FEDERAL COURT OF AUSTRALIA MIGRATION - Migration Act 1958 (Cth), s 476 - Schedule 2 of the Migration (1993) Regulations - whether applicant held a substantive visa at date of application for General (Residence) visa. Migration Act 1958 (Cth), ss 48, 476 Migration (1993) Regulations, reg 2.29 (1C), cll 830.52, 830.71 of Schedule 2 Migration Reform (Transitional Provisions) Regulations, regs 10, 23 Esteron v The Minister for Immigration and Ethnic Affairs (1995) 57 FCR 126, distinguished FRANCISCO BAGANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 59 of 1997 BRANSON J SYDNEY 20 AUGUST 1997 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 59 of 1997 ) GENERAL DIVISION ) BETWEEN: FRANCISCO BAGANG Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BRANSON J PLACE: SYDNEY DATED: 20 AUGUST 1997 MINUTES OF ORDER THE COURT ORDERS THAT: The decision of the respondent is affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 59 of 1997 ) GENERAL DIVISION ) BETWEEN: FRANCISCO BAGANG Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: BRANSON J PLACE: SYDNEY DATED: 20 AUGUST 1997 REASONS FOR JUDGMENT APPLICATION This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") for the review by this Court of a decision of the respondent made under the Act relating to visas. It was not in dispute that the decision of the respondent, which was not a decision made by him personally, is a "judicially reviewable decision" within the meaning of s 476 of the Act (see s 475(1)(c)). The decision of which review is sought is set out in a letter dated 2 January 1997 addressed to the applicant and signed by an officer of the Department of Immigration and Multicultural Affairs. The relevant portions of the letter read as follows: "I refer to your application for permanent residence in the General (Residence) class and your application in the Extended Eligibility class. ... I regret to tell you that your application has been determined to be invalid. This is because, at the time of application, you were not the holder of a substantive visa, and had had an application for an entry permit refused since last entering Australia. ... Section 48 of the Migration Act 1958 states that a person in Australia, who does not hold a substantive visa, and has been refused a visa since last entering Australia, may only apply for prescribed classes of visa. These classes are prescribed in regulation 2.12 of the Migration Regulations 1994. The one Residence class prescribed is the Change in Circumstance (Residence) class. However, this class does not include applications made on the grounds of marriage or de facto relationship." The applicant's application for a General (Residence) visa was based upon a de facto marital relationship with an Australian resident. ISSUE Section 48 of the Act provides, so far as is here relevant, as follows: "A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) either: (i) after last entering Australia was refused a visa, other than a bridging visa, for which the non-citizen had applied (whether or not the application has been finally determined); or (ii) ... may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class." It is accepted by the applicant that he was, at the time of his application for a General (Residence) visa, a non-citizen in the migration zone and that, after he last entered Australia, he had been refused a visa, namely a Class 816 visa and a Class 818 visa. At issue is the question of whether, at the time of his application, the applicant held a substantive visa. It is contended on behalf of the applicant that, at the time of his application, he held a transitional (temporary) visa. The parties are in agreement that, if the applicant held such a visa, it met the requirement of being a "substantive visa" within the meaning of s 48(a). The answer to the question of whether or not the applicant held a transitional (temporary) visa is dependent upon the proper construction of cl 830.521 of Schedule 2 of the Migration (1993) Regulations. The terms of cl 830.521 are set out below. BACKGROUND On 1 August 1994 the applicant applied for a Class 816 (special (permanent)) entry permit or a Class 818 (highly qualified on-shore (permanent)) entry permit. Regulation 2.29 (1C) of the Migration (1993) Regulations provided as follows: "An application for an entry permit of any of the following classes also has effect as an application for a Class 830 (1 November 1993 (processing)) entry permit: (a) Class 815 (PRC (permanent)); (b) Class 816 (special (permanent)); (c) Class 818 (highly qualified on-shore (permanent))." A Class 830 (1 November 1993 (Processing)) entry permit was a temporary entry permit [cl 830.12 of Sch 2 of the Migration (1993) Regulations]. On 1 September 1994 significant amendments to the Act and regulations made thereunder came into operation. Regulation 23 of the Migration Reform (Transitional Provisions) Regulations provides, so far as is here relevant, as follows: "(1) This regulation