Atiq v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 54
Federal Circuit and Family Court of Australia
(DIVISION 2)
Atiq v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 54
File number(s): SYG 254 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 2 February 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to refusal to accept a purported application for a student visa on the ground that it was not accompanied by a completed approved form (approved form) the Minister had specified by an instrument – whether by providing in other documents information required by the approved form the applicant nevertheless substantially complied with the requirement that the applicant apply for a student visa by use of the approved form – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) ss 25C, 46(1)
Migration Act 1958 (Cth) ss 31, 45, 46, 476
Migrations Regulations 1994 (Cth) regs 1.03, 2.01, 2.03, 2.07, Sch 1, Sch 2, cls 500.214(3), 500.217
Cases cited: Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189
Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254
Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273
SZJDS v Minister for Immigration & Citizenship [2012] FCAFC 27
Division: General Number of paragraphs: 37 Date of hearing: 2 December 2021 Place: Sydney Solicitor for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers, by video Counsel for the Respondent: Mr D Hughes, by video Solicitor for the Respondent: Clayton Utz
Table of Corrections 3 February 2023 In paragraph 33 and footnote 1 “19 January 2019” is replaced with “25 January 2019” In the penultimate line of paragraph 34 “by the” which appears after “by the” is removed In the second line of paragraph 35 “157A” is replaced with “157N” In paragraph 37 “by” that appears before “Part 2” is removed ORDERS
SYG 254 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMZA ATIQ
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.The name of the respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the respondent’s costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
As at 25 January 2019 a person under the age of 18 years who wanted to apply for a Student (subclass 500) visa (Student visa) was required to do so by completing and submitting two prescribed forms. On 25 January 2019 the applicant, who was then less than 18 years of age, purported to apply for a Student visa by completing and submitting only one of the two prescribed forms. By letter dated 30 January 2019, an officer of the Department of Home Affairs (Department) informed the applicant that the applicant’s application for a Student visa was not a valid application for a visa because the applicant had completed and submitted only one of the two prescribed forms.
The applicant accepts he completed and submitted only one of two prescribed forms it was necessary for him to complete and submit when applying for a Student visa. The applicant contends, however, that this did not render invalid his application for a Student visa. The applicant submits that the documents he submitted to the Department included the information that he was required to submit in the form that was not submitted to the Department; and, for that reason, the applicant substantially complied with the requirement that the applicant apply for a Student visa by completing and submitting the two prescribed forms.
Two questions, therefore, arise on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act). The first is whether the applicant made a valid application for a student visa, assuming the applicant did include in the documents he submitted to the Department, the information he was required to include in the prescribed form he did not submit to the Department. The second question is whether the applicant did include in the documents he provided to the Department, the information that was required to include in the prescribed form he did not provide to the Department.
How the questions arise
Under s 29(1) of the Act the respondent (Minister) may, subject to the Act, grant a visa to a non-citizen. The visas the Minister may grant include those that fall into a class of visas that are prescribed by regulations made pursuant to s 31(1) of the Act. Such visas may be granted subject to the satisfaction of criteria prescribed by regulations made pursuant to s 31 (3) of the Act.
Classes of visas, as envisaged by s 31(1) of the Act, have been prescribed by reg 2.01 of the Migrations Regulations 1994 (Regulations).[1] Most of these classes are described in the respective items in Schedule 1 to the Regulations. Additionally, the criteria for granting visas of particular classes have been prescribed by reg 2.03 of the Regulations; and these are set out in Schedule 2 to the Regulations. Relevant to the proceeding before me is item 1222 of Schedule 1 to the Regulations, which is headed “Student (Temporary) (Class TU)”, and subclass 500 of Schedule 2 to the Regulations, which is headed “Subclass 500 – Student”.
[1] I will proceed on the basis of the Regulations as they were in force on 25 January 2019, these being the Regulations as amended by the Migration Amendment (Enhanced Integrity) Regulations 2018 (Cth), which came into effect on 21December 2018. For ease of expression, however, I will use the present tense.
