FEDERAL COURT OF AUSTRALIA Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 956 MIGRATION – regulations ‑ whether ultra vires – whether regulation prescribes a class of visa – distinction between criteria for the grant of a visa and criteria for a valid application – s 48 of the Migration Act 1958 (Cth) INTERPRETATION – severance– regulation rendered invalid by amending statutory rule – whether amending statutory rule a distinct act of subordinate legislation – whether original regulation stands Migration Act 1958 (Cth) ss 31, 40, 46, 47, 48; subs 29(1) and subs 504(1) Migration Regulations 1994 reg 2.12; Sch 2 subcl 832.211 Australian National Airways Proprietary Limited v The Commonwealth (1945) 71 CLR 29 followed Shanahan v Scott (1957) 96 CLR 245 cited The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 cited MUONG GI KIM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 367 of 2004 MYUNG SOO KIM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 416 of 2004 BRANSON J 23 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 367 of 2004 BETWEEN: MUONG GI KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 23 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. It be declared that items [4] and [5] of Schedule 1 of the Migration Amendment Regulations 2001 (No 7) are invalid. 2. An order in the nature of certiorari issue quashing the decision of the respondent that the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa is invalid. 3. An order in the nature of mandamus issue requiring the respondent to consider the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa. 4. The respondent pay the applicant's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 416 of 2004 BETWEEN: MYUNG SOO KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 23 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. It be declared that items [4] and [5] of Schedule 1 of the Migration Amendment Regulations 2001 (No 7) are invalid. 2. An order in the nature of certiorari issue quashing the decision of the respondent that the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa is invalid. 3. An order in the nature of mandamus issue requiring the respondent to consider the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa. 4. The respondent pay the applicant's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 367 of 2004 N 416 of 2004 BETWEEN: MUONG GI KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT BETWEEN: MYUNG SOO KIM APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: BRANSON J DATE: 23 JULY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 These two proceedings call for consideration of the one issue. That issue is the validity of sub‑reg 2.12(2) of the Migration Regulations 1994 ('the Regulations'). The Regulations are made under the Migration Act 1958 (Cth) ('the Act'). 2 The applicants in these proceedings each completed and signed a Form 47SV for the purpose of applying for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa. Sub‑regulation 2.12(2) purports to qualify the right of certain non‑citizens in the migration zone to apply for Special Eligibility (Residence) (Class AO) visas by requiring that they meet the requirements of subclause 832.211(3) of Schedule 2 of the Regulations. 3 The forms completed and signed by the applicants respectively were in each case lodged with the Department of Immigration & Multicultural & Indigenous Affairs ('the Department'). In each case the applicant's representative was advised in writing by an officer of the Department that 'the application cannot be considered as it is not a valid application'. The reason for invalidity given in each case was: 'Based on the information that has been provided in your client's application, I am not satisfied that your client meets the requirements of subclause 832.211(3)(c)(iv). Insufficient evidence has been submitted to demonstrate that your client has developed significant ties with the Australian community. As the application is not valid it cannot be assessed for the grant of a visa. In addition, you should note this is not a decision to refuse a visa and therefore it is not merits‑reviewable.' 4 For the reasons set out below I have concluded that sub-reg 2.12(2) of the Regulations is ultra vires. As the decision‑maker's lack of satisfaction concerning the requirements of subclause 832.211(3) is the only ground on which the decision that the applicants' visa applications are invalid has been sought to be supported, I have further concluded that the applicant in each proceeding is entitled to have his application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa considered by the Minister. statutory framework The Migration Act 5 Subsection 29(1) of the Act provides: '(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia.' 6 The classes of visas that may be granted to non‑citizens are governed by s 31 of the Act. Section 31 provides: '(1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38. (3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38). (4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.' 7 Section 40 authorises the making of regulations concerning the circumstances in which visas may be granted. Section 40 provides: '1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. (2) Without limiting subsection (1), the circumstances may be that, when the person is granted the visa, the person: (a) is outside Australia; or (b) is in immigration clearance; or (c) has been refused immigration clearance and has not subsequently been immigration cleared; or (d) is in the migration zone and, on last entering Australia: (i) was immigration cleared; or (ii) bypassed immigration clearance and had not subsequently been immigration cleared.' 