FEDERAL COURT OF AUSTRALIA

El Ess v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1038

MIGRATION – visa – family visa – application – earlier visa containing condition that, after entering Australia, holder not entitled to be granted a substantive visa while remaining in Australia – whether application for family visa not a valid application – whether condition imposed validly – whether failure to follow policy guidelines – whether tribunal could have treated decision to impose condition in earlier visa as a nullity – effect of condition – whether a condition described in particular provision of Act relating to imposition of condition automatically in classes of visas – condition imposed as an exercise of discretion – whether condition had any effect if not to make subsequent application not a valid application

Migration Act 1958 (Cth) ss 41, 46, 65, 69, 346, 351, 474, 475, 476, 478, 485

Judiciary Act 1903 (Cth) s 39B

Constitution (Cth) s 75(v)

Migration Regulations 1994 (Cth) reg 2.05, Sch 2 item 676, Sch 8 item 8103

High Court Rules (Cth) O 55 r 30

Federal Court Rules (Cth) O 51A

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 referred to

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

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 (2003) 204 ALR 55 referred to

Sevim v Minister for Immigration and Multicultural Affairs [2001] 1597 (2001) 114 FCR 126 referred to

Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 applied

Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 applied

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 applied

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to

FAWZIE MOHAMAD EL ESS AND MUSTAPHA MOHAMAD EL ESS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

V 178 of 2003

GRAY J

13 AUGUST 2004

MELBOURNE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The applicants have leave to amend their application in the form of the amended application filed on 16 April 2004.

2.         The application for an order nisi be granted.

3.         The order nisi be discharged.

4.         The application for writs of mandamus, certiorari and a declaration be dismissed.

5.         The applicants pay the first respondent’s costs of the proceeding.

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

The nature and history of the proceeding

1                     The two applicants in this proceeding seek to set aside a decision of the Migration Review Tribunal (‘the Tribunal’) that their applications for visas, pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’) were invalid and could not be dealt with.  The ground of the decision was the presence in an earlier visa, held by each of the applicants, of a condition to the effect that the holder of the visa, after entering Australia, would not be entitled to be granted a substantive visa, other than a protection visa, while remaining in Australia.  The proceeding raises the question whether the condition was inserted into the former visa of each of the applicants validly.  If it was so inserted, the question is whether the condition has the effect of barring an application for a further visa.

2                     The applicants, a sister and brother, are citizens of Lebanon.  On 6 January 1997, they arrived in Australia, each as the holder of a Short Stay (Visitor) (Class TR) visa, subclass 676 (a ‘Visitor visa’), valid for three months.  Among the conditions of each Visitor visa was a condition, designated as ‘8503 no further stay’.

3                     On 28 February 1997, each of the applicants lodged an application pursuant to the Migration Act for a Family (Residence) (Class AO) visa, subclass 806 (a ‘Family visa’), on the basis that they were ‘orphan relatives’ of their older brother, an Australian citizen.  On 2 October 2000, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Minister’) refused the application on the basis that the applicants’ mother was not permanently incapacitated and, consequently, the applicants did not meet the definition of ‘orphan relative’. 

4                     The applicants then lodged an application for review with the Tribunal. 

5                     By letter dated 21 May 2001, an officer of the Tribunal informed the applicants in the following terms:

‘The Tribunal has decided to set aside the DIMA decision and substitute a new decision.  This means that the Tribunal has decided that the DIMA decision was not correct, and your application to have that decision changed has been successful.’

6                     Attached to that letter was a written decision and reasons for decision of the second respondent to this proceeding, the Tribunal.  In fact, the letter of 21 May 2001 advised the applicants incorrectly.  The decision of the Tribunal was in the following terms:

‘The Tribunal sets aside the decision under review and substitutes a decision that, there being no valid visa application, the Tribunal is unable to consider the substance of the application before it.’

7                     The Tribunal’s decision was made on the basis that the presence of condition 8503 in the applicants’ Visitor visas led to the result that their application for Family visas was not a valid application and the Family visas were therefore not capable of being granted.

8                     The incorrect advice in the letter of 21 May 2001 was corrected by letter from the Tribunal officer to the applicants dated 30 May 2001.  This letter advised:

‘The Tribunal has set aside the DIMA decision and substitute [sic] a new decision.  The Tribunal has decided as there was no valid visa application made, the Tribunal is unable to consider the application for review.’

9                     By a further letter, dated 11 September 2001, another Tribunal officer advised the applicants in the following terms:

‘I refer to the Tribunal’s letter of May 2001, advising you of its decision about your application for review of a decision on a Family (Residence) (Class AO) visa, subclass 806.  The Tribunal wishes to advise that the information stated in paragraph 3 of that letter is incorrect, as it does not reflect the Tribunal’s statement’.

