FEDERAL COURT OF AUSTRALIA

Wong v Minister for Immigration & Multicultural &
Indigenous Affairs (No 2) [2004] FCA 422

PRACTICE AND PROCEDURE – application by respondent (‘the Minister’) for stay pending hearing and determination of Minister’s appeal – submission by successful applicant (respondent to the Minister’s motion and appeal) (‘Mr Wong’) that stay should be granted only on condition that Minister give proper consideration to issuing Bridging E (Class WE) visa, permitting Mr Wong to be released from detention pending hearing and determination of appeal – common ground that Mr Wong barred from applying for such a visa – whether Minister has power to issue such a visa in absence of application for it, by reason of s 73 of Migration Act 1958 (Cth) – classes of visa created by Act and classes created by being prescribed in Migration Regulations 1994 (Cth) – reg 2.25.

Migration Act 1958 (Cth) s 73

Migration Regulations 1994 (Cth) reg 2.25

WONG TAI SHING v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

N 298 of 2003

LINDGREN J

14 APRIL 2004

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The order absolute in the nature of mandamus made in this proceeding on 6 February 2004, being paragraph (2) of the orders made on that date in proceeding N298 of 2003, be stayed until the hearing and determination of the respondent’s appeal in proceeding N 237 of 2004.

2.         The costs of the respondent’s motion brought by notice of motion filed on 23 February 2004 be paid and borne in accordance with the order for costs made on the appeal.

3.         The respondent’s motion be otherwise dismissed.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT (No 2)

(Application for stay, pending appeal)

INTRODUCTION

1                     On 6 February 2004 I made orders absolute in the nature of certiorari and mandamus in this proceeding.  I will take my reasons for the making of those orders as read, and will use in these present reasons the same abbreviated forms of reference as I used in those of 6 February 2004.

2                     The order absolute in the nature of certiorari quashed the Minister’s decision made on 28 May 2002 not to revoke the Minister’s original decision of 22 January 2002 refusing to grant a subclass 560 Student Visa to Mr Wong.  The order absolute in the nature of mandamus was an order that the Minister perform the obligations imposed on the Minister by ss 501C(3) and (4) in relation to the original decision.

3                     In a related proceeding, N 297 of 2003, which I heard at the same time as N 298 of 2003, Mr Wong failed in his challenge to the original decision itself.

4                     The parties have informed me that Mr Wong has appealed from my orders in N 297 of 2003 (Mr Wong’s appeal is proceeding N 242 of 2004), that the Minister has appealed from my orders in N 298 of 2003 (the Minister’s appeal is proceeding N 237 of 2004), and that both appeals are fixed for hearing before a Full Court on 17 May 2004.

5                     In summary, Mr Wong, who is in immigration detention, has failed in his challenge to the original decision (by which he was refused the visa), but, having succeeded in his challenge to the refusal to revoke the decision, is now entitled to have the Minister give him particulars of ‘relevant information’ within the meaning of s 501C of the Migration Act 1958 (Cth) (‘the Act’).  That information is, relevantly, information contained in Attachments C1–C10 to the Decision Record.  I held that s 503A of the Act did not exempt the Minister from the obligation imposed on the Minister by s 501C to give Mr Wong particulars of relevant information.  The Minister will challenge that view in her appeal.

6                     It would render the Minister’s appeal futile if she were now to obey the order in the nature of mandamus.  Accordingly, by notice of motion filed on 23 February 2004, the Minister seeks a stay of that order until the outcome of her appeal or further order.  These reasons relate to that motion.  I have stayed the order until 5.00 pm on the date on which judgment is given on the motion.

7                     Mr Wong does not submit, without qualification, that there should be no stay.  Rather, he submits that any stay should be subject to a condition, namely, that ‘the Minister take all steps necessary to release him from detention, pending determination of proceedings for the review of the decision to refuse his visa’.  He submits that in the absence of some such condition, there should be no stay.

8                     The Minister submits that, in the circumstances, the Act does not permit her to issue a Bridging E (Class WE) visa which would have the effect of allowing Mr Wong to be released from immigration detention until the hearing and determination of the appeal.

9                     The parties have agreed:

• that I should determine the question of law, whether the Act does permit the Minister to do so;
• that, if I accept the Minister’s submission, I should grant a stay until the hearing and determination of the Minister’s appeal; and
• that, if I do not accept the Minister’s submission, I should relist the motion for the hearing of submissions as to the order appropriate to be made.

CONSIDERATION

10                  The Minister’s submission is that a bridging visa may be issued only upon application, yet the Act bars Mr Wong from applying for such a visa.  Mr Wong’s submission is that s 73 of the Act empowers the Minister to issue a bridging visa without any application by Mr Wong.

