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Federal Court of Australia |
Last Updated: 5 May 1999
On page 2 of the Catchwords and paragraph 86 of the Reasons for Judgment the reference to Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1 replace "at 48" with "at 36".
Associate to Justice Weinberg
10 February 1999
WEINBERG J
29 JANUARY 1999
MELBOURNE
MIGRATION LAW - review of decision of Immigration Review Tribunal - whether IRT, having set aside a decision to cancel a student visa, acted beyond its powers in granting a further visa -"IRT-reviewable decision" - power of Minister to extend date of expiration of student visa - power of Minister to amend student visa.
WORDS AND PHRASES - "a date", "instrument".
Migration Act 1958 (Cth) ss 5, 46, 47, 48(a), 48(b), 65, 82(1), 116(1)(b), 118, 337, 346(1), 348(1), 349(1), 349(2), 349(4), 475(1)(a), 476(1)(b).
Migration Regulations - r 2.12, 4.09(d), cll 560.511, 560.212, 560.222(c)
Acts Interpretation Act 1901 (Cth) ss 15AA, 33(3), 46(1)
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 419 referred to
Secretary to the Department of Social Security v Riley (1987) 17 FCR 99 at 100, 104-5 applied
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344-5 applied
Stevenson v Commissioner of Taxation (1991) 29 FCR 282 at 299 referred to
Ho v Minister for Immigration and Multicultural Affairs (Katz J, Federal Court, unreported, 22 October 1998) referred to
Re Control Investment Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 referred to
Commonwealth of Australia v Ford (1986) 9 ALD 433 at 438 referred to
Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 452-3 referred to
Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 311, 315 applied
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 referred to
Trevisan v Commissioner of Taxation [1991] FCA 172; (1991) 29 FCR 157 at 162 applied
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 25 applied
Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 at 175 referred to
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 234 applied
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 26 referred to
Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 261, 262, 279 referred to
Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 261 referred to
Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 at 252-3 referred to
Chittick v Ackland [1984] FCA 29; (1984) 1 FCR 254 at 263 referred to
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 referred to
Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1 at 48 referred to
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ANURADHA SHARMA
VG 576 OF 1998
WEINBERG J
29 JANUARY 1999
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant AND: Respondent JUDGE:
VICTORIA DISTRICT REGISTRY VG 576 OF 1998
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
ANURADHA SHARMA
WEINBERG J DATE OF ORDER: 29 JANUARY 1999 WHERE MADE: MELBOURNE
THE COURT ORDERS:
Set aside that part of the decision of the Immigration Review Tribunal made on 29 September 1998 by which the Tribunal purported to substitute a decision that the respondent be granted a Class 560 (Student) Visa valid from 15 January 1998 to 30 July 2000.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | VG 576 OF 1998 |
|
BETWEEN: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Applicant |
|
AND: | ANURADHA SHARMA
Respondent |
JUDGE:
WEINBERG J DATE: 29 JANUARY 1999 PLACE: MELBOURNE
1 This is an application by the Minister for Immigration and Multicultural Affairs pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Immigration Review Tribunal ("the IRT") given on 29 September 1998.
2 By that decision the IRT set aside a decision made on 15 January 1998 by the Minister's delegate to cancel a Subclass 560 (Student) Visa granted to the respondent on 14 June 1996. That visa had been scheduled to expire on 26 July 1998. The IRT also purported to "substitute" for the decision which it set aside a decision that the respondent be granted a new Subclass 560 (Student) Visa valid from 15 January 1998 to 30 July 2000.
3 The applicant does not challenge the decision by the IRT to set aside the decision under review, namely the delegate's cancellation decision. The applicant challenges only that part of the IRT's decision which would operate to grant to the respondent the new Subclass 560 (Student) Visa valid from 15 January 1998 to 30 July 2000. The IRT's decision is, of course, judicially reviewable pursuant to s 475(1)(a) of the Act. The applicant contends that the IRT acted beyond its powers in purporting to grant the further visa. That is a recognised ground of review under s 476(1)(b) of the Act.
Background
4 By application dated 18 April 1996 the respondent sought a Student (Temporary) Visa in order to undertake a two year Associate Diploma in Business Marketing at the Northern Melbourne Institute of TAFE which was scheduled to commence on 15 July 1996. On 14 June 1996, she was granted a Subclass 560 (Student) Visa. She arrived in Australia on 28 June 1996. Her visa permitted her to "enter and remain in Australia until a date specified by the Minister for the purpose". The date so specified was 26 July 1998.
5 On 15 January 1998 the Minister's delegate purported to cancel the visa. He relied upon s 116(1)(b) of the Act which authorises the Minister to cancel a visa if satisfied that its holder has not complied with a condition of the visa. In this case the delegate found that the respondent had breached condition 8202 which required her to satisfy certain course requirements. He found that she had not satisfied those requirements because she had not completed her nominated course, but had enrolled in a different one.
