FEDERAL COURT OF AUSTRALIA

MIGRATION - judicial review - application for visa on incorrect form - failure to make a judicially-reviewable decision - time for bringing an application for review

STATUTES - mandatory or directory - whether Migration Act 1958 (Cth) requires an application for a visa to be made on the prescribed form - whether substantial compliance with regulations - meaning of s 478(1)(b) of the Migration Act

Migration Act 1958 (Cth) ss 45, 46, 477, 478(1)(b)

RAVECA ONEA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VG 5 of 1997

FINKELSTEIN J

MELBOURNE

18 DECEMBER 1997

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The applicant pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR:  This case is concerned with the consequences of the failure to apply for a visa to remain in Australia in accordance with an approved form.  Generally the courts are able to ensure that a person’s rights and expectations will not be defeated by a mere technicality.  But this decision will demonstrate that this is not always so. 

The applicant is a citizen of Romania.  She arrived in Australia on 15 September 1995 on a visitor’s visa which permitted her to remain in Australia for three months and was extended from time to time allowing her to remain until 15 September 1996.  The applicant wished to remain in Australia beyond that day and was therefore required either to extend her visa or to apply for another visa.  She decided to apply for a temporary business visa which, if granted, would enable her to remain for a period up to 4 years.

The grant of a visa, which is a permission to travel to and enter Australia and a permission to remain in Australia, is governed by the Migration Act 1958 (Cth).  There are two kinds of visa which may be granted, a permanent visa and a temporary visa: see s 30.  There are many classes of permanent visa and temporary visa some of which are prescribed by regulation and some of which are created by the Migration Act: see s 31 for the power to prescribe classes of visa and see ss 30 to 38 for the visas created by the Migration Act.

In order to obtain a visa an applicant must, subject to the Migration Act and the regulations, apply to the Minister for Immigration and Multicultural Affairs for a visa of a particular class:
s 45(1).  The way the application is to be made may be prescribed by the regulations:
s 45(2)(b).  Then there is s 46(1)(b) which provides that an application for a visa “is valid if, and only if, (inter alia) it is made in the way required by subsection 45(2)”; that is to say, in accordance with the regulations that prescribe the way in which the application should be made.  The Minister is required to consider every application for a visa s 47(1).  However, the Minister is not entitled to consider an application for a visa that is not a valid application:
s 47(3).  The effect of these provisions is that unless the Migration Act or the regulations otherwise provide the Minister is not to consider an application for a visa if it is not an application for a visa of a particular class and if the application is not made in the prescribed manner.

The Migration Regulations 1994 prescribe both classes and subclasses of visas.  There appear to be approximately 56 classes of visa and approximately 105 subclasses of visa.  The classes of visa are to be found in regulation 2.01(b) and in Schedule 1 to the regulations and the subclasses of visa are set out in Schedule 2.  Most but not all subclasses of visa are a subclass of a class of visa.  The particular visa that the applicant wished to apply for appears in Schedule 1 as class 1223A and is entitled “Temporary Business (Class UC)” and the subclass appears in Schedule 2 as subclass 457 and is entitled “Business (long stay)”.

The regulations also make provision for the manner in which an application for a visa is to be made.  Thus, regulation 2.07(1) provides that if an application is required for a particular class of visa Schedule 1 will set out (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, and  (c) other matters relating to the application.  Regulation 2.07(3) requires an applicant to complete an approved form in accordance with any directions on it.  Reference should also be made to regulation 1.18(a) by which the Minister may, in writing, approve forms for use in making an application for a visa. 

Returning to that part of Schedule 1 that is concerned with the visa known as Temporary Business Entry (Class UC) provision is made for an approved form and for the payment of an application charge.  The approved form is Form 1066 and the charge is $145. 

The applicant requested her solicitor to provide her with the appropriate form to make her application  He provided her with an application Form 147.  The reason why the applicant’s solicitor provided her with a Form 147 and not a Form 1066 was that he did not have a copy of that form and believed that Form 147 had previously been prescribed for a Temporary Business Entry (Class UC) visa.  In fact until 1 August 1996 the prescribed form for a Temporary Business Entry (Class UC) visa was Form 456.  The applicant completed the Form 147 with the assistance of her solicitor.  In the form she described the class of visa that was being sought as “UC” and the subclass as “457”.

On 13 September 1996 an employee of the applicant’s solicitor attended at the Department of Immigration and Multicultural Affairs to lodge the application.  The officer of the department to whom the application was given pointed out that the application was not in the prescribed form.  However, the officer was asked to accept the form and he agreed to do so notwithstanding that he knew it to be the incorrect form.  The officer crossed out the printed number “147” that appeared in a square box at the top right hand corner of the form and wrote in the number “1066” and he also wrote “incorrect form” immediately below the number that had been crossed out.