8 Section 46 is concerned with the validity of visa applications. Relevantly s 46 provides: '(1) Subject to subsections (1A) and (2), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it satisfies the criteria and requirements prescribed under this section; and … (d) it is not prevented by section 48 (visa refused or cancelled earlier) …. … (3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. (4) Without limiting subsection (3), the regulations may also prescribe: (a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and ….' 9 Section 47 imposes duties on the Minister with respect to valid visa applications. Section 47 provides: '(1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.' 10 Section 48 is of central importance in these proceedings. Each of the applicants fell within its terms at the time that the form by which he sought to apply for a visa was lodged with the Department. The effect of s 48 so far as the applicants are concerned is that, because of their respective visa histories, each of them: '… 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.' 11 Section 504(1) relevantly provides: 'The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act ….' The Migration Regulations 12 Regulation 2.12 of the Regulations is the regulation that prescribes classes of visas for the purpose of s 48. Prior to the commencement on 1 July 2000 of the amendments made to the Regulations by Schedule 3 of the Migration Amendment Regulations 2000 (No 2), reg 2.12 did not prescribe the Special Eligibility (Residence) (Class AO) visa for the purposes of s 48 of the Act. By item [3108] of Schedule 3 of the Migration Amendment Regulations 2000 (No 2), which came into operation on 1 July 2000, par 2.12(1)(a) was amended by the substitution of the following: '(a) Special Eligibility (Residence) (Class AO).' That is, on 1 July 2000 the Special Eligibility (Residence) (Class AO) visa became a class of visa prescribed for the purposes of s 48 of the Act. The Special Eligibility (Residence) (Class AO) visa has two subclasses; subclass 831 (Prospective Marriage Spouse) and 832 (Close Ties) (see subclause 1115(4) of Schedule 1 of the Regulations). 13 By Schedule 1 to the Migration Amendment Regulations 2001 (No 7) par 2.12(1)(a) was again amended by substitution. The paragraph substituted, which remains operative, is: '(a) subject to subregulation (2), Special Eligibility (Residence) (Class AO).' 14 Schedule 1 of the Migration Amendment Regulations 2001 (No 7) also inserted sub‑reg 2.12(2) into the regulations. Subregulation 2.12(2) provides: 'Paragraph (1)(a) applies to a person if he or she meets the requirements of subclause 832.211(3) of Schedule 2.' 15 Subclause 832.211(3) of Schedule 2 to the Regulations prescribes one of two alternative criteria to be satisfied by an applicant for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa at the time of application. It is convenient to set out Clause 832.211 in its entirety: '(1) The applicant meets the requirements of subclause (2) or (3). (2) An applicant meets the requirements of this subclause if the applicant: (a) is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; or (b) is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa. (3) An applicant meets the requirements of this subclause if: (a) the applicant: (i) is a person who: (A) was in Australia on 1 September 1994; and (B) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and (C) has not been granted a substantive visa on or after 1 September 1994; or (ii) is a person to whom section 48 of the Act applies; and (b) the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and (c) the applicant: (i) first entered Australia before the applicant turned 18; and (ii) has never held either of the following: (A) a student visa; (B) an entry permit, or a transitional (temporary) visa within the meaning of the Migration Reform (Transitional Provisions) Regulations, for the purposes of a course of study; and (iii) has turned 18; and (iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia; and (v) ceased to hold an entry permit or a substantive visa before turning 18; and (vi) immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa.' consideration 16 As mentioned above, s 48 of the Act restricts the classes of visa for which certain non‑citizens in the migration zone can apply; they may only apply for a visa of a class prescribed for the purposes of the section. However, s 48 gives them an entitlement, subject to the regulations, to apply for a visa of a class prescribed for the purposes of the section. 17 The changes to reg 2.12 of the Regulations outlined above can be summarised in the following way. On 1 July 2000 a Special Eligibility (Residence) (Class AO) visa became a class of visa prescribed for the purposes of s 48. However, upon the coming into operation of Schedule 1 to the Migration Amendment Regulations 2001 (No 7) on 1 November 2001, the right to apply under s 48 for a Special Eligibility (Residence) (Class AO) visa became qualified by sub‑reg 2.12(2). Thereafter regulation 2.12 had the effect that a non‑citizen to whom s 48 applied could only apply for a Special Eligibility (Residence) (Class AO) visa if he or she met the requirements of subclause 832.211(3) of the Regulations. Subclause 832.211(3) of the Regulations in terms prescribes one of two alternative primary criteria that an applicant for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa must satisfy at the time of making his or her application. 