FEDERAL COURT OF AUSTRALIA

Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 38

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs.

2.    The orders of the Federal Circuit Court made on 1 June 2021 be set aside and in lieu thereof it be ordered that:

(i)    The determinations of the respondent dated 7 and 20 April 2020 be set aside.

(ii)    The visa application of the third to fifth applicants (deemed to be added to the application of the first and second applicants on 9 February 2016) be remitted to the respondent for consideration according to law.

(iii)    The respondent pay the applicants’ costs of and incidental to the Application for Review as agreed, or failing agreement, to be taxed pursuant to the provisions of r 21.11 of the Federal Circuit Court Rules 2001 (Cth),

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court (as it was then called) which dismissed an application for judicial review concerning whether children were validly added under reg 2.08A of the Migration Regulations 1994 (Cth) (the ‘Regulations’) to the first appellant’s application for a Contributory Parent (Class CA – Migrant) (subclass 143) visa: Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1196 (‘J’).

BACKGROUND

2    It is useful to set out a dramatis personae for the purposes of understanding these reasons:

    Thi Mot PHAM - first appellant and primary visa applicant

    Van Sen TRUONG - second appellant and husband of first appellant

    Thi Anh Tuyet TRUONG - daughter of first and second appellants and sponsor for the visa application

    Hoang Son TRUONG - deceased son of first and second appellants

    Thi My Anh TRAN - former wife of the deceased son

    Hoang Bao Linh TRUONG - third appellant and twin granddaughter of first and second appellants by the deceased son and his former wife

    Hoang Bao Tran TRUONG - fourth appellant and twin granddaughter of first and second appellants by the deceased son and his former wife

    Anh Lam TRUONG - fifth appellant and grandson of first and second appellants by the deceased son and his former wife

3    The grounds of appeal to this Court were as follows (where reference to an applicant or applicants is a reference to the various appellants):

Grounds of appeal

1.    The primary judge erred by failing to find that the Minister had made a jurisdictional error in disregarding the earlier determination that the application regarding the Third to Fifth Applicants (application) was valid and in concluding that the application was invalid.

a.    The First Applicant applied on 4 February 2016 to add the Third to Fifth Applicants to the application for the visa under reg 2.08A of the Migration Regulations 1994 (Cth) (Regulations);

b.    The Minister determined on 9 February 2016 that the Third to Fifth Applicants had been validly added to the application for the visa (first determination);

c.    The primary judge erred in concluding that the first determination did not hold that the Third to Fifth Applicants had been validly added to the application and instead merely acknowledged that those Applicants would be considered for addition to the application;

d.    The Minister determined on 7 April and 20 April 2020 that the Third to Fifth Applicants had not been validly added to the application for the visa (second determination);

e.    The first determination was binding and required consideration of the Third to Fifth Applicants as applicants for the visa unless it could be disregarded for jurisdictional error: Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [53] per Gaudron and Gummow JJ;

f.    The Minister, when making the second determination, did not address whether the first determination could be disregarded for jurisdictional error and there was no basis for this conclusion, with the result that the first determination stands, the second determination is of no effect and the matter should be remitted to the Minister for reconsideration;

g.    Even if, contrary to the foregoing, the Minister had a basis for concluding that the first determination was invalid when made, the Minister was nonetheless required to consider whether, at the time of the second determination, the Third to Fifth Applicants should be added under reg 2.08A of the Regulations: Minister for Immigration v Chan (2008) 172 FCR 193 at [14] per Marshall J and at [52] per Lander J;

h.    For the purpose of addressing the question described at paragraph (g), the Minister was required but failed to ask whether there were arrangements in the nature of adoption under reg 1.04(2) of the Regulations;

i.    For the purpose of addressing the question described at paragraph (h), the Minister was required to seek information where it would be legally unreasonable to refrain from doing so, including in the sense of there being no evident and intelligible justification for refraining from doing so: ABT17 v Minister for Immigration [2020] HCA 34 at [19]-[20] per Kiefel CJ, Bell, Gageler and Keane JJ);

j.    In ascertaining legal unreasonableness in the context of paragraph (i), it was relevant that it would be in the best interests of the child in the context of Art 3(1) of the Convention on the Rights of the Child for the Third to Fifth Applicants to be added to the application for this visa: Premalal v Minister for Immigration (1993) 41 FCR 117 at 138; R v Ministry of Defence; Ex parte Smith [1996] QB 517;

k.    There is evidence that, had the proper question been asked and relevant inquiries made, the Minister might realistically have made the second determination in favour of the Third to Fifth Applicants;

l.    The primary judge, even if he were correct as to the effect of the first determination, erred in failing to decide that the second determination was on the above grounds invalid, with the result that the question of whether to make the second determination should be remitted to the Minister for reconsideration.