applies to an application for an entry permit that: (a) was made on or after 19 December 1989 and before 1 September 1994; and (b) had not been finally determined before 1 September 1994. (2) An application to which this regulation applies is taken, on 1 September 1994, to be: (a) if the application was for a temporary entry permit - an application for a transitional (temporary) visa; or (b) if the application was for a permanent entry permit - an applicant for a transitional (permanent) visa. (3) An application that, under subregulation (2), is taken to be an application for a transitional visa is to be decided according to the criteria that applied to the entry permit for which application was made. ... (7) A transitional (temporary) visa that is granted to a non-citizen on the basis of an application to which this regulation applies: (a) has a visa period the same as the period for which the visa would have been in force; and (b) is subject to the same conditions (if any); as would have been the case if the application had been decided under the old Act and Regulations as in force at the date of the application." On 1 December 1994 the respondent's delegate decided that the applicant satisfied the requirements for the grant of a Class 830 entry permit. On the same day, the delegate refused the Class 816 and Class 818 entry permit applications which were, by that time, to be taken to be applications for transitional (permanent) visas [reg 23(2) of the Migration Reform (Transitional Provisions) Regulations]. The delegate's reasons include the following paragraphs: "12. PERIOD OF VALIDITY OF CLASS 830 (1 NOVEMBER 1993 (PROCESSING) ENTRY PERMIT) The period of validity of a Class 830 (1 November 1993 (Processing) entry permit) is defined in Schedule 2, Part 830, Sub-division 830.52 ... Subclause 830.521(a) applies as a decision not to grant the Class 816 entry permit and the Class 818 entry permit has been made. Therefore the Class 830 Processing entry visa has no validity." On 22 December 1994 the applicant lodged an application for internal review of the refusals in respect of his application for the Class 816 and Class 818 entry permits. The Migration Internal Review Office upheld the refusal decisions on 13 September 1995. On 13 October 1995 the applicant applied to the Immigration Review Tribunal for review of the decision of the Migration Internal Review Office of 13 September 1995. On 30 September 1996 the applicant applied for the grant of a General (Residence) visa, subclass 801, and an Extended Eligibility (temporary) visa, subclass 820. At the time of these applications, a decision had not been made by the Immigration Review Tribunal on the application for review of the decision of the Migration Internal Review Office in respect of the Class 816 and Class 818 entry permits. These applications elicited the letter dated 2 January 1997, referred to above, containing the decision of which review is now sought. CONTENTION The parties are in agreement that, if the applicant held, at any time, a transitional (temporary) visa, such visa's period of validity was the same as would have been the case if the applicant had held a Class 830 entry permit granted under the Act and the regulations thereunder as in force before 1 September 1994. The period of validity of a Class 830 entry permit is governed by cl 830.521 of Sch 2 of the Migration (1993) Regulations. Clause 830.52 provides as follows: "830.52 Period of validity (entry permit) 830.521 Until: (a) in the case of an applicant to whom subclause 830.711 (1) applies - a decision is made not to grant the Class 815, 816, 817 or 818 entry permit for which the applicant is also an applicant or (b) in the case of an applicant to whom subclause 830.711 (2) applies: (i) the entry permit to which the principal application relates is granted; or (ii) the application is withdrawn; whichever is the sooner." Clause 830.71 of Schedule 2 of the Migration (1993) Regulations is in the following terms: "830.71 Application (entry permit - after entry) 830.711(1) Subject to subclause (2), as provided by subregulations 2.29 (1C) and (1D). (2) A person is taken to have applied for a Class 830 entry permit if: (a) the person is an applicant for a Class 815, 816, 817 or 818 entry permit; and (b) a decision is made not to grant that entry permit; and (c) on review: (i) a review authority: (A) determines in writing that the Class 815, 816 or 818 entry permit would be granted except that the applicant does not hold a section 47 temporary entry permit; and (B) remits the application for reconsideration under paragraph 118 (4) (ba) of the Act; or (ii) the Refugee Review Tribunal: (A) determines in writing that the Class 817 entry permit would be granted except that the applicant does not hold a section 47 temporary entry permit; and (B) remits the application for reconsideration under paragraph 166BC (2) (c) of the Act: or (iii) a review authority or the Refugee Review Tribunal, as