FEDERAL COURT OF AUSTRALIA

Al Tekriti v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 772

MIGRATION – application for spouse visa rejected as incompetent because earlier application for protection visa refused – whether protection visa refused when refusal set aside on review and no subsequent decision made – interpretation of s 48 Migration Act 1958 (Cth) – impact of phrase ‘whether or not the application has been finally determined’ in s 48(1)(b)(i) – interaction of s 48 Migration Act 1958 (Cth) and s 43(b) Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 43(6)

Migration Act 1958 (Cth) ss 5(9), 48, 48A, 48B, 349, 415, 500, 501, 501A, 501B, 501E

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 cited

Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 cited

Re Easton and Repatriation Commission (1987) 6 AAR 558 cited

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 applied

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 applied

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 cited

Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285 cited

Public Transport Commission of New South Wales v Murray More (NSW) Pty Ltd (1975) 6 ALR 271 applied

Residual Assco Group Ltd v Spalvins (2000) 172 ALR 366 distinguished

Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to

ODAY ADNAN AL TEKRITI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 809 of 2003

MANSFIELD J

18 JUNE 2004

ADELAIDE

THE COURT DECLARES THAT:

1.         The application of the applicant dated 10 July 2003 and lodged on 4 August 2003 for a Class UK (Partner – Temporary) / BS (Partner – Permanent) Subclass 820/801 Visa is valid.

THE COURT ORDERS THAT:

2.         The respondent determine the abovementioned visa application in accordance with the Migration Act 1958 (Cth).

3.         Liberty is given to the parties to apply to seek any further orders that they may consider necessary.

4.         The respondent pay to the applicant costs of the application.

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

REASONS FOR JUDGMENT

1                     The primary issue arising from this application, filed on 23 October 2003, concerns the construction of s 48 of the Migration Act 1958 (Cth) (the Act), together with its interaction with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

2                     The issue arises as the applicant seeks review of the decision of a delegate of the respondent of 25 September 2003 that the applicant’s application for a Class UK (Partner – Temporary) / BS (Partner – Permanent) Subclass 820/801 Visa (spouse visa) is not valid under the Act. The applicant also seeks, pursuant to s 39B of the Judiciary Act 1903 (Cth), the writs of prohibition, certiorari and mandamus against the respondent. Thirdly, the applicant seeks a declaration that the applicant’s application for a spouse visa is valid under Australian migration law.

3                     The applicant is an Iraqi citizen. He claims that his father was a high-ranking Ba’ath party member and that he is a distant relative of the former Iraqi President Saddam Hussein. The applicant graduated from an Iraqi military academy in 1987 and in evidence given before the Administrative Appeals Tribunal (AAT) stated that his first position was as a bodyguard to Saddam Hussein. The applicant claims he later worked in the Special Security Forces and that from 1998 to 6 October 1999 he was ‘liaison officer’ in Saddam Hussein’s bodyguard. At this time he had the army rank of major and held a very responsible position. The applicant testified before the AAT that he met Saddam Hussein numerous times and that he had received various gifts of money, houses and cars from the former President.

4                     On 6 October 1999 the applicant left Iraq. Some 20 months earlier, on 28 February 1998 the applicant claims his father died as a result of poisoning following a visit to the Presidential Palace.  The applicant arrived in Australia on 6 December 1999 and four days later was placed in detention at the Woomera Immigration Reception and Processing Centre.

5                     On 21 March 2000 the applicant applied for a protection visa. On 22 September 2000 the applicant’s visa application was refused on the grounds that he was not someone to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention), as he was excluded from the protection of the Convention by Art 1F of the Convention.  Article 1F is as follows:

‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.

(a)     He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)     He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)     He has been guilty of acts contrary to the purposes and principles of the United Nations.’

The delegate’s decision was that there are serious reasons for considering that the appellant has committed crimes against humanity, within the meaning of Art 1F(a) of the Convention.

6                     The applicant applied to the AAT for review of this decision under s 500 of the Act on 2 October 2000. The application was initially withdrawn, and then was remade on 30 November 2000. Before the AAT the respondent argued that the applicant’s conduct as an officer in Saddam Hussein’s personal security section amounted to a crime against humanity under Article 1F of the Convention. 