11                  It is common ground that Mr Wong is barred from applying for a bridging visa.  This is because s 501E(1) of the Act provides as follows:

‘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 … to refuse to grant a visa to the person …; and

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

The Minister decided on 22 January 2002, while Mr Wong was in the migration zone, to refuse to grant a subclass 560 Student Visa to him, and that decision has not been set aside or revoked.

12                  Section 73 of the Act, on which Mr Wong relies, provides as follows:

‘If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

(a)       during a specified period; or

(b)       until a specified event happens.’  (my emphasis)

The expression ‘eligible non-citizen’ is defined in s 72 to mean, relevantly, a non-citizen who ‘has been immigration cleared’, and it is not disputed that Mr Wong is such a person.  Mr Wong relies on the absence from s 73 of any reference to the making of an application for a bridging visa.

13                  Part 2 (ss 13–274) of the Act provides for the ‘Control of arrival and presence of non-citizens’.  Within Div 1 (ss 13–17) of that Part, s 13 provides that a non-citizen in the migration zone who holds a visa is in effect a lawful non-citizen, and s 14 provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.  Mr Wong is an unlawful non-citizen.

14                  Division 3 (ss 28–140) of Pt 2 provides for ‘Visas for non-citizens’.  Division 3 contains numerous subdivisions.  Subdivision A (ss 28–43) is headed ‘General provisions about visas’, and Subdivision AA (ss 44–51) is headed ‘Applications for visas’.

15                  Within Subdivision A, s 29(1) provides that:

“Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)       travel to and enter Australia;

(b)       remain in Australia.’

Of present relevance is the power of the Minister to grant Mr Wong permission to remain in Australia.  Subsection 30(1) provides for the issue of visas to remain in Australia indefinitely (permanent visas) and visas to remain in Australia during a specified period or until a specified event happens or while the holder has a specified status (temporary visas).  Section 31 provides for classes of visas as follows:

‘(1)      There are to be prescribed classes of visas.

(2)       As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.

(3)       The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).

(4)       The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

(5)       A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.’  (my emphasis)

Section 37, which is referred to in ss 31(2) and (3) above, provides as follows:

‘There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.’

Subdivision AF comprises ss 72–76, and therefore includes s 73.  I consider Subdivision AF at [20] and [21] below.

16                  Subsection 31(1) refers to ‘prescribed classes’ of visas, but s 31(2) provides that separately from these classes there are the classes provided for by eight sections of the Act that are specified in that subsection.  One of the eight is s 37 which provides for ‘bridging visas’ to be granted under Subdivision AF (notably, s 73).  Even for the classes of visas provided for by the specified sections, the Migration Regulations 1994 (Cth) (‘the Regulations’) may prescribe ‘criteria’:  s 31(3).

17                  Within Subdivision AA, s 45 provides:

‘Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.’

Mr Wong is a non-citizen who wants a visa.  He therefore must apply for a visa of a particular class unless the Act or the Regulations provide otherwise.  As will appear below, in my opinion the Act and the Regulations provide otherwise but this does not avail Mr Wong.

18                  Section 46 provides for the circumstances in which an application for a visa is to be valid, and s 47 provides that the Minister is to consider a valid application for a visa and is not to consider an application that is not a valid application.  I do not find either section of assistance because the present issue is whether Mr Wong is required to make an application at all.

19                  Subdivision AC (ss 65–69) is headed ‘Grant of visas’.  Subsection 65(1) provides that, after considering a valid application for a visa, the Minister, if satisfied of certain things, is to grant the visa, and, if not so satisfied is to refuse to grant the visa.  Again, this provision does not assist on the question whether the Minister may grant Mr Wong a bridging visa in the absence of an application for one by Mr Wong.

20                  I turn next to subdivision AF (ss 72–76), headed ‘Bridging visas’, which contains s 73 set out at [12] above.  Section 73 is the only section in Subdivision AF which actually empowers the Minister to grant bridging visas.  In terms, s 73 does not require that an application for a bridging visa be made, before the Minister’s power to grant such a visa given by that section is enlivened.

21                  Sections 74 and 75 relate to applications for bridging visas by eligible non-citizens who are in immigration detention.  They provide a régime protective of such persons.  Section 74 provides, relevantly, that where an eligible non-citizen who is in immigration detention applies for a bridging visa and the Minister refuses to grant the visa, the eligible non-citizen may make a further application for a bridging visa.  Section 75 provides that in the circumstances described in that section, an eligible non-citizen in immigration detention is ‘taken to have been granted a bridging visa’ in default of a decision by the Minister within the prescribed period of the person’s application.  It follows that ss  74 and 75 give rights to eligible non-citizens who are in immigration detention.  They do not exclude the possibility of a grant of a bridging visa under s 73 to an eligible non-citizen who is in immigration detention, such as Mr Wong, in the absence of an application by him or her for such a visa.