6 The respondent sought review of the cancellation decision. On or shortly after the purported cancellation of her visa on 15 January 1998 she was granted a Bridging Visa E. This permitted her to remain in Australia while her application for review was considered. However, such a visa is not a "substantive visa" -s 5 of the Act. It was submitted by counsel for the respondent, Mr Hurley, though not accepted by counsel for the applicant, Ms Kennedy, that the general effect of the scheme found in the Migration (1994) Regulations ("the Regulations") is that a person not holding a "substantive visa" is not able to apply for a student visa while within what is described as the "migration zone" - in effect, while within Australia -s 5. It followed, Mr Hurley submitted, that the respondent was not entitled to apply for a further student visa after 15 January 1998 while residing in Australia. I shall return to this issue later in these reasons for judgment.
7 The IRT in its reasons for decision set aside the decision of the delegate to cancel the respondent's Subclass 560 (Student) Visa. It found, in effect, that the delegate's decision to cancel the visa under s 116(1)(b) of the Act was not the "correct or preferable" decision. It gave detailed reasons for its findings in that regard.
8 In the course of those reasons the IRT noted that the respondent had now been offered a place in the course for the Diploma of Tourism at the Northern Melbourne Institute of TAFE. That course was scheduled to commence on 5 October 1998 and to conclude on 24 June 2000. The IRT regarded that course as one which was suitable to be undertaken by the respondent.
9 The IRT gave no reasons for substituting for the delegate's decision its own decision that the respondent be granted a Subclass 560 (Student) Visa valid from 15 January 1998 to 30 July 2000. It may reasonably be inferred, however, that the expiry date of 30 July 2000 was fixed in order to accommodate the respondent's proposed enrolment in the course for the Diploma of Tourism.
10 It was common ground before me that the respondent had made no application for a further student visa after having been notified on 15 January 1998 that her original visa had been cancelled. My Hurley submitted that the explanation for this lay in the fact that the Bridging Visa E which she was granted after the purported cancellation of her visa was not a substantive visa and, he submitted, did not entitle her to make application for a further student visa while she remained in Australia.
11 The respondent is not, however, presently in Australia. She left this country on 7 July 1998. It was conceded by Mr Hurley that there was no impediment to her making application to the Minister for a further student visa from 29 September 1998, the date the cancellation decision was set aside by the IRT. No such application has been made because there was no need to do so. The IRT itself purported to grant her a new student visa.
The applicant's contentions
12 Ms Kennedy submitted that the functions performed by the IRT are similar to those performed by the Administrative Appeals Tribunal ("the AAT") under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The IRT, like the AAT, is to consider whether or not the decision under review was the "correct or preferable" decision - Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J.
13 Section 349 of the Act sets out the powers of the IRT in the following terms:
"349. (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.14 Section 349 confers the powers set out therein only "for the purposes of review of an IRT-reviewable decision". The delegate's decision to cancel the visa was the "IRT-reviewable decision" in the present case - see reg 4.09(d) of the Regulations. Ms Kennedy submitted that nothing in s 349 permits review of a "totally different decision" - Secretary to the Department of Social Security v Riley (1987) 17 FCR 99 at 104-5 per Sheppard J.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(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.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations."
15 Ms Kennedy submitted that consideration must be given to the nature of the decision under review. In Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 Davies J had to determine whether the AAT was empowered to deal with the issue of an applicant's entitlement to a pension on a review of a cancellation decision. His Honour held that it was not. Ms Kennedy relied heavily upon the following observation by his Honour, at 345:
"...the issue was whether ...the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.16 Ms Kennedy submitted that the issue properly before the IRT in the present case was not whether or not the respondent "had an entitlement" to a further visa, but whether or not the cancellation decision was the "correct or preferable" decision. Absent a decision to refuse a visa, and absent any application to review any such refusal, the IRT had no power to "substitute" a decision granting a new visa.
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision."
17 Ms Kennedy also submitted that a comparison of the present provisions of the Act with the provisions of the Act as they existed prior to 1 September 1994 supported her contentions. Section 121 of the Act as it then stood, specifically conferred upon the review authority which was engaged in review of any decision refusing an entry permit a power to consider all possible bases for entry. It also conferred a power to adjourn the proceedings while an application for an alternative entry permit was made. Section 118 of the Act as it then stood, was in similar terms to s 349 as it now stands. The existence and subsequent repeal of s 121 provided support for the applicant's contention that the legislature had determined that the IRT should not be empowered to deal with any matters other than IRT-reviewable decisions. Ms Kennedy submitted that the power to "substitute a new decision" conferred under s 349(2)(d) did not extend to granting a new visa merely because the IRT determined that the decision to cancel the original visa should be set aside.
18 Ms Kennedy submitted, in the alternative, that the IRT could not do that which neither the Minister nor the delegate was empowered to do. The respondent had only ever made one application for a student visa. That application was made on 18 April 1996. The Minister, acting in accordance with s 47 of the Act, had considered that application, as he was obliged to do. However, once the respondent was granted a student visa on 14 June 1996 the Minister's obligation to consider that application was at an end. Ms Kennedy referred specifically to s 47(2)(b) and to s 65(1) of the Act in this regard.
19 Section 47 of the Act provides in part as follows:
"(1) The Minister is to consider a valid application for a visa.20 Section 65(1) of the Act provides as follows:
(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;
...
