FEDERAL COURT OF AUSTRALIA

Atta v Minister for Immigration and Border Protection [2018] FCA 145

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    On 12 February 2016, each of the appellants applied for a Student (Temporary) (class TU) Student Guardian (subclass 580) visa (“the visas”). On 15 February 2016, the appellants were informed by a delegate of the first respondent (“the Minister”) as follows:

Your application for a visa is invalid because it did not meet s 48 of the Migration Act 1958 (the Act). That provision provides that you are not permitted to apply for a Student (class TU) visa because you do not hold a substantive visa and after last entering Australia you were refused a Protection XA - PV visa on 21 March 2012.

2    The appellants then sought judicial review of the Minister’s decision that their application for a visa was invalid. In a judgment published as Atta & Anor v Minister for Immigration [2017] FCCA 2544, a judge of the Federal Circuit Court of Australia dismissed that application. The appellants, Mr and Mrs Atta, have appealed that judgment to this Court.

3    There was affidavit evidence before the primary judge which gave the relevant background facts. I will give an outline of the most pertinent facts.

4    Mr Atta came to Australia with his wife and children from Egypt in 2009. Mr and Mrs Atta arrived on a Diplomatic (Temp) (Subclass 995) visa (“Diplomatic visa”). Mr Atta provided diplomatic duties to the Consulate-General of Egypt in Sydney. It was uncontroversial before the primary judge that Mr Atta ceased his diplomatic duties in 2012. The best evidence seems to indicate that the employment with the Consulate-General in Sydney ceased in February 2012. Despite that, Mr Atta and his family continued to stay in Australia.

5    It seems that contrary to a protocol issued by the Department of Foreign Affairs and Trade (“DFAT”), the Egyptian Embassy in Australia did not advise DFAT that Mr Atta ceased his diplomatic duties in 2012. DFAT appears to have first become aware of that matter on 12 January 2016. DFAT then advised the Department of Immigration and Border Protection (“Department”).

6    On 27 January 2016, an officer of that Department backdated the relevant records to show that Mr and Mrs Atta’s Diplomatic visas had ceased on 15 December 2012. Why that date was recorded rather than February 2012 is not clear.

7    I turn then to the statutory and regulatory provisions of relevance.

8    Section 46(1)(d) of the Migration Act 1958 (Cth) (“the Act”) provides that an application for a visa is valid if and only if it is not prevented by any provision of the Act. Without limitation, s 48 is there specified as an applicable provision.

9    Section 48(1) of the Act provides as follows:

48    Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

(1)    A non-citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    after last entering Australia:

(i)    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), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds), 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 or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

10    A Student (Temporary) (class TU) Student Guardian (subclass 580) visa was not a visa within the class prescribed for the purposes of s 48(1): see Reg 2.12(1) of the Migration Regulations 1994 (Cth) (“the Regulations”).

11    Sections 82(7) and (10) of the Act relevantly provide as follows:

82    When visas cease to be in effect

...

(7)    A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

…

(10)    For the purposes of subsections (5), (6) and (7), particular date includes:

(a)    the date an event, specified in the visa, happens; or

(b)    the date the holder ceases to have a status specified in the visa or the regulations.

12    Clause 995 of Sch 2 of the Regulations sets out the requisite criteria for a Subclass 995 Diplomatic Temporary visa. As to when such a visa remains in effect, cl 995.511 provides as follows:

995.5 – When visa is in effect

995.511

Temporary visa permitting the holder:

(a)    to travel to and enter Australia until a date specified by the Minister for the purpose; and

(b)    to remain in Australia:

(i)    if the visa was issued on the basis of the holder satisfying the primary criteria for the grant of the visa for the duration of the holder's status as:

(A)    a diplomatic or consular representative in Australia of a country other than Australia; or

(B)    an international representative; or

(ii)    if the visa was issued on the basis of the holder satisfying the secondary criteria for the grant of the visa--for the duration of the status of the person who satisfied the primary criteria as:     

(A)    a diplomatic or consular representative in Australia of a country other than Australia; or

(B)    an international representative; or

(iii)    in any case until an earlier date specified by the Minister.

13    The clause was in those terms at the time that Mr and Mrs Atta’s Diplomatic visas were issued.

14    By operation of s 82 of the Act and cl 995 of Sch 2 of the Regulations, Mr and Mrs Atta’s Diplomatic visas ceased to have effect upon Mr Atta ceasing to hold status as a diplomatic representative, which for reasons earlier indicated, appears to have occurred in February of 2012.

15    The validity of an application for a visa is an objective question to be determined by the Court dealing with an application for judicial review. As the Full Court said in Minister of Immigration and Border Protection v Kim (2014) 221 FCR 523 at [25]–[27] (Yates, Robertson and Wigney JJ) (emphasis in original):

[25]    In our opinion, the first issue to be decided is whether or not the validity of an application for a visa is an objective question.

[26]    The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.

[27]    The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.

16    It follows that insofar as the validity of the applications made by Mr and Mrs Atta for the visas depended upon the existence of particular facts, it was for the primary judge to determine objectively whether or not those facts existed.

