FEDERAL COURT OF AUSTRALIA

Applicant S453 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1106

MIGRATION – application for constitutional writs remitted from High Court – bridging visa – conditions prohibit working or studying – whether the conditions stipulated by the Migration Regulations 1994 (Cth) are beyond the powers conferred by the Migration Act 1958 (Cth) – whether the conditions contrary to Australia’s international obligations – whether evidence that the Minister (or the Commonwealth) breached a duty of care owed to the applicant – application for order nisi dismissed

Constitution s 75(v)

Migration Act 1958 (Cth) ss 29, 30, 37, 41

Health Insurance Act 1973 (Cth)

Migration Regulations 1994 (Cth) regs 2.04, 2.05, Sch 2 cl 050.612A

Federal Court Rules O 46 r 7A, O 51A r 5

Applicants S61 of 2003 v Refugee Review Tribunal (2004) 206 ALR 461 cited

Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220 cited

Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 cited

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

Amrit Lal Narain v Parnell (1986) 9 FCR 479 referred to

Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 488 referred to

APPLICANT S453 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 588 of 2004

SACKVILLE J

SYDNEY

30 AUGUST 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The motion seeking to join the Commonwealth as a party be dismissed.
2. The application for an order nisi be dismissed.
3. The applicant pay the Minister’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

1                     The applicant commenced these proceedings in the original jurisdiction of the High Court on 12 August 2003.  He seeks orders that constitutional writs be directed to the respondent (‘Minister’), pursuant to s 75(v) of the Constitution.  Section 75(v) provides that the High Court shall have original jurisdiction in all matters:

‘[I]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.’

2                     The draft order nisi filed on behalf of the applicant identifies the orders sought by him as follows:

‘2.       Order that quashes the decision of the Minister; a decision that prohibited me from working paid job and from studying for nearly four years.

3.                  Order that compel [sic] the Minister to give me access to Medicare.

4.                  Order that compel [sic] the Minister to compensate me for the moral, physical, mental and professional damage I received and still receiving as a result of the unreasonable decision of the Minister.’

3                     The grounds identified by the applicant in the draft order nisi are as follows:

‘5.       The law that is adopted by the Minister or by the Parliament to prohibit a lawful person/asylum seeker who is in this country from engaging in work or from getting reliable and adequate support for nearly four years is unreasonable, unrealistic and illogical.  This law also does not indicate or gives other alternatives how a lawful person/asylum seeker could sustain himself or herself without working or getting reliable and adequate support.  This law only serves as a punitive measure.

6.                  This law that prohibit [sic] a lawful person/asylum seeker who is staying in this country from working paid job or from getting reliable and adequate support for nearly four years is against Article 1(2) of the United Nations INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS which Australia is a party.’

4                     On 16 February 2004, Heydon J ordered that further proceedings in the application, including any application for enlargement of time, be remitted to this Court.  The remittal is subject to the right of either party to have the matter reconsidered by a Justice of the High Court in the event that any steps desired to be taken cannot be taken in the Federal Court.

5                     The Federal Court Rules (‘FCR’), O 51A r 5, provide as follows:

‘(1)      Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

(a)      will at the same time hear the parties on whether, if the order nisi were for made, it should be made absolute; and

(b)      if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2)     In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’

6                     The remitted matter came before me for directions on 29 July 2004.  I made an order pursuant to FCR, O 51A r 5(2) that subrule (1) was not to apply to this case.  I also directed that the hearing set down for 25 August 2004 should consider only the application for an order nisi.  It is open to the Court to make such an order:  Applicants S61 of 2003 v Refugee Review Tribunal (2004) 206 ALR 461, at 466–467 [27], per Branson J, with whom Moore and Emmett JJ agreed; see also Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220. 

7                     To obtain an order nisi for a writ of prohibition or certiorari, a party must show that he or she has an arguable case that would justify the grant of final relief by way of an order absolute.  In the present circumstances, this requires the applicant to show that he has an arguable case that the decisions he challenges were affected by jurisdictional error: Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177, at 183, per McHugh J.

8                     The applicant has also filed a motion seeking to join the Commonwealth as a respondent to the proceedings.  Mr Markus, who appeared for the respondent (the ‘Minister’) said at the hearing that although the Australian Government Solicitor had been served with the motion, he dot not have instructions to act on behalf of the Commonwealth.  I indicated that I would hear the applicant’s case and then determine what orders should be made in respect of the motion.