Subsection 45(1) of the Act provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Subsection 46(1) of the Act provides that an application for a visa is valid “if, and only if”, among other things, the application is for a visa of a particular class specified in the application, and if “it satisfies the criteria and requirements prescribed under this section”. Subsection 46(3) provides that the regulations may prescribe criteria that must be satisfied for a visa application of a specified class to be valid; and, under s 46(4) of the Act, the regulations may prescribe, among other things, “how an application for a visa of a specified class must be made”.
The Regulations have prescribed criteria and requirements under s 46 of the Act. The principal provision is reg 2.07 of the Regulations. Subregulation 2.07(1) provides, among other things, that, for s 45 and s 46 of the Act, if an application is required to be made for a particular class of visa “the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant”, and “the relevant item of Schedule 1 sets out other matters relating to the application”. Subregulation 2.07(3) provides that an “applicant must complete an approved form in accordance with any directions on it”. Further, subregulation 2.07(5) of the Regulations provides:
If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
(b) the way in which an application for a visa of a specified class must be made;
(c) the place at which an application for a visa of a specified class must be made;
(d) any other matter.
“Approved form” is defined in reg 1.03 to mean a “form approved by the Minister under section 495 of the Act or regulation 1.18, and a reference to an approved form by number is a reference to the form so approve and numbered”.
Sub item 1222(1) of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument; and provides that the application for the Student visa be made by the “approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5)”. The Minister specified two forms for the purpose of item 1222(1) on 20 March 2017 by cl 2 of the instrument titled “Arrangements for Student Visa Applications 2017/011” (IMMI 17/011) as follows:
Visa
Kinds of Applicant
Form
Place and manner
Item 1222
Student (Temporary) (Class TU)
Subclass 500 (Student)An applicant who:
a) at the time of application is under 18 years of age; and
b) intends to reside with a parent, a person who has custody of the student, or a suitable relative.157A (Internet) with 157N; or
If authorised by the department: 157A with 157N. 157A (Internet); or
If authorised by the department: 157A 157G (Internet) with 157N; or
If authorised by the Department: 157G with 157NApplication must be made:
i) as an internet application; or
ii) by submitting the application in accordance with the directions in the email authorising the use of form 157A, and with a copy of the authorising email, before midnight (AEST or AEDST when applicable) on the day following the date on which the authorising email was sent by (an officer of) the Department of Immigration and Border Protection; or
iii) If the applicant is outside Australia the authorised application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia
Item 1222(3) prescribes additional requirements, item 1222(3)(d) of which is relevant:
If the applicant seeks to satisfy the primary criteria for the grant of a Subclass 500 (Student) visa and will be under 18 years of age at any time while in Australia, the application must be accompanied by evidence of intended arrangements for the applicant’s accommodation, support and general welfare.
On 25 January 2019 the applicant lodged online an application for a Student visa. It is common ground the applicant did this by completing and lodging a form 157A.[2] At the time he lodged the application, the applicant was just over 17 years and five months of age. The application contained information that included the following:
(a)The name of the applicant’s father, Mr Rehman Mian, whose usual place of residence is stated to be Australia.[3]
(b)The applicant would be staying in Australia with a guardian, Mr Saeed Ur Rehman Safiq, an Australia citizen.[4]
(c)The applicant has sufficient funds to support himself for the proposed period of the stay; and that was to be provided by way of a $60,000 deposit in a financial institution by the applicant’s uncle.[5]
[2] CB, at page 1
[3] CB, at page 7
[4] CB, at page 9-10
[5] CB, at page 11
The applicant lodged a number of other documents that are identified in form 157A in the section headed “Supporting evidence”. These documents included a completed form 1229, which is headed “Consent to grant an Australian visa to a child under the age of 18 years”.[6] The 1229 form appears to have been submitted to satisfy public interest criterion 4017, which is prescribed by cl 500.217 of Schedule 2 to the Regulations, that if an applicant for a Student visa has not turned 18 years, a number of public interest criteria must be satisfied which includes public interest criteria 4017. This criterion requires the Minister be satisfied, among other things, that “each person who can lawfully determine where the applicant is to live consents to the grant of the visa”. The form 1229 is signed by “Mr Atiq-Ur-Rehman Mian”, which I infer is the applicant’s father; and the signature appears in a section headed “Parent/Person with parental responsibility 1 – Declaration”.