10                  Attached to this letter was another copy of the Tribunal’s written decision and reasons for decision. 

11                  The applicants did not challenge the Tribunal’s decision in court immediately.  Instead, they applied to the Minister, pursuant to s 351 of the Migration Act, seeking that the Minister substitute for the decision of the Tribunal another decision, more favourable to the applicants.  By letter dated 24 August 2001, the minister assisting the Minister rejected this application.

12                  On 25 September 2001, the applicants applied to the High Court of Australia for relief in respect of the Tribunal’s decision.  By an amended draft order nisi, dated 21 November 2002, they sought an enlargement of the time fixed by O 55 r 30 of the High Court Rules (Cth) within which to apply for a writ of mandamus.  The applicants sought certiorari to quash the decision of the Tribunal, mandamus directed to the Tribunal to hear and determine the application for review according to law and a declaration that condition 8503 was imposed invalidly on their original visas.  The respondents were the Minister and the Tribunal.  The Tribunal did not participate in the proceeding, but informed the High Court that it would abide any order made, save an order as to costs.  By order of Hayne J, dated 28 November 2002, the High Court remitted further proceedings in the application for an order nisi to this Court.

13                  On 23 April 2003, Marshall J made timetabling orders, contemplating that the applicants might wish to file and serve an amended application.  They were to do this by 15 May 2003.  In fact, an amended application was not filed until 25 June 2003.  On the day of the hearing, counsel for the applicants sought to make further amendments to the application, to raise what were in effect new grounds upon which the applicants sought relief.  Counsel for the Minister objected to the proposed amendment.  I reserved the question whether leave should be granted to rely on the new grounds, on the basis that I would hear argument on them, to see if they were of substance.  As it turned out, the proposed new grounds were the only grounds argued by counsel for the applicants.  Before dealing with them in detail, it is necessary for me to set out the relevant legislative provisions and the facts associated with the inclusion of condition 8503 in the original visas.

The legislation

14                  Section 41 of the Migration Act, in the form in which it took at the time of the grant of the applicants’ Visitor visas, 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.’

15                  Section 41 has been amended since by the addition of subs (2A), which provides:

‘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).’

16                  The amendment came into operation on 1 March 1999. 

17                  At the time when the applicants made their applications for visas the subject of the Tribunal’s decision of 24 May 2001, s 46(1) of the Migration Act provided:

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

            ...

            (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).’

18                  Section 46 has also been amended, with the relevant amendments operating from 1 March 2001.  Section 46(1) now commences with the words ‘subject to subsections (1A) and (2)’.  Paragraph (e) has been repealed.  There is a new subs (1A), in the following terms:

‘Subject to subsection (2), an application for a visa is invalid if:

(a)       the applicant is in the migration zone; and

(b)       since last entering Australia, the applicant has held a visa subject to a
            condition described in paragraph 41(2)(a); and

(c)        the Minister has not waived that condition under subsection 41(2A);
            and

(d)       the application is for a visa of a kind that, under that condition, the
            applicant is not or was not entitled to be granted.’

19                  For present purposes, it is unnecessary to have regard to s 46(2).

20                  At all relevant times, s 69(1) of the Migration Act has provided that non-compliance by the Minister with subdiv AA of Div 3 of Pt 2 of the Migration Act, which includes s 46, 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.’

21                  At all relevant times, reg 2.05(1) and (2) of the Migration Regulations 1994 (Cth) (‘the Migration Regulations’) provided:

‘(1)      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.

(2)       For the purposes of subsection 41 (3) of the Act (which deals with
            conditions that may be imposed on a visa), the conditions that the
            Minister may impose on a visa are the conditions (if any) referred to
            as being conditions that may be imposed in the Part of Schedule 2
            that relates to visas of the subclass in which the visa is included.’

22                  At the time when the applicants applied for their Visitor visas, the provisions governing the grant of a Visitor visa were set out in subclass 676 in Sch 2 to the Migration Regulations.  Item 676.613 in that subclass provided that ‘condition 8503 may be imposed.’  Condition 8503 is found in Sch 8 to the Migration Regulations and is in the same form as it was when it was imposed on the applicants’ Visitor visas.  That form is:

‘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.’