(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." (emphasis added)
"65. After considering a valid application for a visa, the Minister:21 Ms Kennedy submitted that once the respondent's original student visa had been granted, neither the Minister nor his delegate had any power, in the absence of any further valid application for a visa, to consider and grant any further visa. The powers of both "consideration" and "grant" were conditional on the existence of a "valid application for a visa".
(a) if satisfied that:
(i) ...
(ii) ...
(iii) ...
(iv) ...
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa."
(emphasis added)
22 It followed, she submitted, that the IRT had acted beyond its power in purporting to grant the further visa. The exercise of such a power was beyond the "powers and discretions that are conferred by this Act on the person who made the decision" -s 349(1) of the Act. She referred to Stevenson v Commissioner of Taxation (1991) 29 FCR 282; and to Ho v Minister for Immigration and Multicultural Affairs (Katz J, Federal Court, unreported, 22 October 1998) in support of this contention.
23 Finally, Ms Kennedy contended that even if the IRT itself was not restricted in the exercise of its powers by the operation of s 349(1) to those powers which the delegate himself could exercise, the absence of any valid application by the respondent for a visa after her original visa was cancelled meant that there was no power in the IRT to grant the new visa at the time of its decision. She submitted, therefore, that by purporting to grant the new visa the IRT had made a decision that was "not authorised by the Act or the regulations" in breach of s 349(4) of the Act.
The respondent's contentions
24 Mr Hurley submitted that s 349 of the Act must be given a purposive construction and not one which would operate in any narrow or confined manner. The IRT should be given full power to make any ancillary decision which it considered necessary to give proper effect to the "correct or preferable" decision made by it in relation to the decision under review. He submitted that such a construction was particularly appropriate in the context of the ever changing complexities of the Regulations. Mr Hurley referred to Re Control Investment Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 per Davies J; Commonwealth of Australia v Ford (1986) 9 ALD 433 at 438 per Wilcox J and Freeman v Secretary, Department of Social Security (supra) at 344 in support of this contention. This expansive view of the power given "for the purposes of the review" pursuant to s 349(1) of the Act was said to be consistent with various decisions in tax cases - see Fletcher v Commissioner of Taxation (1988) 19 FCR 442 at 452 to 453 and Stevenson v Commissioner of Taxation, (supra) at 299.
25 Mr Hurley submitted that the IRT had decided to grant a new student visa in order to give proper effect to its finding that the decision to cancel the respondent's visa was not the "correct or preferable" decision.
26 It had been made clear to the IRT that the respondent desired to continue her studies in Australia. The effect of the delegate's decision to cancel her student visa was that this visa ceased to be in effect from 15 January 1998 - s 82(1) of the Act. While that cancellation decision stood, Mr Hurley submitted, the respondent could not make a valid application for a visa because of the operation of s 46(1)(d) and s 48 of the Act. She did not hold a substantive visa and was in the migration zone - s 48(a) and s 48(b)(i).
27 Had the IRT set aside the cancellation decision before 26 July 1998 (ie during the currency of the first visa) the respondent would then once again have held a substantive visa. She would have been able to apply for a further student visa while within the migration zone. Had she been refused such a visa, she would have had the right to seek review of that decision in the IRT.
28 However, the IRT decision to set aside the cancellation decision was not made until 29 September 1998. By that time, the respondent's original student visa had expired. Any further application for a student visa had to be made, it was submitted, from outside Australia, and without any right to IRT review.
29 It was against this background, Mr Hurley submitted, that the decision of the IRT to grant to the respondent a new student visa was made in the exercise of the power conferred upon the Minister to amend a visa or, alternatively, to grant a visa.
30 By cl 560.511 of Sch 2 of the Regulations a student visa is in effect until the date fixed for its expiry. The Minister may grant such a visa "permitting the holder to travel to, enter and remain in Australia until a date specified by the Minister for the purpose". (emphasis added). Mr Hurley submitted that, on its proper construction, the word "a" in cl 560.511 (as distinct from the word "the") implied that the Minister might, at any time, substitute a further date, or dates, for the date originally fixed.
31 Moreover, Mr Hurley submitted that even without recourse to cl 560.511 there must be implied in the statute the power to amend the expiry date of an existing visa. He submitted that that power to amend a visa is distinct from the power to cancel a visa, which is dealt with in ss 116 to 140 of the Act, and also distinct from the power to grant a visa, which is dealt with in s 65 of the Act. The latter power may be dependent upon receipt of a valid application for a visa - s 46. The power to amend the expiry date of an existing visa is not, however, dependent upon any such application being made. He submitted that the existence in the Act of specific powers to grant and to cancel visas, was not in any way inconsistent with the existence of an implied power to amend the expiry date of an existing visa - Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 311 and 315 per Goldberg J.
32 Mr Hurley submitted, in the alternative, that in the particular circumstances of this case, the Minister had been empowered by s 65(1) of the Act to grant a new student visa to the respondent. He submitted that the requirement that there be a "valid application for a visa" should be regarded as having been satisfied where the reason for the absence of such an application arose from an erroneous decision on the part of the Minister, or his delegate, which denied the respondent the status required to enable a valid application to be made. Had it not been for the delegate's error, a valid application could have been made by the respondent at any time between 15 January 1998 and 26 July 1998.
