FEDERAL COURT OF AUSTRALIA

Muradzi v Minister for Immigration and Citizenship [2011] FCA 976

THE COURT ORDERS THAT:

1.     The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This appeal raises issues as to the proper construction of provisions of the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (Cth) (“the Regulations”) made thereunder.

THE BACKGROUND FACTS

2    The relevant facts are not in dispute. The appellant wished to obtain a Skilled (Provisional) (Class VC) migration visa. The Act and the Regulations had the effect that her application had to be received by the Department of Immigration (“the Department”) no later than 15 March 2010. This was because the only substantive visa which she held expired on that day. The combined effect of s 48(1) of the Act and Regulation 2.12 was that a non-citizen who did not hold a substantive visa could not apply for a Skilled Migration Visa. The Regulations required that the application had to be lodged by means of the internet, prepaid post or couriered delivery.

3    At 11:00 am on 15 March 2010 the appellant attended the offices of her migration agent. Her purpose was to complete her application and lodge it through the internet. For some unexplained technical reason she was unable to transmit her application by that means. She then purported to lodge her application by facsimile transmission to an office of the Department in Adelaide. This particular office was chosen because it was the only office in Australia where applications for general skilled migration visas are processed by the Department. It appears that she made two attempts to send the facsimile transmission. The electronic date and time stamp on the first copy received by the Department was recorded at 5:01 pm on 15 March 2010. The second facsimile transmission was recorded as having been received at 5:24 pm on 15 March 2010. These facsimile transmissions do not appear to have come to the attention of an officer of the Department until the following morning. A manual stamp was then applied recording receipt on 16 March 2010.

4    By letter dated 9 April 2010 an officer of the Department advised the appellant that her application was not valid. Two reasons for this conclusion were assigned. They were that:

    Her application was received on 16 March 2010 – a day after the last date on which a valid application could be made; and

    The application had been made by facsimile transmission – a means not permitted by the Regulations.

The officer refused to process the application and returned it to her.

PROCEDURAL HISTORY

5    The appellant sought judicial review of the officer’s decision in the High Court of Australia. She applied for a writ of mandamus to issue to direct the respondent Minister to determine her application for a visa. The High Court remitted her application to the Federal Magistrates Court and then enlarged time for the commencement of the proceeding.

6    The Federal Magistrates Court dismissed the application with costs: see Muradzi v Minister for Immigration [2011] FMCA 342.

7    This appeal is brought from the Federal Magistrate’s decision.

LEGISLATION

8    The provisions of the Act and the Regulations relating to visa applications are highly prescriptive. Relevantly they provide as follows.

9    Section 45(1) of the Act provides that:

Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

10    Section 46 of the Act provides that:

(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;

    …

(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)    …

NOTE:        An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

…

(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.

11    Section 47 of the Act provides that:

(1)    The Minister is to consider a valid application for a visa.

…

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

12    Regulation 2.07 of the Regulations provides that:

(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)    …

13    Schedule 1 to the Regulations begins with a note which says:

This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An 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.

14    The item in Schedule 1 to the Regulations which deals with general skilled migration visas is item 1229. Relevantly, it provides:

(1)    Forms: 1276 and 1276 (Internet).

(2)    Visa application charge:

(a)    First instalment (payable at the time application is made):

(i)    In the case of an applicant seeking to satisfy the criteria for the grant of a Subclass 485(Skilled – Graduate) visa: $270;

…

(3)    Other:

(a)    Application must be made:

(i)    as an Internet application; or

(ii)    by posting the application (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or

(iii)    by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph.

(b)    …

(10)    Subclasses:

485 (Skilled – Graduate)

487 (Skilled – Regional Sponsored)

15    The post office box and courier addresses referred to in item 1229(3) have been specified by the Minister pursuant to Instrument IMMI 07/057. The post office box specified for the purpose of subparagraph 1229(3)(a)(ii) of Schedule 1 is: Adelaide Skilled Processing Centre, Department of Immigration and Citizenship, GPO Box 1638 ADELAIDE SA 5001, AUSTRALIA. The address for courier delivery for the purpose of subparagraph 1229(3)(a)(ii) of Schedule 1 is: Adelaide Skilled Processing Centre, Department of Immigration and Citizenship, 4th floor, 55 Currie Street, ADELAIDE SA 5000, AUSTRALIA.”

