Gao v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 70

FEDERAL COURT OF AUSTRALIA

Gao v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 70 MIGRATION – Visas – Bridging visa – Whether applicant holds bridging visa in circumstances where application for a substantive visa was made on her behalf while she was temporarily absent from Australia – Refusal of that application subject to an unresolved application for review – Significance of a second substantive visa application made when applicant was in Australia, this application having been refused and there being no application for review. Migration Act 1958 ss Migration Regulations 1994 reg 2.07A, Sch 1 item 1301, Sch 2 paras 010.21, 010.22, 010.4, 010.511 JUN GAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 90 OF 2003 WILCOX J 12 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 90 of 2003

BETWEEN: JUN GAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 12 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant, Jun Gao, pay the costs incurred by the respondent, Minister for Immigration and Multicultural and Indigenous Affairs. 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 N 90 of 2003

BETWEEN: JUN GAO

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 12 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 The issue in this case is whether the applicant, Jun Gao, holds a Bridging A (Class WA) visa under the Migration Act 1958 ("the Act") and Migration Regulations 1994 (the Regulations") entitling her to remain in Australia pending determination of an application for review by the Migration Review Tribunal ("the MRT") of a decision to refuse her a substantive visa. The case turns entirely upon the proper construction of complex provisions of the Regulations. The facts 2 On 8 October 1998 the applicant's husband, Jian Min Zhang, and daughter, Zingyi Zhang, were granted temporary resident Class UC Sub-Class 457 visas, Mr Zhang being the primary applicant and Ms Zhang a dependent child. Those visas resulted from the approval of Hantong Australia Pty Ltd ("Hantong") as a Standard Business Sponsor and Hantong's nomination of Mr Zhang pursuant to that approval. 3 On 11 February 1999 the applicant was granted a similar visa. 4 All three visas were valid until 8 October 2002. As I understand the position, they entitled the holders to carry on business activities in Australia and to come and go from Australia as they wished. 5 On 3 September 2002 a migration agent lodged with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") applications for a new approval of Hantong as a Standard Business Sponsor and for new Sub-Class 457 visas for Jian Min Zhang, the applicant and their daughter. At that time, Jian Min Zhang and the daughter were in Australia but the applicant was outside Australia on a two-week business trip. Ms Gao's absence from Australia at that time creates the problem in this case. 6 On 24 September 2002 all the applications made on 3 September were refused by the Department. On 8 October 2002, within the prescribed time limit, application was made to the MRT for review of the refusals. The MRT acknowledged receipt of the applications for review and will presumably conduct a review in due course. However, inquiries made by Ms Gao's solicitor indicate it may be twelve months before the review is heard. 7 On 3 October 2002, after refusal of the first set of applications, fresh applications for Sub-Class 457 visas were lodged on behalf of all three family members. Those applications were refused on 14 November 2002. No application was made for review of those refusals. It is not now possible for anyone to apply for review. 8 On 14 January 2003 Ms Gao became aware that the Department took the view that she did not hold a valid Bridging A visa. She was given a short-term Bridging E visa, valid until 4 February 2003. There was inconclusive correspondence between her solicitor and the Department before this proceeding was commenced, on 5 February 2003. 9 Ms Gao currently remains in Australia. However, the Department has offered no undertaking that she will be allowed to remain here until completion of the MRT review. Mr A Markus, solicitor for the Minister, said it is not possible to give such an undertaking. He contended that if, as the Department believes, Ms Gao is an unlawful non-citizen, its officers have a statutory duty to remove her from Australia as soon as reasonably practicable. Mr Markus apparently had in mind provisions contained within Division 8 of Part 2 of the Act. I make no comment about their applicability. As the matter does not fall for decision by me, I have not considered the accuracy of Mr Markus' contention. The Regulations 10 The Migration Regulations are voluminous. Fortunately, only a few provisions are relevant to this case. However, those provisions are highly specific. That specificity causes what both parties regard as an unfortunate situation in this case. 11 Part 2 of the Regulations concerns visas. Division 2.1 relates to the various classes of visa and their criteria and conditions. The classes are specified in Schedule 1 of the Regulations. They are divided into four categories: permanent visas (Part 1 of Schedule 1), temporary visas (other than bridging visas) (Part 2), bridging visas (Part 3) and protection, refugee and humanitarian visas (Part 4). 12 Item 1301 of Part 3 of Schedule 1, which concerns Bridging A (Class WA) visas, lists the forms that constitute an application for such a visa. The list includes form 1066. This is a form appropriate for an application for a Sub-Class 457 visa. It was the form used by the three family members in relation to both their substantive applications; that is, the applications of 3 September 2002 and 3 October 2002. The scheme of Item 1301 is that an application on one of the identified forms, for an appropriate substantive visa, also doubles as an application for a Bridging A (Class WA) visa. This is made clear by a note to form 1066: "If you are applying for a visa in Australia this form also serves as an application for any class of bridging visa (classes A, C or E) for which you may be able to apply. A bridging visa is granted to ensure visa applicants retain the legal authority to remain in Australia pending a decision on their application, even after the visa they held prior to applying has expired." 