4    It can be seen from the above grounds of appeal, and as further elaborated in the appellants’ submissions, that the appellants’ case can be distilled into two propositions:

(1)    the ‘first determination’ on 9 February 2016 held that the third to fifth appellants had been validly added to the application, and in the absence of demonstrated jurisdictional error, that determination remains valid and cannot be disturbed (by the principle of functus officio); and

(2)    further and in the alternative, the ‘second determination’ on 7 April and 20 April 2020 was infected by legal error, as the Minister’s delegate failed to consider whether there were arrangements in the nature of adoption under reg 1.04(2) of the Regulations and to conduct proper inquiries in circumstances where it was legally unreasonably not to do so. In the appellants’ submission, this proposition is strengthened by the Convention on the Rights of the Child.

5    The key events relevant to this appeal were as follows:

(a)    22 June 2007 – Ms Truong, the daughter of the first and second appellants, migrates to Australia as an Australian citizen;

(b)    28 April 2015 – first appellant lodges an application for the Contributory Parent (Class CA – Migrant) (subclass 143) visa, which referred to the second appellant as a non-migrating partner and for which Ms Truong was the Australian resident sponsor;

(c)    1 May 2015 – an officer of the Minister’s Department acknowledges the lodgement of a “valid application” for the visa by the first and second appellants (although the original application had not nominated the second appellant as an applicant for the visa);

(d)    7 January 2016 – second appellant given ‘full custody’ of his paternal grandchildren, the third to fifth appellants, by the People’s Court District 1 – Ho Chi Minh City following the divorce of his son from their mother and then the death of his son;

(e)    4 February 2016 – via a migration agent of Nguyen & Co Solicitors, the first appellant applies to add the second to fifth appellants to the application for the visa (even though the second appellant had been acknowledged already as an ‘Other Applicant’, as mentioned in subparagraph (c) above);

(f)    9 February 2016 – an officer of the Minister’s Department acknowledges the lodgement of the additional applications for the visa, referring to the second to fifth appellants as ‘Other Applicants’ within a further attached ‘acknowledgement of valid application’ letter;

(g)    5 December 2017 – an officer of the Minister’s Department issues to the appellants an invitation to commence document preparation, noting that the ‘requesting of these documents and checks does not imply that the primary criteria have been assessed and are met’;

(h)    8 October 2019 – the combined application for the visa is refused by a delegate of the Minister on health grounds concerning the first appellant;

(i)    5 February 2020 – following a further medical assessment, the Administrative Appeals Tribunal (the ‘Tribunal’) notifies the appellants that it has set aside the decision of the delegate and remitted the visa applications for reconsideration;

(j)    7 April 2020 – an officer of the Minister’s Department notifies the first appellant that the third to fifth appellants have not been validly added to the application in compliance with reg 2.08A of the Regulations and so their applications are invalid, on the basis that the third to fifth appellants are the first appellant’s grandchildren, not her ‘dependent children’ as required by the regulation;

(k)    20 April 2020 – in response to a letter of explanation from the sponsor (Ms Truong) detailing the circumstances of the appellants’ family and their application, an officer of the Minister’s Department by email provides more detailed reasons for the decision of 7 April 2020. The email stated that the Department had previously ‘deemed [the addition of the grandchildren to the visa application] to be valid and responded in writing that the spouse and 3 grandchildren had lodged valid applications’. The email stated that this was an ‘administrative error’ and that the ‘children and primary applicant should have been notified at lodgement … that their request to be included as migrating dependents is invalid.’ Further, the email states: ‘Whilst the Vietnamese court order gave guardianship to the primary applicant (the grand parent), ordering that the grandparent has daily living and welfare controls for the children, it is not an adoption order, giving full parental rights to the grand parent and severing ties with the parents’;

