground – application for bridging visa – whether application valid having regard to s 46(1) – proper construction of s 46(1) – application not determined within period prescribed under s 75(1) – whether application deemed to have been granted – whether s 75(1) applied if application not valid by reason of s 46(1).

Migration Act 1958 (Cth) ss 46, 48A, 74(1), 75(1), 501, 501E, 501F

Judiciary Act 1903 (Cth) s 78B

Migration Regulations 2.20, 2.24, Sch 2 cl 050.211, Sch 2 cl 050.212

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389 referred to

Goodwin v Phillips [1908] 7 CLR 1 applied

Massey-Harris Co Ltd v Strasbourg [1941] 4 DLR 620

David v Grocon Ltd (1992) 2 VF 661 referred to

STEPHEN OGHO AKPATA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 778 of 2003

MANSFIELD J

ADELAIDE

14 OCTOBER 2003

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the respondent costs of this application.

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

REASONS FOR JUDGMENT

1                     This is an application for orders: 

(1)        declaring that the applicant has applied for a bridging visa, class E, subclass 050 (the bridging visa) in accordance with the Migration Act 1958 (Cth) (the Act) on 10 September 2003; 

(2)        declaring that the applicant, by reason of the respondent having failed to make a decision to grant or refuse to grant the bridging visa within two working days of the application, is taken to have been granted the bridging visa on 12 September 2003 in accordance with s 75(1) of the Act;  and

(3)        declaring that the applicant is, by reason of the grant of the bridging visa, no longer an illegal non-citizen in Australia and ordering that he be immediately released from immigration detention. 

2                     The facts are clear.  The applicant is a Nigerian citizen.  He entered Australia on a student visa in 1994, but that visa has since expired.  He applied for a protection visa under the Act, but that application has been unsuccessful.  In the meantime, and pending the determination of the application for a protection visa (and a subsequent application for a class 103 parent visa) he was granted a series of bridging visas under the Act.  On 11 June 2002 the respondent refused to grant him the class 103 parent visa, because the respondent was satisfied that the applicant did not pass the character test:  s 501.  It is not necessary for the present purposes to discuss in detail the correctness of that decision.  The applicant challenged it unsuccessfully:  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 389.  An appeal to the Full Court from that decision is listed for hearing on 21 November 2003.

3                     The consequence of that decision is that the respondent is taken to have decided to cancel the applicant’s then current bridging visa:  s 501F(3) of the Act.  He thereupon became an illegal non-citizen and was taken into immigration detention pursuant to s 189 of the Act.

4                     In separate proceedings, the applicant has challenged the validity of ss 48A, 501E and 501F of the Act.  Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) have been given.  Directions are shortly to be given with respect to the hearing of that application.  The present proceedings have been pursued on the basis that those provisions of the Act are valid.  It will, however, be necessary to refer to those proceedings later in these reasons.  I shall call them ‘the challenged invalidity proceedings’.

5                     On 10 September 2003 the applicant applied for the bridging visa.  He claims to have satisfied relevant criteria for the grant of the bridging visa set out in Sch 2 to the Migration Regulations.  In particular, he relies upon cl 050.211(1)(a), and cl 050.212(1) and (2) or (3A)(a) and (b)(i) or (4)(d)(i) and (ii) of Sch 2 to the Migration Regulations.  I shall assume in the applicant’s favour that he meets those criteria.  I note that cl 050.212(4)(d) provides: 

‘(d)      the applicant has applied for judicial review of the validity of a law that affects: 

(i)                 the applicant’s eligibility to apply for a substantive visa;  or 

(ii)               the applicant’s entitlement to be granted or to continue to hold a substantive visa.’

The applicant claims to satisfy that criterion by reason of the challenged invalidity proceedings. 

6                     Section 75(1) of the Act provides:

‘(1)      If:

            (a)        an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class;  and

            (b)        the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;

the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.’

The applicant is an eligible non-citizen (see reg 2.20 of the Migration Regulations)who is in immigration detention.  The bridging visa is one within the prescribed class.  The prescribed period is two working days (see reg 2.24 of the Migration Regulations).  The respondent did not make a decision within two working days of the application to grant or refuse to grant the bridging visa.  Consequently, subject to considering the respondent’s contention that s 75(1) does not apply to the application.  The respondent should be taken to have been granted the bridging visa. 

7                     The respondent’s contention is that s 46(1) of the Act applies.  Relevantly it provides:

‘(1)      Subject to subsections (1A) and (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 satisfies the criteria and requirements prescribed under this section;  and

(ba)      …

(c)                …

(d)               it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).’

The respondent contends that the application for the bridging visa is not valid because it is prevented by s 501E of the Act.  It is contended that s 74(1) must be read as subject to s 46, so that it applies only in respect of a valid visa application.  The respondent, on 16 September 2003, notified the applicant to that effect.

8                     The applicant contends that s 46(1) must be read according to its terms as subject to, inter alia, s 46(2) which provides:

‘(2)      An application for a visa is 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.’

and subject to s 46(3), which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

9                     In my judgment, the applicant’s contention must be rejected.  I think s 46(1) is clear.  Section 501E in its terms prevents the application from having been made.  It provides:

‘(1)      A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if: 

            (a)        at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person;  and

            (b)        the decision was neither set aside nor revoked before the application time.