33 Further, and in the alternative, Mr Hurley submitted that, the requirement that there be a valid application for a visa as set out in ss 46 and 65(1) of the Act should be construed in a broad and common sense manner. This would lead to the recognition of the existence of a "constructive" valid application where the erroneous conduct of the Minister, or of his delegate, prevented such an application from being made. Such a construction, Mr Hurley submitted, would overcome a serious gap in the statutory scheme which would otherwise work injustice to the respondent. Mr Hurley noted in this regard that the AAT had power to suspend the operation of decisions before it - s 41(2) Administrative Appeals Tribunal Act 1975 (Cth). A like power, under the Act, would have enabled the respondent to make further application for a student visa while within Australia. The absence of such a power should be viewed as an inadvertent omission by the legislature. It should be remedied by the adoption of a purposive construction of the Act, by a benevolent interpretation of its provisions, and by a willingness on the part of the Court to find appropriate implications in the statutory scheme.
The first limb of the applicant's submissions - the construction of s 349 of the Act 1901
34 It is convenient to deal first with the construction of s 349 of the Act. The language of the section should, as a starting point, be given its ordinary and natural meaning. The context in which the words which are to be construed must, of course, be considered. This includes the existing state of the law, and the mischief which the statute was intended to remedy - CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
35 The Acts Interpretation Act (Cth) s 15AA provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to one which would not promote that purpose or object. However, it has been noted by Burchett J in Trevisan v Commissioner of Taxation [1991] FCA 172; (1991) 29 FCR 157 at 162:
"Such a requirement can only have meaning where two constructions are otherwise open. The section is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate; a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the Act, must be found in the words of Parliament."36 The powers conferred upon the IRT, which include the powers and discretions conferred by the Act upon the person who made the "IRT-reviewable decision" were conferred by s 349(1) "for the purposes of the review of an IRT-reviewable decision". They were not conferred for any other purposes. Among the powers so conferred was the power to "substitute a new decision" - s 349(2)(d). That power is not, however, a power to make a decision at large about any matter falling within the ambit of any of the provisions of the Act. It is rather a power qualified by, and limited to, the "IRT-reviewable decision" itself - Jayasinghe v Minister for Immigration and Ethnic Affairs (supra) at 311; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 25.
37 In the present case, the "IRT-reviewable decision" was the decision to cancel the student visa. The respondent herself identified it in that way in her application to the IRT for review. Regulation 4.09(d) of the Regulations makes it plain that such a decision, standing alone, is "IRT-reviewable". The power which the IRT possessed in reviewing that decision was therefore, prima facie, quite limited. It was, in my view, restricted to a consideration of whether or not that decision was the "correct or preferable" decision, and nothing more.
38 It is important to note that the respondent did not, at any stage in her application to the IRT for review, seek the grant of a new student visa, whether backdated to January 1998, and scheduled to expire on 30 July 2000, or otherwise. What she sought was nothing more than review of the cancellation decision. No other decision was "IRT-reviewable" in accordance with the terms of the Act.
39 As noted earlier, there is nothing in the IRT's reasons for decision which explains why a new visa of the type purportedly granted was considered to be appropriate. The applicant, in accordance with the usual practice, was not represented before the IRT. It is not clear whether any specific submissions were made to the IRT on behalf of the respondent seeking as part of any order setting aside the delegate's decision that she be granted a new student visa, whether expiring on 30 July 2000, or on some other date. It is entirely possible that the IRT's decision to grant a new visa was arrived at of its own volition.
40 It is important to note that s 48 of the Act (which limits further application by a person whose visa has been cancelled) and reg 2.12 of the Regulations provide that a non-citizen in the migration zone who does not hold a substantive visa, and who has held a visa cancelled under s 116 of the Act, may apply for a visa of a class prescribed. A student visa is not included in the classes of visa which are prescribed. These provisions may have been intended, in part at least, to prevent serial applications from within Australia by students who have had their visas cancelled. Such persons must first take themselves out of the migration zone, before seeking to have their student status reinstated. A similar policy is evident in relation to protection visas - s 48A. Note, however, s 48B by which the Minister may determine that s 48A does not apply.
41 Mr Hurley accepted that once the delegate's decision to cancel the respondent's original student visa was set aside by the IRT on 29 September 1998 there was nothing to stop her from applying for a new student visa given that she had left Australia. There is still nothing to stop her from following that course.
42 Ms Kennedy challenged Mr Hurley's submission concerning the limiting effect of s 48 and reg 2.12 of the Regulations. She submitted that the respondent could have invoked cl 560.212 of Sch 2 of the Regulations which would have entitled her to apply for a new student visa while still in Australia. The fact that she was not the holder of a substantive visa would not matter provided that she complied with the requirements of cl 560.212(2). These are:
(a) the last substantive visa held was a Student (Temporary) Visa;
(b) documents relevant to eligibility for the grant of a new student visa were given to the educational institution before the expiry of the earlier substantive visa; and
(c) the application for the new visa is made within twelve months of the expiry of that visa.
43 I do not accept Ms Kennedy's submission on this point. Clause 560.212 seems to me to be inapplicable in cases where the last substantive visa held was a Student (Temporary) Visa which was cancelled. The consequences of cancellation are specifically addressed by s 48 and reg 2.12, and they do not include invoking a more general power in cl 560.212(2). I am therefore prepared to assume, for present purposes, that Mr Hurley was correct in submitting that upon their proper construction, s 48 and reg 2.12 operated to prevent the respondent from applying for a new student visa while she was in Australia, and while her former visa remained cancelled.