The Procedures Advice Manual (PAM3)

23                  From time to time, the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, ‘the Department’) produced a collection of guidelines, to assist the officers who were required to consider applications for visas in the performance of their task.  These guidelines were, and are, named the Procedures Advice Manual.  At the relevant times, they have been known by the abbreviated title ‘PAM3’.  At the time when the applicants applied for their visitor visas, PAM3 contained guidelines in relation to the imposition of condition 8503 in a visa.  Those guidelines were expressed as follows:

‘Condition 8503 – “no further stay”

5.15     This condition states “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.”

·        The authority for the regulations to prescribe this condition derives from

s41(2)(a) of the Act.

·        Section 46(1)(e) of the Act in turn provides that an application for a visa (other than for a protection or bridging visa) is not valid if the applicant is in Australia and holds a visa subject to this condition.

5.16     Schedule 2 provisions enable condition 8503 to be imposed (at the discretion of the decision maker) on any Visitor visa.

5.17     Wherever this condition is attached, its legal effect is to remove the holder’s ability to make a valid application for a further substantive visa (temporary or permanent, other than a protection visa) while the holder remains in Australia.  The wording of the provision also constitutes a bar on the grant of a further substantive visa (other than a protection visa) in Australia.

5.18     Because of the very restrictive nature of this condition, it is intended that it be used only in EXCEPTIONAL circumstances.  It is NOT to be used as an alternative to being satisfied that an applicant meets prescribed criteria for the grant of a visa, such as having a genuine intention only to visit Australia, or meeting Schedule 4 criterion 4011 risk factor requirements.  If not satisfied that all criteria are satisfied, decision makers cannot lawfully grant the visa.

5.19     In general, the condition may be imposed where the applicant needs to travel in particularly compelling circumstances, and the grant of a visa which restricts their period of stay in Australia might be appropriate for health, character, previous compliance record or similar reasons.  Examples of compelling circumstances include

·        a particular family event such as a wedding, christening, funeral, family reunion or significant birthday;

·        urgent legal matters; or

·        settling affairs after a prior lengthy stay in Australia.

5.20     Note that the imposition of condition 8503 should be avoided in situations where the applicant is travelling due to the serious illness or pregnancy of a family member in Australia, as the inability to extend the applicant’s period of stay in such circumstances frequently leads to considerable distress, particularly where the family member may be dying, or the birth does not take place within the period of authorised stay.

5.21     The examples given above are neither exhaustive nor prescriptive, and decision makers should give careful consideration to the circumstances of each case in order to decide whether imposition of the condition would be appropriate in these or any other situations.

5.22     If, having taken all the circumstances into account, the decision maker is minded to impose condition 8503 on a visa, the following procedures must be followed:

·        The applicant must be FULLY COUNSELLED about the condition and its effect, BEFORE a decision to grant the visa is made.  It is recognised that there are communication difficulties in many posts which make such a requirement difficult.  However, unless the counselling takes place before the visa is granted, and the decision to grant made on the basis of the outcome of that counselling, it is arguable that the imposition will be legally flawed and could be challenged in Court.

·        Following counselling, applicants must acknowledge in writing that they understand and accept the restriction that it places on them.  Where relevant, the acknowledgement should be both in the local language and in English; and the applicant should be given a copy, either of the visa condition (as a passport insert) or of the acknowledgement.  A copy of the acknowledgement should also be retained at the post.

·        As a matter of policy, it is recommended that the decision to impose the condition be taken by, or in consultation with, an A-based officer.  The details of counselling should be recorded.

5.23     A visa holder in Australia with condition 8503 who seeks to apply for a substantive visa (other than a protection visa) should have the condition and its effect drawn to their attention.  If the applicant claims that the condition was imposed without their knowledge or consent, officers should follow the procedures set out below:

·        Obtain the relevant details from the applicant, and undertake to investigate further, but counsel the applicant that no guarantee as to the outcome can be given.  Under no circumstances should an application be accepted or a fee receipted at this stage.

·        Seek advice and documentation from the overseas post to ascertain the exact circumstances under which the condition was imposed.

·        If there is a doubt that the procedures outlined in paragraph 5.22 above were followed, and that the condition may therefore have been imposed incorrectly, regional offices should consult with the Temporary Entry Policy and Operations Section (TEPO), Overseas Client Services Division, DIMA CO.

·        If a regional office, in consultation with TEPO, finds that the condition has not been lawfully imposed in accordance with the procedures in paragraph 5.22, the decision that the condition has not been lawfully imposed should not be taken by an officer below SOGB level.  Details of the decision should be advised to TEPO.’

The imposition of condition 8503

24                  When they applied for their Visitor visas, the applicants were living in northern Lebanon, some distance from the capital, Beirut.  On 27 August 1996, their father died.  The applicants and their mother wished to come to Australia to visit their brother and two sisters, in consequence of their bereavement.  The applications for Visitor visas were made through a travel agent, who lodged the applications with the Australian Embassy in Beirut.

