Hooda v Minister for Immigration & Citizenship
[2012] FMCA 1018
•21 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOODA v MINISTER FOR IMMIGRATION | [2012] FMCA 1018 |
| MIGRATION – Validity of skilled residence ‘sponsored’ visa application – submission of Form 1277 executed by sponsor – effect of 2010 amendments to Sch.1 of Migration Regulations – sponsor’s form not required to be lodged at time of visa application – case-officer’s determination of invalidity set aside – Minister ordered to consider visa application. |
| Migration Act 1958 (Cth), ss.29(1), 31, 39, 40, 41, 45B, 46, 47, 49, 51, 55, 56, 63(1), 65, Migration Regulations 1994 (Cth) regs.1.20, 2.07(1)(c), Sch.1 item 1136, Sch.2 item 886 |
| Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 Gulati v Minister for Immigration & Citizenship [2012] FMCA 491 Huynh v Minister for Immigration & Citizenship [2012] FMCA 864 Minister for Immigration & Citizenship v Chan (2008) 172 FCR 193 Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315 Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 Quarm v Minister for Immigration & Citizenship [2008] FCA 1156 Quarm v Minister for Immigration & Citizenship [2008] FMCA 287 SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 |
| Applicant: | VIJAY VIR HOODA |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1328 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 26 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Dobbie & Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr G R Kennett SC |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court declares that the applicant’s visa application ID 115542185 for a Skilled (Residence)(Class VB) visa lodged on 30 June 2011 was not rendered invalid for the purposes of sections 46(1), 47, and 65(1) of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) Sch.1 item 1136(3B)(d), by reason of the fact that Form 1277 executed by the applicant’s sponsor on 8 June 2011 was not provided to the Department of Immigration prior to 29 May 2012.
A writ of certiorari issue to quash the decisions made on 23 May 2012 and 4 June 2012 that the applicant’s visa application was not a valid application.
A writ of mandamus issue directed to the respondent, requiring the respondent to determine according to law the applicant’s visa application lodged on 30 June 2011.
The respondent pay the applicant’s costs set in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1328 of 2012
| VIJAY VIR HOODA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is another case where an applicant has been told that he is unable to qualify for a skilled residence visa after successful studies in Australia due to his delay in providing a supporting document and the Department of Immigration’s delay in processing the application (cf. Gulati v Minister for Immigration & Citizenship [2012] FMCA 491). The present case requires interpretation of a condition on the validity of his visa application, which required that his sponsor should have ‘entered into’ the proposed sponsorship on a Form 1277. His sponsor had executed a Form 1277 before the visa application was lodged, but it was not forwarded to the Department until its absence was noticed by the case-officer. However, the case-officer decided that this was too late. I have concluded that on their true construction, the Migration Regulations 1994 (Cth) did not require that the form should be lodged at the same time as the visa application, and that Mr Hooda is entitled to have the merits of his visa application addressed by the Minister.
The visa application
Mr Hooda gained tertiary qualifications in India and Australia, which were completed in June 2011 when he obtained a Masters of Business Administration (Accounting) degree from the Australian Catholic University in Sydney. He or his migration agent then completed an internet application for a ‘Skilled – Sponsored (Class VB, subclass 886)’ residence visa. In the application, he said that he would be sponsored by his uncle. After completing other details, he was told by the Department’s computer that his answers showed that he had accumulated 120 points, which should have been sufficient to qualify under the points test.
The Court has only a print-out of a ‘record of responses’ to the visa application generated on 30 June 2011, which does not indicate what instructions were given to the applicant or his agent as to the required supporting documents, and when they were to be forwarded to the Department of Immigration. In particular, there is no evidence that the applicant or his agent were warned that the visa application might many months later be deemed to be invalid, if it was not immediately accompanied by a Form 1277 ‘application for sponsorship under general skilled migration’ signed by his uncle. The Court Book shows only that the Department was supplied with Mr Hooda’s academic records, an IELTS result, and an assessment of his qualifications by the Institute of Public Accountants. It also appears to have been given a certified copy of the identity page from Mr Hooda’s uncle’s passport.
The evidence now before me is that Mr Hooda had also obtained a completed and signed Form 1277 from his uncle, dated 8 June 2011, before making his visa application, and that this had not been forwarded to the Department at that time. Mr Hooda later claimed that it had been “misplaced soon after” it was completed by his uncle, and he later produced a copy of the misplaced form to the Department. His evidence that the executed Form 1277 was in existence at the date of lodgement of the visa application was not challenged by the Minister before me.
A computer-generated acknowledgement of the visa application was sent to the applicant’s agent on 2 July 2011. It listed ‘document requirements’ and said “if you have not already done so, you will need to provide the department with the documents listed below by attaching these documents to the eVisa browser:…”. However, the list of required forms and documents did not refer to a Form 1277.
