FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155
Migration Act 1958 (Cth) ss 46, 47
Migration Regulations 1994 (Cth) reg 2.07, Schedule 1, Cl 1222; Schedule 2, Cl 573
Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
MINISTER FOR IMMIGRATION AND CITIZENSHIP v MON TAT CHAN AND MIGRATION REVIEW TRIBUNAL
NSD 16 OF 2008
MOORE, MARSHALL & LANDER JJ
21 AUGUST 2008
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 16 OF 2008 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
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AND: |
MON TAT CHAN First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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MOORE, MARSHALL & LANDER JJ |
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DATE OF ORDER: |
21 AUGUST 2008 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The order of the Federal Magistrates Court made on 6 December 2007 be set aside and in lieu thereof it be ordered that the application for judicial review be dismissed with costs.
3. The first respondent pay the appellant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 16 OF 2008 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
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AND: |
MON TAT CHAN First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGES: |
MOORE, MARSHALL & LANDER JJ |
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DATE: |
21 AUGUST 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
MOORE J
1 I have had the advantage of reading the judgment of Lander J in a draft form. It is unnecessary to repeat his Honour's account of the factual background.
2 The decision of the Tribunal to affirm the delegate's decision was based on several related considerations. Its reasoning took the following route. The application submitted on 27 March 2006 by the respondent was not accompanied by a confirmation of enrolment. Item 1222 of Schedule 1 of the Migration Regulations required that the application be accompanied by a confirmation of enrolment. Accordingly, the application lodged on 27 March 2006 was not, in the Tribunal's opinion, a valid application. The Tribunal expressed no concluded view about the effect of what the respondent did on 31 March 2006. The Tribunal concluded the visa application was not made by the respondent within 28 days after his last substantive visa ceased to be in effect. The Tribunal noted that while a valid visa application was made by the respondent on 17 August 2006, that was more than 28 days after his last substantive visa ceased to be in effect. It concluded that the application was not made within the 28 days, which led it to conclude that the respondent had not satisfied a criterion concerning the time in which the application had to be made.
3 The Federal Magistrate approached the matter on the basis that the lodgement of the second application on 17 August 2006 (accompanied by a certificate of enrolment and the visa charge) completed the application which had been made on 27 March 2006 apparently in the sense that the application would then comply with Item 1222. The Federal Magistrate concluded that as the application lodged on 27 March 2006 had not been withdrawn or refused, the Minister was obliged to consider it, seemingly after it became complete on 17 August 2006. That led the Federal Magistrate to conclude there had been jurisdictional error and to issue writs of certiorari and mandamus.
4 The starting point in considering the short legal point raised in this appeal, is the criteria for a subclass 573 visa in clause 573 of Schedule 2 of the Migration Regulations. Clause 573.21 specifies criteria to be satisfied at the time of application. One criterion is relevant. It is that the application is made within 28 days after, for present purposes, the day when the last substantive visa of the applicant ceased to be in effect: clause 573.211(3)(c)(i). This immediately raises the question of what is meant by the expression "the application" in subpar (c). This is relevant in two respects. The first is because this criterion must be satisfied "at the time of application". If no application has been made, no question can arise about the satisfaction of the criterion. The second is that the criterion itself requires the application to be made within the specified time. Consideration of that criterion only arises if an application has been made. In the present case, the Tribunal found that an application had been made on 27 March 2006. This must be taken to be a finding concerning the presentation by the respondent of a completed form.
5 Clause 1222 of Schedule 1 concerns the visa the respondent had been seeking. A note at the commencement of Schedule 1 declares that the schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. The note goes on to say "[a]n application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47". Clause 1222 contains three relevant subclauses. Each commences with what appears to be a declaration about the content of the subclause rather than the beginning of a sentence or clause completed by one of the paragraphs in the subclause. Subclause (1) commences with the word "Form". The subclause then describes a number of circumstances in which an application might be being made, and specified the appropriate form. In the present case, it is not entirely clear which was the relevant sub-clause and therefore what was the appropriate form, though it appears that in fact a form 157A was submitted by the respondent on both 27 March 2006 and 16 August 2006. In the absence of a finding that the form was not the correct form, I proceed on the assumption that the respondent complied with subclause 1222(1). The second subclause commences with the expression "Visa application charge". It is comprised of two paragraphs. The first paragraph concerns what is described as "[the] first instalment" and the second with what is described as "[the] second instalment". The "first instalment" is described in parentheses immediately after that expression, as being "payable at the time application is made". But for the fact that the "second instalment" is said to be nil, the subclause is structured on the basis that the "second instalment" would be payable before the grant of the visa. The third subclause commences with the word "Other". It contains nine subclauses. Subclause (c) declares, relevantly, that if the application is made on form 157A, and the applicant seeks to satisfy the primary criteria, the application is accompanied by satisfactory evidence that, relevantly, the applicant is enrolled in a registered full-time course of study of the specified type.