13 Upon the basis of this scheme, it might be thought that each of the applications for substantive visas made by Ms Gao also constituted an application by her for a Bridging A (Class WA) visa. It is conceded by Mr Markus that this was indeed the position in relation to both Ms Gao's husband and daughter, and also in relation to her second substantive application. But Mr Markus argues it was not the case in relation to Ms Gao's first substantive application; the reason being that she was outside Australia when this application was lodged. Mr Markus points to cl 2.07A of the Regulations which provides: "2.07A An application for a substantive visa made on a form mentioned in subitem 1301(1), 1303(1) or 1305(1) is not a valid application for a Bridging A (Class WA), Bridging C (Class WC) or Bridging E (Class WE) visa in either of the following circumstances: (a) the applicant was not in Australia when the application for the substantive visa was made; (b) the substantive visa is a visa of a kind that can only be granted if the applicant is outside Australia." 14 Moreover, sub-cl (3) of Item 1301 lists, amongst other criteria, "Applicant must be in Australia but not in immigration clearance". 15 Schedule 2 of the Regulations sets out provisions applicable to the grant of various subclasses of visa. Bridging A visas fall within Subclass 010, in relation to which para 010.21 specifies criteria to be satisfied at the time of application. By para 010.22, the applicant must continue to satisfy these criteria at the time of decision. 16 The criteria specified by para 010.21 relevantly include: "(2) 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) that application has not finally (sic) determined; and (c) he or she held a substantive visa at the time that application was made; and (d) either: (i) he or she has applied for a bridging visa in respect of that application; or (ii) a bridging visa can be granted in respect of that application under regulation 2.21B." 17 It is conceded by Mr S Rothman SC, counsel for Ms Gao, that subpara (d)(ii) has no application to this case. 18 It will be noted that para 010.211(2) does not include a requirement that the applicant be in Australia at the time of application. The application might be made in Australia, satisfying subpara (a), even though the applicant was outside Australia at the time. That was the situation in this case. However, Mr Markus emphasises subpara (d)(i) and contends it was not satisfied in this case, in relation to Ms Gao's first application; although she used form 1066, the effect of cl 2.07A is that this was not a valid application for a Bridging A (Class WA) visa, Ms Gao being outside Australia at the time. 19 Paragraph 010.4 sets out a circumstance applicable to grant of a Bridging A visa: "[t]he applicant must be in Australia, but not in immigration detention." 20 Paragraph 010.511 is crucial to this case. It says: "010.511 In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa: (a) coming into effect: (i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases; and (b) permitting the holder to remain in Australia until: (i) if the Minister's decision in respect of the substantive visa application is to grant a visa – the grant of the visa; or (ii) if the Minister's decision in respect of that application is to refuse to grant a visa – 28 days after the holder is notified of that refusal; or (iii) if the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of: (A) the review authority; or (B) if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies – 28 days after notification of the decision of that other review authority; or (iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or (v) if the holder withdraws his or her application for a substantive visa or an application to a review authority – 28 days after that withdrawal; or (vi) if the substantive visa (if any) held by the holder is cancelled – that cancellation; or (vii) if the holder is notified by Immigration that the substantive visa application is invalid – 28 days after the notification; or (viii) if a review authority remits the application for the substantive visa to the Minister for reconsideration – permitting the holder of the bridging visa to remain in Australia in accordance with the relevant provision of this paragraph." 21 It will be noted the effect of subpara (b)(iii) is to extend the operation of a bridging visa until 28 days after notification of the decision on a review of a refusal of "the substantive visa application". In the present case, it will be remembered, there is an extant application for review of the refusal of Ms Gao's first substantive visa application, but not her second. Submissions 22 At one stage in his argument, Mr Rothman was inclined to rely on Ms Gao's first substantive visa application as the source of an associated application for a bridging visa. If he could do that, there would be no difficulty about his client's position. The first application is currently subject to an undetermined review by the MRT, so subpara (b)(iii) would operate to permit Ms Gao to continue to remain in Australia. 23 However, Mr Rothman ultimately recognised that cl 2.07A operated to deny the first substantive application the character of being also an application for a bridging visa. Accordingly, he fell back on the second substantive visa application. The difficulty of relying exclusively upon that application is that a period of 28 days has now elapsed since the Minister's decision upon it (see subpara (b)(iii) of para 010.511) and there has been no application for review of that decision by the MRT. 24 In this situation, Mr Rothman put an argument that took advantage of the fact that, in this case, there happened to have been two substantive visa applications. He contended that the opening words of para 010.511 made the paragraph applicable to a particular factual situation: the relevant (Bridging) visa was one "granted to a non-citizen who has applied for a substantive visa". 