LEGISLATION

9                     Section 29(1) of the Migration Act 1958 (Cth) (‘Migration Act’) provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and to remain in Australia.  A visa to remain in Australia may be a permanent visa or a temporary visa: s 30(1), (2).  There are classes of temporary visas, known as bridging visas, that are granted under Subdivision AF of Division 3 of the Migration Act: s 37. 

10                  Section 41 of the Migration Act provides 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)               …; 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.

(2A)     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).

(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.’

11                  The Migration Regulations 1994 (Cth) (‘Migration Regulations’) identify the circumstances in which a visa may be granted and the conditions to which a visa is subject:

‘2.04    Circumstances in which a visa may be granted (Act, s 40)

For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.

2.05     Conditions applicable to visas

(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.’

12                  The requirements for a Bridging E (General) visa are set out in Subclass 050 of Sch 2 to the Migration Regulations.  The criteria to be satisfied at the time of application include those specified in cl 050.212(3A). 

13                  Clause 050.212(3A) provides 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)     …’

14                  Clause 050.6 deals with the conditions applicable to visas.  Clause 050.612A provides as follows:

‘(1)      This clause applies to a visa that is granted to an applicant (whether or not the applicant is an applicant to whom another clause in this Division would otherwise apply) who:

(a)               meets the requirements of 1 or more of the following:

(i)   subparagraph 050.212(3A)(b)(i);

…

and

(b)               does not meet the requirements of subclause 050.212(6A).

(2)       Condition 8101 must be imposed.

(3)       Any 1 or more of conditions 8201, 8207 … may be imposed.’

15                  Schedule 8 to the Migration Regulations sets out relevant visa conditions.  These include the following:

‘8101   The holder must not engage in work in Australia.

…

8201  While in Australia the holder must not engage, for more than 3 months, in any studies or training.

…

8207  The holder must not engage in any studies or training in Australia.’

16                  The Migration Regulations provide, in limited circumstances, that the Minister can determine that he or she is satisfied that a particular applicant has a ‘compelling need to work’: see for example, cl 050.212(6A)(c).  If such a determination is made, cl 050.612A may not apply: see cl 050.612A(1)(b).  It appears that the applicant is not eligible to seek a determination by the Minister that he (the applicant) has a compelling need to work.

BACKGROUND

17                  The applicant is a citizen of Ethiopia.  He arrived in Australia on 6 July 1997.  On or about 15 August 1997, he applied for a protection visa. 

18                  On 21 May 1998, a delegate of the Minister refused the application for protection visa.  The applicant subsequently sought review of this decision by the Refugee Review Tribunal (‘RRT’), but on 12 May 1999 the RRT affirmed the delegate’s decision. 

19                  On 1 June 1999, the applicant sought judicial review of the RRT’s decision.  On 13 August 1999, consent orders were made dismissing the application.  It appears that the applicant consented to the dismissal of the proceedings because he had requested the Minister to exercise his discretion under s 417 of the Migration Act and he expected a favourable response to that application: see [B] v Minister for Immigration & Multicultural Affairs [1999] FCA 1560, at [2]-[4]; and [B] v Minister for Immigration & Multicultural Affairs [2000] FCA 126, at [5]-[10].

20                  On 28 October 1999, the applicant sought to file a notice of motion seeking to set aside the consent orders.  On 10 November 1999, Tamberlin J directed the Registrar, pursuant to FCR, O 46 r 7A to refuse to accept or to issue the notice of motion, on the basis that it was frivolous or vexatious: [B] v MIMA [1999] FC 1560, at [6]-[7].

21                  On 10 December 1999, the applicant sought leave to appeal and an extension of time to file and serve a notice of appeal from the directions given by Tamberlin J.  On 17 February 2000, the Full Court granted leave to appeal (if required), and made any necessary order extending time, but dismissed the appeal:  [B] v MIMA [2000] FCA 126.  A subsequent application for special leave to appeal to the High Court was refused on 8 September 2000.