(l)    4 June 2020 – an officer of the Minister’s Department again indicates that, notwithstanding the further provision by the sponsor of an affidavit of commitment dated 20 May 2020 signed by Ms Tran (the mother of the third to fifth appellants) giving her consent to the ‘full parental authority’ of the first and second appellants, including to remove the third to fifth appellants from Vietnam, the application of the third to fifth appellants is invalid;

(m)    11 September 2020 – first and second appellants are granted the visa by a delegate of the Minister on remittal from the Tribunal;

(n)    18 November 2020 – appellants apply for an extension of time to seek judicial review of the officer’s decision of 7 April 2020 against the addition of the third to fifth appellants’ applications before the Federal Circuit Court of Australia;

(o)    12 March 2021 – appellants file amended application for judicial review;

(p)    1 June 2021 – primary judge dismisses application for judicial review;

(q)    11 June 2021 – appellants file notice of appeal from primary judge’s decision at the Federal Court of Australia.

THE STATUTORY PROVISIONS

6    I shall outline the relevant statutory provisions.

7    Section 46 of the Migration Act 1958 (Cth) (the ‘Act’) sets out the circumstances in which an application for a visa is a valid application. There was no dispute about the operation or satisfaction of s 46 of the Act. Schedule 1 of the Regulations prescribes criteria for specified classes of visa (including the visa in this proceeding) and the amount of visa application charge required to be paid. There was no dispute about the operation or satisfaction of Schedule 1.

8    The Minister is under a duty to consider a valid application for a visa but is correspondingly restrained from considering an application that is not valid: s 47 of the Act.

9    Regulation 2.08A deals with the addition of certain applicants to certain applications for permanent visas. It sets out conditions that must be met and, following which, “certain consequences ensue”: Minister for Immigration and Multicultural Affairs v Lim (2001) 112 FCR 589; [2001] FCA 512 at [9] per Sundberg J).

10    Regulation 2.08A of the Regulations relevantly provides as follows:

2.08A – Addition of certain applicants to certain applications for permanent visas

(1) If:

(a)     a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1, including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and

(b)      after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:

(i)     the spouse or de facto partner; or

(ii)     a dependent child;

of the original applicant (the additional applicant) added to the original applicant’s application; and

(c)      the request includes a statement that the original applicant claims that the additional applicant is:

(i)     the spouse or de facto partner; or

(ii)     a dependent child;

as the case requires, of the original applicant; and

(d)     the additional applicant charge (if any) has been paid in relation to the additional applicant; and

  (da)     at the time when:

(i)     the Minister has received the request; and

(ii)     the additional applicant charge (if any) has been paid;

the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;

then:

(e)     the additional applicant is taken to have applied for a visa of the same class; and

    (f)     the application of the additional applicant

    (i)     is taken to have been made on the later of:

(A)     the Minister receiving the request; and

(B)     the additional applicant charge (if any) being paid; and

(ii)     is taken to be combined with the application of the original applicant; and

(iii)     is taken to have been made at the same place as, and on the same form as, the application of the original applicant.

(2)     Despite any provision in Schedule 2, the additional applicant:

(a)     must be, at the time when the application is taken to be made under subparagraph (1)(f)(i), a person who satisfies the applicable secondary criteria to be satisfied at the time of application; and

(b)     must satisfy the applicable secondary criteria to be satisfied at the time of decision.

11    The definition of “dependent child” in reg 1.03 of the Regulations is as follows:

1.03 - Definitions

dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a) has not turned 18; or

(b) has turned 18 and:

(i) is dependent on that person;

(ii) is incapacitated for work due to the total or partial loss of the child’s step-child’s bodily or mental functions.

12    By operation of section 5CA(1)(b) of the Act, a ‘child of a person’ includes ‘someone who is an adopted child of the person within the meaning of this Act’ (and within the meaning of the Regulations, pursuant to s 13(1)(b) of the Legislation Act 2003 (Cth)).

13    Regulation 1.04 of the Regulations provides as follows:

1.04 – Adoption

(1)     A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:

(a)      formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or

(b)      formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or

(c)      other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.