44 It may fairly be said that it is scarcely convenient, and hardly fair, to require a person such as the respondent, who has had her student visa wrongly cancelled, and who, having had that decision set aside, now wishes to make application for a new visa, to leave the migration zone in order to have her application considered. That seems, however, to be the plain effect of the relevant provisions of the Act and of the Regulations. The fact that the respondent is, in any event, and perhaps fortuitously, outside Australia at present, at least ameliorates to some degree the inconvenience or hardship which the present statutory regime visits upon her.
45 The IRT, did not in its reasons for decision refer to any head of power which might ground its decision to grant the respondent a new student visa. No such head of power is apparent to me. Mr Hurley was unable to identify any provision of the Act or the Regulations which, in terms, empowered the IRT to grant the new student visa. His argument was, in substance, that such a power should be implied from the statutory scheme taken as a whole.
46 Part 5 of the Act deals with review of decisions, including review by the IRT. Section 337 is a general interpretation provision. It contains a definition of a "Part 5 reviewable decision". It sets out a series of decisions which, in conjunction with s 346(1) of the Act, and the Regulations, are "IRT-reviewable" within the meaning of s 349(1) of the Act.
47 Para (b) of the definition of "Part 5 reviewable decision" defines a decision to cancel a visa held by a non-citizen who is, at the time of the cancellation, in the migration zone to be a "Part 5 reviewable decision".
48 It is important to note that para (a) of the definition of "Part 5 reviewable decision" provides that a decision to refuse to grant a non-citizen a visa is, in certain circumstances, a "Part 5 reviewable decision". However, there was not, in the present case, any decision to refuse to grant the respondent a visa. Had there been such a decision, and had it then been the subject of review, an order granting a visa of the type made by the IRT in the present case might well have been appropriate. Review by the IRT of a cancellation decision which is a "Part 5 reviewable decision" does not empower the IRT to exercise a power in relation to a different "Part 5 reviewable decision".
49 Each type of decision which is subject to IRT review is strictly and separately defined in the Act. The structure and text of the Act and of the Regulations strongly suggest that the IRT may exercise the powers conferred upon it under s 349, including the power "to substitute a new decision", only in the context of the particular "IRT-reviewable decision". It is that decision alone which triggers the exercise of the power of review. Both Jayasinghe v Minister for Immigration and Ethnic Affairs (supra) and Minister for Immigration and Multicultural Affairs v Ozmanian (supra) support this contention
50 It should be noted that s 348(1) of the Act provides as follows:
"348. (1) Subject to subsection (2), if an application is properly made under section 347 for review of an IRT-reviewable decision, the Tribunal must review the decision."51 The "decision" to which reference is made in s 348 is not defined in the Act. It is plain, however, that it refers to an "IRT-reviewable decision" as defined in s 346. This in turn leads back to the definition of "Part 5 reviewable decision" in s 337, and to reg 4.09 of the Regulations which prescribes a decision to cancel a visa to be an "IRT-reviewable decision". These provisions then lead into s 349(1).
52 As noted earlier, all of the powers conferred upon the IRT by s 349(1) of the Act are subject to the qualification that they may be exercised only "for the purposes of the review of an IRT-reviewable decision". I accept as correct the submission by Ms Kennedy that the power conferred by s 349(2)(d) must be read as being subject to the limitation contained in s 349(1) of the Act.
53 It is difficult to see why the legislature would choose to spell out, in the extraordinary detail in which it has, the specific conditions which govern the making of particular decisions under the Act, eg, the requirement that a valid application precede the grant of a visa, that such an application be accompanied with the payment of an appropriate fee, and that there be strict compliance with time limits, if the IRT may simply, when satisfied that it should set aside an "IRT-reviewable decision", substitute a new decision which it regards as appropriate, or fair in all the circumstances.
54 If Mr Hurley's submission were correct, and s 349(2)(d) were to be construed as permitting the IRT to "substitute a new decision" not limited in scope to the "IRT-reviewable decision", the IRT could, in theory, grant not merely a new student visa, but permanent residence. Such a result would be completely at odds with the limitations imposed by the Act upon the IRT (and other review bodies).
55 Taking the argument to its logical conclusion, the IRT might then have powers which not even the Minister himself possesses. Section 65(1) of the Act requires that there must be a valid application for a visa (the requirements for which are set out comprehensively in s 46 of the Act, to which I shall return) before any such visa may be granted. The Minister must also be "satisfied" of various matters which are clearly and specifically set out in the Act before he may grant the visa sought. It would be most peculiar to think that the IRT, as part of its task of reviewing a decision concerning a particular visa, could grant as a form of ancillary relief a new and different visa without any of the statutory requirements for its grant being met.
56 The IRT is, of course, engaged in merit review. In one sense, it stands in the shoes of the original decision-maker. It is not to be forgotten, however, that it is not the original repository of the powers and discretions under the Act. It is rather a review body. Its powers are dependent upon there being a reviewable decision that it reviews, and would not ordinarily exceed the powers of the original decision-maker - see generally Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 at 175 per Brennan J.