On 11 and 22 November 2011, an employee of the Department sent requests to the applicant’s agent requesting an updated transcript of academic results and a certificate of completion. These were provided on 21 November and 6 December 2011 respectively. The certificate from the Australian Catholic University gave a completion date of Mr Hooda’s course on 7 July 2011 and a graduation date of 7 October 2011. Nowhere in this correspondence, did the Department employee suggest that a required Form 1277 was also missing from the file, nor that its absence might affect the validity of the visa application.
The next communication from the Department to the applicant’s agent was a further request for more information, dated 2 March 2012. The relevant part of this communication said:
REQUEST FOR INFORMATION – DETAILED INFORMATION
To enable further processing of your application for a Skilled (Residence)(class VB) visa, you will need to provide the items listed below. All forms are available on the department’s website at Undertaking
Please provide evidence that your sponsor is able to fulfil the sponsorship undertaking (refer to Form 1277) (for example, latest income tax assessment; current pay slips or other satisfactory evidence of alternative income; evidence of major assets; including bank or similar accounts; details of real estate/motor vehicle ownership).
Please note that your sponsor had not signed a sponsorship undertaking form 1277.
On 8 March 2012, the applicant’s agent responded by email:
Dear Sir,
I act for my client Vijar Vir Hooda (date of birth omitted) and enclose the form 1277 duly completed and signed. Should you require any more details, please feel free to contact me.
The enclosed Form 1277 signed by Mr Hooda’s uncle was not the misplaced earlier form, but was a newly completed form, dated 5 March 2012.
The next communication from the Department was a ‘notification of invalid application for a Skilled (Residence)(class VB) visa’, by way of a letter to Mr Hooda dated 23 May 2012 from Ms Luella Roads. The pertinent part of her letter was:
Assessment
This application was made as an Internet Application on 30 June 2011.
Item 1136(3)(ca) of the Migration Regulations states the applicant must meet the requirements of (3A) or (3B).
Subitem (3B)(d) states the sponsorship was entered into of Form 1277 (Internet) or 1277 at the time the application was made.
The applicant has provided Form 1277 dated 8 March 2012, after the application was lodged.
As the sponsorship was not entered into on Form 1277 at the time this application was made, this application is invalid under item 1136(3)(ca).
Invalid applications cannot be accepted or processed. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.
Review rights
There is no right of merits review of the assessment that an application is invalid.
Contrary to Ms Roads’ suggestion, there is, in fact, no statement in Sch.1 item 1136(3B)(d) expressly indicating that a Form 1277 must be in existence at the date of lodgement of the visa application nor that it must also be provided to the Department at the time of lodgement of the visa application. The issue before me is whether the Migration Regulations imply these two requirements. The debate extends to whether these requirements are conditions on the validity of the visa application, or are substantive ‘time of application’ or ‘time of decision’ criteria for the visa. Regrettably, the Migration Regulations are obscure as to these points, and I shall need closely to examine the relevant provisions and their legislative history. I shall, however, first complete my narration of events.
After Ms Roads wrote her letter to Mr Hooda’s agent, there followed email correspondence between the agent and officers of the Department. In an email sent on 23 May 2012, the agent maintained that evidence of sponsorship could be provided at any time prior to decision on the visa application. He invoked statements in the Department’s ‘Procedures and Processes Relating to Sponsorship’ guidelines, which said:
PROCEDURES AND PROCESSES RELATING TO SPONSORSHIP
…
37.3 As a Schedule 2 requirement
As sponsorship approval is a Schedule 2 criterion, the applicant must satisfy the criterion that they are sponsored at ‘time of visa application’. Therefore, it is a policy requirement that the sponsorship form is provided at the same time the visa application is lodged. Assessment of the visa cannot commence until the form 40 and all relevant documentation has been provided – if necessary, officers can remind sponsors and applicants that a delay in the provision of the form and documentation will lead to a delay in visa processing.
While the officer is to ensure that the necessary documentation is provided, they should not indicate whether the sponsorship will be approved. Approval or refusal of the sponsorship (as part of the visa application) is determined by the s65 delegate. For policy and procedure, see:
·PAM3: GenGuideA – Valid or invalid applications – consequences for decision making and
·PAM3:GenGuideA – the role of other departmental officers.
Also on 23 May 2012, Mr Hooda’s agent explained that a fully completed Form 1277 had been executed by Mr Hooda’s uncle on 8 June 2011, before the visa application was made. The agent said:
I wish to state here that to assess the validity of the application, Form 1277 should have been requested in the first instance. I have been in contact with my client today evening and he advised that he had provided the form 1277 which was signed and dated prior to the lodgement of visa application which was misplaced. My client being ignorant provided another form 1277 which was dated 5th March 2012 as he thought the previous form was misplaced. My client is now looking and searching to find the misplaced form which will be submitted. I request that this may please be considered as my client will also provide additional statutory declaration in support of this.
However, the case-officer did not agree with either of these submissions. He maintained the opinion that the visa application was invalid, and showed that he interpreted the Regulations as requiring the sponsorship Form 1277 not only to be in existence at time of application, but also that it should have been submitted to the Department at that time. He said:
On his VB-886 the applicant indicated that he would be sponsored by an eligible relative, however he did not provide a form 1277 to fulfill the sponsorship undertaking at time of application, which is a validity requirement. As advised, the applicant did not satisfy Item 1136(3)(ca).