25                  On 24 December 1996, an officer in the Australian Embassy in Beirut made a decision to grant a Visitor visa to each of the applicants.  The officer also decided that each Visitor visa should be subject to condition 8503.  The applicants and their mother were informed of their decision, and were invited to attend at the Australian Embassy in Beirut, to collect their passports, endorsed with the visa, including the words ‘8503 NO FURTHER STAY’. 

26                  On 30 December 1996, the applicants attended the Australian Embassy in Beirut.  The first applicant was then 15 years old.  The second applicant was 17 years old.  Each was invited to sign an undertaking, written in both the English and the Arabic languages.  The English language version of the undertaking signed by the first applicant is on a letterhead bearing the crest of the Commonwealth of Australia and the address ‘AUSTRALIAN EMBASSY BEIRUT’.  Relevantly, the undertaking is as follows:

‘UNDERTAKING

I  Fawzie El Ess          born on           2/4/      1981, acknowledge that the granting of this visitor visa for Australia does not, after entering Australia, allow me to be granted any further visa for a longer stay in Australia beyond the period authorised by the grant of this visa.  I also understand that by law this restriction cannot be varied or amended during my stay and therefore I acknowledge that in addition to the undertakings I declared on my original application for a visa, that I will:

â        NOT BE ALLOWED TO STAY IN AUSTRALIA LONGER THAN
THE     3         MONTH PERIOD OF STAY AUTHORISED BY THIS VISA; and

ã        NOT BE ALLOWED TO SEEK OR APPLY FOR AUTHORITY TO SETTLE PERMANENTLY IN AUSTRALIA DURING MY VISIT.’

27                  The undertaking signed by the second applicant was in the same form, save for the name and date of birth. 

28                  The applicants claim that there was no attempt to explain to them the effect of condition 8503.  In an affidavit filed in this proceeding, the first applicant swore that the person who told the applicants to sign the undertakings ‘did not mention condition 8503 or explain its meaning.’  That person simply talked to them about the fact that they would be visiting family in Australia after the death of their father.  They were told they had to sign the papers to get the visas.  They did not read the documents or understand them.  The first applicant was cross-examined on her affidavit.  I have no hesitation in regarding her as a credible witness.  She described a busy office at the Australian Embassy in Beirut, with a queue of people awaiting service from a single officer at a counter.  Such a picture is consistent with the probable facts that an officer, seeking to transact the business required with reasonable efficiency, would not take the trouble to explain the effect of a condition such as this to a mother and two teenagers, wishing to reunite with other members of their family for the purpose of grieving.

29                  The first applicant’s evidence is also consistent with the fact that a decision had already been made to grant each of the applicants a Visitor visa.  Knowing that the visa had already been granted, with condition 8503, the officer would have been less likely to be concerned to explain the effect of condition 8503, in the manner contemplated by cl 5.22 of PAM3. 

30                  In response to an inquiry from an officer of the Department, subsequent to the grant of the applicants’ Visitor visas, an officer at the Australian Embassy in Beirut supplied the following information in a facsimile dated 11 July 1997:

‘Before I began work in Visitors Section, a technically unlawful procedure was in place whereby visitor visas were granted and evidenced before the applicant was counselled about the 8503 NO FURTHER STAY undertaking.  The whole idea was to have everything ready and save the client time between signing the undertaking and having their visa evidenced.  In the unlikely event that an applicant refused to accept the 8503 condition, the approval decision would have been set aside and the visa refused.

The procedure worked because applicants are only too happy to accept the 8503 if it means they gain entry to Australia.  A lawful procedure is now in place.

As you will see from the attached and signed undertakings, these clients have provided false information to you.  Although their applications were lodged by an agent, they attended the Embassy in person to sign undertakings and were counselled in-depth about the ramifications.  Being a high risk post under constant pressure to grant visas to people we have concerns about, we are big users of the 8503 condition.  We go to great lengths to counsel applicants (in their own language) about the legally-binding undertaking.  They acknowledge this by reading the Arabic version and then signing it and an English translation.  There would be no doubt that these people knew the implications of the 8503 condition on their visitor visas.

Also of interest is the fact that the visit was supported by a sister in A/a (her assurances are also attached).  A bank statement showing $US11,000 was provided.  The applicants come from Mechmech, a high risk and impoverished area of northern Lebanon – applications from this region are scrutinised (many are non-bonafide).’