[6] CB, at page 20-21
The application was also accompanied by a form 1257 headed “undertaking declaration” signed by Mr Seed Ur Rehman Sadiq. Form 1257 appears to have been prescribed to satisfy public interest criteria 4012, which provides as follows:
In the case of an applicant:
(a)who has not turned 18; and
(b)whose intended stay in Australia will not be in the company of either or both of his or her parents or guardians; and
(c)whose application expresses an intention to visit, or stay with, a person in Australia who is not a relative of the applicant; and
(d)who is not a member of an organised tour and for whom no adequate maintenance and support arrangements have been made for the total period of stay in Australia;
an undertaking to provide accommodation for, and to be responsible for the support and general welfare of, the applicant during the applicant’s stay in Australia is given to the Minister by a person who, in the reasonable belief of the Minister, is of good character.
Public interest criterion 4012 is not, however, specified in Subclass 500 of Schedule 2 to the Regulations, a criterion for the grant of a Student visa. Nevertheless, the applicant provided form 1257 as “Custody, Evidence of”.[7]
[7] CB, at page 19
Also relevant is a third document the applicant lodged with the completed form 157A; and that is a document headed “Student Visa Financial Support Statement”. It appears to be signed by Mr Saeed Ur Rehman Sadiq. Mr Sadiq states the applicant is his nephew; and that Mr Sadiq guarantees to the Australian Government that he will provide a level of financial support to the amount of $45,000. It appears the applicant provided this document to comply with cl 500.214(3) of schedule 2 to the Regulations.
It is also common ground that the applicant did not submit a form 157N. A copy of form 157N, as it existed at the time the applicant applied for a Student visa, is in evidence. The form is headed “Student guardianship arrangements”, and it contains information about a number of matters in relation to completing and submitting the form. Under the heading “Who should use this form”, it is stated, among other things, that “[y]ou should use this form if you are applying for a student visa or you are a student visa holder and you . . . are under the age of 18 and intend to reside with your parent/custodian or a relative while you are studying in Australia”. Under the heading “Lodging this form”, it is stated, among other things, that “[i]f you are applying for a student visa and under the age of 18, this form should be completed and lodged online together with form 157A (internet) Application for a student visa”.
Form 157N requires information that includes the name of the guardian, whether the guardian has been known by any other name, the guardian’s relation with the applicant, and evidence of the applicant’s relationship with the guardian, the guardian is of good character, and the guardian’s residence or citizenship status.
Part C of form 157N provides for the giving of two declarations. The first declaration is at paragraph 26 (emphasis added):
To be completed by the student guardian
I declare that:
•I will provide appropriate welfare arrangements for the nominating student.
•If the student guardian nominated in this form is granted a Student Guardian visa, the nominating student will reside in Australia with that guardian, and will not reside with any other Student Guardian visa holder, parent or legal custodian.
•I acknowledge my responsibility for organising appropriate accommodation and travel to and from Australia on behalf of the nominating student under the age of 18.
•I am aware that condition 8532 will be imposed on the visa of the nominating student under the age of 18 and I will ensure that appropriate welfare arrangements are in place and maintained at all times.
The second declaration is at paragraph 27 of form 157N (emphasis added):
To be completed by the parents or legal custodians if the nominating student is under the age of 18.
I declare that:
•the information supplied on or with this form is correct.
•I have attached all documentary evidence as required.
•I am aware that I must immediately advise the Department if I become aware that any information provided in this form is incorrect or if there is a change in the nominating student’s circumstances that is relevant to this application at any time.
•I have read the information contained in form 1442i Privacy notice.
•I understand the Department may collect, use and disclose my personal information (including biometric information and other sensitive information) as outlined in form 1442i Privacy notice.