25 Mr Rothman argued – and there was no dispute about this point – that the second substantive visa application was also an application for a Bridging A visa and that such visa came into effect on cessation (on 8 October 2002) of Ms Gao's previous Sub-Class 457 visa. Therefore, he contended, Ms Gao was a person who held "a visa granted to a non-citizen who has applied for a substantive visa", with the result that her visa continued to operate until completion of the MRT review. 26 Mr Markus accepted most of the argument put by Mr Rothman. In particular he agreed that, on 8 October 2002, Ms Gao had become the holder of "a visa granted to a non-citizen who has applied for a substantive visa". However, here differing with Mr Rothman, he argued that she ceased to be such a person on the expiration of 28 days after notification of the Minister's decision refusing the second substantive application, no application for MRT review of that decision having been made. Conclusion 27 I have come to the conclusion that Mr Rothman's ingenious argument cannot succeed. I think it runs into the difficulty of attributing two different identifications to the words "substantive visa" application in a context where it appears the draftsperson intended to refer throughout to the same substantive visa application. I say this because the opening words of para 010.511 refer to "a non-citizen who has applied for a substantive visa" and sub-para (b) speaks about "the substantive visa application": see subsubparas (i), (iii), (vi), (vii) and (viii). The definite article "the" indicates it was intended to convey that the substantive visa application referred to in each of these subparagraphs is the same substantive visa application as was mentioned in the paragraph's opening words. And subsubparas (ii), (iv) and (v) clearly refer to that substantive visa application. 28 Mr Rothman's argument effectively asserts that the words "applied for a substantive visa" may be satisfied by the second visa application; yet, in subsubpara (iii), the words "the substantive visa application" may be read as a reference to the first substantive visa application. I do not think that is a permissible reading. On the contrary, I am of the opinion that the intention of the draftsperson was to refer, in each of the subsubparas of subpara (b) to the particular application for a substantive visa that is referred to in the opening words of para 010.511. 29 I reach this conclusion with considerable regret. It leads to a situation that can only be regarded as harsh and absurd. Whatever the merits of the application for review by the MRT, a subject about which I have no information, it is clear – and accepted by the Department – that Ms Gao has acted impeccably throughout. She made a timely application for a new substantive visa, in September 2002, and a timely application for MRT review of the Department's decision to refuse this application. The policy of the Regulations is that bridging visas should be available to persons awaiting MRT decisions. The only reason why this policy does not apply to Ms Gao is that she happened to be out of Australia on the day the migration agent submitted the first substantive visa application. She was entitled to be outside Australia at that time; indeed, it might be thought that, for her to be abroad on business, was something entirely consonant with the purpose for which her Sub-Class 457 visa was granted. 30 The evidence does not explain how it came about that the application was lodged during Ms Gao's brief absence overseas. Perhaps the migration agent was unaware of her absence; perhaps he did not advert to the significance of cl 2.07A. Whatever the reason, it seems absurd that there should be a difference between the situation in which Ms Gao finds herself and that of her husband and daughter. 31 Unless some solution can be found, Ms Gao may face the prospect of removal from Australia, and separation from her husband and daughter, during the twelve months or so that may apparently elapse before there will be a decision by the MRT; and in circumstances of extreme technicality where she is not at fault. 32 The problem in this case arises out of the conjunction of two factors: the highly specific nature of the criteria embodied in the Regulations and the apparent lack of any discretionary overriding power. 33 In relation to the first matter, it is axiomatic that the greater the degree of specification in any legislative provision, the greater the likelihood of unfortunate anomalies. No draftsperson can be expected to foresee all possible factual situations. 34 In relation to the second matter, I inquired of Mr Markus whether there was any provision for the Minister to exercise discretion in favour of Ms Gao. He responded that this could not be done until after the MRT decision. That may be correct. Certainly s 351 of the Act does not operate until then. 35 The problem caused by an apparent lack of an overriding discretion is exacerbated by the mandatory form of Division 8 of Part 2 of the Act. I do not understand why it was thought desirable to confer upon officers duties to remove unlawful non-citizens from Australia, as distinct from empowering them to do so. But for the form of Division 8 of Part 2 (assuming it is applicable), it would probably have been possible to resolve the human problem now confronting the Department by it agreeing with Ms Gao not to take any action to remove her from Australia pending determination of the MRT review; perhaps upon conditions, including that she would do whatever was in her power to ensure an early MRT hearing. 36 I do not know what action will now ensue. As Mr Markus politely pointed out, that is not the Court's concern. I say only that I would regard it as outrageous if this family was broken up, by Ms Gao's detention or removal from Australia, because of the technicality that has given rise to the current litigation. 37 At the hearing, nothing was said about costs. Despite my view about the circumstances of the case, I see no reason to depart from the usual course as to costs. Whatever the merits of the Regulations, the Minister's conduct of the litigation cannot be faulted. He has been wholly successful in resisting an application brought against him. 38 The application must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.