(2)       Subsection (1) does not prevent a person, at the application time, from making an application for: 

(a)                a protection visa;  or

(b)                a visa specified in the regulations for the purposes of this subsection.’

In all respects, s 501E(1) applies in terms to the applicant’s circumstances.  The time of the application occurred during a period throughout which the applicant is in Australia, and at an earlier time during that period the respondent made a decision under s 501 to refuse to grant a visa to the applicant.  At present, the decision under s 501 has not been set aside or revoked.

10                  I do not accept, despite the introductory words of s 46(1), that s 46(2) has the effect of validating the application notwithstanding the provisions of s 46(1)(d).  In context, I think the introductory words to s 46(1) ‘Subject to subsections (1A) and (2)’ are intended to prescribe additional requirements for the validity of an application for a visa.  Hence, s 46(2) provides that an application for a visa is valid if it is for a class prescribed by s 46(2) and under the regulations is taken to have been validly made, and s 46(1A) prescribed circumstances in which an application for a visa would be invalid.  It would render s 46(1) of little or no utility if it were to be read as the applicant contends, namely as being inapplicable to the identification of a valid visa application if the application merely met the requirements of s 46(2) and so was sufficient for a valid visa application.  The requirements of s 46(1) are general in nature, including requirements for the payment of fees and charges.  There is no reason why it should have been intended to do away with those requirements where the requirements of s 46(2) are met.  Moreover, there is no sound reason why the legislature would intend to permit the specific disqualifying provisions set out in s 46(1)(d) from having effect simply by virtue of the circumstances to which s 46(2) refers.  Indeed, to read s 46(1) in that way would, in my view, significantly detract from the intended operation of s 46(1).  The applicant’s argument, if correct, would result in the provisions of the Act referred to in s 46(1) being overridden or ignored, even though those provisions are directed to specific circumstances, by an application for a visa that in form and substance appeared to meet the more general requirements of the applicable regulations.  That would be a most unlikely reflection of the legislative intent, especially having regard to certain of the particular provisions of the Act referred to in s 46(1)(d):  see e.g. Goodwin v Phillips (1908) 7 CLR 1 at 14 per O’Connor J.  In my judgment the introductory words of s 46(1) mean in effect ‘provided that the requirements of s 46(1A) and (2) are also satisfied’ or ‘in addition to the requirements of s 46(1A) and (2)’.  An example of such a construction is provided by Massey-Harris Co v Strasbourg [1941] 4 DLR 620 at 622 per MacDonald JA, and see also the remarks of Hayne J in David v Grocon Ltd (1992) 2 VR 661 at 668.  The same considerations apply to the applicant’s claim that s 46(1) does not apply where the requirements of s 46(3) are met by the application, and a fortiori so because s 46(1) is not expressed to be subject to s 46(3).

11                  The applicant’s contention that ss 46(2) and (3) specify ‘jurisdictional facts’ upon the basis of which, if they are satisfied, a valid application for the bridging visa has been made may be correct, although the use of the word ‘jurisdictional’ is inappropriate.  They specify requirements necessary to be satisfied for a valid application for the bridging visa to have been made.  As I have said, I assume those requirements have been met.  But they do not, upon the proper construction of s 46, specify all the necessary requirements for the application for the bridging visa to have been valid.  It is in addition necessary for the requirements of s 46(1) to have been met.  For the reasons given, I do not consider that the requirements of s 46(1) have been met because the application was prevented by s 501E of the Act. 

12                  It is also consistent with that line of reasoning that s 75(1) should also be construed as applying only to a valid visa application.  If that were not so, a visa application such as that of the applicant for the bridging visa which (as I have assumed) meets the criteria specified in the regulations is taken to be granted by the elapse of time notwithstanding the clear intent of s 46(1).  The consequence otherwise would be that an eligible non-citizen in immigration detention who had made an application for a protection visa might by the effluxion of a short time, be taken to have been granted a bridging visa even though (for example) the respondent has made a decision adverse to the visa applicant under s 501.  The character test as described in s 501(6), and the definition of a substantial criminal record in s 501(7) are such as to suggest that an adverse decision under s 501 may be made because of a real need to protect the Australian community. 

13                  Finally, I note the applicant’s claim that the signatory of the letter of 16 September 2003 did not have, or is not shown to have had, the authority to reject the application for the bridging visa.  The contention, however, does not recognise that s 75(1) operates on a particular state of fact:  the existence of a valid application for the bridging visa, having regard to the requirements of s 46 of the Act.  As there was, as I have concluded, no valid application for the bridging visa, it is not necessary to consider the authority of the signatory of that letter. 

14                  The consequence is, in my judgment, that s 75(1) must be read as referring to a valid application for the bridging visa.  As the application for the bridging visa is not, in my judgment, a valid one, s 75(1) does not operate to provide that the applicant is taken to have been granted the bridging visa on 12 September 2003 and he is not therefore a legal non-citizen whose detention under s 189 of the Act has become unlawful.  Consequently he is not entitled for an order for his immediate release from immigration detention.  The application is dismissed. 

15                  I see no reason why the normal rule as to costs should not apply.  I order that the applicant pay to the respondent costs of the application. 

Associate:

Dated:              14 October 2003