(2)      For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:

(a)      the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and

(b)      the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and

(c)      the Minister is satisfied that:

(i)      formal adoption of the kind referred to in paragraph (1)(b):

(A)      was not available under the law of the place where the arrangements were made; or

(B)      was not reasonably practicable in the circumstances; and

(ii)      the arrangements have not been contrived to circumvent Australian migration requirements.

14    I now elaborate further on some of the provisions of reg 2.08A. In satisfaction of subreg (1)(a), item 1130 of Schedule 1 of the Regulations permits combined applications for Contributory Parent (Migrant) (Class CA) visas (the visa applied for in this case).

15    Regulation 2.08A(2) refers to the ‘applicable secondary criteria’. Schedule 2 of the Regulations sets out the criteria to be satisfied for the granting of particular classes of visa. Relevantly, sch 2, cll 143.311 and 143.321 set out the secondary criteria for a combined applicant for a Contributory Parent (Migrant) (Class CA) visa to be satisfied at the time of the application and at the time of the decision to grant respectively. Clause 143.311(a) requires that ‘the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 143.21’. Clause 143.321(a) is in similar terms.

16    ‘Member of the family unit’ is defined by reg 1.12, which at the time of the application was as follows:

(1)    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

(a)    a spouse or de facto partner of the family head; or

(b)    a dependent child of the family head or of a spouse or de facto partner of the family head; or

(c)    a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

(d)    a relative of the family head or of a spouse or de facto partner of the family head who:

(i)    does not have a spouse or de facto partner; and

(ii)     is usually resident in the family head’s household; and

(iii)     is dependent on the family head.

CONSIDERATION

The 9 February 2016 determination

17    In order to construe the true nature of the determinations made by the Minister in respect of the third to fifth appellants’ additional visa applications, certain of the key events and correspondence previously referred to above need to be elaborated upon.

18    By the letter dated 1 May 2015 directed to the first appellant, the Department acknowledged the “valid application” for the visa lodged on 28 April 2015. The visa application summary enclosed with the letter of 1 May 2015 recorded that the first appellant was the “Primary Applicant”. The summary also erroneously recorded that the second appellant was the other applicant, despite the second appellant not having been designated as a migrating partner in the 28 April 2015 application. This error is of no consequence in the determination of this appeal.

19    On 7 January 2016, by order of a court in Vietnam, the second appellant was granted “full custody” of the third, fourth and fifth appellants, those being children of the deceased son of the first and second appellants.

20    The orders made by the Court included:

2.    Give full custody of the three children: Truong Anh Lam was born on 29/08/2008 …; Truong Hoanh Bao Linh was born 03/08/2011 … and Truong Hoang Bao Tran …. (Tran and Linh are twins) to Mr Truong Van Sen for him to care and raise. Ms Tran Thi My Anh no longer has custody rights over the children. Due to the needs of the children, the parties can apply to the court for changes to the arrangements.

(Emphasis added.)

21    I interpolate at this stage that, by Article 13(6) of the Law on Adoption of Vietnam 2010, grandparents are prohibited from adopting their grandchildren.

22    By a letter dated 4 February 2016 directed to the Department, Nguyen & Co Solicitors advised that they had been instructed to act on behalf of the sponsor and applicants, and enclosed a Form 1436 entitled ‘Adding an additional applicant after lodgement’, together with further documentation going to the identities of the third to fifth appellants whom the first appellant wished to add to her visa application.

23    On 9 February 2016, the first appellant was sent a letter by the Department. The trial judge at J[9]-[10] referred in particular to three details of this letter. First, that the letter recorded the same “Application ID” details and “File Number” details as were recorded on the 1 May 2015 letter sent by the Department to the first appellant, and under those details in the 9 February 2016 letter there appeared exactly the same heading as in the 1 May 2015 letter from the Department to the first appellant, namely:

“Acknowledgement of valid application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) CONTRBUTORY PARENT (Subclass 143) visa.”

24    Further, the letter’s next paragraph was exactly the same as the first paragraph of the letter of 1 May 2015 sent by the Department to the first appellant, and was as follows:

“This letter refers to your application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) visa, which was validly lodged at Perth Offshore Centre on 28 April 2015. You indicated on your application that you wish to be considered for the grant of a CONTRIBUTORY PARENT (Subclass 143) visa.”

