FEDERAL COURT OF AUSTRALIA Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117 IMMIGRATION - appeal – whether primary judge failed to have regard to "back door scheme" – whether primary judge failed to take into account effect of ministerial policy. Migration Act 1958 (Cth), s 48 Migration Regulations, Sch 3, cls 3001 and 3002 Judiciary Act 1903 (Cth), s 78B(2)(c) Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112, referred to Capistrano v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 154, referred to Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118, referred to Tafokitau v Minister for Immigration & Multicultural Affairs [2000] FCA 119, referred to SIONE MOLITIKA TUITUPOU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS CARR, SACKVILLE & R D NICHOLSON JJ 16 FEBRUARY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1169 OF 1999 On appeal from a Judge of the Federal Court of Australia BETWEEN: SIONE MOLITIKA TUITUPOU Appellant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGES: CARR, SACKVILLE & R D NICHOLSON JJ DATE: 16 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Non-constitutional grounds 1 This is an appeal from the decision of Kiefel J given on 23 September 1999 dismissing an application by the appellant for review of a decision of the Immigration Review Tribunal ("IRT") made on 27 April 1999. 2 The appellant is a citizen of Tonga. He arrived in Australia on 9 November 1995, on a tourist visa which expired on 10 February 1996. Relevantly for the purposes of this appeal, on 11 March 1997, he applied for a Change in Circumstance (Residence) (Class AG) Visa nominating Subclass 806 (Family) as the basis for the application. On 4 April 1997, the delegate refused the application. In summary, the delegate decided that: (a) the appellant was not a special need relative of his cousin Seini Fonua; (b) he did not otherwise meet the criteria stipulated by cl 806,211(d); (c) he did not meet the degree of relationship stipulated in the definition of "relative" in reg. 1.03; (d) the application was filed more than 12 months since the expiration of his substantive visa and hence offended the time limit prescribed by cl. 806.212(a) and cl 3002 of Schedule 3; and (e) the appellant did not meet the substantive criteria in any of the subclasses of AG Class, namely 802 (Child), 804 (Aged Parent), and 833 (Certain Unlawful Non-Citizens). 3 On 13 August 1997, the Migration Internal Review Office affirmed the delegate's decision, after which the appellant applied for review by the IRT. 4 On 27 April 1999, the IRT affirmed the decision to refuse the application. The IRT found, as a matter of fact, that the appellant became an unlawful non-citizen on 10 February 1996 and that he had not held a substantive visa for more than 12 months prior to the filing of the visa application on 11 March 1997. Further, the IRT found that the appellant could not satisfy cl 3002 of Schedule 3 of the Migration Regulations. 5 In the course of her judgment, Justice Kiefel accepted that the appellant did not satisfy Schedule 3 criterion 3002, which required an application for a visa lodged onshore to be made within twelve months of the date upon which an appellant ceased to hold a valid visa. The judgment noted that the terms of the criterion do not allow a discretion. As the decision of the IRT was founded on a failure to meet cl 3002, there was no basis for setting aside the decision. 6 The grounds of appeal here do not call into question the decision of her Honour or of the IRT in respect of the application of criterion 3002. No ground suggests that cl 3002 is beyond the regulation making power under the Migration Act 1958 (Cth) ("Migration Act"). In any event, in Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112 we have held that cl 3002 is a valid exercise of the regulation-making power conferred by the Migration Act. 7 The consequence is that the point relied upon by her Honour in relation to the application of cl 3002 would dispose of the matter and be finally determinative of it, subject to what follows on the arguments raised on appeal, including what are said to be constitutional matters. 8 On the hearing of the appeal, the Court gave leave to Mr Fonua, a friend of the appellant, to assist in the presentation of the appellant's argument. The appeal was heard together with the appeals in two related matters, namely Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 and Tafokitau v Minister for Immigration & Multicultural Affairs [2000] FCA 119. 9 Mr Fonua did not specifically suggest that the constitutional issues said to arise in the other appeals also arose in the present appeal. However, as a matter of fairness, we take the view that this appeal should be treated in the same way, since the same regulation is challenged. Accordingly, we propose to direct that a notice under s 78B of the Judiciary Act 1903 (Cth) ("Judiciary Act") be given in this appeal in the same terms as in the other appeals. This judgment deals only with the severable, non-constitutional issues in the appeal: see Judiciary Act, s 78B(2)(c). We shall deal separately with the constitutional issues once the response of the Attorneys-General is known. 10 We now turn to the non-constitutional grounds of appeal upon which reliance has been placed. 11 The first is that what may be called "the back door argument". It is to the effect that the respondent, through his Department, had allowed 2705 off-shore applicants to remain in Australia on a bridging visa while their Residence Visa applications were processed overseas during 1995 and 1996, knowing that all applicants failed to apply for the visa within the mandatory 12 months rule: see s 48 of the Migration Act and the requirements of clauses 3001 and 3002 of Schedule 3 of the Migration Regulations. It is said that her Honour erred in law in failing to accede to this argument. We do not consider that the matters asserted in the ground raise an error of law. 12 Furthermore, these matters are based on a misapprehension. The Migration Act and Regulations were amended substantially with effect from 1 September 1994. By those amendments, eligibility was apparently inadvertently created for non-citizens in Australia who had made substantive visa applications in overseas posts to be granted bridging visas. Such persons were therefore permitted to remain in Australia whilst the "off-shore" applications were considered. It appears that during 1995 and 1996 more than 2700 persons received bridging visas in such circumstances. 13 To remedy what was seen as an anomaly, the SR 211 of 1996 was introduced, effective 1 October 1996. The intended effect of the relevant amendments was to restrict eligibility for bridging visas to persons who had applied for substantive visas that could be granted "on-shore". The validity of the relevant amendments was upheld by Emmett J in Capistrano v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 154. To address matters of interpretation raised by Emmett J, the Migration Regulations were further amended by SR 263 of 1997, effective 1 November 1997. 14 The position is, then, that an unintended result was created by the Migration Regulations and that some applicants thereby obtained a benefit. That is a fact of no relevance to the IRT decision nor to the decision of her Honour. Had the appellant applied for an "off-shore" substantive visa prior to 1 October 1996, he may have been eligible for the bridging visa. However he did not do so. His failure to take advantage of the "anomaly" does not give rise to a ground of review. 15 The time restriction imposed by cl 3002 does not apply to off-shore applications. The appellant is therefore not prevented (by cl 3002) from applying off-shore for another class of visa. He will not, however, be entitled to a bridging visa to remain in Australia whilst such an application is considered. 16 The second ground relied upon was "that her Honour failed to take into account policy made by the Minister contained in Migration Series Instruction 121 effective 8 September 1995 and that this involved breach of duty or actual bias [by the Minister] against the appellant". 17 In fact, before her Honour no submissions were advanced in support of the Ministerial policy point. Even if they had been, examination of the policy shows that if followed, it contains nothing which would or could advantage the appellant. It was appropriate for her Honour, having disposed of the matter by reference to cl 3002, to have no regard to this issue. Furthermore, it was her duty to consider the grounds of the application in relation to the IRT decision and nothing else. This ground cannot assist the appellant. 18 For these reasons, we therefore conclude that the non-constitutional grounds of this appeal cannot succeed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 16 February 2000 Mr L Fonua assisted the appellant, with leave. Solicitor for the Respondent: Australian Government Solicitor (Mr M Allatt appeared) Date of Hearing: 16 February 2000 Date of Judgment: 16 February 2000