When the application was lodged the applicant was granted a bridging visa.  This class of visa is granted to a person who has made an application for a substantive visa and that application has not been finally determined.  A bridging visa remains in effect until a substantive visa is granted.  If a substantive visa is not granted the bridging visa remains in effect for a period of 28 days after the applicant is notified of the refusal to grant a substantive visa unless application is made to review the decision to refuse to grant the visa in which case the bridging visa remains in effect until 28 days after the determination of that review: see subclass 010- Bridging Visa A in Schedule 2.

By a letter dated 1 October 1996 and received by the applicant’s solicitor on 4 October 1996 the Department advised that “the documentation lodged by Ms Onea on 13 September 1996 for a Business-Long Stay (Subclass 457) Visa does not constitute a valid visa application and therefore cannot be considered”.  The reason given was that the application had been made on an incorrect form.  The letter went on to state that the Minister was considering cancelling the bridging visa that had been granted to the applicant and invited her to make submissions before a final decision was made. 

In response the applicant’s solicitor sent a letter by facsimile transmission to the Department in which it was contended that the application lodged on 13 September 1996 was not invalid.  Two arguments were put forward in support of this contention.  The first was that because the Department had been unable to supply copies of Form 1066 to the applicant’s solicitor when it had been requested to do so the Department “can’t complain about (the correct form) not being used in this case.”  The second argument was that the submission of an application on Form 147 constituted substantial compliance with the requirements of the regulations.  Reference was made to s 25C of the Acts Interpretation Act 1901 (Cth) which provides that “(w)here an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.  The letter then stated that a Form 1066 would be submitted to the Department with the original of the transmission and the Department was requested to “retain the application fee which has been paid ... and treat the new form as supplementary to the original application.”  The letter concluded with a request that the respondent reconsider the decision that the application was not valid.  Shortly thereafter the original letter was delivered to the Department together with a completed Form 1066.

On 18 December 1996 the Department wrote to the applicant’s solicitor advising that legal advice had been obtained in relation to the contention that the applicant had substantially complied with the obligations imposed by the Migration Act and the regulations and that, as a result of the advice, the application would not be treated as valid.  An explanation was provided but it is not necessary to set it out.

The applicant now seeks to review two decisions and certain conduct of the Minister.  In her application for review which was filed with the Court on 1 January 1997 and amended on 16 September 1997 the decisions and conduct are described in the following way:

1.1       that the Applicant’s written application lodged at the Respondent’s Melbourne office on 13 September 1996 for a Class UC Subclass 457 visa on a Form 147 and payment of appropriate fee on the same date ... does not constitute a valid application and/or the decision to cancel the Applicant’s Bridging A visa granted on 13 September 1996 (‘the First Decision’);

1.2       that the conduct of the Respondent in failing to consider the visa application lodged by the Applicant at the Respondent’s Melbourne office on or about 14 October 1996, for a Class UC Subclass 457 visa on a Form 1066 having paid the appropriate fee on September 13, 1996 ... (‘the Conduct’);

1.3       not to reconsider or set aside the First Decision or review the Conduct (‘the Second Decision’).”

The application for review is made pursuant to s 476(1) of the Migration Act in so far as complaint is made about the decisions of the Minister and pursuant to s 476(1) or s 477 in so far as complaint is made about the Minister’s conduct.  Section 476(1) provides that an application may be made for review by the Court of a judicially-reviewable decision on the grounds therein specified.  For the purposes of the Migration Act a judicially-reviewable decision is defined to include “decisions made under [the Migration] Act, or the regulations, relating to visas”: see s 475(1)(c).  Section 477 permits an application to be made to the Court for an order of review in respect of the failure to make a judicially-reviewable decision that a person “has a duty to make”.  If no time within which the decision is to be made is specified then an applicant can complain that there has been an unreasonable delay in making the decision: s 477(1).  If a time is specified and it has passed then an applicant can complain that there has been a refusal to make the decision: s 477(2).

When an application for review is made under either s 476 or s 477 that application must be lodged with a Registrar of the Court “within 28 days of the applicant being notified of the decision”: see s 478(1)(b).  Further, the Court is directed not to make an order allowing or which has the effect of allowing an applicant to lodge an application outside that period: see
s 478(2).  The operation of s 478(1)(b) will usually not present any difficulty when an order for review is sought in respect of a judicially-reviewable decision the making of which has been notified to the applicant.  But it is not clear how s 478(1)(b) is to operate in the case where there has been an unreasonable delay in making or a refusal to make a judicially-reviewable decision.  What is the decision notification of which will see the 28 day period commence to run? 