31                  It is apparent on the face of this facsimile that it contains no first-hand evidence about what occurred in the applicants’ case.  To the extent to which the author of the facsimile describes a system, the description supports the proposition that the decision to grant the visa was made prior to the signing of the undertaking.  So far as the facsimile suggests that the applicants have lied about the process of signing the undertakings, and that they were in fact counselled about the undertakings, it is pure speculation.  It is plain from the terms of the facsimile that its writer was not in a position to know what actually happened at the relevant time.

32                  It is not clear whether any effort was made to obtain evidence from the officer who witnessed the signatures of the applicants on their respective undertakings.  Even though the signature is not readily decipherable, it is unlikely that it would have been extremely difficult to establish the identity of the person concerned. 

33                  In the circumstances, I have no hesitation in accepting the evidence of the first applicant.  I find that the applicants were given no counselling as to the effect of condition 8503, either prior to the grant to each of them of a Visitor visa, or prior to their signing of their respective undertakings on 30 December 1996.

The validity of the imposition of condition 8503

34                  Counsel for the applicants contended that condition 8503 had not been inserted validly into either applicant’s Visitor visa.

35                  The decision to make the applicants’ Visitor visas subject to condition 8503 was made on or before 24 December 1996.  As the Migration Act stood at that time, assuming that such a decision was a ‘judicially-reviewable decision’ within the meaning of s 475, it could only have been reviewed by this Court pursuant to the exclusive code in Pt 8 of the Migration Act: see s 485(1) of the Migration Act as it then stood.  By s 478(1)(b), an application to the Court could only be made within a 28-day time limit from notification of the decision to the person applying.  There was no power to extend this time limit.  Nor was a decision to impose a condition on the grant of a visa capable of being reviewed by the Immigration Review Tribunal, the forerunner of the Tribunal: see the definition of ‘IRT-reviewable decisions’ in s 346 of the Migration Act as it then stood.

36                  A decision to impose a condition on the grant of a visa would now fall within the definition of ‘privative clause decision’ in s 474 of the Migration Act’; s 474(3)(d) makes it clear that a decision imposing a condition is a ‘decision’ for the purposes of that definition.  As a consequence of s 476(1) and (6), this Court would not have jurisdiction to review such a decision.

37                  At all times, it would have been open to the High Court of Australia, pursuant to s 75(v) of the Constitution, to entertain an application for the forms of relief referred to in that provision, in respect of a decision of an officer of the Commonwealth.  In order to succeed, such an application would have to be based on jurisdictional error on the part of the decision-maker.  Whether it would be possible to separate the decision to impose the condition from the decision to grant the visa subject to the condition, and to deal only with the former, might be an interesting question.  Pursuant to s 39B of the Judiciary Act 1903 (Cth), the jurisdiction given to the High Court by s 75(v) of the Constitution is now available to this Court, the former s 485(1) of the Migration Act having been repealed. 

38                  In the present case, counsel for the applicants contended that the decision to impose condition 8503 on the applicants, as part of the grant of their Visitor visas, was the result of jurisdictional error on the part of the decision-maker.  As a consequence, that decision was of no effect, and should have been ignored by the Tribunal.  The jurisdictional error for which the applicants contended was the existence of an ulterior purpose for the decision, or the taking into account of irrelevant considerations, or the failure to take into account relevant considerations.  At the heart of the contentions lay what was said to be a failure to apply, or to apply correctly, the guidelines laid down in PAM3.  The argument relied in part on the failure to counsel the applicants as to the meaning of condition 8503, as required by cl 5.22 of PAM3.

39                  To make this case, counsel for the applicants relied on the facsimile of 11 July 1997.  He contended that the reference to the fact that the applicants came from ‘a high risk and impoverished area of northern Lebanon’ and to the fact that the Australian Embassy in Beirut was ‘a high risk post under constant pressure to grant visas to people we have concerns about, we are big users of the 8503 condition’ disclosed a failure to comply with cl 5.18 of PAM3.  That is to say, counsel for the applicants argued that the condition had been imposed as an alternative to the officer concerned being satisfied that the applicants met the criterion of having a genuine intention only to visit Australia, or to the officer being satisfied that the applicants met relevant risk factor requirements.  It was argued that this failure to comply with cl 5.18 of PAM3 revealed an ulterior purpose, of circumventing the criteria for the visa.  Alternatively, it amounted to a failure to take into account a relevant consideration, namely cl 5.18 of PAM3, or a taking into account of irrelevant considerations, namely those excluded by cl 5.18 of PAM3. 