7                     On 29 June 2001 the AAT made the following decision:

‘Accordingly, the decision of the Tribunal is that the decision under review is set aside and in substitution therefore it is decided that

(1)     there are, pursuant to Article 1F of the Refugees Convention, no grounds to refuse to grant the protection visa sought by the applicant; and

(2)     the matter be referred back to the respondent for further consideration of the applicant’s visa application.’

The consequence was that the application for a protection visa was to be determined by a delegate of the respondent by reference to the criteria for the grant of a protection visa in s 36(2) of the Act and in the Migration Regulations.  By reason of s 36(2) of the Act, the decision-maker must be satisfied that the applicant is a ‘refugee’ as defined in Art 1A(2) of the Convention.  The delegate of the respondent has not yet made a decision on that application.

8                     The AAT’s decision was based largely on a different finding of facts from those made by the original decision-maker.  The findings were made after a hearing extending over three days, including extensive questioning of the applicant by counsel for the respondent and by the AAT itself, evidence of an interpreter about the accuracy of the interpretation provided when the applicant was interviewed by an officer of the respondent’s Department, and by three other witnesses.  It had the benefit of that additional material, as well as the material before the delegate of the respondent, when making its decision.

9                     The respondent’s submission indicates that it applied by way of appeal under s 44 of the AAT Act from the AAT to this Court but did not proceed with that application.

10                  On 1 July 2003 the applicant married an Australian citizen. 

11                  On 10 July 2003, the applicant applied for a spouse visa, apparently received by the Department on 4 August 2003.

12                  The application for a spouse visa was not accepted as a valid application.  By letter dated 25 September 2003, a delegate of the respondent indicated that it was not a valid application by reason of s 48 of the Act.  It is common ground that the decision is not an MRT-reviewable decision as described in Div 2 of Pt 5 of the Act.

13                  Section 48 of the Act provides:

‘(1)

A non-citizen in the migration zone who:

(a)   does not hold a substantive visa; and

(b)    either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

       (ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

(2)

For the purposes of this section, a non-citizen who:

(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).’

The delegate of the respondent concluded that the applicant was in Australia, did not hold a substantive visa (he presently holds a bridging visa), and that he had had ‘a visa (other than a bridging visa) refused or cancelled since last entering Australia’.  That is a reference to the decision of a delegate of the respondent on 22 September 2000 to refuse him a protection visa, even though the AAT on 29 June 2001 set aside that decision.

14                  The applicant concedes that the spouse visa is not in a ‘class prescribed for the purposes’ of s 48 of the Act.  Hence, if he falls within s 48(1)(b)(i), he is not entitled to apply for a spouse visa.

15                  The applicant’s main contention is that s 48(1) of the Act does not apply to him as the original refusal by the respondent to grant him a protection visa was set aside by the AAT on 29 June 2001.

16                  The respondent submits that the clear construction of s 48(1)(b)(i) is that s 48(1)(b) applies to the applicant by reason of the fact of refusal of the protection visa on 22 September 2000, irrespective of the fact that the decision was later set aside, before the application for the spouse visa.  The respondent submits that this construction is reinforced by the fact the provision applies ‘whether or not the application has been finally determined’, as this means the provision pays no heed to the results of any review undertaken under Pt 5 and/or Pt 7 of the Act regarding the original decision. The respondent submits that the fact of refusal on 22 September 2000 is enough and that the legal validity of the refusal (as later determined by the AAT) is not significant.

17                  Under s 43(1) of the AAT Act, the AAT has the power to affirm, vary, set aside, make a decision in substitution of, or remit a decision under review. The AAT does not undertake judicial review of the decision, but instead stands in the shoes of the decision-maker and, on the material before it, makes the ‘correct or preferable’ decision; see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.

18                  In Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 Merkel J, with whom Beaumont and Sundberg JJ agreed, said at 106:

‘When reviewing an administrative decision under s 43(1) the AAT stands in the place, and is empowered to exercise all of the relevant powers and discretions, of the decision-maker in respect of the decision under review.  The AAT hears the matter de novo in the light of the evidence placed before it.’

The material before the Tribunal may be, and often is, different from that before the original decision-maker:  see also Re Easton and Repatriation Commission (1987) 6 AAR 558 at 562 per Davies J. 