(underlining added)

25    The trial judge went on to construe the 9 February letter at J [11] to [13] and concluded at [22] to [26] that there was in fact no ‘first determination’ made in respect of the validity of the added applications:

[11]    It is significant that to the extent that in the 9 February 2016 letter the Department acknowledged that a visa application which had been lodged was valid, the only application referred to, in that regard, was the visa application made by the first applicant on 28 April 2015. Had the Department wished to acknowledge as valid the lodgement of the application to add additional applicants sent to the Department as an enclosure to the Nguyen & Co letter to the Department of 4 February 2016, one would have expected that the Department would have done so in its 9 February 2016 letter. It did not do so. There is otherwise no documentary material before the Court which suggested that there was any such acknowledgement or concession. The latter is significant because the first applicant has proceeded on the erroneous basis that the letter of 9 February 2016 “…acknowledges the lodgement of a valid application for the visa, now including the Third to Fifth Applicants” when that was not the case.

[12]    The fact that the Third, Fourth and Fifth applicants were identified as being “Other Applicants” in the Visa Application Summary attached to the letter of 9 February 2016 was not an acknowledgement that the application for their inclusion as applicants was valid. The Court infers that it was an administrative recognition by the Department that an application for their inclusion as applicants had been lodged. Such recognition was not otherwise determinative of the validity of the application for their inclusion as applicants. The letter, in its terms, made it clear that no decision had been made concerning the application for the visa when it said, under the heading “Processing your Application”, as follows:

“You will be contacted by your case officer about any additional information that may be required in order to make a decision on your application.”

[13]    At no time after the sending of the letter of 9 February 2016, did the Department acknowledge or concede that the lodgement of the Form 1436 seeking to add the Third, Fourth and Fifth applicants as additional applicants was a valid visa application. Indeed, email correspondence sent by the Department to the email address for Nguyen & Co Solicitors on 5 December 2017 indicated that the Department was at that time still at an early stage of the processing of the visa application. The letter requested documentation required for assessment by the Department, and relevantly said as follows:

“Your parent visa application is not yet assigned for assessment by a case officer.

…

Applicants should be aware that the requesting of these documents and checks does not imply that the primary criteria have been assessed and are met.

… “

…

[22]    The applicants reduced their argument to three (3) propositions, namely:

“(a) The first determination had the effect that the Minister was functus officio with respect to the validity of the combined application including the Third to Fifth Applicants, unless the first determination was infected by jurisdictional error. There was no demonstration of jurisdictional error in the first determination by the officer of the Department who purported to make the second determination (first proposition) …”

[23]    As to the first proposition, the Court does not accept the premise upon which such proposition was advanced – namely that by letter dated 9 February 2016, the Department had acknowleged the lodgement of a valid application for the visa “now including the Third to Fifth Applicants”. As earlier referred to, the letter of 9 February 2016 merely confirmed that the original visa application made by the first applicant and lodged on 28 April 2015 was a “valid application”. Neither the Migration Act 1958 (Cth) (‘the Act) nor the Regulations provided that the application for additional applicants was taken to have been made on the date on which the original application had been lodged.

[24]    The Court finds that the fact that the application for the addition of the three children was combined with the application of the original applicant did not, in the circumstances, mean that the Department had acknowledged or confirmed that such application for their addition as applicants was valid. There was no evidence that it had. The submissions made on behalf of the applicants to the effect that the Department had acknowledged the validity of the applications made in respect of the three children were accordingly misconceived. No question of the Department being functus officio arose.

[25]    The concession made by the Departmental officer named ‘Orlanda’ in the letter from the Department to the migration agent dated 20 April 2020 – that there had been an error in the acknowledgement of validity of the children’s applications in the 9 February 2016 letter – was likewise misconceived for the same reasons as last referred to. The person named ‘Orlanda’ had not written the letter of 9 February 2016. There was no ‘first decision’ made in respect of the children’s applications on 9 February 2016. Section 474(3) of the Act did not apply.