What might be contemplated by s 478(1)(b) is notification of a “decision” that a judicially-reviewable decision will not be made.  The problem with this construction is that there will be many cases where no such decision will be made.  These are the cases where the complaint is one of mere delay.  Another possibility is a notification of a “decision” that a judicially- reviewable decision will not be made for the time being.  This also suffers from the vice that no such decision will be made in many cases.  Yet another possibility is that there need be no notification of any actual decision and what will suffice is that there be some notification of the fact that a judicially-reviewable decision that should have been made has not been made.  Presumably the notification that will result in time commencing to run is a notification that takes place after the time within which the judicially-reviewable should have been made.  This last mentioned possibility is the only one that gives proper effect to s 478(1)(b) in its application to s 477.  Yet it is the least satisfactory for it requires the ordinary meaning of the words in the paragraph to be ignored and new words substituted; sometimes a permissible course to adopt in the light of the modern principles of statutory construction.

I have referred to the time constraints imposed by s 478(1)(b) for the reason that the parties are not in agreement whether the applicant has applied for a review of the first decision within 28 days of being notified of that decision.  It will be recalled that the applicant’s solicitor was advised on 4 October 1996 (the date of the receipt of the Department’s letter dated 1 October 1996) that the application which had been lodged on 13 September 1996 did not constitute a valid application for a visa and would not be considered.  The applicant’s case is that the decision recorded in the letter was not a final decision and that accordingly the time within which an application for review must be made did not commence to run from the receipt of that letter. 

Before dealing with the merits of this submission it is necessary to say something about the character of the “decision” that is referred to in the letter.  I have already made mention of the provisions of the Migration Act which require the Minister to consider a valid application for a visa.  I should also refer to s 47(4) which provides that “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.”  The letter of 1 October 1996 provides two pieces of information to the applicant’s solicitor.  The first is, in substance, that it had been determined that the application for a visa was not a valid application.  The second piece of information is that the Minister would not consider that application.  The determination that the application was not valid is in my opinion a “decision made under (the Migration) Act”.  There is no express power permitting such a determination to be made but it is implicit that it will be made in an appropriate case.  Further, s 47(4) treats such a determination as a decision of the Minister.  It is therefore a decision which is capable of review under s 476(1).

The basis for the applicant’s assertion that the letter of 1 October 1996 did not record a final decision of the Minister is that when the letter dealt with the bridging visa it informed the applicant that she could comment on why that visa should not be cancelled.  The submission was that by inviting comment on why the bridging visa should not be cancelled the Minister was, in effect, also inviting comment on why the original application should not be regarded as invalid and, by so doing, the Minister could not have finally resolved the issue of its validity.

I do not accept this submission.  It is true that the applicant was given notice of the proposed cancellation of the bridging visa and was asked to comment on why it should not be cancelled.  Both the giving of that notice and the request for comment were steps that were required to be taken by the Migration Act before the bridging visa could be cancelled: see ss 119, 121 and 124.  But the fact that those steps were taken in relation to the bridging visa does not mean that the determination concerning the validity of the application was not a final determination.  On the contrary the letter makes it quite clear that a final decision had been taken.  It was not expressed to be provisional.  Nor was it qualified in any way: contrast Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health & Anor (1995) 128 ALR 238.  As the letter of 1 October 1996 gave the applicant notice that a final decision had been taken in relation to the validity of the application it was necessary for any application to review that decision to be lodged no later than 29 October 1997.  No such application was made within that period and the Court does not now have the power to examine the validity of the first decision.

Next I turn to the complaint that the Minister failed to consider the application for a visa that was lodged on the appropriate Form 1066 on 14 October 1996. 

In the application for review the alleged failure by the Minister to consider this application is described as “conduct” of the Minister which it is sought to review.  There is, of course, a danger in seeking to review conduct rather than a decision or the failure or refusal to make a decision.  The reason is that the Migration Act makes no provision for the review of conduct and s 485 has the effect of excluding recourse either to s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth) for this purpose: see Ozmanian v Minister for Immigration and Ethnic Affairs (1996) 141 ALR 322 at 345 and 348.  Be that as it may I do not regard the “conduct” that is described in the application for review as conduct of a type that is not capable of review under the Migration Act.  The matter about which complaint is made is the refusal by the Minister to consider the application.  This refusal will amount to “conduct” that is capable of review under s 477(2) provided the Minister was under a duty to consider that application.