40                  This argument faces a number of difficulties.  First, it would be necessary to be sure that the decision to impose the condition could be treated as a decision separate from the decision to grant a Visitor visa.  This is not necessarily a technical quibble.  If the officer concerned had the ulterior motive of granting a visa containing condition 8503, instead of being satisfied that the criteria for the Visitor visa were made out, it would follow that the officer was not satisfied that the criteria were made out.  This would lead to the conclusion that s 65 of the Migration Act would have required the officer to refuse the visa.  There is something profoundly unsatisfying about the notion that the applicants should be entitled to have the decision to impose condition 8503 treated as invalid by reason of a factual situation which, if true, would have resulted in the denial of Visitor visas to them.  At the very least, if the applicants were otherwise entitled to an order, this would be a ground for refusing them relief in the exercise of the Court’s discretion. 

41                  Further, if it could be established that the decision to impose condition 8503 were tainted by jurisdictional error on the part of the officer who made it, there would be questions as to the effect on the decision of the making of such a finding by the Court now.  It might be necessary to determine whether the decision should be regarded as having been a nullity, or as having had some force and effect, unless and until set aside.  In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 at [51], Gaudron and Gummow JJ said:

‘There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.  Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.’ [Footnotes omitted]

42                  At [53], their Honours repeated the proposition that ‘a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.’  This proposition was accepted by a majority of the High Court, Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [76].  There is nevertheless an open question as to what effect can be attributed to a decision affected by jurisdictional error that is unchallenged, or that is challenged but not set aside by a court because of discretionary considerations.  In a given case, the answer might depend upon the application of the principles laid down by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 – 389, as to the ascertainment of a legislative purpose to invalidate an exercise of statutory power not complying with a statutory condition.  See the discussion in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 (2003) 204 ALR 55 at [28] – [42]. 

43                  In the present case, assuming that condition 8503 had been included in the applicants’ Visitor visas without proper statutory authority for its inclusion, there would be a question as to whether the condition, appearing as it did in the applicants’ passports, had any effect.  That question may not be one for the Tribunal.  As I have said, the Tribunal’s jurisdiction is limited to reviewing certain decisions.  It does not have jurisdiction to determine generally that any decision other than that which it is reviewing is a nullity.  See Sevim v Minister for Immigration and Multicultural Affairs [2001] 1597 (2001) 114 FCR 126 at [46] – [47] and [57].  To establish jurisdictional error on the part of the Tribunal in the context of the present case, the applicants would have to show that the presence of condition 8503 in their Visitor visas did not operate to deprive the Tribunal of jurisdiction to deal with their applications to review the decision of the Minister’s delegate refusing to grant them Family visas.  The Minister’s delegate had not found condition 8503 to be a barrier to consideration of the applications for Family visas, and had treated those applications as valid applications, despite the presence of condition 8503 and the provisions of s 46(1)(e) as they then stood.  Section 69(1) of the Migration Act operated to give the Tribunal jurisdiction to review the decision of the Minister’s delegate, even if the delegate had acted wrongly in disregarding the presence of condition 8503 in the applicants’ Visitor visas.  Of course, the Tribunal then had to determine for itself whether the applications for Family visas were valid applications.  See Sevim at [57] – [63].  One aspect of determining whether there were valid applications in the present case was the presence of condition 8503 in the Visitor visas.  The question whether the Tribunal could treat the decision to impose condition 8503 as invalid was therefore a vital one in determining the limits of the jurisdiction of the Tribunal.  This question was not argued fully in the present case, and it is unnecessary for me to answer it.  I prefer to express no concluded opinion on it without full argument.

44                  The greatest difficulty faced by the applicants in the present case is to make good their contention that the decision to impose condition 8503 on their Visitor visas was subject to jurisdictional error.  The only evidence they have to support the proposition is material from the facsimile of 11 July 1997.  Even supposing the information about the approach of the Australian Embassy in Beirut to the imposition of condition 8503 could be regarded as based on some appropriate level of knowledge on the part of the author of the facsimile, the fact is, it is general information.  The facsimile says nothing about the specific cases of the applicants.  In particular, it falls well short of establishing that the officer who granted the Visitor visas was not satisfied that the applicants fulfilled all of the necessary criteria, and was using condition 8503 as a substitute for such satisfaction.  The fact that the applicants were not in fact counselled about the effect of condition 8503, but were merely asked to sign their undertakings, suggests that the officer was in fact satisfied of their genuine intention only to visit Australia for a short term, and for a particular purpose.  It should not be supposed that a particular officer granted visas without such satisfaction, but for an ulterior purpose, without evidence relating to the individual cases.  The applicants have failed to make out their case that the officer did not comply with cl 5.18 of PAM3.