THE FEDERAL MAGISTRATE’S DECISION

16    Although five separate judicial review grounds were relied on by the appellant in the Federal Magistrates Court, each of those grounds turned directly or indirectly on the construction of item 1229(3) in Schedule 1 to the Regulations.

17    The Federal Magistrate upheld the Minister’s submission that the appellant had not made a valid application and that, as a result, the Minister’s delegate was precluded from considering her purported application. This was because the appellant had not adopted any of the prescribed methods of lodgement stipulated by item 1229(3)(a). Her Honour found that the statutory scheme evinced a legislative intention that an application for a visa which was not made in one of the ways identified in item 1229(3) was to be treated as invalid and was not to be considered by the Minister or his delegate.

18    In coming to this conclusion her Honour had regard to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and to the decisions of this Court in Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 and Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254.

GROUNDS OF APPEAL

19    The appellant’s notice of appeal raises what are said to be five grounds. They are:

1.    In issue is the correct or preferred construction of sub item 3(a) of Item 1229 in Schedule 1 of the Migration Regulations 1994 (the Regulations)

2.    Her Honour erred in law in finding that:

    The reasoning in Fang v Minister for Immigration (1996) 64 FCR 245 and Onea v Minister for Immigration (1997) 80 FCR 254 applies with equal force to the method of lodgement.

3.    Her Honour erred in law finding that the intention of the legislature is abundantly clear. It is mandatory that, to be a valid application, the visa application must be lodged by one of the prescribed methods.

4.    Her Honour erred in law in concluding at paragraph 18 of the Reasons for Judgment that the difficulty experienced by the appellant in her unsuccessful attempt to lodge her Internet application for a Skilled (Provisional) (Class VC) (The Appellant’s application) was an intended inconvenience.

5.    In issue is the date of receipt of the appellant’s application at the Adelaide office of the Department of Immigration and Citizenship.

20    “Grounds” 1 and 5 merely identify issues. The other grounds each raise for consideration the proper construction of the legislation relating to the making and processing of visa applications and, in particular, the meaning and effect of item 1229(3)(a) of Schedule 1 to the Regulations.

CONSIDERATION

21    The appellant acknowledged that her application for a Skilled Migration Visa was not made by one of the methods prescribed by item 1229(3)(a). She submitted that she had adopted an alternative method which was all that she could reasonably be expected to do when she had been frustrated in her attempts to lodge her application using the internet. She contended that the methods of lodgement prescribed by item 1229(3)(a) should not be treated as exhaustive.

22    Both parties accepted that the guiding principle of statutory construction which the Court should apply was that propounded by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (at 390-1). It was that:

“… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asked itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’”.

23    In framing these propositions their Honours adopted views earlier expressed by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4.

24    The visa application scheme prescribed by the Act and Regulations was analysed by a Full Court of this Court in Fang. RD Nicholson J (with whom Jenkinson J agreed) said (at 278-9) that:

“Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen ‘must’ apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed ‘if, and only if’ certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 207. S47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), ‘to avoid doubt’, enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial act. It will also be noted that none of these provisions relevantly use ‘shall’ or ‘may’ so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.

Section 25C of the Acts Interpretation Act 1901 (Cth) provides that ‘where 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 statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a precondition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the prerequisite entry to Ministerial consideration of the application.

It is the case that the use by a legislature of the words ‘if, and only if’ does not in all circumstances mean those words should be equated with ‘but not otherwise’. Where the former words were used to provide in an Act that a company is to be deemed to have ceased to carry on business or to be unable to pay its debts ‘if, and only if’ certain matters are satisfied, it has been held that it cannot have been intended to create an absolute statutory presumption rather than a rebuttable one: Cooper & Dysart Pty Ltd v Sargon (1991) 5 WAR 472. See also Sydar Pty Ltd v K Simmonds Finance Pty Ltd (1995) 13 ACLC 480. In the present context, where the legislature is patently concerned to define the circumstances determining the validity of an application and to relate the concept of validity to the genesis of Ministerial decision-making power, there do not appear to be present any reasons for reading down the effect of the words ‘if, and only if’.