[26]    This was not a case of the type considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. This case did not involve the Department having made a decision involving jurisdictional error or involving the failure to exercise jurisdiction. The Department here had simply engaged in the administrative process of considering whether or not all aspects of the first applicant’s combined visa application was compliant or not. Though the Department ultimately determined that the applications of the first applicant and the second applicant ought to be granted, it determined that because the children were not dependent children, or ‘adopted’ children, for the purposes of the Act, the application for their addition was invalid and unable to be considered. The Department did not err in so finding, for the underlined reasons as set out in its 20 April 2020 letter directed to the applicants’ migration agent, and as set out above. There is no merit to the first proposition.

26    The interpretation of the 9 February 2016 letter is a matter critical to the first proposition of the appellants’ case on appeal that I identified above. While the trial judge’s analysis is persuasive in favour of the conclusion that the 9 February 2016 letter in itself does not indicate that a determination or decision was made in respect of the validity of the added applications of the third to fifth appellants, the trial judge’s reasoning did not have regard to the cover email sent by the Department to Nguyen & Co Solicitors attaching the 9 February 2016 letter.

27    The cover email contains a number of contra-indicators to the trial judge’s characterisation:

(a)    First, the subject of the cover email is ‘File: OSF2015024300 Additional Applications to CA 143 Parents visa’. The subject of the email clearly indicates that the email is in reference to the additional applications, not just the original 28 April 2015 application.

(b)    Second, relevantly, the body of the email reads as follows:

“I confirm lodgement of the additional applications on 09 February 2016. The receipting of the visa application charge validates the application and is evidence that the application is being processed.

Please find attached the acknowledgement letter, receipt, and refunds & repayments proforma, for your parent visa application”

(c)    Third, the attachments to the email have the following document titles:

(i)    ‘Form 1424 Refunds and Repayments Proforma.pdf’

(ii)    ‘Van Sen Truong, Anh Lam, Hoang Bao Tran, Hoang Bao Linh, OSF2015024300.pdf’

(iii)    ‘Receipt, Van Sen Truong, Anh Lam, Hoang Bao Tran, Hoang Bao Linh, OSF2015024300.pdf’.

28    The first sentence of the part of the email quoted above merely confirms lodgement of the additional applications, and does not explicitly confirm that the additional applications have been determined to be valid in accordance with reg 2.08A. The second sentence refers to the receipting of the visa application charge, which ‘validates’ the application. The attached receipt document, whose title refers to the additional applicants, can be inferred to be the receipt referred to in the email. The consequence of this receipting is said to be that it is ‘evidence that the application is being processed’. It is not entirely clear what ‘validation’ and ‘being processed’ means in this context. It may mean that the application has been determined to be valid and is now being substantively considered for the purpose of the granting or refusal of the visa. It may alternatively mean only that the lodgement process is complete and the application is being considered, including for the purpose of assessing validity. However, more clearly, it is to be inferred that the ‘application’ being referred to is the additional application. Moreover, the attached acknowledgement letter referred to in the email, whose title again refers to the additional applicants, is to be inferred to be in relation to the additional applications.

29    Now interpreting the 9 February 2016 acknowledgement letter in the context of the cover email, the heading of the letter (including the words ‘Acknowledgement of valid application’) and the inclusion of the additional applicants in the ‘Other Applicants’ section of the Visa Application Summary enclosed with the letter are best interpreted as an acknowledgement of the validity of the additional applications.

30    This is arguably supported by some of the further correspondence between the Department and the appellants’ migration agent in the following years regarding the substantive assessment of the appellants’ combined visa application. For example, the 5 December 2017 email from the Department to the appellants’ migration agent, which refers to each of the appellants in the combined application, is an invitation for the appellants to commence document preparation ahead of the assessment process, including in relation to police clearances and medical examinations. The email states that ‘the requesting of these documents and checks does not imply that the primary criteria have been assessed and are met’. However, it might be inferred from this communication that the appellants’ combined application had at that time been determined to be valid so that it was now to be substantively considered and assessed as against the criteria for the granting of the visa.

31    Further, the Department’s letter of 8 October 2019 refusing the granting of the visa application on the basis of the first appellant’s failure to meet certain health criteria is in respect of each of the applications of the appellants and refers to the ‘combined application’. In order to be considered for granting or refusal, the combined visa application must have been determined to be valid first, pursuant to s 47 of the Act.