45                  In any event, PAM3 is not a binding document.  PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations.  See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16].  PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers.  Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.  See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed.  A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

46                  The applicants have failed to establish that the Tribunal was in error in treating the applicants’ Visitor visas as containing condition 8503.  It is therefore necessary to turn to the second argument put on behalf of the applicant, which raises the question of the effect of condition 8503 on the validity of the applications for Family visas.

The effect of condition 8503

47                  Counsel for the applicants accepted that condition 8503 was a condition that could be imposed validly in respect of a visa.  Section 41(2)(a) of the Migration Act authorised the Migration Regulations to provide for the imposition of a condition in the terms of condition 8503.  Section 41(2)(a) of the Migration Act did not have the effect of limiting a condition in its terms to those visas, or classes of visas, specified in the Migration Regulations.  Section 41(3) permitted the Migration Regulations to provide that a condition in the same terms as that referred to in s 41(2)(a) could be imposed as a matter of discretion.

48                  Counsel for the applicants did argue, however, that the consequence of invalidity of an application, for which s 46(1)(e) of the Migration Act formerly provided and s 46(1A) now provides, attaches only to a condition imposed directly by the operation of a provision of the Migration Regulations, and not to one imposed by the exercise of a discretionary power given by the Migration Regulations.  The argument was based on the proposition that the phrase ‘a condition described in paragraph 41(2)(a)’ could be referable only to a condition imposed because the Migration Regulations made express provision for its imposition, pursuant to s 41(2)(a).  A condition imposed as a matter of discretion, pursuant to a regulation made under the power in s 41(3) could not be ‘a condition described in paragraph 41(2)(a).’ 

49                  The particular legislative scheme adopted does give rise to an ambiguity.  On the one hand, the phrase ‘a condition described in paragraph 41(2)(a)’ could be read as confined to a condition imposed as a consequence of the operation of s 41(2)(a), ie imposed directly by a regulation made in the exercise of the power given by that provision.  On the other hand, the phrase could be read as if the words ‘of a kind’ had been inserted before ‘described’, so that attention was directed to the substance of the condition, rather than to the machinery by which it was imposed.  On the latter view, a condition the terms of which matched the description in s 41(2)(a) would be included, even if imposed as a result of the exercise of a discretionary power pursuant to a regulation made under the power given by s 41(3). 

50                  Counsel were unable to refer me to any direct authority on the issue, although counsel for the respondent contended that Sevim provided such authority.  In Sevim at [33], I said:

‘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).’

51                  It should be noted that the argument in Sevim was directed towards a different basis for comparison between s 41(2)(a) and condition 8503.  It was directed to whether the absence of the words ‘despite anything else in this Act’, and other minor changes, were sufficient to remove condition 8503 from the category of a condition described in s 41(2)(a).  In Sevim, I was not dealing with the argument that condition 8503 was not a condition described in s 41(2)(a) at all, because the source of the power to impose it was s 41(3) and not s 41(2)(a).  In dealing with that argument, which has been put in this case, I regard myself as unconstrained by anything that I said in Sevim.  The argument is a new one.  It is best to attempt to resolve it by a purposive construction, rather than by having regard to a previous judgment on a different point.

52                  It is not easy to see why Parliament adopted the form of condition described in s 41(2)(a) of the Migration Act and then adapted it by s 46 for the purpose of invalidating an application.  On its face, the condition says nothing about the making of an application.  It only prohibits the holder of a visa subject to the condition being granted a visa (other than a protection visa) after entering Australia and while remaining in Australia.  Nothing in the terms of the condition would prevent the making of an application.  Nor would it prevent an application made from being successful, provided that the holder of the earlier visa left Australia before a decision was made to grant the visa the subject of the application made while in Australia.  It is not at all uncommon for people to be placed by the Migration Regulations in the position of having to leave Australia in order to enable a decision to be made to grant them further visas.  If the intention of legislating in the terms of s 41(2)(a) was to prevent the making of a further application, it is surprising that Parliament did not cast the provision in those terms.  The only possible explanation is that whoever drafted the provision wished to draft it in terms that would bring home to the holder of a visa subject to the condition that he or she would not be entitled to a further visa.  Even if that were the case, there would have been nothing to prevent the drafting of a condition with two limbs, one being the inability to make a further application and the other being the inability to be granted a further visa.  The end achieved by the combination of s 41(2)(a) and s 46(1)(e), now s 46(1A), has been achieved by very indirect means. 