57 If one turns to the authorities, it is clear that they support the contentions advanced on behalf of the applicant. The principles laid down in Secretary to the Department of Social Security v Riley, (supra) are directly in point. In the judgment of the Full Court, Northrop J stated at 100:
"The essential issue raised by this appeal is whether the Administrative Appeals Tribunal (the Tribunal), when reviewing a decision on the exercise of a discretion under the Administrative Appeals Tribunal Act 1975, (Cth) (the AAT Act) was empowered to review another decision which had not been made by the maker of the decision under review, which was not the subject of an application for review under the AAT Act and which had not been referred to during the hearing of the application for review by the Tribunal."58 His Honour continued at 103:
"I agree with the conclusion reached by Jenkinson J that on the facts of this case, the only decision sought to be reviewed by the respondent was the decision not to exercise the discretion conferred by s 115E of the Social Security Act 1947. Not all decisions made by the Secretary or his delegate under the Social Security Act 1947 can be made the subject of a review under the AAT Act. To be reviewable, the decision must be one that satisfies the requirements of either ss 15A(1) or 15A(2). In the present case, s 15A(2) has no application. The only decision which comes within s 15A(1) is the decision not to exercise the discretion conferred by s 115E. It is true that in form, the decision is expressed to be a decision under s 115D(2), but no stage of the procedures before the Social Security Appeals Tribunal, the consideration by the delegate who made the decision after the review by the Social Security Appeals Tribunal, or the proceedings before the Administrative Appeals Tribunal, was attention directed to the question of whether the respondent was qualified to receive a sickness benefit during any relevant period. He in fact received a sickness benefit for all relevant periods. The decisions that were made by which the respondent received payment of the sickness benefit had never been reviewed by a Social Security Appeals Tribunal. None of those decisions could be reviewed by the Administrative Appeals Tribunal. It was not permissible for that Tribunal to review those decisions under the guise of exercising the discretion conferred by s 115E."59 Sheppard J observed at 104-5:
"Counsel for the respondent relied upon the language of s 43 of the Administrative Appeals Tribunal Act 1975 . But the provisions of subs (1) of that section must be read in the light of the opening words which are, "For the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ..." One cannot apply that section to the facts of any case without determining, first of all, what is the decision under review. If, as I think should be concluded to be the case here, the decision is the exercise by the Secretary, after review of the matter by a Social Security Appeals Tribunal, of the discretion conferred by s 115E, the wide powers which are conferred upon the Administrative Appeals Tribunal by s 43 do not empower it to review a totally different decision."60 See also the observations of Jenkinson J at 113.
61 Reference has already been made to a passage from the judgment of Davies J in Freeman v Secretary, Department of Social Security (supra) which is to be found at 344 to 345 of his Honour's judgment. That passage, in which his Honour was dealing with the related jurisdiction of the AAT, is set out more fully as follows:
"The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.62 The observations of Davies J set out above were made in the context of the AAT having found that the decision to cancel the pension was the "correct or preferable" decision. The IRT, in the present case, found, in substance, that the decision to cancel the respondent's visa was not the "correct or preferable" decision. However, the principles which underlie his Honour's reasoning seem to me to be directly in point notwithstanding this distinction. Those principles have been endorsed by a Full Court of the Federal Court in the The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 234:
Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date the decision refusing to grant it but also up to the time of the Tribunal's decision.
However, in the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a pension as from 19 May 1987. ...
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration ..."
"It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The Tribunal is, however, obliged to address the same question as was before the primary decision-maker. This distinction was spelled out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342."63 I regard the principles laid down by Davies J in Freeman, and subsequently endorsed by the Full Court in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services, (supra) as being correct. I also regard them as being binding upon me. The issue properly before the IRT was not whether or not the respondent had an entitlement to a new student visa but rather whether or not the cancellation decision was the "correct and preferable" decision. It was that decision alone which could be affirmed or set aside. In setting aside that decision, the IRT was not empowered under the Act to grant a new student visa even if it thought that such an order was necessary or appropriate.
64 I am fortified in my conclusion that s 349 of the Act should be so construed by the fact that the legislative precursors to the relevant provisions of the Act appear to have permitted the review authority greater powers in the past than does s 349. It is permissible to have regard to provisions of an Act which have been repealed for the purpose of construing the remaining provisions of the Act - see Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 26 per Gibbs J. Section 349 of the Act, as it presently stands, had as its precursor s 118. Section 121 of the Act, later repealed, conferred upon the review authority a power wider than that conferred by s 118, namely the power to adjourn the proceedings while an application for a different visa was made. It is interesting to note, that even s 121 did not confer a power wide enough to justify the orders made by the IRT in the present case.
The second limb of the applicant's submissions - the absence of a valid application for a visa
65 If I am wrong about the proper construction of s 349 of the Act, and the limited scope which it confers upon the IRT to exercise the powers contained therein when reviewing a decision to cancel a student visa, I would still allow this application. I accept as correct the second limb of the applicant's submissions, namely that neither the Minister nor his delegate had the power to do what the IRT itself has purported to do.
