Amodi v Minister for Immigration - [2013] FMCA 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMODI v MINISTER FOR IMMIGRATION

[2013] FMCA 70

MIGRATION – Subclass 487 (Skilled – Regional Sponsored) visa – validity of visa application – time for completion and lodgment of sponsorship undertaking.

Migration Act 1958, ss.31, 45, 46, 47
Migration Regulations 1994, regs.1.20, 2.01, 2.02, 2.03, 2.07, items 1136, 1229 of sch.1, cl.487.225 of sch 2

Nader v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 352
Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486
Hooda v Minister for Immigration & Citizenship [2012] FMCA 1018
Huynh v Minister for Immigration & Citizenship [2012] FMCA 864

Applicant:

SHAIK FAISAL AMODI

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 185 of 2012

Judgment of:

Cameron FM

Hearing date:

12 November 2012

Date of Last Submission:

16 January 2013

Delivered at:

Sydney

Delivered on:

11 February 2013

REPRESENTATION

Solicitors for the Applicant:

Parish Patience

Counsel for the First Respondent:

Mr B. Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue removing into this Court to be quashed the decision of the respondent made on 17 January 2012.
A writ of mandamus issue directed to the respondent requiring him to consider according to law the validity of the applicant’s application for a class VC visa lodged on 1 September 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 185 of 2012

SHAIK FAISAL AMODI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Background

On 1 September 2011 the applicant, who is a citizen of India, lodged an online application for a Skilled (Provisional) (Class VC) subclass 487 (Skilled – Regional Sponsored) visa. Subclass 487 visa applicants must be nominated by a participating state or territory government agency or be sponsored by an eligible relative living in a designated area of Australia. In his application form the applicant indicated that he was sponsored by his cousin.
On 23 November 2011 an officer of the department administered by the first respondent (“Minister”) wrote to the applicant requesting that he provide, within twenty-eight days, his cousin’s sponsorship undertaking. The letter stated:
Please note that you must either provide this via the interenet [sic] Form 1277 attached to your application, or alternatively complete the paper Form 1277 and send the letter to the Adelaide General Skilled Migration processing office.
On 30 November 2011 the applicant submitted a Form 1277 “General Skilled Migration Sponsor Form” online, which had been completed by his cousin, together with supporting documentation. On 17 January 2012 he was advised by the departmental officer that his application was invalid because item 1229(3B)(d) of sch.1 to the Migration Regulations 1994 (“Regulations”) required that the sponsorship be entered into on the Form 1277 at the time of application. The officer found that as the applicant’s application was invalid, it could not be accepted or processed.
The applicant has applied to this Court for judicial review of that decision.
For the reasons which follow, the officer’s decision will be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FMCA 70
Decision Date: 11 February 2013

CaseChat Overview and Summary

In Amodi v Minister for Immigration, the applicant sought to challenge the decision of the Minister for Immigration to reject his application for a Skilled (Provisional) (Class VC) visa. The applicant, who was a holder of a Bridging A (Class WA) visa at the time of lodging his visa application, argued that he met the requirements for the visa under item 1229 of schedule 1 to the Regulations. The Minister rejected the application on the basis that the applicant was not sponsored by an eligible sponsor as required by item 1229(3B) of the Regulations. The central legal issue in the case was whether the applicant's visa application was valid, and therefore required to be considered by the Minister under section 47 of the Act.

The court held that the applicant's visa application was valid, and therefore required to be considered by the Minister. The court found that the applicant met the requirements for sponsorship under item 1229(3B) of the Regulations, as he was sponsored by his grandfather, who was an Australian citizen and met the other requirements set out in the Regulations. The court further held that the Minister was required to consider the validity of the applicant's visa application according to law, and that his failure to do so was a breach of the applicant's legal rights.

The court issued a writ of certiorari to quash the Minister's decision and a writ of mandamus requiring the Minister to consider the validity of the applicant's visa application according to law. The court's decision highlights the importance of ensuring that visa applications are considered in accordance with the relevant legislation and Regulations, and that the Minister's decision-making processes are fair and lawful.

Orders

Orders of the court

A writ of certiorari issue removing into this Court to be quashed the decision of the respondent made on 17 January 2012.

A writ of mandamus issue directed to the respondent requiring him to consider according to law the validity of the applicant’s application for a class VC visa lodged on 1 September 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 47 of the Act provides:47 Consideration of valid visa application(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.… Respectively, regs.2.01 and 2.02 provide that the visa classes referred to in s.31 of the Act are to be found in sch.1 to the Regulations and that the subclasses of those visa classes are to be found in sch.2 to the Regulations. Regulation 2.07 provides that the conditions for valid visa applications are prescribed in sch.1 to the Regulations and reg.2.03 provides that the criteria for the granting of visas are prescribed in sch.2 to the Regulations. Regulation 1.20 also relevantly provides:1.20 Sponsorship undertakings(1)The sponsor of an applicant for a visa is a person … who undertakes the obligations stated in subregulation (2) in relation to the applicant.(2)Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:…(b)if the application is for a temporary visa … — the sponsor undertakes to accept responsibility for:(i) all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant’s stay in Australia; and(ii) compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and(iii) unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia;…(3A) A person who is a sponsor of an applicant for:…(d) a Skilled (Provisional) (Class VC) visa;must complete the relevant approved form and give it to the Minister prior to the Minister approving the person as a sponsor. The matters specifically conditioning the validity of an application for the grant of a subclass 487 visa are set out in item 1229 of sch.1 to the Regulations. At the time the applicant lodged his application, item 1229 relevantly provided:1229 Skilled (Provisional) (Class VC)…(3) Other:…(da)Applicant seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled — Regional Sponsored) visa must meet the requirements of subitem (3A) or (3B).…(3A)The applicant is nominated by a State or Territory government agency.(3B) All of the following requirements are met:(a)the applicant is sponsored by a person who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;(b)the applicant has declared on the application that the sponsor:(i) is usually resident in a designated area of Australia; and(ii) is related to the applicant, … as:…(F)a grandparent or first cousin;…(d)the sponsorship was entered into on Form 1277 (Internet) or 1277.(4) The following requirements must be met:(a)one of the following subparagraphs must be satisfied by the applicant:(i) … (ii) the applicant must be the holder of a Bridging A (Class WA) visa or Bridging B (Class WB) visa that was granted on the basis of a valid application for a visa … and must also have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application is made; (iii) the applicant must:(A)be the holder of a substantive visa…