Thus the real issue that is raised is whether the Minister was under a duty to consider the application.  Presumably if the applicant had requested the Minister to consider it he would have been under a duty to do so.  That duty would arise from s 47(1) by which the Minister is required to consider a valid application for a visa.  But the difficulty confronting the applicant is that when the Form 1066 was lodged her solicitor requested that it be treated as supplementary to her original application.  It was very important for the applicant to have made a valid application for a visa by 15 September 1996 being the day upon which her temporary visa expired.  If by then no application was pending not only would the applicant have to satisfy the ordinary requirements for the issue of a temporary business visa she would also have to satisfy the additional criteria that are found in Schedule 3 to the Migration Regulations.  That additional criteria must be satisfied by any applicant for a visa who does not hold a substantive visa at the time of application.  To avoid the need for the applicant to satisfy the additional criteria the applicant’s solicitor requested the Minister to treat the Form 1066 as supplementary to the original application.  The solicitor was no doubt hopeful that if the Minister acceded to this request the deficiency that had resulted from the use of Form 147 would be cured.  However, what is clear is that the Minister was not requested to consider the Form 1066 as a discrete application.  That form was to be treated as part of the material in support of the earlier application.  The consequence is that it has not been shown, as it is required to be shown if an order to review under s 477(2) is to succeed, that the Minister has failed to make a decision that he was under a duty to make. 

The final decision which it is sought to review is the decision of the Minister not to set aside the first decision or review the conduct.

Once again it is necessary to emphasize that the only decisions that are relevantly capable of review are decisions that are made under the Migration Act: s 475(1)(c).  Accordingly it is necessary to consider, in the first instance, whether what has been defined as the second decision is a decision under the Migration Act.  For the Minister it is submitted that there is no provision in the Migration Act that expressly empowers the Minister to reconsider or revoke a decision already made or to review conduct that has been engaged in.  It is also submitted that there is no such power by way of implication.  In support of these contentions the Minister placed reliance upon Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 and Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532.  Sloane is of particular relevance.  In that case French J held that in the absence of an express power of revocation in the Migration Act such a power would not be found to exist by way of implication in the case of a decision refusing to grant a temporary entry visa.  Two reasons were given by French J for not making the implication, viz. if the power existed it would generate endless requests for a reconsideration and the Migration Act contains specific provisions for the review of the decision there under consideration.  As I have already observed in Leung v Minister for Immigration and Multicultural Affairs (Unreported, Full Court, 28 November 1997) the circumstances in which an implication of a power of reconsideration will be made are far from settled.  If decisions such as Grillas v Minister of Manpower and Immigration [1972] SCR 527 and Re Lornex Mining Corporation Ltd & Bukwa (1976) 69 DLR (3d) 705 which I referred to in Leung are to be followed in this jurisdiction it may well be that the power of reconsideration will be implied in a statute such as the Migration Act especially when, as here, there is no right to review the decision on the merits. 

However, even if it is assumed that the implication of a power of reconsideration should be made that will not avail the applicant.  First, what has been described as the first decision and the conduct appear to have been reconsidered.  The letter of 18 December 1996 certainly suggests that the issue had been looked at again in the light of the legal advice that had been received.  Secondly, the second decision, (if made) was not wrong in law.  The only basis for contending that the second decision (if made) was wrong in law is that the application lodged on 13 September was a valid application notwithstanding that it was made on a Form 147.  In ordinary circumstances it would not be unusual for a court to hold, conformably with either
s 25C of the Interpretation Act or the applicable principles of statutory construction, that a failure to make an application in accordance with a form that is prescribed for that purpose will not render that application a nullity.  However, these are not ordinary circumstances.  The precise point has been considered by a Full Court in Fang v Minister for Immigration and Ethnic Affairs & Anor (1996) 135 ALR 583.  There it was held that ss 45 and 46 of the Migration Act disclose a clear intention on the part of the Parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists: see 135 ALR at 599 per Carr J and at 616-617 per R.D. Nicholson J with whom Jenkinson J agreed.  Thus s 25C of the Interpretation Act can have no application: its effect has been excluded by clear intention.

In an attempt to overcome the effect of Fang it was submitted that the applicant had substantially complied with the regulations by using Form 147.  During the course of his submissions Counsel for the applicant closely analysed and compared Form 147 with Form 1066 to show that almost all of the information that was required to be given to the Minister if Form 1066 had been used was given to the Minister on the Form 147 to the extent that the applicant was able to provide that information.  Even if this be true that would not be an answer to the point taken by the Minister.  On the proper construction of ss 46 and 47(1) and the regulations, the Minister is not required to consider any application for a visa unless that application is made on the appropriate form.  It is the condition which must be satisfied before the Minister can exercise his power to consider an application: compare SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 245; Attorney-General (NSW); ex rel. Franklin Stores Pty Ltd v Lizelle Pty Ltd & Anor (1977) 2 NSWLR 955.  No other form will do.  This is what the Parliament has laid down.

Although I feel sympathy for the applicant her application must be dismissed with costs.

Associate:

Dated:              18 December 1997