66 Section 30 deals with the kinds of visas which may be granted under the Act. It distinguishes between permanent and temporary visas. Section 45 provides for non-citizens who wish to obtain visas to apply for visas of a particular class. The regulations prescribe the manner in which such applications must be made. Section 46 sets out in detail how an application for a visa is to be valid. That section is in the following terms:
"46. (1) Subject to subsection (2), an application for a visa is valid if, and only if:67 I have already referred to s 47(1) which requires the Minister to consider a valid application for a visa and to s 47(3) which provides that, "to avoid doubt", the Minister is not to consider an application that is not a valid application. In my view, the obligation which rested upon the Minister to consider the respondent's original application for a student visa lodged on 18 April 1996 terminated when the Minister determined on 14 June 1996 to grant her that visa.
(a) it is for a visa of a class specified in the application; and
(b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 ( visa refused or cancelled earlier), 48A (protection visa ), 91E (CPA and safe third countries), 161 (criminal justice) or 195 (detainees); and
(e) in a case where the applicant is in the migration zone and the application is not for a protection visa or a bridging visa , the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 41(2)(a).
(2) An application for a visa is also valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made."
68 As noted earlier, s 48 of the Act provides that there are certain types of visas only for which application may be made by persons who have had visas cancelled or refused. These are set out in reg 2.12 of the Regulations. They do not include student visas.
69 Section 65(1) is the source of the Minister's power to grant a visa. If there is no valid application for a visa, there can be no grant of a visa - Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 261 per Carr J; and at 279 per RD Nicholson J (with whom Jenkinson J agreed); Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 261 per Finkelstein J. Moreover, the Minister must be satisfied of the matters set out in s 65(1) before granting a visa. There is no indication that the IRT, which did not in any event have before it a valid application for a visa, was satisfied of any of the matters contained in that subsection.
70 A valid application for a visa is one in respect of which, inter alia, any fees payable in respect of it under the regulations have been paid - see s 46(1)(c). No fees payable in respect of any visa other than that granted on 14 June 1996 were paid by the respondent in the present case.
71 I am unable to accept Mr Hurley's submission that the requirement that there be a valid application for a visa should be understood as having been "constructively" complied with in circumstances where the impediment to there being a valid application stems from an erroneous decision by the Minister's delegate to cancel an earlier student visa. To construe the requirements of the Act in this way is to do violence to the detailed and explicit requirements for the grant of a visa contained in the language of ss 46 and 47 of the Act. Indeed, the concept of "constructive" compliance with such requirements, while not rejected, was at least viewed with some scepticism in Wu v Minister for Immigration and Ethnic Affairs (supra) at 262.
72 It is important to note that the legislative regime governing migration to this country does not provide any specific mechanism for extending a student visa in circumstances remotely akin to those confronting the respondent. It appears that what a student must ordinarily do when his or her visa is about to expire, and more time is required to complete the particular course of studies, is to apply for a new visa.
73 There are specific provisions in the Regulations enabling the holder of a student visa which is about to expire to produce to the Minister evidence that he or she is required to remain in Australia while a post-graduate thesis is marked, or in order to gain practical employment experience after graduation to obtain registration in a profession in which such registration is a prerequisite for the practice of that profession in the student's usual country of residence - cl 560.222(c) of Sch 2 of the Regulations. The Minister may then, but only then, grant a subclass 560 visa permitting the applicant to remain in Australia for that limited purpose. That is a far cry from being a general power to extend the date upon which a student visa is to expire.
74 As indicated earlier, I am prepared to assume that Mr Hurley is correct in his submission that the respondent could not have made an application for a new student visa while in Australia, at least while there was a cancellation in place in relation to her earlier student visa. That appears to be the effect of s 48 of the Act in conjunction with reg 2.12 of the Regulations. Had the IRT dealt with the respondent's application for review before the expiration of her first student visa she could then have made application for a further student visa while still within the migration zone. The result of all that has occurred is that it may be that the respondent's only recourse now is to make an application for a new student visa from outside the migration zone.
75 In the absence of any valid visa application, the Minister's delegate had no power to consider and grant any further visa when considering whether to cancel the respondent's student visa on 15 January 1998. The powers of both consideration and grant were conditional on the existence of a valid visa application. The IRT acted beyond its powers in purporting to grant to the respondent the new student visa because the exercise of such a power was beyond that conferred by the Act on the person who made the decision under review - s 349(1) and s 349(4) of the Act. See generally Ho v Minister for Immigration and Multicultural Affairs (supra).
76 The result of giving the statutory regime this construction is, no doubt, inconvenient to the respondent. Through no fault of her own, she had her student visa cancelled by the Minister's delegate, incorrectly as it turned out. That has placed her in the position of having to make a fresh application for a student visa from outside the migration zone. It has denied her the possible benefit of IRT review if her application were to be refused. These are not unimportant considerations, and I do not treat them lightly. It is to be hoped that any fresh application by the respondent , if made, will receive prompt, and sympathetic, attention. The Court cannot, however, ignore the plain meaning of the legislation in order to bring about a result which might be considered fair to the respondent.