the case requires, remits the application for the Class 815, 816, 817 or 818 entry permit for reconsideration under paragraph 118 (4) (ba) or paragraph 166BC (2) (c) of the Act and the Minister determines that the entry permit would be granted except that the applicant does not hold a section 47 temporary entry permit." Section 47 of the Act provided at the relevant time that a permanent entry permit must not be granted to a non-citizen after entry into Australia unless the non-citizen is the holder of a valid temporary entry permit. On behalf of the applicant it was contended that an application of the reasoning of Sackville J in Esteron v The Minister for Immigration and Ethnic Affairs (1995) 57 FCR 126 suggests that the "decision" referred to in cl 830.521(a) is the final decision at the conclusion of the decision making process, which includes the review by the Immigration Review Tribunal. The respondent, on the other hand, contends that the Esteron decision is distinguishable in the circumstances of this case, and that the terms of cl 830.711(2) compel the conclusion that the words "the decision" in cl 830.521(a) mean the delegate's decision, and not any review decision. The respondent's outline of submissions develops this contention as follows: "(a) - the expression 'a decision is made not to grant the Class ... 816 ... entry permit' in subclause 830.521(a) must mean the same as the relevantly identical expression 'a decision is made not to grant that entry permit' in subclause 830.711(2); (b) - subclause 830.711(2) clearly distinguishes between 'a decision ... not to grant' [subparagraph (b)] and a determination by a review authority [subparagraph (c)(i)]; (c) - subclause 830.711(2) would not make sense if a review authority's decision was contemplated by the words 'a decision is made not to grant' in subparagraph (b) thereof; (d) - it follows clearly from subclause 830.711(2)(c) that the fact that a decision is subject to review by a review authority does not mean that the applicant continues to hold a class 830 entry permit." CONSIDERATION It is convenient to give consideration first to the decision of Sackville J in Esteron. His Honour was required in that case to construe reg 131A of the Migration Regulations 1989. Regulation 131A(1)(d) required an applicant for a December 1989 (temporary) entry permit to satisfy certain requirements "on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit". His Honour concluded as follows at 132: "It seems to me that reg 131A(1)(d), when referring to 'the Minister [deciding] to grant, or not to grant, the entry permit', is intended to refer to a final decision at the conclusion of the 'continuum' constituting the administrative decision-making process. I do not think that the language is intended to be confined only to one part of the process, namely, the initial decision made by the Minister or the delegate." His Honour found support for his view in the terms of the then s 118(5) of the Act. The present analogue of the then s 118(5) of the Act is s 349, which, so far as is here relevant, provides: "(1) The Tribunal may, for the purposes of the review of an IRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) ... (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister." It is necessary to point out that Sackville J in Esteron was giving consideration to a particular regulation contained in a different set of regulations from those which I am required to consider. The context in which reg 131A of the Migration Regulations 1989 was found is quite different from that in which cl 830.521 of Schedule 2 of the Migration (1993) Regulations is found. His Honour's decision thus provides little assistance in respect of the issue of construction here to be decided. Ms Wilkins, counsel for the applicant, submitted that the terms of reg 10 of the Migration Reform (Transitional Provisions) Regulations provide support in addition to that to be derived from the Esteron decision for the interpretation of cl 830.521(a) for which she contended. She argued that reg 10(3) of the Migration Reform (Transitional Provisions) Regulations provides that an applicant who applies for an entry permit of the type referred to in reg 2.29 of the Migration (1993) Regulations is not taken to have been granted a bridging visa under reg 10 of the Migration Reform (Transitional Provisions) Regulations. The reason for this, she suggested, was that a bridging visa is not necessary for the holder of a Class 830 entry permit which remains in force until the Immigration Review Tribunal decision is made. In my view, the terms of reg 10 of the Migration Reform (Transitional Provisions) Regulations do not provide support for the construction of cl 830.521(a) for which the applicant contends. I accept the submission of Mr Johnson, counsel for the respondent, that the effect of reg 10(3) of the Migration Reform (Transitional Provisions) Regulations is that, although the application is not taken to