It is the case that the form of application is provided for by the regulations. The form, however, is necessarily imported into the provisions of the Act to which reference has been made so that it is not possible to speak of the former being subsidiary to the latter in the sense that there might be substantial compliance with the Act despite non-compliance with the requirement for use of the approved form: cf Hunter Resources Limited v Melville at 250 per Dawson J.

In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866. Short of that there is no valid application and the Minister is enjoined from considering it. This conclusion finds support in the Note which precedes the Schedule (Classes of Visas) to the Migration Regulations which reads in part:

‘NOTE: This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered.’

Furthermore, the statutory provisions are such that I do not consider anything short of use being made of a Form 866 could constitute an application. There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form. The legislature has gone to abundant lengths to make apparent that an application by way of Form 866 is the only way for these matters to come before the Minister and for the Minister's power in relation to it to be validly activated. In my opinion, this requirement has the result that the prescription of the form is one of substance and is not merely procedural.”

25    Carr J, although dissenting as to the result, agreed with RD Nicholson J and Jenkinson J on this point.

26    Fang was applied by Finkelstein J in Onea. His Honour there said (at 261) that:

“In ordinary circumstances it would not be unusual for a court to hold, conformably with either s 25C of the Acts 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 (1996) 64 FCR 245; (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 260-261; 599 per Carr J and at 279-280; 616-617 per RD Nicholson J with whom Jenkinson J agreed. Thus s 25C of the Acts 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 [1977] 2 NSWLR 955. No other form will do. This is what the Parliament has laid down.”

27    Although both Fang and Onea were decided before Project Blue Sky, the Court, in both cases, approached the issue of construction with which they were confronted consistently with the views expressed by the New South Wales Court of Appeal in Tasker.

28    The appellant sought to distinguish Fang and Onea on the basis that neither of these cases was concerned with prescribed methods of lodgement. They were cases in which the would-be applicant had not used the prescribed form when applying for a visa. They involved provisions equivalent to item 1229(1).

29    The appellant did not identify any basis for distinguishing between the Court’s approach to the construction of the requirement that applications for visas must be made on prescribed forms and provisions which governed the method of lodgement of those forms.

30    In my view the Court is required to approach the construction of item 1229(3)(a) in the same manner as it has approached provisions equivalent to sub items (1) (which deals with prescribed forms) and (2) (which deals with fees). Such provisions can be traced back, in the legislative scheme, to Regulation 2.07 and, in turn, to ss 45 and 46 of the Act.

31    As already noted Fang and Onea considered provisions equivalent to item 1229(1).

32    In other cases in which the impediment to the processing of an application has been the non-payment of the prescribed fee, the Court has adopted the same approach to the legislative requirements: see, for example, Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 at 124 (per Finkelstein J); Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 527 (per Weinberg J).

33    Neither party was able to identify any decisions of the Court dealing specifically with requirements as to the method of lodgement of applications. A prescription of this kind may be included in the Regulations pursuant to s 46(4)(b) of the Act. It is one of the “other matters” which Regulation 2.07(1) requires to be satisfied in order for an application to be valid.

34    All of these provisions form part of the same prescriptive legislative scheme. If any of the requirements of that scheme are not met the consequence is that no valid application has been made and the Minister is prevented from considering the purported application.

35    The failure of the appellant to comply with the requirements of item 1229(3)(a) meant that she had not made a valid application and the Minister’s delegate was bound not to consider it. The Federal Magistrate was correct to so hold.

36    What I have said is sufficient to dispose of the appeal. The question, raised by “Ground” 5, of whether the purported application should be taken to have been received by the relevant section of the Department on 15 or 16 March 2010 need not be determined. The requirements of item 1229(3)(a) were not satisfied on either day.

DISPOSITION

37    The application must be dismissed with costs.

Associate:

Dated:    26 August 2011