19                  Section 43(6) of the AAT Act addresses the effect of the AAT decision upon the original decision.  It provides:

‘A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’

At first reading, its terms are clear.  Upon the AAT’s decision coming into operation, it has effect or is deemed to have effect on and from the day of the decision under review.  In the present matter, the effect of s 43(6) appears to be that the AAT decision of 29 June 2001 (setting aside the decision of the delegate of the respondent and determining that there are no grounds under Art 1F of the Convention to refuse to grant a protection visa to the applicant) has and is deemed to take effect on and from 22 September 2000.  In effect, as a result of the AAT decision there is no decision on 22 September 2000 refusing the applicant a protection visa.

20                  The respondent accepts that.  The respondent further accepts that the application for a protection visa remains undecided, and the delegate will have to determine whether the delegate is satisfied that the criteria for the grant of a protection visa exist.  The application for the protection visa has not therefore been finally determined:  s 5(9) of the Act.

21                  However, the respondent contends that the clear meaning of s 48(1)(b) of the Act is that a refusal of a visa, even if subsequently set aside (as has occurred in this matter), is a refusal of a visa so as to disqualify a person from applying for other than a prescribed class of visa.  If that is the clear meaning of s 48(1)(b), the Court should give effect to it notwithstanding that it will operate harshly in circumstances such as those confronting the applicant.

22                  I do not consider that s 48(1)(b) has that clear meaning.  To discern its meaning, it is necessary to have regard to the wording of s 48(1)(b) in its context in the Act:  see e.g. per Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514.  In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 at 169-170 Mason and Wilson JJ said:

‘The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.  But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

…

Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.’

23                  Section 48 is in Subdiv AA of Div 3 of Pt 2 of the Act.  That subdivision deals with applications for visas by non-citizens.  It is necessary to apply for a visa of a particular class and to pay the visa application charge:  ss 45-45C.  Section 46 describes when a visa application is valid.  A valid visa application must be considered by the respondent:  s 47.  Section 46 is clearly designed to remove doubt about whether the respondent is obliged to consider a visa application.

24                  Sections 48, 48A and 48B prescribe when a non-citizen in Australia (or more accurately in the ‘migration zone’) may apply for certain visas.  Those provisions are designed to control the possible proliferation of visa applications by a particular person.

25                  Generally, only one application for a protection visa may be made by a person in Australia, unless the respondent by written notice permits for a limited period of seven days the making of a further protection visa application:  ss 48A and 48B.  Such permission may only be given in the public interest.  The significance of such permission is indicated by the requirement that the respondent personally must exercise that power, and must expose the decision and the reasons for it before each House of the Parliament.  There is a firm legislative policy evident in s 48A and 48B to ensure that, except in the public interest, only one application for a protection visa should be permitted.  On the other hand, there is also, by the establishment of protection visas under s 36(1), and by the sophisticated procedure for review of an unsuccessful protection visa application by the Refugee Review Tribunal under Pt 7 of the Act, a legislative intention that an application for a protection visa should be carefully considered and that an applicant for a protection visa should be protected from the risk of erroneous decision-making by the primary decision-maker.

26                  Section 48 operates more generally.  Where it operates, only certain visas may be applied for.  Regulation 2.12 of the Migration Regulations specifies 14 only types of visa of which six are bridging visas.  Bridging visas generally relate to circumstances where non-citizens in Australia not holding a substantive visa, or whose substantive visa will soon expire, have lodged a valid substantive visa application.  The bridging visas allow the non-citizen inter alia to lawfully remain in Australia, and while that visa is in operation the person cannot be detained or removed from Australia as an unlawful non-citizen.  They are visas which hold the position whilst any application for a substantive visa is resolved.

27                  Section 48 operates where a visa has been refused, except for a refusal of a bridging visa or a refusal under ss 501, 501A or 501B.  Sections 501, 501A and 501B relate to refusal of a visa on character grounds.  The exemption of such decisions from the operation of s 48 appears not to be material to the present contentions.  Section 501E prohibits the application for any further visas in such cases, except for a protection visa or a visa specified in regulations.  It performs a role akin to s 48 in relation to other classes of visa.  The exemption of bridging visa refusals also is not suggested to be material to the present contentions, as their function, and as noted above, is to hold the position of an applicant for a substantive visa whilst that application is resolved.