18 The effects of requiring a non‑citizen to whom s 48 applies to meet the requirements of subclause 832.211(3) of the Regulations before he or she can apply for a Special Eligibility (Residence) (Class AO) visa appear to be at least the following. First, even if he or she is applying for a subclass 831 (Prospective Marriage Spouse) visa, he or she is required to meet a criterion prescribed as one of two alternative criteria to be satisfied at the time of an application for a subclass 832 (Close Ties) visa. Secondly, if he or she applies for a subclass 832 (Close Ties) visa, subclause 832.211(1), which requires an applicant for a subclass 832 (Close Ties) visa to meet the requirements of either subclause (2) or (3), is effectively rendered otiose. A non‑citizen to whom s 48 applies who applies for a subclass 832 (Close Ties) visa must meet the requirements of subclause (3) at the time of application. Thirdly, a decision as to whether he or she meets the requirements of subclause 832.211(3) is rendered immune from review by the Migration Review Tribunal. This last effect flows from the fact that regulation 2.12(2) renders a decision on this question necessary to a determination of the validity of the application. A decision, made for the purposes of determining the validity of an application for a visa, that an applicant does not meet the requirements of subclause 832.211(3) is not a decision to refuse to grant the visa (see s 47(4)). A decision to refuse to grant a visa is ordinarily open to merits review; a decision that an application for a visa is not a valid application is not open to merits review (Part 5 of the Act). 19 The critical issue to be determined in these proceedings is whether the Act discloses an intention to authorise the making of a regulation that has the above effects. 20 The Act would disclose the above intention if the general powers to make regulations under the Act, properly construed, authorised the making of sub‑reg 2.12(2). On that basis, the entitlement given to a non‑citizen in the migration zone by s 48(1), which is an entitlement subject to the regulations, would be an entitlement subject to sub-reg 2.12(2). Alternatively, the Act would disclose such an intention if the power to prescribe a class of visa for the purposes of s 48 necessarily involves the power to impose a qualification on the entitlement to apply for a visa of a particular class of the type sought to be imposed by sub‑reg 2.12(2). 21 I turn first to consider the general regulation‑making powers contained in the Act. These powers reflect a distinction between: (a) criteria for a visa or visas of a specified class (see subs 31(3)); (b) criteria that must be satisfied for an application for a visa of a specified class to be a valid application (see subs 46(3)); and (c) circumstances that must exist for an application for a visa of a specified class to be a valid application (see par 46(4)(a)). 22 Section 31 of the Act, which is set out in [6] above, is concerned with classes of visas. Subsection 31(3) authorises the making of regulations that 'prescribe criteria for a visa or visas of a specified class'. It is not necessary for me to reach a view on whether subs 31(3) discloses an intention to authorise criteria that would apply in respect of some, but not all, applicants for a particular visa. The language of subs 31(3) is not apt to authorise the making of regulations that prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Subsection 31(3) authorises the making of regulations that prescribe criteria that must be satisfied before a visa of a specified class may be granted pursuant to a valid application for that class of visa. 23 Subsection 40(1) of the Act authorises the making of regulations that provide that visas, or visas of a specified class, may only be granted in specified circumstances. Examples of the circumstances that may be specified under subs 40(1) are given by subs 40(2) (see [7] above). Again, it is not necessary for me to reach a concluded view as to whether subs 40(1) discloses an intention to authorise the making of regulations that specify circumstances in which a visa of a specified class may be granted to some, but not all, applicants for the visa. The language of subs 40(1) is not apt to authorise the making of regulations concerning the circumstances that must exist for an application for a visa of a specified class to be a valid application. 24 Subsection 46(3) authorises the making of regulations that 'prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application'. As is mentioned in [17] above, subclause 832.211(3) in terms prescribes a criterion that an applicant for a subclass 832 (Close Ties) visa must satisfy before he or she is entitled to a visa of that subclass. Subclause 832.211(3) is not in terms concerned with the validity of a visa application. Subsection 46(3) does not, in my view, disclose an intention to authorise the making of a regulation that ignores the distinction recognised by the Act between criteria to be satisfied by a visa applicant and criteria to be satisfied by a visa application. One effect of sub‑reg 2.12(2) is to transmogrify a criterion to be satisfied by a visa applicant into a criterion to be satisfied by a visa application. The validity of a regulation having this effect cannot, in my view, be sustained by reference to subsection 46(3). 25 That none of the above provisions is intended to authorise the making of a regulation such as sub‑reg 2.12(2) is confirmed, it seems to me, by s 47 of the Act (see [9] above). Section 47 is drawn on the premise that the Minister can and must make a decision as to the validity of an application for a visa. If the Minister's decision is that the application is not valid, the Minster is not to consider the application. If the Minister's decision is that the application is valid, the Minister must consider the application. 26 The distinction drawn by s 47 between the Minister's deciding that an application is not valid and the Minister's duty to consider a valid application suggests that the decision that must be made concerning the validity of an application is intended to be a decision capable of being made without consideration being given to the content of the visa application. Subsection 46(1) reveals the types of criteria that the legislature intended to affect the validity of an application – eg that it is an application for a visa of a class specified in the application; that the visa application charge has been paid; that any fees payable have been paid. These are criteria that call for evaluation against objective standards, not the formation of judgments. 