6 There are several features of this clause, when read with clause 573, which suggests that the expression "the application" is intended to refer only to the form. If so, an application is made when the relevant form is lodged. The first is that the visa application charge is said to be payable at the time the application is made. The second is that the evidence of enrolment is said to accompany the application. Both these requirements, as they are expressed, indicate that the payment of the charge and the provision of the evidence are separate from, though temporally connected to, the making of the application. Indeed the opening words of subclause (c) speak of circumstances where "the application is made on form 157A".
7 In my opinion, s 46 of the Migration Act 1958 (Cth) lend support to this construction. Section 46(1)(ba) declares that an application for a visa is valid if, and only if, any applicable visa application charge is paid at the time when the application is made. Again, this provision proceeds on the assumption that the payment of the charge is separate from the making of the application. It is true that on this construction of the regulations there is a potentially substantial inconvenience occasioned by an application being made within the prescribed time which is nonetheless an invalid application which may well languish within the Department for a period of time or even indefinitely. However the dichotomy between valid and invalid application serves a particular and specific purpose in the Act. It provides the barrier or gateway to the exercise by the Minister of the power to consider the application having regard to s 47: see more generally SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91.
8 As the Full Court of the Federal Court discussed in Minister for Immigration & Multicultural Affairs v Li [2004] FCA 1456 at [76]:
…the legislation uses the term “application” in two senses. Sometimes, as in s 54, the word refers to the application form itself. On other occasions, as in ss 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.
9 In this case, in my opinion, the process of applying for the visa began on 27 March 2006 and was completed on 17 August 2006. The date of application was 27 March 2006. I accept that the respondent did not make a valid application until the visa application charge was paid in August 2006. However that does not dictate a conclusion that he did not satisfy the criterion that the application be made within 28 days of his last substantive visa ceasing to be in effect. He did satisfy the criterion, the Tribunal erred in concluding he had not and the Federal Magistrate was correct in reaching that conclusion.
The appeal should be dismissed with costs.
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Associate:
Dated: 21 August 2008
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 16 OF 2008 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
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AND: |
MON TAT CHAN First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGES: |
MOORE, MARSHALL & LANDER JJ |
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DATE: |
21 AUGUST 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
MARSHALL J
10 I have had the advantage of reading the reasons for judgment of Lander J. I agree with his Honour that the appeal should be allowed and the orders of the Federal Magistrate set aside, largely for the reasons he gives. I also agree with the cost orders proposed by his Honour. I do wish to add some observations of my own.
11 The Migration Review Tribunal made extremely brief findings of fact. As Lander J points out, there was no finding that the first respondent submitted his certificate of enrolment on any particular day. There is a reference on the last page of the decision to an argument that the visa application which the first respondent lodged on 27 March 2006 was then incomplete but became valid on 31 March 2006. There was no finding that the certificate of enrolment was supplied to the appellant’s Department on 31 March 2006 or any other day, apart from 17 August 2006. The findings of fact made by the Tribunal were limited to the following: -
· On 27 March 2006, the first respondent submitted a visa application which was not accompanied by a certificate of enrolment.
· The first respondent made a valid visa application on 17 August 2006 which was made beyond the 28 day period after the expiration of the visa previously held by him.
12 The Tribunal made no finding about payment of a fee by the first respondent in respect of the visa application.
13 It is not for the Federal Magistrates Court or this Court on appeal to engage in a substitute fact finding exercise. The relevant judicial function is to determine whether the Tribunal made a jurisdictional error. In my view it did not, as there was no finding that the certificate of enrolment was supplied to the Department at any time prior to 29 April 2006. There was no basis upon which the incomplete application made on 27 March 2006 became complete by 29 April 2006. It was necessary for the application to be completed in that time because clause 573.211(3)(c)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) requires an application to be made 28 days after the visa applicant’s last substantive visa ceased to be in effect. The first respondent’s last substantive visa ceased to be in effect on 1 April 2006.
14 It was not in contest that an applicant may apply for a visa without submitting all requisite accompanying material but later cure the omission by providing supplementary material so that “the application could become a valid application when it was so supplemented” see Thayanathan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 at [33]; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495.