22                  It is now necessary to refer to the Regulations.  Part 2 (regs 2.01–2.55) of the Regulations is headed ‘Visas’.  Regulation 2.01 provides that, for the purposes of s 31 of the Act, ‘the prescribed classes of visas’ are such classes (‘other than those created by the Act’) as are set out in the respective items in Schedule 1 to the Regulations, and, also, transitional (permanent) and transitional (temporary) classes.  The expression ‘prescribed classes of visas’ is referable to s 31(1) of the Act, and does not embrace classes created by the Act itself, such as the bridging visas to be granted under Subdivision AF (notably s 73) referred to in s 37 and created by s 31(2), of the Act.  Part 3 of Schedule 1 to the Regulations is headed ‘Bridging visas’.  That Part comprises items 1301 to 1306 which are ‘prescribed classes’ of visas.

23                  Bridging visas can now be seen to fall into two categories.  One category comprises bridging visas created by s 31(1), reg 2.01 and items 1301-1306 in Part 3 of Schedule 1 to the Regulations.  The other category comprises classes of bridging visas to be granted under Subdivision AF which are ‘provided for’ in s 37 and created by s 31(2).  The former are ‘prescribed classes’, and it is possible to conceive of the latter as ‘statutory classes’ although, of course, and as has been seen, the former are sourced in the Act too.

24                  Each of items 1301, 1302, 1303, 1304, 1305 and 1306 of Schedule 1 is headed with the name of a class of visas and contains information against the side-headings ‘(1) Form’, ‘(2) Visa application charge’, ‘(3) Other’ and ‘(4) Subclasses’.  These side-headings are made relevant by various provisions in the Regulations.  Item 1305 in Schedule 1 is headed ‘Bridging E (Class WE)’.  Mr Wong wants a bridging visa of this class.

25                  Mr Wong submits that Schedule 1 is irrelevant to his case because he seeks a Bridging E (Class WE) visa not as a prescribed class of visa, but as a statutory class of visa.

26                  Whereas reg 2.01 deals with classes of visas, reg 2.02 deals with ‘subclasses’.  Regulation 2.02(1) provides that Schedule 2 to the Regulations is divided into Parts, each identified by the word ‘Subclass’ followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.  Regulation 2.02(2) provides that for the purposes of Pt 2 of the Regulations and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the sub-item ‘Subclasses’ in the item in Schedule 1 that refers to that class of visa.  Against the sub-item ‘(4) Subclasses’ of every item in Schedule 1, one or more subclasses are identified.  Against that sub-item of item ‘1305 Bridging E (Class WE)’ in Schedule 1 appears the following:

‘050 (Bridging (General))

 051 (Bridging (Protection Visa Applicant))’

It is a subclass 050 (Bridging (General)) that is relevant to Mr Wong.

27                  Regulation 2.03 is headed ‘Criteria applicable to classes of visas’ and subreg (1) of reg 2.03 is as follows:

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

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

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

Schedule 2 is composed entirely of subclasses of Schedule 1’s ‘prescribed classes’ of visas.

28                  Within ‘Subclass 050 (Bridging (General))’ in Schedule 2 to the Regulations, cl 050.21 identifies ‘Criteria to be satisfied at time of application’ and cl 050.22 identifies ‘Criteria to be satisfied at time of decision’.  An applicant for a Subclass 050 (Bridging (General)) visa must, at the time of application, be an unlawful non-citizen who meets the requirements of any one of several specified subclauses.  The subclause said to be relevant to Mr Wong is subcl 050.212(3A), which is as follows:

‘(3A)    An applicant meets the requirements of this subclause if:

(a)        the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

(b)        either:

(i)         the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or

(ii)       the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant’s substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.’

29                  The ‘Criteria to be satisfied at time of decision’ include a requirement that an applicant continue to satisfy the criteria set out in clauses 050.211 and 050.212 (see cl 050.221).  By reason of his application for renewal of his Student visa, his application for judicial review of the original decision and the pending appeal, Mr Wong satisfies subcl 050.212(3A).

30                  A note which immediately follows cl 050.222 reads:

“Note  In certain circumstances, a Bridging E (Class WE) visa may also be taken to have been granted without application to a non-citizen who is in immigration detention. See the Act, s 73. In addition the Minister may grant a Bridging E (Class WE) visa to non-citizens who are in criminal detention or are unwilling or unable to make a valid application: see r 2.25.’

31                  The Minister submits that the reference in this note to s 73 is erroneous and should be to s 75.  While s 75 does refer to an eligible non-citizen in immigration detention who is ‘taken to have been granted’ a bridging visa, it also refers to the making of an application for a bridging visa of a prescribed class by that person.  Section 73, on the other hand, while not referring to the making of an application for a bridging visa, does not refer to any person who is ‘taken to have been granted’ such a visa.  The note is nothing if not confusing.  As will appear below, I am not required to understand the significance of the note.