have been granted a bridging visa in relation to his Class 830 application [see reg 2.29(1C) of the Migration (1993) Regulations], his application for Class 816 and Class 818 entry permits has the result that he is taken to have been granted a bridging visa on 1 September 1994 until such applications are finally determined [reg 10(1)(a) and reg 10(2)(a) of the Migration Reform (Transitional Provisions) Regulations]. It is of significance to note that reg 2.29(1C) and Pt 830 of ch 2.8 of Sch 2 were introduced into the Migration (1993) Regulations by the Migration (1993) Regulations (Amendment) being Statutory Rule No 11 of 1994. The submissions made on behalf of the applicant that cl 830.711(2) was designed to cater for persons who did not make an application for a Class 830 entry permit at the time that they applied for a Class 815, 816, 817 or 818 entry permit thus cannot be accepted. By reason of reg 2.29(1C) of the Migration (1993) Regulations, applications for Class 815, 816, 817 or 818 entry permits had effect as applications for a Class 830 entry permit; no one could be an applicant for a Class 815, 816, 817 or 818 entry permit without also being an applicant for a Class 830 entry permit. It may also be noted that cl 830.52 in its original form [ie as introduced by Statutory Rule No 11 of 1994] read as follows: "830.52 Period of validity (entry permit) 830.521 Until: (a) a decision is made on the applicant's principal application, and the application is notified in accordance with regulation 2.8; or (b) the principal application is withdrawn." The form of cl 830.521 of relevance to the circumstances of this case was substituted for the above clause by the Migration (1993) Regulations (Amendment) being Statutory Rule No 87 of 1994. It seems likely that the substitution was effected to clarify the ambiguity in the expression "a decision is made on the applicant's principal application" and to provide for situations in which adverse decisions did not survive review. The interpretation of cl 830.521 of Sch 2 of the Migration (1993) Regulations for which the applicant contends would result in cl 830.521(b) and cl 830.711(2) of the regulations, as in force at the time with which this case is concerned, being otiose as having no scope for operation. The only sensible construction of the relevant regulations read together is, in my view, that applications for a Class 830 entry permit are made, in the first instance, by the making of an application for any of a Class 815, 816, 817 or 818 entry permit [cl 830.711(1) and subregs 2.29 (1C) and (1D)]. An entry permit granted as a result of such application will be valid until a decision is made, at any level at which such decision may be made, not to grant the Class 815, 816, 817 or 818 entry permit for which the applicant is also an applicant [cl 830.521(a)]. Nonetheless, a person who successfully seeks review of a decision not to grant to him or her the Class 815, 816, 817 or 818 entry permit in the circumstances outlined by cl 830.711(2) will be taken to have applied for a Class 830 entry permit [cl 830.711(2)] and, when granted, such entry permit will be valid until the entry permit to which the principal application relates is granted or the application is withdrawn, whichever is the sooner [cl 830.521(b)]. CONCLUSION From 1 September 1994 the applicant's application for a Class 830 entry permit was taken to be an application for a transitional (temporary) visa [reg 23(2) of the Migration Reform (Transitional Provisions) Regulations]. Such visa, if granted, would have ceased to be valid on the same day as would have been the case if the application had been decided under the Act and Regulations as in force as at the date of the application [reg 23(7) of the Migration Reform (Transitional Provisions) Regulations]. That day was the date of the decision to refuse the applicant's application for a Class 816 or Class 818 entry permit, namely 1 December 1994. As a consequence, as at the date when the applicant applied for the grant of a General (Residence) visa, subclass 801, and an Extended Eligibility (temporary) visa, subclass 820, he was a non-citizen in the migration zone who: (a) did not hold a substantive visa; and (b) had been refused a visa, other than a bridging visa, for which he had applied, namely a Class 816 or a Class 818 visa. It was not material for the purposes of s 48 of the Act that his application for review of the decision not to grant him a Class 816 or a Class 818 visa had not been finally determined [s 48(b)(i)]. The decision of the respondent that the applicant's application for a General (Residence) visa was not a valid application will be affirmed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson. Associate: Date: Counsel for the applicant: Ms E. Wilkins Solicitors for the applicant: Parish Patience Counsel for the respondent: Mr G.T. Johnson Solicitor for the respondent: Australian Government Solicitor Date of hearing: 15 July 1997