17    I turn then to the reasons of the primary judge.

18    Before the primary judge, Mr and Mrs Atta raised four grounds in support of the relief they sought. It is not necessary to set out each of those grounds. Largely, those grounds complain about the manner in which the Department dealt with Mr and Mrs Atta in relation to their applications for a visa. Those grounds do, however, assert that Mr and Mrs Atta’s Diplomatic visas were still in effect at the time they applied for the visas.

19    The primary judge rejected the application made by Mr and Mrs Atta on two bases. First, the primary judge was satisfied that the application for the visas made by Mr and Mrs Atta were invalid. His Honour correctly approached that matter on the basis that whether the visa applications were valid or not was a matter for him to objectively determine. His Honour referred to s 82 of the Act and to cl 995.511 of Sch 2 of the Regulations and at [10] concluded as follows:

It follows from the provisions of the Act and cl.995.511(b)(i)(A) of Schedule 2 to the Regulations that the applicant’s Diplomatic (Temporary) (Subclass 995) visa ceased in 2012 when he ceased to hold his diplomatic posting. Accordingly, the respondent was correct to hold that the applicants held no substantive visas under s 48 of the Act at the time of application.

20    Second, the primary judge rejected the submission made on behalf of Mr and Mrs Atta that they had taken reasonable steps to ascertain from the Department the status of their visas and that they reasonably believed that Mr Atta’s diplomatic visa remained valid as a result of those inquiries. The primary judge did so including because he did not accept that there was any proper basis for Mr Atta believing that his diplomatic post having ended that his visa remained in existence.

21    So far as his Honour considered the criteria set out in s 48(1) of the Act, his Honour only expressly considered the question posed by s 48(1)(a) of whether Mr and Mrs Atta held a substantive visa. There was no express consideration of the additional requisite question posed by s 48(1)(b) as to whether, after last entering Australia, Mr and Mrs Atta were each refused a visa. Counsel for the respondent contended that the fact that Mr and Mrs Atta were, on 21 March 2012, refused a Protection Visa was uncontroversial before the primary judge. Mr Atta has today confirmed that that was the case. There was evidence before the primary judge, and again the fact was accepted by Mr Atta today, that Mr and Mrs Atta have not departed Australia since the date of their first arrival on 13 January 2009. Although the reasons of the primary judge do not expressly say so, I would infer that his Honour was satisfied, in terms of s 48(1)(b), that after last entering Australia, Mr and Mrs Atta were refused a Protection Visa on 21 March 2012.

22    Mr and Mrs Atta appeared before me today and although unrepresented, they made submissions, including through their daughter. Those submissions did not really address the first ground of appeal that the primary judge misunderstood Mr and Mrs Atta’s case and misapplied the law by accepting that their application for a visa was invalid. Nor am I able to discern any error in the primary judge’s application of the law. In my view, his Honour was correct to conclude that the diplomatic visas ceased in 2012 by operation of cl 995.511 of Sch 2 of the Regulations together with ss 82(7) and (10) of the Act.

23    On that basis, his Honour was right to conclude that the requirements of s 48(1)(a) were not satisfied. For the reasons already indicated, his Honour should be regarded as having also concluded, again correctly, that the requirements of s 48(1)(b) were also not satisfied.

24    In those circumstances, by the operation of s 46(1)(d) of the Act, Mr and Mrs Atta were prevented from making a valid application for a visa.

25    Ground 3 of the appeal asserts that the diplomatic visas, “did not practically cease in 2012 and as a matter of fact up until 2012 the visa did not cease”. The ground also asserts that at the time “applying for review we had a substantive visa”. Insofar as it is there asserted that the primary judge was wrong to conclude that the diplomatic visas ceased in 2012, for the reasons I have already given those assertions must be rejected.

26    Ground 2 and that part of ground 3 to which I have not yet referred, complain about the conduct of the Department including that the issuance of Bridging Visas to the two dependent children of Mr and Mrs Atta was inconsistent with the notion that the diplomatic visas did not continue to be valid. Those grounds also assert unfairness and negligence on the part of the Department.

27    The oral submissions made by Mr and Mrs Atta today were largely made in support of assertions of that kind. The difficulty with those grounds and the submissions made in support of them is that whether or not Mr and Mrs Atta were treated unfairly by the Department, or whether or not that conduct of the Department was inconsistent with its prior conduct, is not relevant to the question of whether the criteria specified by s 48(1) of the Act was satisfied.

28    One may be sympathetic to Mr and Mrs Atta’s plight and that of their children. Departmental records showed that Mr and Mrs Atta held a diplomatic visa through to 27 January 2016. Those records were incorrect and caused confusion. It may well be that the Department was not at fault and the real cause for the confusion and uncertainty falls at the foot of the Egyptian Embassy who, it appears, failed to inform DFAT that Mr Atta’s diplomatic duties had ceased in 2012. In that context, I have some reservation about the primary judge’s conclusion that Mr Atta had no proper basis for believing that his diplomatic visa had ceased in 2012. However, whether or not Mr Atta had a proper basis for that belief is, at the end of the day, irrelevant. Whether or not a valid application for the visas was made by Mr and Mrs Atta fell to be determined by reference to the statutory and regulatory provisions to which I have referred.

29    The conclusion of the primary judge that a consequence of those provisions was that no valid applications had been made is, for the reasons I have given, correct. It follows that this appeal must be dismissed.

Associate:    

Dated:    26 February 2018