53                  This analysis is of some importance in relation to condition 8503 when it is imposed as an exercise of a discretion pursuant to s 41(3).  On its face, condition 8503 would not prevent the making of a further application for a visa by the holder of a visa containing the condition, while the visa holder was in Australia.  If it were possible to make an application for a further visa, and if the Minister’s delegate considering that application were satisfied that the person applying met the criteria laid down in the Migration Regulations for the further visa, s 65 of the Migration Act would oblige the delegate to grant the visa.  The visa could not be refused on the ground that a condition disentitling the person applying for it to a further visa was present in a visa already held by that person.  If applied merely in its terms, therefore, condition 8503 would be ineffective to achieve any goal.  Only if the criteria for a further visa included a specific criterion that the person applying for it not already hold a visa subject to a condition in the form of condition 8503 would the condition have any effect at all.

54                  A legislative instrument should not be read to be ineffective if there is reasonably open a construction that would save it.  Plainly, condition 8503 is intended to be effective to disentitle a person holding a visa subject to that condition from obtaining any further visa while the person remains in Australia.  It would only be effective to do so if s 46(1)(e), now s 46(1A), were to be construed as applying to that condition.  In other words, only if condition 8503, when inserted as an exercise of a discretion pursuant to s 41(3), can be regarded as ‘a condition described in paragraph 41(2)(a)’ would such a condition be effective.  Since it is conceded on behalf of the applicants that Parliament has authorised the imposition of a condition in that form as a matter of discretion, pursuant to s 41(3), and not merely as a matter of automatic imposition, it is unlikely that Parliament intended the condition inserted as a matter of discretion to be ineffective.

55                  A purposive approach to the construction of the phrase ‘a condition described in paragraph 41(2)(a)’ therefore leads to the conclusion that the phrase includes such a condition when imposed as an exercise of discretion, pursuant to s 41(3), as well as when imposed directly by a provision in the Migration Regulations, pursuant to s 41(2)(a) itself.  The applicants have therefore failed to establish that condition 8503 did not have the effect of invalidating their applications for Family visas, as the Tribunal held.

Conclusion

56                  For the reasons I have given, the applicants have failed to demonstrate error on the part of the Tribunal in deciding that it had no jurisdiction to deal with their applications for Family visas.  The decision of the Tribunal was correct, in that it accepted that condition 8503 was a condition in each applicant’s Visitor visa.  The decision was also correct in that it accepted that the consequence of the presence of condition 8503 was that the subsequent applications for Family visas, made while the applicants remained in Australia after entering on their Visitor visas, were not valid applications within the meaning of s 46 of the Migration Act.  The consequence was that the Tribunal had no power to proceed to consider whether, on the merits, the applicants satisfied the criteria for a Family visa.  The Tribunal was bound to set aside the decision of the Minister’s delegate and substitute a decision that there was no valid application. 

57                  There being no error on the part of the Tribunal, no occasion arises to consider the question whether any error was a jurisdictional error.  Nor is there any occasion to consider whether the commencement of this proceeding in the High Court by the applicants outside the time limits laid down in the High Court Rules (Cth) for some of the relief sought ought to disentitle the applicants from such relief, or whether enlargements of time should be granted.  I confine myself to the comment that, if the applicants had been otherwise entitled to relief, delay should not have stood in their way.  A decision not to enlarge time limits, and to dismiss a proceeding on that basis, is an interlocutory decision, not a decision on the merits of the case.  If a new proceeding were to be commenced in this Court, after such a dismissal, alleging jurisdictional error, it might not be subject to any time limit at all.  Nor could it be met with a defence of res judicata, issue estoppel, or any similar defence pursuant to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  It would be productive of delay, inconvenience and expense if a further proceeding of that kind could be commenced when the issues raised can be dealt with in a final way in this proceeding.

58                  It will be recalled that I reserved the question whether leave should be granted to amend the application, to rely on the grounds that were argued.  The appropriate course would be to grant leave to the applicants to amend their application in the form filed on behalf of the applicants on the day of the hearing.  Although they have not prevailed, the arguments advanced on behalf of the applicants were not so obviously untenable that as to merit their rejection out of hand.

59                  Pursuant to O 51A r 5 of the Federal Court Rules (Cth), I have dealt with the application as an application for final relief, not as an application for an order nisi.  In order to make this clear, it may be necessary to make an order granting an order nisi, so that the application will be dismissed as a matter of final relief.  This will enable the applicants to appeal as of right, rather than by leave, if they wish to appeal.  The order will therefore be to the effect that an order nisi be granted, but then discharged, and the application for writs of certiorari and mandamus, and for a declaration, be dismissed.

60                  No reason was advanced, and none appears, for departing from the usual rule that costs follow the event.  The applicants will therefore be ordered to pay the Minister’s costs of the proceeding.

Associate:

Dated:              13 August 2004