By letter dated 30 January 2019, an officer of the Department notified the applicant that his application for a Student visa was not valid, giving the following reasons:[8]
Your application for a visa is invalid because it did not meet Item 1222(3)(d) of Schedule 1 to the Migration Regulations 1994. Item 1222(3)(d) applies to applicants who will be under 18 years of age at any time while in Australia. The visa application must be accompanied by evidence of intended arrangements for the applicant's accommodation, support and general welfare.
[8] CB, at page 59
The officer further stated as follows:
We require a completed Form 157N nominating an acceptable guardian or an official Confirmation of Appropriate Accommodation and Welfare from your education provider.
grounds of application
The applicant claims that the Department officer “erred in her interpretation of the requirement of Item 1222(3)(d) of Schedule 1” to the Regulations “in determining the validity of the application before her”.[9] The applicant claims that the officer made the following error:[10]
The delegate took the view that the application could only be valid if accompanied by a particular form (157N). The requirements of Item 1222(3)(d) do not stipulate that the evidence accompanying the application must be provided on such a form or in any other prescribed way.
parties’ submissions
[9] Ground of application
[10] Particulars to ground of application
Applicant’s submissions
In his counsel’s written submissions, the applicant submits that the mere fact that form 157N was a form approved for the purpose of setting out “Student guardianship arrangements” does not mean that a failure to provide such a form rendered the application invalid. Form 157N appears to have been approved as a means of satisfying Item 1222(3)(d) of Schedule 1 to the Regulations; but if that requirement is in fact satisfied by the other evidence that has been lodged with the application “the insistence that the approved form be used would be a triumph of form over substance”. The applicant, in effect, submits that, if an applicant, at the time he or she applies for a visa, provides information of the sort required by Item 1222(3)(d), it is not necessary for that information to be provided by means of a completed form 157N.
The applicant relies on s 25C of the Acts Interpretation Act 1901 (Cth) (AI Act) which provides:[11]
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
[11] Paragraph (a) of s 46(1)(a) of the AI Act provides that the AI Act applies to instruments as if they were Act.
The applicant also relies on the judgment of the Full Federal Court in Bal v Minister for Immigration & Multicultural Affairs.[12] In that case the primary judge held that the application for the protection visa in question was not a valid application because the only information the visa applicant gave in response to why he left Turkey, and what harm he believed he would face on his return to Turkey, was that he had “been repeatedly and severely tortured by police because [of his] political opinion and because [he is] Kurdish, and because [he is] a Christian. Detailed statement follows.” The Full Federal Court held that the requirement of “substantial compliance” provided for by s 25C of the AI Act applied to the prescribed form for making applications for a protection visa; and further noted with approval Katz J’s holding in Shahabuddin v Minister for Immigration & Multicultural Affairs[13] that “substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant’s claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end”, and that, accordingly, “it was not necessary to be able to distil from the applicant’s response, answers to all questions of the form”.[14]
[12] Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189
[13] Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273
[14] Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189, [39]
The applicant further submits:[15]
On its face, form 157N does no more than combine the information in the forms 1229 and 1257 together with the "Student Visa Financial Support Statement" that were filed with the application. In this case the documents provided with the application were sufficient to satisfy the requirements of Item 1222(3)(d) by providing evidence of the intended arrangements that the Applicant would reside and be supported by the nominated guardian. The Applicant had substantially complied with the regulation requirements concerning the lodgement of a valid application for a subclass 500 visa.
[15] Outline of submissions for the Applicant, [24]
Minister’s submissions
The Minister submits that an applicant’s failure to supply the correct form cannot be overcome by “substantial compliance” with the requirements of the form in circumstances where the form in question had not been submitted. The Minister submits that the applicant relies on authorities where the visa applicant had submitted the correct form in the visa application.[16] The Minister relies on the following passage from the judgment of Rares and Cowdroy JJ in SZJDS v Minister for Immigration & Citizenship:[17]
Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.