15 Without a finding by the Tribunal that the application of 27 March 2006 became valid by 29 April 2006, it cannot be said that the incomplete application ever became complete at a time that the visa it sought was able to be granted. For this reason alone the appeal must be allowed.
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I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall . |
Associate:
Dated: 21 August 2008
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 16 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
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AND: |
MON TAT CHAN First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGES: |
MOORE, MARSHALL AND LANDER JJ |
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DATE: |
21 august 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
LANDER J
16 This is an appeal from orders made by a Federal Magistrate on 6 December 2007 that:
(1) a writ of certiorari issue quashing the decision of the Migration Review Tribunal made on 13 April 2007;
(2) a writ of mandamus issue requiring the Migration Review Tribunal to determine the application for review according to law; and
(3) the appellant pay the first respondent’s costs.
17 On 17 August 2006 the first respondent lodged an application for a Student (Temporary) (Class TU) visa under cover of a letter from his solicitors dated 16 August 2006 which read:
We refer to the above mater (sic) and our previous correspondence.
We are instructed the following :-
a. our client has lodged the relevant Application for a student visa – Form 157A on or about 27 March 2006 together with relevant supporting documents. The relevant Form 157A was kept by the DIMIA.
b DIMIA advised our client that he was missing relevant “COE”.
c. We confirm that relevant “COE” was made available to the DIMIA since 28 March 2006.
d. Our client does not know why the abovesaid application was not processed.
e. Our client does not know why he was given a bridging visa E on or about 24 July 2006.
In the event that the abovesaid Application for a student visa – Form 157A became missing, we hereby enclose the relevant Application for a student visa – Form 157A together with relevant supporting documents.
Should you require any further assistance, please do not hesitate to contact our office.
We look forward to your favourable response and/or grant of relevant student visa.
18 On that same day a delegate of the Minister for Immigration made a decision to refuse the grant of the visa and wrote to the first respondent enclosing his decision record.
19 The delegate determined that as the first respondent had been enrolled in or offered a place in a principal course of study that had been specified by Gazette notice as a type of course for a Subclass 573 (Higher Education Sector) visa, primarily his application should be assessed against the criteria for the grant of a Subclass 573 (Higher Education Sector) visa. The delegate, however, determined that the first respondent did not satisfy cl 573.211 of the Migration Regulations 1994 (Cth) (the Regulations), in that the first respondent’s last substantive visa ended on 1 April 2006. Subclause (3) of cl 573.211 requires that if the applicant for a Subclass 573 (Higher Education Sector) visa is not the holder of a substantive visa, the application must be made within 28 days after the day when the last substantive visa ceased to have effect: cl 573.211(3)(c)(i).
20 On 29 August 2006 the first respondent applied to the Migration Review Tribunal (the Tribunal) for a review of that decision.
21 On 30 January 2007 the Tribunal wrote to the first respondent pursuant to s 359A of the Migration Act 1958 (Cth) (the Act) inviting his comment in writing from the following information:
• Departmental records show that you were granted a Subclass 573 visa on 24 June 2004, which ceased on 1 April 2006.
• You lodged an application for a Student (Temporary)(Class TU) visa on 17 August 2006.
• Departmental records indicate that you lodged a visa application on 27 March 2006, but it was deemed to be invalid.
22 The letter continued:
This information is relevant because it indicates you do not meet clause 573.211 because you did not make your application within 28 days after the day when your Subclass 573 visa, being the last substantive visa you held, ceased to be in effect. If so, the Tribunal would find that you are not entitled to the grant of a Student (Temporary)(Class TU) visa.
23 The first respondent’s solicitors responded by providing the Tribunal with a statutory declaration. In that declaration the first respondent said that he had commenced study for a Diploma of Commerce at the Sydney Institute of Business and Technology in or around March 2003 and graduated with a Diploma of Commerce in May 2004. In or about March 2004 he commenced a Bachelor of Commerce degree majoring in Actuarial Studies at the University of Macquarie (the University) and continued to study for that degree throughout the first half of 2006.
24 He said that on 23 March 2006 he attended at the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) with an application for a Student visa (Form 157A) which he gave to a female staff officer who told him that he should present all of the relevant documents with the application within seven days.
25 A relevant document which needed to be produced was a Certificate of Enrolment which was a certificate to be provided by the University that the applicant was presently enrolled at the University.