28                  There is nothing in s 48, or in the Act generally, which to my mind indicates a legislative policy that a refusal of a visa which has been set aside by the AAT or by the Refugee Review Tribunal (or by the Migration Review Tribunal) should have effect for the purposes of s 48 of the Act.  Indeed, I consider the legislative policy discernible from the provisions to which I have referred is to the contrary.  It is appropriate to have regard to s 48 and s 48A together for that purpose as the relevant wording of s 48(1)(b)(i) and s 48A(1)(a) and (b) is to the same effect.  Counsel for the respondent in argument drew the parallel between those provisions.  Whichever of those sections is addressed, whilst the clear policy is the evidence of a proliferation of visa applications by the expression of the limited circumstances in which more than one visa application may be brought, the context also is that visa applications should be carefully addressed by the respondent or her delegate (subdiv AB of Div 3 of Pt 2) and with rights of review by the AAT in certain refined circumstances, or the Migration Review Tribunal under Pt 5 for applications for visas other than protection visas.  Sections 349 and 415 respectively in relation to the Migration Review Tribunal and the Refugee Review Tribunal set out their powers.  Those Tribunals, like the AAT, stand in the shoes of the primary decision-maker, and may vary or set aside the initial decision and substitute a new decision.  Sections 349(3) and 415(3) provide, in such a case, that the decision as varied or substituted is taken to be a decision of the respondent.  The wording of s 349(3) and 415(3) is significant.  It affirms the primacy of the review decision, once it has been made.  If it sets aside the decision of a delegate of the respondent and substitutes a new decision, the new decision in effect becomes the decision of the respondent.  It would appear to do violence to the plain language of those provisions to treat a decision of a delegate of the respondent which has been set aside by a tribunal under Pt 5 or Pt 7 as a decision refusing the visa.  The provisions do not contemplate two inconsistent decisions of the respondent (by a delegate and by a tribunal) both operating, or that s 48 and s 48A should give primacy to the decision which has been set aside.  To give s 48 and s 48A that meaning would subvert the legislative policy evidenced by the scheme of review under the Act.  Moreover, there is no apparent reason why the legislature would intend ss 48 and 48A to operate when the delegate’s decision has been set aside by the reviewing tribunal.

29                  I do not accept the argument of counsel for the respondent that the parenthetical words ‘whether or not the application has been finally determined’ in s 48(1)(b)(i) and also in s 48A(1)(a) and (b) apply to the present circumstances.  Section 5(9) defines when an application for a visa is finally determined.  It provides:

‘For the purposes of this Act, an application under this Act is finally determined when either:

(a)               a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)               a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.’ 

30                  The fact that s 48(1)(b)(i) operates whether or not the application for a visa has been finally determined, that is whether or not the time for any review available under Pt 5 or Pt 7 has expired, or if an application for review has been made whether or not the application for review has been determined, does not mean that a decision to refuse a visa which has been set aside on review should nevertheless be given effect to.  The parenthesised words must be given effect:  see e.g. per McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 510.  But the purpose of those words is clear enough:  they mean that s 48 would prevent the application for a further visa (other than a visa in the prescribed classes) whilst the refusal decision had effect.  It would have effect once it was made, even though there may still have been time to seek review of it under Pt 5 or Pt 7 or even though there may be an unresolved review application under Pt 5 or Pt 7.  The legislative policy is to preclude any further application for a visa (other than a visa in the prescribed classes) in such circumstances.  There is sound reason why that should be so:  there may be no application for review, or the decision under review may be affirmed.  The parenthesised words cover what might otherwise be an hiatus in the legislative scheme.