22                  In the meantime, in about April 2000, the applicant was joined as a represented party to proceedings then pending in the High Court (Lie v Refugee Review Tribunal, S89 of 1999).  Pursuant to orders made by Gaudron J on 25 November 2002 in the representative proceedings, the applicant commenced his own proceedings in the original jurisdiction of the High Court on 29 May 2003 (S1149 of 2004).  Pursuant to those orders, the applicant thereupon ceased to be a represented party in the representative proceedings.  The individual proceedings were remitted to this Court (and became N1170 of 2003).

23                  On 20 February 2004, Emmett J made orders in proceedings N1170 of 2003 that FCR O 51A r 5(1) not apply to the proceedings and that the application for an order nisi be refused: Applicant S1174/2002 v Refugee Review Tribunal [2004] FCA 289.

24                  On 11 March 2004, the applicant sought leave to appeal from the judgment of Emmett J (N327 of 2004).  This application was dismissed by Jacobson J on 4 May 2004:  Applicant S1149/2003 v Refugee Review Tribunal [2004] FCA 580.  An application for special leave to appeal to the High Court from the judgment of Jacobson J is pending (S175 of 2004). 

25                  Following the making of the consent orders in August 1999, the applicant was taken into immigration detention.  When he was joined as a represented party to the representative proceedings in the High Court, he was granted a bridging visa and released from immigration detention.  Since that time, it appears that the applicant has held a series of bridging visas. 

26                  In addition to the proceedings outlined above, the applicant has sought to commence other proceedings in this Court.  On 21 December 1999, he commenced proceedings seeking orders that he be released from detention or that he be transferred out of the care of the Department of Immigration and Multicultural Affairs.  This application was dismissed by Gyles J on 7 February 2000: [B] v Minister v for Immigration & Multicultural & Indigenous Affairs [2000] FCA 250.

27                  On 11 October 2002, the applicant attempted to file an application seeking a range of orders.  These included orders that he ‘be granted permission [to] work’ and ‘be compensated for mental, physical, material and professional damage and loss’.  On or about 16 October 2002, Emmett J directed the Registrar, pursuant to FCR, O 46 r 7A, to refuse to accept the application in the form presented by the applicant or in any substantial similar form.

28                  The applicant thereupon sought leave to appeal from Emmett J’s orders.  The application for leave to appeal was referred to a Full Court: [B] v Minister v for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1453.  On 13 March 2003, the Full Court dismissed the application, on the ground that a direction made under FCR, O 46 r 7A is not a judgment that can be subject to an appeal by the person whose documents has been rejected by the Registrar pursuant to the direction: [B] v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353.  Yet another application for special leave to appeal to the High Court was dismissed on 8 August 2003. 

29                  Although the applicant’s current bridging visa was not in evidence, it was common ground that he holds such a visa.  I infer from a letter sent by the Department to the applicant that his bridging visa is subject to conditions 8101 (no work) and 8207 (no study).

SUBMISSIONS

30                  The applicant has filed written submissions.  While they are discursive in form, it appears that he may have been assisted by someone who has some acquaintance with legal matters.  A reading of the submissions suggests that the applicant is, in substance, making the following contentions:

(i)                  Migration Regulations, Sch 2 cl 050.612A is beyond the powers conferred by the Migration Act. 

(ii)                The relevant provisions of the Migration Regulations have not been enacted by the Minister but by some ‘unrepresentative officials’.  Presumably it is said that, for this reason, the relevant provisions are invalid. 

(iii)               The Migration Regulations, insofar as they prevent the applicant from taking paid employment, violate an implied constitutional guarantee of ‘fundamental human rights’.  Alternatively, it is said that the prohibition infringes international instruments, such as the International Covenant on Civil and Political Rights. 

(iv)              The Minister (or possibly the Commonwealth) has failed in her (or its) duty of care to the applicant, thereby causing him physical and mental suffering.

31                  The application filed in this Court does not seek a declaration or any other order specifically referable to the claim now made that cl 050.612A of Sch 2 is beyond the powers conferred by the Migration Act.  The first order sought by the applicant is one quashing a decision by the Minister which is said to have prohibited him from working in paid employment.  That decision is not identified in the application.  However, I assume that the applicant intends to challenge the imposition of conditions 8101 and 8207 on the grant of his current bridging visa. 