26 He said that on 24 March 2006 he attended the University to enquire about the Certificate of Enrolment and was told that his private health insurance had expired and the Certificate of Enrolment could not be issued until the health insurance was renewed. He said he renewed his health insurance on 24 March 2006. He said that on 27 March 2006 he attended at the University to produce his health insurance cover and was told that the Certificate of Enrolment would take a few working days to be issued.
27 He said he again attended at DIMIA on 27 March 2006 and spoke with a different female staff officer to whom he had spoken on 23 March 2006, and handed her the application which she took. She told him that he would have to provide the Certificate of Enrolment within five working days and he would be told when he had to pay for the application.
28 He said he attended again on 31 March 2006 and spoke, I think, to a different female staff officer and had a conversation in relation to the production of the Certificate of Enrolment. He said he told her that it would take some days still to produce. She said that in the meantime she would grant a Bridging visa D which would mean that he had seven days in which to return the Certificate of Enrolment. He said he produced the Certificate of Enrolment on 4 April 2006 which was accepted by a male staff officer. He said he then left the building.
29 He deposed to matters relating to his health and his mother’s health which concerned him in the period immediately after April 2006. He said he returned to DIMIA on 24 July 2006 to ask when his new visa would be issued, but was told that they did not have his Certificate of Enrolment so that the application was invalid.
30 He returned again on 25 July 2006 and told a female staff officer that the University had created an electronic Certificate of Enrolment which was available to DIMIA. He was told that the problem was not the Certificate of Enrolment but the absence of any application. He said he therefore instructed his solicitors to make a further application, that is the application enclosed in the solicitor’s letter of 16 August 2006.
31 On 13 April 2007 the Tribunal made its decision in which it affirmed the delegate’s decision not to grant a Student (Temporary) (Class TU) visa, which it handed down on 4 May 2007. The Tribunal recited the evidence to which I have referred. It found that the first respondent last held a substantive visa which was a Subclass 573 (Higher Education Sector) visa which ceased on 1 April 2006. It said:
The applicant is effectively arguing that the visa application he lodged on 27 March 2006 was a valid application when he submitted his confirmation of enrolment on 31 March 2006. The Tribunal is satisfied that the applicant submitted a visa application on 27 March 2006 but it was not accompanied by a confirmation of enrolment. Item 1222 of Schedule 1 sets out the requirements for making a valid application for a Student (Temporary) (Class TU) visa. In the applicant’s circumstances item 1222 states that the application is to be accompanied by satisfactory evidence that either the applicant is enrolled in a registered full-time course of study or has been offered a place in a registered full-time course of study. The visa application the applicant lodged on 27 March 2006 was not accompanied by such evidence and the Department found the application was not valid. This decision would appear to be in accordance with requirements set out in item 1222.
The Tribunal finds that the applicant made a valid visa application on 17 August 2006. The Tribunal finds that the applicant made his valid visa application more than 28 days after his Subclass 573 visa expired.
The Tribunal finds that the applicant did not make his visa application within 28 days after his last substantive visa ceased to be in effect. Accordingly, the Tribunal finds that the applicant has not satisfied paragraph 573.211(3)(c) and has not satisfied clause 573.211 of Schedule 2 to the Regulations.
On the basis of this finding, the Tribunal must affirm the decision under review.
32 The Tribunal made a finding that the applicant submitted a visa application on 27 March 2006. It did not make a finding as to whether the first respondent submitted the Certificate of Enrolment to DIMIA on 4 April 2006 or at any other time. The first respondent’s evidence was that he submitted the Certificate of Enrolment to the Tribunal on 4 April 2006. No finding was made in that regard.
33 Importantly, however, the Tribunal determined that the application lodged on 27 March 2006 did not comply with cl 1222 of Schedule 1 of the Regulations and was not a valid application.
34 The first respondent applied to the Federal Magistrates Court for the judicial review of the Tribunal’s decision. The following grounds were raised:
1. The Tribunal made an error of law amounting to jurisdictional error by incorrectly interpreting and narrowly construing the relevant law when deciding the application lodged by the applicant on 27 March 2006 was not accompanied by the required evidence of enrolment in its decision handed down / sent on 04 May 2007 (sic).
2. The Tribunal made jurisdictional error by failing to take into account relevant considerations and taking into account irrelevant considerations.
3. …
4. The Tribunal made jurisdictional error by failing to properly advice (sic) the applicant as to why the letter issued pursuant to section 359A of the Act (at CB 060-61) clear particulars of information that would be relevant for review (section 359A(1)(a) and (b)) and providing particulars as to why it is relevant for review.