32    Finally, the Department ultimately informed the appellants by letter on 7 April 2020 that the third to fifth appellants’ applications had been assessed as invalid by reason of reg 2.08A (the ‘second determination’, in the appellants’ submission), on the basis that the third to fifth appellants were the first appellant’s grandchildren, not her ‘dependent children’ as required by the regulation. However, the further email sent by the Department to the appellants on 20 April 2020 concedes that the Department had previously ‘deemed this action [the lodgement of the additional applications in February 2016] to be valid and responded in writing that the spouse and 3 grandchildren had lodged valid applications’. The email then refers to the acknowledgement as ‘an administrative error’, before explaining in detail why the additional applications had now been found to be invalid pursuant to reg 2.08A.

33    The trial judge at J[25] referred to the Departmental officer’s concession as ‘misconceived’ since his characterisation of the 9 February 2016 letter was that it was not an acknowledgement of the validity of the additional applications and noting that the Departmental officer making the concession was not the same Departmental officer who had written the letter of 9 February 2016. In my view, whether the 9 February 2016 acknowledgement letter constituted a decision that the additional applications were valid is primarily to be determined by the contemporaneous documents themselves, rather than a later characterisation by a different Departmental officer. However, the Departmental officer’s concession on 20 April 2020 further weighs in favour of the appellants’ submission that the 9 February 2016 was in fact a determination by the Department that the additional applications were validly made.

34    Having regard to the above analysis, I find that the 9 February 2016 communication to the appellants constituted a determination by the Department that the additional applications of the third to fifth appellants were validly made pursuant to reg 2.08A and s 46 of the Act.

The effect of the 9 February 2016 determination

35    In the appellants’ submission, if the 9 February 2016 determination is characterised as an administrative action or decision of an officer of the Department under the statute, it is binding unless made in jurisdictional error, by reason of functus officio. Further and alternatively, the appellants submit that the ‘second determinations’ of 7 April and 20 April 2020 are invalid because they are themselves infected by legal error.

36    Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing visa application. Once the conditions under subreg (1)(a)-(da) are met, then the consequences under subreg (1)(e)-(f) ensue, namely that the application is deemed to have been made as a combined application at a certain time and place.

37    The dispute between the parties focused primarily on paragraphs (b)-(c), each of which refer to the concept of a ‘dependent child’. The appellants’ case proceeded on the basis that reg 2.08A required the Minister to ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant.

38    However, in my view, it is quite clear that reg 2.08A(1)(a)-(da) constitutes a purely objective criteria that does not require any such ascertainment or satisfaction of the Minister: Vahaakolo v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 239; [1999] FCA 1709 at [10]. In simplified terms, the requirements under the regulation where a purported dependent child is to be added to an existing application are as follows:

(a)    the visa class being applied for permits combined applications;

(b)    the Minister receives a request to have a dependent child of the original applicant added to their application;

(c)    the request includes a statement that the additional applicant is a dependent child of the original applicant;

(d)    the additional applicant charge is paid; and

(e)    the whereabouts of the additional applicant satisfy the relevant provisions of Sch 1.

39    In particular, paragraphs (b) and (c) do not require the additional applicant at this point of the application to be determined to be a dependent child or for the Minister to ascertain or be satisfied that the additional applicant is in fact a dependent child. The regulation requires only a request that includes a statement claiming that the additional applicant is a dependent child of the original applicant. That this is so is not only supported by a literal interpretation of those paragraphs, but if it were otherwise and in fact the Minister was required to be satisfied that the additional applicant was properly a dependent child, it is unclear what function the statement required by paragraph (c) would have in the regulatory scheme.

40    Further, the construction I favour is supported by subreg (2) and the applicable secondary criteria for the visa in this case (section 143.3 of Sch 2 of the Regulations). As set out earlier in these reasons, the applicable secondary criteria includes the concept of a ‘member of the family unit’. The part of the definition of ‘member of the family unit’ at reg 1.12(1)(b) is similar to the definition of ‘dependent child’, but distinctively, would include a child of an original applicant or of their ‘spouse or de facto partner’. (Further, paragraph (e) may in some circumstances include a dependent grandchild of an original applicant.) Regulation 2.08A(2) confirms that the additional applicant must satisfy the applicable secondary criteria at the time of the application and at the time of the decision. Accordingly, the relationship of the additional applicants to the original applicant will ultimately be assessed when the applicable secondary criteria is considered. There is no necessity (and in fact it would be inconsistent with the applicable secondary criteria) for reg 2.08A(1) to require the statutory decision-maker to be satisfied at the time of the additional application that the additional applicant is a dependent child of the original applicant.

