Chan v MIAC & Anor

[2009] HCATrans 29

[2009] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S444 of 2008

B e t w e e n -

MON TAT CHAN

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 12.37 PM

Copyright in the High Court of Australia

MR A. KUMAR:   May it please the Court, I appear for the applicants.  (instructed by Lawside Lawyers)

MR G.R. KENNETT:   May it please the Court, I appear for the respondent Minister.  (instructed by Australian Government Solicitor - Sydney)

MR KUMAR:   Your Honours, I briefly take you to the factual scenario in this.  The applicant made an application and it is common ground that on 27 March 2006, on which date he had a valid visa which was expiring on 1 April 2009, there is some intervening steps in this matter.  Then there was another application lodged on 15 August 2006, which is a finding by the Tribunal as well as a finding of reasoning of Justice Lander.

The applicant was harbouring on the basis and belief that he had some application before the Minister, and only when he found out that he did not have an application before the Minister the second application was lodged.  When the matter was before the Tribunal, the Tribunal did find these two applications were lodged.  It is our case about the construction of clause 573 and 573.211 – there was a divergence of opinion in the Full Court as to what the application was.

KIEFEL J:   Do you adopt the approach of Justice Moore which I think was to the effect that the application is relevantly constituted by the form which is first lodged?

MR KUMAR:   Yes, your Honour, and I was going to take your Honours to a few decisions where that view is accepted in the majority of the Federal Court, in my submission.  Firstly, your Honour, in my bundle of papers I have Yilmaz.  In Yilmaz paragraph 19, Justice Spender accepts that an application when it is lodged is not fully accompanied by all the requirements is an inchoate document, which is later capable of becoming a completed application.

In our submission, firstly, your Honours, what we say is that the application that was lodged on 27 March 2006 was on foot.  There is no finding – his Honour Federal Magistrate Turner said that he does not make any finding whether it was returned or not so he accepts that it was on foot somewhere with the Minister.

The issue was about the construction at the time of the application.  Your Honour, what this application is about is that we say that at the time of the application it has got a wider concept if you consider the sort of reasoning that was adopted by Justice Spender in the passage that I took you to.  Also, your Honour, Justice Hill has said that in Nader, which is in my – fourth case in my list which is in the bundle ‑ ‑ ‑

HEYDON J:   What paragraph?

MR KUMAR:   I am taking your Honours in the conclusion, which is at page…..  His Honour talks about an incomplete application being brought into - your Honour, the application as it was on 27 March did not accompany a certificate of enrolment, which is a requirement under clause 1222 in schedule to the Act.  That piece of document came to the department a bit further along the track.  There was just a declaration to – in this matter the Court – in the Tribunal but no finding has been made in respect of that, but a complete application was then lodged on 15 August 2006.

It is our submission, your Honour, that the construction that your Honours would give to this clause where an applicant realising that the visa is about to expire starts the process, liaises with the department, and then realises that there is no application.  In our submission, when the application was then lodged on 15 August 2008 that validated the application, and there is a divergence of view in the Full Court and it is not clarified when in Justice Lander’s approach as to when the application would become – his Honour says that it is capable of becoming a valid application, but his Honour does not say as to when.

HEYDON J:   He said it became valid on 17 August.

MR KUMAR:   Yes, your Honour.

HEYDON J:   The trouble is that is too late.

MR KUMAR:   Yes.  In our submission, what I am submitting to your Honours is – and it is our case that when the application was lodged on 27 March 2006 the applicant started a process, which process – he liaised with the department, and later on he filed the – if I take your Honour to paragraph 54 of Nader where Justice Hill says that it is a process, his Honour says.

In our submission, when the matter was before the court the process had started and it was completed on – in our submission, and the clause – it will be submitted that clause 573.211 should be interpreted that at the time of application ought not to be taken as the time where the – all the documents have come into play, but this is a process where all the amalgam of the documents have formed and completed the application.

We say that it is a process which was started on 27 March 2006, and the construction that ought to be given is that – and there are cases and now, your Honour, we say that there ought to be – leave ought to be given also because there is a decision of – there is a divergence of view in this matter, and also there is a variance of view which is not clarified in Yilmaz; that is the last authority on my list of authorities, and Nader.

Also the majority in Thayananthan, which is the fifth authority, seem to accept that approach that parts of document could be lodged and once all the documents are in the system that completes the application.  Your Honours, we say that once that happens the application – time of the application is to be construed as being on the date the process started, and time of the application, in our submission, is that whole date, starting on 27 March and completed on 15 August 2006.

Many people would, in my submission – also because there would be a lot of people who will be affected by this sort of situation where they made an application, they are not aware of the situation, what their visa status is, and this case will tend to clarify when someone unbeknown to them that they do not have a visa…..valid visa – they hold a valid visa, do not have a visa, to clarify the…..

Unless I can assist your Honours any further, those are my submissions.

HEYDON J:   We do not need to hear from you, Mr Kennett.

In our opinion, there are insufficient prospects of success in any appeal were special leave to be granted. 

Accordingly, special leave is refused with costs.

The Court will adjourn until 2.00 pm.

AT 12.52 PM THE MATTER WAS CONCLUDED