5. The Tribunal made jurisdictional error by reviewing decision that is not MRT-reviewable decision pursuant to section 338 of the Migration Act such error of law constituting jurisdictional error.
35 The appellant filed an affidavit sworn by Ms Huynh in the Federal Magistrates Court upon which he relied at the hearing before the Federal Magistrate. Ms Huynh deposed to conversations with the first respondent on 27 March 2006 and 24 July 2006 at the office of the Department.
36 The appellant conceded that it could not rely upon the affidavit in this Court, nor could it have relied upon the affidavit in the Federal Magistrates Court. The appellant conceded it was for the Tribunal to determine as a matter of fact whether the application for a visa satisfied cl 1222 of Schedule 1 and the criteria in cl 573.21 of Schedule 2 of the Regulations. Ms Huynh’s affidavit may be ignored.
37 In any event, the Federal Magistrate posed for himself the question, “Was there a valid application?” and said:
17. It is clear that the applicant lodged an application on 27 March 2006 (CB 60; see also the affidavit of Joanne Huynh, affirmed on 25 October 2007). It is not relevant whether or not it was handed back to the applicant, and the Court makes no finding on that issue. As submitted for the first respondent, an incomplete application can be completed at a later stage: Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964.
18. The applicant lodged another application on 17 August 2006, which was accompanied by a COE and the visa charge. At that point the application lodged on 27 March 2006 became complete. That application was made before the expiry of his visa on 1 April 2006. A confirmation of enrolment was submitted on 31 March 2006 (CB 101.1). Section 47 of the Act provides:
Consideration of valid visa application
(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.
19. By s.47(3), the Minister was bound not to consider the application lodged on 27 March 2006 at the time of lodging. If he did consider it, that did not amount to a refusal to grant the visa: s.47(4). The application became complete on 17 August 2006, and the requirement to consider a visa continues until it is withdrawn, or refused, or consideration is prevented by s.39: s.47(2). Section 39 has no relevance here. The application lodged on 27 March 2006 was not withdrawn or refused. Therefore the application should have been considered when it became complete. The Tribunal erred in law in confirming the decision that the visa applicant did not make his application within 28 days after his last substantive visa ceased to be in effect, and that clause 573.211(3)(c) was not satisfied.
20. As an error of law has been found. The Court is not required to consider the other grounds in the application and amended application.
38 The appellant identified only one ground of appeal which was:
1. The learned Federal Magistrate erred in finding that the applicant’s application was lodged on 27 March 2006. His Honour should have found that the applicant had not lodged a valid visa application until 17 August 2006.
39 Section 45 of the Act requires a non-citizen who wants a visa to apply for a visa of a particular class. Section 46 relevantly provides for an application for a visa that is valid:
(1) Subject to subsections (1A), (2) and (2A), 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
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; 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), 91K (temporary safe haven visa), 91P (non‑citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
(1A) …
(2) Subject to subsection (2A), an application for a visa is 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.
(2A) …
(2AA) …
(2AB) …
(2AC) …
(2B) …
(2C) …
(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
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
40 Section 47 addresses the Minister’s obligations in relation to a visa application:
(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.
41 The Minister is only entitled to consider a valid application for a visa and is prohibited by s 47(3) from considering an application that is not a valid application.
42 Relevantly, for the purpose of this appeal, an application for a visa is only valid if it satisfies the criteria and requirements prescribed under s 46. Moreover, an application for a visa is only valid if any fees payable in respect of it under the Regulations have been paid: s 46(1)(c).
43 Division 2.2 of the Regulations deal with applications for a visa.
44 Regulation 2.07 provides:
(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
45 Clause 1222 of Schedule 1 of the Regulations provides for the form upon which an application must be made for a Student (Temporary) (Class TU) visa application and the other documents which must accompany the form. Relevantly, cl 1222(3)(c)(i) requires the application to be accompanied by satisfactory evidence that the applicant is enrolled in a registered full time course of study of the kind mentioned in the clause. The first respondent did not comply with cl 1222(3)(c)(i) at any time prior to 17 August 2006. In that regard the application was not valid.
46 Moreover, the applicant was obliged to pay any fees payable under the Regulations: s 46(1)(c). Section 46(1)(c) provides that an application is only valid if any fees payable in respect of the application under the Regulations have been paid. Regulation 2.07 provides that, for the purposes of ss 45 and 46, if an application is required for a particular class of visa the visa application charge payable in relation to that application is set out in the relevant part of Schedule 1. Clause 1222 is the relevant part of Schedule 1. Clause 1222(2) deals with the visa application charge and where the two instalments are required to be paid. The applicant did not pay the visa application charge until 17 August 2006.