41    It is unnecessary for me to consider whether the ‘statement’ required by reg 2.08A(1)(c) must impliedly be one made in good faith or whether paragraph (c) requires that the additional applicant is a person conceivably capable of satisfying the definition of ‘dependent child’. However, in light of the operation of subreg (2) and the applicable secondary criteria, which ultimately requires the familial relationship of the additional applicants to be assessed, it is difficult to see the utility of any such implication at the application stage.

42    However, it is worth emphasising the wider definition of ‘member of the family unit’ relative to the concept of a ‘dependent child of the original applicant’ under reg 2.08A. This is relevant because it was the Minister’s submission in this appeal that the third to fifth appellants could not be dependent children of the original applicant (being the first appellant), even if the Minister considered whether arrangements in the nature of adoption pursuant to reg 1.04(2) applied, because the Vietnamese custody order had been made with respect to the second appellant only and so the children could only possibly be dependent children of the second appellant. Clearly, such a submission would not be applicable to the third to fifth appellants for the purposes of subreg (2) and the applicable secondary criteria for the granting of the visa, given the definition of ‘member of the family unit’ includes a child of the original applicant or their ‘spouse or de facto partner’.

43    Given my interpretation of reg 2.08A, it is clear that the third to fifth appellants’ additional applications satisfy the objective criteria under paragraphs (1)(a)-(da) and there was otherwise no submission that there was any other obstacle arising under s 46 of the Act in regards to the validity of the additional applications. The additional application Form 1436 received by the Department on 9 February 2016 included a ‘request’ from the original applicant to have the third to fifth appellants added to her visa application and, by way of question 5 of the form, a ‘statement’ that the additional applicants were dependent children in relation to the main applicant.

44    For the reasons above, I find that the Department’s determination of 9 February 2016 that the third to fifth appellants’ combined application was valid was correctly made within jurisdiction, and that the 7 April and 20 April 2020 determinations of the Department that their applications were invalid on the basis that they were not dependent children under reg 2.08A were determinations made outside jurisdiction, and so they are of no effect at law: Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 616 [53]. As a result, pursuant to reg 2.08A(1)(f), the third to fifth appellants’ applications are taken to be combined with the first appellant’s original application and taken to have been made on 9 February 2016.

45    Because of my interpretation of reg 2.08A of the Act, it is strictly unnecessary to deal with the appellants’ submission as to functus officio. As I find that the ‘first determination’ on 9 February 2016 was made within jurisdiction and that the ‘second determination’ was made in jurisdictional error, I do not need to consider whether a determination of the validity of an additional application is of the sort that is binding and cannot be revoked once validly made, within the context of the Act and Regulations.

46    The parties were in agreement that were I to uphold the 9 February 2016 determination and set aside the 7 April and 20 April 2020 determinations, such relief would not be futile, as the third to fifth appellants’ visa application may now be substantively considered for grant or refusal against the applicable secondary criteria, despite the fact that the final decision would no longer be contemporaneous with the first and second appellants’ visa applicants, which have now been granted.

CONCLUSION

47    In light of my conclusions above, the other submissions of the appellants in relation to the Minister’s duty to inquire (the ‘second proposition’ of the appellants’ submissions I described earlier in these reasons) do not need to be considered.

48    The Court will order that:

1.    The appeal be allowed with costs.

2.    The orders of the Federal Circuit Court made on 1 June 2021 be set aside and in lieu thereof it be ordered that:

(i)    The determinations of the respondent dated 7 and 20 April 2020 be set aside.

(ii)    The visa application of the third to fifth applicants (deemed to be added to the application of the first and second applicants on 9 February 2016) be remitted to the respondent for consideration according to law.

(iii)    The respondent pay the applicants’ costs of and incidental to the Application for Review as agreed, or failing agreement, to be taxed pursuant to the provisions of r 21.11 of the Federal Circuit Court Rules 2001 (Cth),

Associate:

Dated:    3 February 2022

SCHEDULE OF PARTIES