The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act 1901 (Cth) which 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 distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity
[16] Respondent’s submissions, [7]
[17] SZJDS v Minister for Immigration & Citizenship [2012] FCAFC 27, at [26]-[28]
The Minister also relies on the following passage from the judgment of Finkelstein J in Onea v Minister for Immigration and Multicultural Affairs:[18]
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. . . . Even if 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. . . . No other form will do.
[18] Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254, at page 261
The applicant submits Onea and the other authorities on which the Minister relies are distinguishable because there is no doubt that the applicant in the case before me used the correct form – form 157A – to apply for the Student visa; and the form the applicant did not provide – form 157N – was the means by which the applicant was required to provide “supplementary evidence”.[19]
[19] Outline of submissions for the Applicant, [23]
determination
The determination of the controversy between the parties turns on the proper construction of those provisions of s 46 of the Act, reg 2.07 of the Regulations, Item 1222 of Schedule 1 to the Regulations, and IMMI 17/011 I have set out earlier in these reasons (relevant provisions). On the plain meaning of their text, the relevant provisions convey the following:
(a)An application for a visa is valid if, and only if, among other things, “it satisfies the criteria and requirements prescribed under” s 46 of the Act.
(b)Regulations that have been prescribed under s 46 require, among other things, that an application for a visa, of the class specified by Item 1222 of Schedule 1 to the Regulations (that is, the Student visa), must be made by an approved form the Minister has specified by an instrument, and that an applicant “must complete the approved form in accordance with any directions on it”.
(c)By instrument IMMI 17/011 the Minister specified two forms, namely, “form 157A with 157B”.
Given the plain meaning of the relevant provisions, the applicant could have made a valid application for a Student visa only if, among other things, he completed and submitted form 157A and form 157N “in accordance with any directions contained on” them. The applicant did not do that; he only completed and submitted form 157A. This state of affairs is capable of engaging s 25C of AI Act in relation to the form 157A the applicant submitted to the extent the applicant may not have strictly complied, but may have only substantially complied, with the directions contained in the form. This state of affairs, however, is incapable of engaging s 25C of the AI Act in relation to the applicant’s not having completed and submitted form 157N; and that is because the applicant has not completed or purported to complete form 157N “in accordance with any directions on it”.
There is no evidence that, to the extent the applicant provided in some document information of the sort form 157N required the applicant to provide, the applicant did so by reference to the directions in form 157N. Whatever information the applicant may have provided in the document or documents he submitted with his completed form 157A, therefore, it is not information the applicant provided by completing an approved form (in this case, form 157N) “in accordance with any directions on it”, as required by reg 2.07(3) of the Regulations.
For these reasons, the Department officer was correct in concluding that, by not completing and submitting form 157N, the purported application for a Student visa the applicant lodged on 25 January 2019 was not a valid application for a visa.
SUBSTAnTIAL COMPLIANCE?
I have so far assumed that the applicant did provide in documents he submitted to the Department the information he would have been required to provide, had he completed form 157N. I am not prepared to find, however, that this assumption is correct. First, form 157N required evidence of the relationship between the applicant and the guardian, Mr Sadiq, and that Mr Sadiq is of good character. It is unclear whether the applicant recorded in the documents he did provide to the Department information that could be characterised as evidence of Mr Sadiq’s good character. Second, the second of the two declarations provided for by form 157N had to be given by the “parents/legal custodians” of the applicant. The applicant’s father did sign a form 1229; but that form does not contain a declaration to the effect of the second of the two declarations form 157N required to be given by the applicant’s “parents/legal custodian”.
Thus, even if s 25C of the AI Act were capable of applying to overcome the applicant’s failure to complete and lodge a form 157N, I would not have been satisfied the applicant had recorded information in the documents the applicant did provide to the Department that substantially recorded the information Form 157N required the applicant to record.
disposition and costs
I will order that the application be dismissed. I will also order that the Minister’s name be changed to its current description.
The parties agreed that costs should follow the event. The Minister submitted he only seeks costs in the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is $7,853. I will also order that the applicant pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 3 February 2023
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