Gillera v Minister for Immigration
[2020] FCCA 929
•24 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILLERA v MINISTER FOR IMMIGRATION | [2020] FCCA 929 |
| Catchwords: MIGRATION – Application for withdrawal of visa sent by email to Department – communication by Department to applicant that the visa application had been withdrawn as requested – request for reconsideration by the Department of its acceptance of the withdrawal of the visa application – no power for the Minister to reconsider application when withdrawn – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.47, 49 |
| Cases cited: Raru v Minister for Immigration, Local Government and Ethnic Affairs (1993) 199 ALR 314 |
| Applicant: | ROSELYN GRACE GILLERA |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | BRG 856 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 3 April 2020 |
| Date of Last Submission: | 3 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the Respondents: | Ms Hoiberg |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The Amended Application for review filed on 19 February 2020 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 856 of 2019
| ROSELYN GRACE GILLERA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of the Philippines who lodged a combined application for a Partner (Temporary) (Class UK) (Subclass 820) Visa and a Partner (Residence) (Class BS) (Subclass 801) Visa on 12 December 2016.
On 2 August 2018, a delegate of the Minister granted to the applicant a Temporary Partner (Subclass 820) Visa. The notification which accompanied the grant of the visa was that the length of stay was specified as being “until notified that Subclass 801 Visa has been decided or the application is withdrawn.”
On 26 August 2019, the Department sent a letter to the applicant advising her that it had received information that the relationship between the applicant and her sponsoring partner had ended, and it invited the applicant to comment on such information. The letter relevantly provided that:
a)for the grant of the Subclass 801 visa, the Applicant is required to continue to be sponsored by her partner, unless she met one of the exceptions outlined in the letter. Failure to meet this criterion may result in refusal to grant the Subclass 801 visa and the cessation of her Subclass 820 visa;
b)there were three circumstances in which the Applicant may continue to be considered for the grant of a Subclass 801 visa, even if the relationship between her and her sponsoring partner had ended. The letter then went on to list those circumstances and it then advised the applicant that, if the Applicant believed any of the above circumstances should apply to her, she should provide the Department with a brief outline of her circumstances; and
c)the Applicant could withdraw her application at any stage during the process by advising the Department in writing.
On 26 August 2019, the applicant completed and returned to the Department, via email, [1] a Form 1446 (‘the Form’) entitled “Withdrawal of a visa application.” The next heading under the title read as follows:
“IMPORTANT: After a visa application has been withdrawn, no further action can be taken on the withdrawn application.”
[1] Court Book (CB) pp. 249 – 253 inclusive.
Part E of the Form provided as follows:
“Part E – Declaration
WARNING: Giving false or misleading information is a serious offence.
I declare that:
· all information provided in this form is true and correct.
I acknowledge that:
· after the visa application has been withdrawn, the application is taken to have been disposed of, and no further consideration will be given to it.
I understand that:
· if I am the holder of a bridging visa granted before 19 November 2016, my bridging visa that was granted in association with the visa application, will cease 28 calendar days from the date my visa application is withdrawn.
· if I am the holder of a bridging visa granted on or after 19 November 2016, my bridging visa that was granted in association with the visa application, will cease 35 calendar days from the date my visa application is withdrawn.
· if I am in Australia and I am not the holder of another visa or have not been granted Australian citizenship, I will be an unlawful non-citizen, subject to immigration detention and removal from Australia after my visa application is withdrawn and my bridging visa ceases.
· Withdrawing my application will not automatically entitle me to a refund of the visa application fee.”
The Form was duly signed by the applicant and dated 26 August 2019.
On 28 August 2019, the Department advised the applicant by email that her application for a partner visa had been withdrawn as requested. [2] The letter advised the applicant that her bridging visa would cease 35 calendar days from the date that the application was withdrawn, and that she must depart Australia by the date of expiry of the visa.
[2] CB pp. 255 – 256.