32                  In my opinion, the Minister is empowered to grant a Bridging E (Class WE) visa otherwise than upon application. The legislative route to this conclusion is ss 31(2) and (3), 37 and 73 of the Act, reg 2.25 of the Regulations and those particular clauses in Schedule 2 which are referred to in reg 2.25.

33                  Division 2.5 (regs 2.20–2.25) of the Regulations is headed ‘Bridging visas’.  Regulations 2.21A, 2.21B and 2.25 deal with the grant of bridging visas of various classes ‘without application’.  Regulation 2.25, which is headed ‘Grant of Bridging E (Class WE) visas without application’, is as follows:

‘(1)      This regulation applies to:

(a)        a non-citizen who is in criminal detention; or

(b)        a non-citizen who:

(i)         is unwilling or unable to make a valid application for a Bridging E (Class WE) visa; and

(ii)        is not barred from making a valid application for a Bridging E (Class WE) visa by a provision in the Act or these Regulations, other than in item 1305 of Schedule 1.

(2)       Despite anything in Schedule 1, the Minister may grant the non-citizen a Bridging E (Class WE) visa if the Minister is satisfied that, at the time of decision:

(a)        the non-citizen satisfies:

(i)        the criteria set out in clauses 050.211, 050.212, 050.223, 050.224 and 050.411 of Schedule 2; and

(ii)        the interview criterion; or

(b)        the non-citizen satisfies the criteria set out in clauses 051.211, 051.212, 051.213, 051.221 and 051.411 of Schedule 2.

(3)       The non-citizen satisfies the interview criterion if an officer who is authorised by the Secretary for the purposes of subclause 050.222 (1) of Schedule 2 has either:

(a)        interviewed the non-citizen; or

(b)        decided that it is not necessary to interview the non‑citizen.’  (my emphasis)

34                  Regulation 2.25 in its present form set out above was introduced by Migration Amendment Regulations 2002 (No 10) (SR 2002 No 348).  The related Explanatory Statement stated, relevantly:

‘The amendments also make it explicit that where a non-citizen is unable to make a valid application for a Bridging E (Class WE) visa because of a statutory bar or restriction in a provision of the Act or Migration Regulations (apart from item 1305 of Schedule 1), the non-citizen cannot be granted a Bridging E (Class WE) visa under regulation 2.25.

The intention is to make it clear that a non-citizen who is subject to a statutory bar or restriction contained in, for example, sections 91E, 91K, 91P, 161, 164D and 501E of the Act cannot be granted a Bridging E (Class WE) visa under regulation 2.25.

It was never intended that regulation 2.25 should be used where a non-citizen was barred from making a valid application by provisions in the Act of [sic- or]Regulations. The practical effect of these amendments is to give effect to the policy intention that the words "unable to make a valid application" in regulation 2.25 only covers a non-citizen who is, for example:

·        a minor;

·        illiterate;

·        physically, mentally or otherwise disabled so as to be incapable of completing an application;

·        from a non-English speaking background and unable to complete an application for reason, for instance, of an interpreter not being available; or

·        in a remote location without access to the means to make an application.’

35                  (As noted earlier, it is common ground that Mr Wong is barred from making a valid application for a Bridging E (Class WE) visa by s 501E of the Act.)

36                  Regulation 2.25 provides for the grant by the Minister of the very class created by ss 31(2), 37 and 73 of the Act, that is, a bridging visa which the Minister is empowered to issue without the necessity of an application being made for it.  Although Bridging E (Class WE) visas are a prescribed class of visa designated in Schedule 1, ss 31(1) and reg 2.01 do not form part of the legislative route to the Minister’s power to grant such a visa in the absence of an application for it.  Rather, the legislative route goes from s 73 directly to reg 2.25, then to particular specified clauses in Schedule 2.  These include cl 050.212, para (3A) of which (set out at [28] above) is satisfied by Mr Wong.  They do not include cl 050.222 to which the note set out at [30] above is appended.

37                  Because Mr Wong does not satisfy reg 2.25(1)(b), s 73 does not empower the Minister to grant a Bridging E (Class WE) visa to him.

38                  It follows that it would be inappropriate to attach to an order for a stay, a condition of the kind proposed by Mr Wong.

CONCLUSION

39                  For the above reasons, order (2) made on 6 February 2004 in proceeding N298 of 2003 should be stayed pending the hearing and determination of the respondent’s appeal from the making of that order.  The costs of the Minister’s motion for the stay should abide the result of the appeal.

Associate:

Dated:              14 April 2004