27 The requirement that a person meet the requirements of subclause 832.211(3) of Schedule 2 of the Regulations calls for consideration of whether the applicant: 'before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia'. A determination that an applicant did not spend 'the greater part of the period that the Minister regards as the applicant's formative years in Australia' calls for consideration of the content of the applicant's visa application. Additionally it calls for the making of a judgment by the Minister concerning an issue of some complexity personal to the visa applicant. 28 That the legislature did not intend a decision as to the validity of a visa application to require the making of a judgment of the above kind is, in my view, also confirmed by the provisions of Part 5 of the Act. Part 5 is concerned with review of decisions made under the Act. In broad terms it provides for a procedure of merits review of decisions to refuse to grant non‑citizens visas. It does not provide for merits review of decisions that applications for visas are not valid applications. This may, in my view, be assumed to be because there is no need for merits review of a decision required to be made by reference to objective standards. The decision is either correct or incorrect. If the decision‑maker misapprehends what is required by the standard, judicial review is available to correct his or her error. 29 I further conclude that sub‑reg 2.12(2) is not authorised by s 504 of the Act. For the above reasons, it does not prescribe a matter capable of being regarded as 'necessary or convenient to be prescribed for carrying out or giving effect to [the] Act' within the meaning of s 504. 30 I reject the contention that the making of sub‑reg 2.12(2) was authorised by any of the general regulation making powers contained in the Act. 31 The contention that the power to prescribe a class of visa for the purposes of s 48 necessarily involves the power to impose a qualification on the entitlement to apply for a visa of that class must, in my view, also be rejected. The power to prescribe a class of visa for the purposes of s 48 is a power to designate a class of visa for the purposes of s 48. It is not a power to determine criteria that must be satisfied for an application for a visa of that class, made by a non‑citizen in the migration zone who satisfies pars (a) and (b) of subs 48(1), to be a valid application. This conclusion is, in my view, compelled by the ordinary meaning of the language of subs 48(1), including the ordinary meaning of the word 'prescribe', and by the content of Subdivision AA of Division 3 of Part 2 of the Act (see [24]-[26] above). 32 I conclude that sub‑reg 2.12(2) is not a regulation that the Act authorised the Governor‑General to make. Being ultra vires it is invalid (Shanahan v Scott (1957) 96 CLR 245 at 250; The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170). severance 33 It was contended by the Minister that sub‑reg 2.12(2) is not severable from regulation 2.12 and that a decision that sub‑reg 2.12(2) is invalid must have the result that par (a) of sub‑reg 2.12(1) is invalid. If par 2.12(1)(a) is invalid, the applicants had no entitlement to apply for Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visas. 34 It seems to me that the appropriate approach when it is the validity of an amendment of a provision that is in issue, is that adopted by Dixon J in Australian National Airways Proprietary Limited v The Commonwealth (1945) 71 CLR 29 at 95-96. Dixon J in that case adopted the approach that a Statutory Rule that purported to amend the Air Navigation Regulations was a distinct act of subordinate legislation and its validity was to be considered by what it affected to do. His Honour concluded that the Statutory Rule intended to achieve a purpose that would bring the regulation that it purported to amend into conflict with s 92 of the Constitution. At 96 he observed: 'That seems to me to mean that pro tanto the adoption of Statutory Rules 1940 No 25 was invalid and reg 79 stands in its original form; that is as it was in 1939. There was no intention to repeal former sub‑reg (3) independently of the adoption of the new sub‑reg (3). The invalidity of the new sub‑regulation, therefore, involves the consequence that the old sub‑reg (3) stands.' 35 I do not consider that the Migration Amendment Regulations 2001 (No 7) disclose an intention that, without the limitation intended to be imposed by the new sub‑reg 2.12(2), the class of visa known as Special Eligibility (Residence) (Class AO) should not be a prescribed class for the purposes of s 48. In my view, the invalidity of items [4] and [5] of Schedule 1 of the Migration Amendment Regulations 2001 (No 7) means that par (a) of sub‑reg 2.12(1) continues to prescribe the class of visa known as Special Eligibility (Residence) (Class AO) without qualification. conclusion 36 In my view, the appropriate orders to be made in each case are as follows: 1. It be declared that items [4] and [5] of Schedule 1 of the Migration Amendment Regulations 2001 (No 7) are invalid. 2. An order in the nature of certiorari issue quashing the decision of the respondent that the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa is invalid. 3. An order in the nature of mandamus issue requiring the respondent to consider the applicant's application for a Special Eligibility (Residence) (Class AO) subclass 832 (Close Ties) visa. 4. The respondent to pay the applicant's costs. I certify that the preceding thirty‑six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 23 July 2004 Counsel for the Applicants: C Jackson Solicitor for the Applicants: Christopher Levingston & Associates Counsel for the Respondent: G Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 July 2004 Date of Judgment: 23 July 2004