32                  Clause 050.612A(2) of Sch 2 to the Migration Regulations requires condition 8101 to be imposed upon a subclass 050 Bridging (General) visa.  Given this requirement, it is by no means clear that there has been any ‘decision’ made to impose condition 8101 upon the applicant’s bridging visa.  Leaving that difficulty to one side, I do not think that the applicant has made out an arguable case that cl 050.612A is beyond the powers conferred by the Migration Act, insofar as the clause requires the imposition of condition 8101 on a bridging visa.  Section 41(1) of the Migration Act states that the Migration Regulations may provide that visas, or visas of a specified class, are subject to specified conditions.  Section 41(2) states that, without limiting s 41(1), the Migration Regulations may provide that visas of a specified class are subject to a condition imposing restrictions about the work that the holder can do in Australia including a restriction on doing any work: (s 41(2)(b)(i)).  This language is clearly wide enough to authorise a regulation imposing a condition that the holder of a bridging visa must not engage in any work in Australia.  Indeed the legislation appears to be designed to provide for precisely such a regulation.

33                  The applicant, in his written and oral submissions, complains that the delegated legislation requiring the imposition of condition 8101 on a bridging visa is unreasonable, arbitrary and perverse.  I can well understand that he feels aggrieved that he is not permitted to work or study notwithstanding that he has been in the country for seven years (albeit as a consequence of a series of legal proceedings initiated by him, all of which have thus far been unsuccessful).  It is not for the Court to make a judgment on the wisdom or otherwise of the no-work condition imposed on holders of bridging visas.  That is not a consideration that goes to the validity of cl 050.612A(2).

34                  The applicant also challenges the decision of the Minister to impose condition 8207 on his bridging visa, thereby prohibiting him from engaging in any studies or training in Australia.  Section 41(1) of the Migration Act, of itself, may not be wide enough to authorise regulations conferring upon the Minister (or her delegate) a discretionary power to impose conditions on a visa holder relating to studies or training.  However, s 41(3) of the Migration Act provides that, in addition to any conditions specified under s 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of the subsection.  Regulation 2.05(2) provides that, for the purposes of s 41(3), the conditions that the Minister may impose on a visa are those specified in the relevant Part of Sch 2.  Clause 050.612A(3) of Sch 2, read in conjunction with the visa conditions specified in Sch 8, is within the scope of the power conferred by s 41(3) of the Migration Act and authorises the imposition of condition 8207 on the applicant’s bridging visa.

35                  The applicant’s written submissions refer to s 91R of the Migration Act.  This section, however, is concerned with the definition of the concept of ‘persecution’ and does not bear on the validity of the provisions under challenge.

36                  The applicant’s written submissions also invoke the provisions of various international instruments, such as the International Covenant on Civil and Political Rights.  But, unless the conventions or international treaties to which Australia is a party to have been validly incorporated into Australian municipal law, they do not form part of Australian law:  Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, at 286-287, per Mason CJ and Deane J; 298, per Toohey J; 304, per McHugh J. 

It is not clear whether the applicant intends to challenge any part of the Migration Act on the ground that it is inconsistent with Australia’s treaty obligations.  If so, the argument is manifestly unsound and, in my view, does not require the giving of a notice pursuant to s 78B of the Judiciary Act 1903 (Cth): Amrit Lal Narain v Parnell (1986) 9 FCR 479, at 489, per Burchett J; Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 488, at 493 [31], per curiam.

37                  The draft order nisi seeks an order compelling the Minister to grant the applicant ‘access to Medicare’.  Any entitlement to benefits under the Medicare system is governed by the Health Insurance Act 1973 (Cth).  The applicant has not identified any basis upon which he might be entitled to Medicare benefits. 

38                  Nor has the applicant identified any relevant duty of care owed by him by the Minister or the Commonwealth.  Any physical or mental harm the applicant alleges he has suffered appears to be the result of conditions validly imposed upon his bridging visa.  Even if a duty of care could be formulated, there would be no breach simply by the Minister or the Commonwealth acting in conformity with the requirements of, or the authority granted by, the Migration Act and the Migration Regulations.

39                  The applicant has failed to establish any arguable case for the relief he seeks.  The application for an order nisi should be dismissed.  The motion seeking to join the Commonwealth as a party should also be dismissed.  The applicant must pay the Minister’s costs of the proceeding.

Associate:

Dated:              30 August 2004