On 29 September 2019, the applicant’s migration agent asked the Department to reconsider its acceptance of the visa withdrawal Form 1446, on the basis that the applicant had signed and returned the Form without knowing the real consequences of her having done so. In that regard, it is of note that in paragraph 8 of Part D of the Form, the following was handwritten, presumably by the applicant:
“My husband just decided to end the relationship. I did not do anything wrong. He asked me to leave the house. He said he is ending the marriage I said I will not accept it, he said you just have to accept it. And he wants me out by September. I don’t want to end because we are okay it’s just one night he said it’s over for us. I said what just like that he said that’s it. We’re over. It’s all his decisions I accepted it because he said I don’t have a choice. He said accept and move out of the house. He even threat me that he is going to call the immigration and send me back home. I didn’t do anything wrong. I rang Anglicare Devonport and safe choices in Devonport to seek help and advices for a place to rent. For a cheaper price. At the moment I am working as a casual part time in Hill street Devonport as a cleaner.”
The Department did not provide a response to the migration agent’s letter.
The applicant filed an Originating Application on 2 October 2019. At the hearing of this matter, the applicant relied upon an Amended Application filed on 19 February 2020, the one ground of which was as follows:
“Grounds of application
1. The Applicant did not validly withdraw her application for a subclass 801 visa, because when she submitted a written withdrawal notice to the Respondent on 26 August 2019:
(a) The Applicant did not understand, or was mistaken about, the purpose or effect of the notice and did not intend to withdraw her visa application.
(b) the Applicant was misled by a third party as to the purpose of the notice and, in that sense, the withdrawal was vitiated by ‘fraud’.”
The Migration Act 1958 (Cth) (‘the Act’) makes provision for the withdrawal of visa applications. Section 49 of the Act provided as follows:
“Section 49 – Withdrawal of visa application
(1) An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2) An application that is withdrawn is taken to have been disposed of.
(3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.”
The Minister may only consider a valid application for a visa. The requirement for the Minister to consider an application for a visa continues unless the visa application is withdrawn. The Minister is not permitted to consider an application that is not a valid application. Section 47 of the Act relevantly provided as follows:
“Section 47 – Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
(emphasis added)
Ground of Amended Application
It is asserted on behalf of the applicant that there were two bases on which it should be found that the applicant did not withdraw her application.
As to the first basis, it was submitted that the applicant did not withdraw her application for the visa because she did not understand, or was mistaken about, the purpose or effect of the notice, and that she did not intend to withdraw her application.
There is nothing in the wording of either s. 47 or s. 49 of the Act to support the submission made on behalf of the applicant that the act of withdrawal of a visa application is dependent upon the existence of a genuine intention to withdraw by the person concerned. The language of each section is clear and unambiguous. The clear intention of the legislature was to bring to an end the consideration of an as yet undecided application for a visa in the event of a withdrawal of such visa application. That withdrawal occurred, at the latest, on 28 August 2019, when the Department wrote to the applicant to confirm that the application for withdrawal of the visa had been received and withdrawn “as requested.”
Had the legislature intended to allow applicants a grace period after the time of the lodging by them of an application to withdraw their visa application – so that they might reconsider their position – it would have done so.
There are good public policy grounds for not entertaining the submissions advanced on behalf of the applicant. As was said by Burchett J in Raru v Minister for Immigration, Local Government and Ethnic Affairs (1993) 199 ALR 314 at 319:
“The avoidance of uncertainty in the administration of claims by a Department of government was held to be a good ground for preferring a particular construction of legislation dealing with the formalities of an application in Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 694.”
There was nothing otherwise to be found in the Act which would support the construction as propounded by the applicant. There is no merit to the first basis of Ground 1 of the Amended Application.
As to the second basis of Ground 1, it was asserted, somewhat inconsistently with the argument as advanced in respect of the first basis of Ground 1, that it should be found that the application for the visa was not validly withdrawn because the applicant was misled by a third party as to the purpose of the notice, such that the withdrawal was said to be vitiated by fraud.
In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53], the High Court was there dealing with a case where the alleged fraud of a migration agent vitiated a decision of a tribunal. It was said:
“[53] The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
(emphasis added)
There is no merit to the second basis for Ground 1 of the Amended Application.
Further, there was no relevant decision made by the Department which enabled the applicant to invoke the jurisdiction of this Court. The Department merely received, and then acknowledged the withdrawal of, the application. That receipt and acknowledgement automatically led to the visa application being withdrawn. In such circumstances, the Court had no jurisdiction to entertain the Amended Application for review.
The Amended Application for review is without merit. No jurisdictional error has occurred.
The Amended Application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 24 April 2020
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