47 Because of the provisions of s 46(1)(c), reg 2.07 and clause 1222(2), for that further reason he did not make a valid application for a visa at any time prior to 17 August 2006.
48 It was contended by the first respondent that the application which was made on 27 March 2006 was perfected on 17 August 2006 when the first respondent lodged a valid application for a visa. As that application was in the correct form and was accompanied by the necessary documents and the prescribed fee was paid on that day, I would accept that contention.
49 In my opinion, when the first respondent lodged the valid application on 17 August 2006 it also perfected the application which the Tribunal found had been lodged on 27 March 2006. There was, however, only one application extant. The application lodged on 27 March 2006 was invalid because it was not accompanied by the Certificate of Enrolment and the fee was not paid. The acts performed on 17 August 2006 cured those defects. But there was only one application which relied upon the lodgments and the payment of the fee on the two separate dates.
50 The Federal Magistrate accepted the first respondent’s contention that the lodgment of the second application on 17 August 2006 perfected the first application lodged on 27 March 2006 as at 27 March 2006. In my opinion, that holding cannot stand and that contention must be rejected.
51 Whilst I accept that the lodgment of the second application on 17 August 2006 perfected the application lodged on 27 March 2006 thereby making it a valid application, in my opinion, it did not become a valid application until 17 August 2006.
52 That conclusion is consistent with the decision of the Full Court in Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297. In that case the first appellant applied for a protection visa by lodging an application form dated 25 November 1996. He answered a number of questions, “See statement to be forwarded.” On 5 February 1997 he lodged a statutory declaration setting out his claims for a protection visa. The question before the primary judge and on appeal was whether the application for a protection visa was valid. The Court considered an earlier decision of this Court in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 where the Court by a majority decided that an application for a visa which was incomplete could become a valid application if the information necessary to make it complete was provided prior to the delegate considering the application. The Full Court said in Thayananthan v Minister for Immigration and Multicultural Affairs 113 FCR 297 at [33]:
This conclusion resolves the true issue raised in this appeal, being an appeal from an application for judicial review of a decision of the Tribunal raising the ground that the Tribunal purported to make a decision it did not have jurisdiction to make: s 476(1)(b) or made a decision not authorised by the Act: s 476(1)(c). However to the extent that the parties invited a determination of whether the decision of the delegate was valid, the ultimate answer is provided by the reasoning of Spender and Gyles JJ referred to at [22] and [23] above. While the reasoning of Spender and Gyles JJ differed in some respects, at least as to the way it was expressed, the conclusion of both members of the majority was that the invalid application could be rendered valid by supplementation and the application could become a valid application when it was so supplemented. We see no reason to depart from the conclusion reached by Spender and Gyles JJ. In the present case, the application of the first appellant became a valid application on the receipt by the Department of the statutory declaration of 5 February 1997.
53 The Full Court decided that an invalid application could become a valid application but only as at the date the information necessary to make it valid was provided.
54 In my opinion, an invalid application cannot be rendered valid nunc pro tunc to the date it was lodged because to do so would be inconsistent with the whole scheme of the Act. The Minister is not entitled to consider an invalid application. If an invalid application is submitted it must remain unconsidered until such time as if it ever becomes valid. If an applicant lodged an incomplete application which was not valid and later lodged the documents or paid the fees which would make it valid, the applicant would, in the meantime, when his or her other substantive visa had become invalid, have become an unlawful non-citizen. In those circumstances, the Minister would be precluded from considering the application and the applicant who had lodged the invalid application would become an unlawful non-citizen and be subject to removal under the provisions of s 198.
55 The application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations which would make the application valid.
56 The appeal should be allowed and the orders made by the Federal Magistrate set aside.
57 In lieu thereof there should be an order that the application for judicial review to the Federal Magistrates Court be dismissed with costs.
58 The first respondent should pay the costs of the appeal.
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I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. |
Associate:
Dated: 21 August 2008
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Counsel for the Appellant: |
Mr G Kennett |
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Solicitor for the Appellant: |
Australian Government Solicitor |
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Counsel for the First Respondent: |
Mr J Gormly |
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Solicitor for the First Respondent: |
Lawside Lawyers |
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Date of Hearing: |
21 May 2008 |
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Date of Judgment: |
21 August 2008 |