31                  The operation of s 43(6) of the AAT Act was discussed by the Full Court of this Court in Lesi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 285 (Lesi) at [38] – [50]. As was highlighted there at [39], there are obvious difficulties in applying s 43(6) in its terms in all circumstances.  At [47] the Full Court in Lesi stated:

‘Ultimately, the proper interpretation of s 43(6) of the AAT Act must be a question of determining the intention of the legislature.  On the one hand, there are obviously strong reasons of principle why the legislature would not intend to visit upon the appellant the consequence of losing his entitlement to remain permanently in Australia based upon the implementation of a deportation order which, now, has been set aside.  Nor could it readily be taken to intend that, by reason of the implementation of a deportation order which has been set aside, the appellant is now ineligible to be granted a visa by reason of his deportation.  On the other hand it cannot have been intended to render invalid or unlawful a deportation order that was validly and lawfully made and implemented prior to it being set aside primarily for reasons that arose post-implementation.  Where the language of an enactment admits of two constructions, the courts will act upon the view that an obvious injustice would not have been intended unless it is clearly manifest in or from the words of the enactment.’

32                  Review of a decision of the delegate of the respondent that an application for a protection visa should be refused by reason of Art 1F of the Convention (as is the present case) is not available under Pt 5 or Pt 7 of the Act:  s 500(4).  Hence, the delegate’s decision of 22 September 2000 finally determined the application, in terms of s 5(9) of the Act.  It was nevertheless subject to review by the AAT.  It would be very surprising if ss 48 and 48A of the Act sought to draw a distinction between decisions reviewable under Pt 5 or Pt 7 on the one hand and decisions reviewable by the AAT under Pt 9 on the other.  No reason for such a distinction emerges to my mind, or was suggested in argument.

33                  The parenthesised words in s 48(1), as explained above, therefore make explicit in relation to its operation what the Full Court in Lesi drew from the operation of s 43(6) of the AAT Act.  If the present application for the spouse visa had been made between the delegate’s decision on 22 September 2000 and the AAT decision on 29 June 2001, s 48 would have rendered it incompetent.  But, following the AAT decision on 29 June 2001, the delegate’s decision was set aside and the AAT decision was deemed to be a decision of the respondent having effect from 22 September 2000.  The spouse visa application was made after 29 June 2001.

34                  The construction I have placed on s 48(1)(b), in particular on the parenthesised words, is also one which will avoid injustice to the applicant.  Where there are competing available constructions of an enactment, it is proper to adopt that meaning which will avoid consequences that appear irrational or unjust:  see e.g. per Gibbs J in Public Transport Commission of New South Wales v J Murray More (NSW) Pty Ltd (1975) 6 ALR 271 at 282.  Thus, although in context I think the words of s 48(1)(b) are clear, even if the words of s 48(1)(b) admit of the construction for which the respondent contends I would prefer the construction which I have adopted.

35                  I do not consider that the decision in Residual Assco Group Ltd v Spalvins (2000) 172 ALR 366 supports the alternative contention of the respondent.  That case concerned s 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA) and rule 123A.05 of the Rules of the Supreme Court of South Australia.  Those provisions were introduced to facilitate the transfer of proceedings from this Court to the Supreme Court following the decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511.  Section 11 entitled a party to a proceeding which was a ‘relevant order’ to apply to have the proceeding treated as a proceeding in the Supreme Court.  A ‘relevant order’ included certain orders in proceedings in this Court, so the historical fact of the relevant order having been made in proceedings in this Court enlivened the entitlement of a party to apply under s 11, even though the order may have been made without jurisdiction.  Legislation may fix upon an event (be it a court order or some other event) as having certain further specified consequences.  But it is a matter of construction of the particular enactment to determine whether that is the case.  In this matter, for the reasons I have given, I do not consider the ‘refusal’ to which s 48(1)(b) refers is intended to be the event of the delegate’s decision irrespective of whether it is subsequently set aside, whether by a form of review under the Act or by judicial determination that it has been made through jurisdictional error.

36                  For the reasons given, the applicant’s application for a spouse visa was not prohibited by s 48 because the applicant had not been refused a protection visa, as contended on behalf of the respondent.

37                  Accordingly, I declare that the application of the applicant dated 10 July 2003 and lodged on 4 August 2003 for a Class UK (Partner – Temporary) / BS (Partner – Permanent) Subclass 820/801 Visa is valid.  I order that the respondent determine that application in accordance with the Act.  I do not consider other orders are necessary to secure the due consideration of the application, but I will give the parties liberty to apply to seek any further orders that they consider necessary in the light of these reasons.  The respondent should pay the costs of the application to the applicant.

Associate:

Dated:              17 June 2004