The respondent's "amendment" submission
77 Mr Hurley's submission that the words of cl 560.511 of Sch 2 of the Regulations which provide that the Minister may specify "a" date within which a person granted a temporary visa may remain in Australia permits the Minister, by implication, to grant such a date, and then to vary it by extending it, is not one which I am able to accept.
78 On that construction of the Regulations the Minister may extend repeatedly any temporary visa as often as the Minister sees fit, whether or not he receives an application, valid or otherwise. The expression "a date" would, on this construction, mean any date specified from time to time, and varied from time to time.
79 If the Minister had the power for which Mr Hurley contended, then so also presumably would the delegate. It would then follow, upon that submission, that the IRT could, in the case of any temporary visa, even one granted for the space of a few months, make a decision extending that visa date until whatever date seemed reasonable whenever it set aside a cancellation decision.
80 Counsel for the respondent recognised some of the difficulties with this submission. He accepted that it must operate in a "one way" manner. The fixing of an earlier expiration date by the Minister, of his own volition, would not, Mr Hurley contended, amount to an "amendment" of the visa, but rather its cancellation. This could not be undertaken by the Minister without complying with the requirements of s 116 of the Act. A power to amend in favour of a visa holder, but not otherwise, may of course, upon its proper construction, be conferred by the Act. Such a power should not, however, be implied merely because it seems to be a good idea that it should exist. I am not persuaded that the expression "a date" in the Regulations carries with it, as a matter of construction, the power to amend the expiration date for which Mr Hurley contends.
81 I am conscious of the operation of s 33(3) of the Acts Interpretation Act 1901 (Cth). The subsection provides:
33. Exercise of powers and duties82 I doubt that the power vested in the Minister to grant visas under the Act falls within the scope of this subsection. In particular, it is doubtful that a visa is an "instrument" within the meaning of the subsection. In Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 at 252-3 the Victorian Court of Appeal held that notices under s 13 of the National Crime Authority Act 1984 (Cth) were not "instruments" within the meaning of s 46(1) of the Acts Interpretation Act. Brooking JA observed that there was nothing "legislative" about a notice under s 13, the giving of which was "a purely executive act". The same may be said of the grant of a visa. See also DC Pearce and RS Geddes, Statutory Interpretation in Australia 4th ed (1996) paras 3.5, 6.2 and 6.23. Cf Chittick v Ackland [1984] FCA 29; (1984) 1 FCR 254 at 263 dealing with the meaning of the word "instrument" in a different legislative context. See also Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (supra) per Brennan J.
...
(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."
83 I am not persuaded, in any event, that what the IRT purported to do can be described in any sensible way as the exercise of a power of "amendment". By the time it came to give its reasons for decision the original student visa would have expired, had it not been cancelled. There are conceptual difficulties with "amending" (or "varying") a non-existent visa.
Conclusion
84 Mr Hurley submitted that there must be a power somewhere in the Act to enable a student visa to be granted without there being a valid application, at least in those cases where the making of a valid application is prevented by an erroneous decision by the Minister, or by his delegate.
85 One difficulty with that submission is that the present scheme does not, on any view, prevent the respondent from making a fresh application for a student visa. It of course places at least one obstacle in her path in doing so. That obstacle may reasonably be regarded as unfair, having regard to all the circumstances of this case. Its existence is not, however, so "capricious and irrational" as to justify a departure from giving the words of the Act their ordinary and natural meaning. It does not, in my view, lead to an absurd, incongruous or obviously unintended result. It cannot lead to a wholly distorted construction being given to the Act in order to accommodate the interests of the respondent, or those in similar situations.
86 Nothing in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, or in any other recent decision which deals with the purposive construction of statutes, would justify substantially redrafting various provisions of the Act and Regulations to overcome the unfairness said to have been occasioned to the respondent by the suggested inability of the legislature to anticipate her situation. Much more than a merely purposive interpretation is required if the respondent's contentions are to be accepted. A number of sections of the Act would virtually have to be rewritten to allow for that result. Other sections would have to be virtually ignored. Statutory implications are not to be made lightly - Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1 at 48. It must be proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention - F Bennion, Statutory Interpretation 3rd ed 1997 at 387. Those guides tell against the implication for which Mr Hurley contends. No theory of statutory interpretation of which I am aware would justify drawing these implications in the face of the statutory scheme itself - Jayasinghe v Minister for Immigration and Ethnic Affairs (supra) at 311 and 315.
87 The application must be allowed. In the unusual circumstances of this case, and bearing in mind in particular the possibility that the IRT made the order, now successfully impugned, of its own volition, and without having been invited to do so by the respondent, my tentative view is that it would not be appropriate to require the respondent to pay the applicant's costs. I will, however, hear the parties further in relation to the question of costs.
88 The orders of the Court are:
Set aside that part of the decision of the Immigration Review Tribunal made on 29 September 1998 by which the Tribunal purported to substitute a decision that the respondent be granted a Class 560 (Student) Visa valid from 15 January 1998 to 30 July 2000.
|
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Weinberg. |
Associate:
Dated:
|
Counsel for the Applicant: | Ms ME Kennedy |
| Solicitor for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr TV Hurley |
| Solicitor for the Respondent: | Erskine Rodan & Associates |
| Date of Hearing: | 21 December 1998 |
| Date of Judgment: | 29 January 1999 |
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