On 02/03/2012 when I requested the form 1277, I had also indicated that the form 1277 was not submitted at time of lodgement. However, when you submitted the form 1277 on behalf of the applicant, you did not advise the Department that he had submitted a form 1277 at time of lodgement as stated below.
On 29 May 2012, the applicant invited further consideration of the visa application, including by submitting the earlier Form 1277. Concerning this, he said:
Firstly, I understand that Form 1277 being a schedule 1 requirement of the migration regulations; is mandatory but I would like to instate that Migration Act Subitems 1136(3B)(d) “the sponsorship was entered into on Form 1277 (Internet) or 1277” which was met as I now enclose the original Sponsorship Form 1277 attached with a Commonwealth Statutory Declaration under Statutory Declarations Act 1959 stating the fact that it was filled on 8th June 2011 (before the lodgement of the application). The sponsorship form 1277 was originally filed prior to the lodgement date of the application but was misplaced soon after. When (the case officer) asked for the form to be submitted to him on 2nd March 2012, a second form was filled with an intention to make the information available to him without any further delay in finding the original form.
However, in an email dated 4 June 2012, a case-officer maintained that “your application is still invalid and no further action will be taken with this application”.
The present application to the Court was then filed on 19 June 2012.
The application for judicial review
Mr Hooda’s application seeks a writ of certiorari to quash “the decisions of the delegates of the Respondent to deem the Applicant’s Class VB visa application as invalid”, and a writ of mandamus directed to requiring the Minister to determine that application according to law.
Ground 2 for seeking these orders was not pressed at the hearing before me, and does not need to be considered.
Ground 1 alleges that “the first delegate of the Respondent misinterpreted and or misapplied the law to the facts”. The particulars to Ground 1 recite the above history, and contend:
(vii)The Class VB visa application was deemed invalid, when there was no requirement that Form 1277 be given to the Minister at the time of the lodgement of the visa application.
(viii)The first delegate therefore misinterpreted and misapplied the law to the facts by finding that the Applicant did not satisfy subitems 1136(3)(ca) and 1136(3B)(d). That failure constitutes jurisdictional error.
(ix)The first delegate committed further jurisdictional error by not deciding whether the Applicant met the criteria for the remaining visa subclasses contained in Class VB, being subclasses 885 and 887, when the delegate was obligated to do so in law, by virtue of ss45, 46 and 47 of the Act. Sections 45 and 46 of the Act prescribe that a non-citizen who wants a visa must apply for a visa of a particular class.
(x)Section 47 of the Act requires the Minister to consider an application for a visa.
(xi)The Minister therefore had to consider the Applicant’s Class VB application, and had to consider whether the Applicant met the criteria for all of the visa subclasses contained in Class VB, namely subclasses 885, 886 and 887. The failure to do so constitutes jurisdictional error.
Essentially, these particulars and the submissions presented to the Court challenge the Department’s opinion that the visa application is invalid and cannot further be addressed on its merits, because it is flawed by two errors of law:
i)An erroneous opinion that Sch.1 item 1136(3B)(d) requires that a completed Form 1277 must accompany the visa application at the time when it is made, and is not satisfied by evidence that a completed and executed sponsorship Form was in existence at that time; and
ii)An erroneous opinion that the Minister is not obliged to address other sub-classes of visas which are prescribed in the same class as the sub-class invoked by the visa applicant.
For the reasons which follow, I have decided that the first contention should be upheld, and supports the grant of relief by way of a declaration and writ of mandamus. I do not consider that relief is available based upon the second contention.
The general legislative context
Section 29(1) of the Migration Act 1958 (Cth) empowers the Minister “to grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia”.
Section 31(1) provides for there “to be prescribed classes of visas”, and s.31(3) empowers the making of regulations which “prescribe criteria for a visa or visas of a specified class …”. There are also other sources of power to prescribe conditions for the grant of visas. For example, other provisions empower regulations which impose specific types of criteria for described classes (ss.32-38), or which limit the number of “visas of a class” (s.39), or which limit the circumstances in which visas of a specified class may be granted (s.40), or which impose conditions on visas (s.41), or which impose visa application charges (s.45B).
Regulations may also be made under s.46, which govern whether an application for a visa is ‘valid’. It provides:
Section 46 – Valid visa application
(1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
(1A)…
(2)Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
(2A)…
(2AA)…
(2AB)…
(2AC)…
(2B)…
(2C)…
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4)Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
Section 49 provides that an applicant for a visa may “withdraw the application”, which is then “taken to have been disposed of”. Section 51 otherwise expects the Minister to “consider and dispose of applications for visas in such order as he or she considers appropriate”, and precludes an inference that this might be “unreasonably delayed”. No time limits apply to the Minister’s consideration of an application, and under s.63(1) “the Minister may grant or refuse to grant a visa at any time after the application has been made”. Meanwhile, applicants may give the Minister additional information (s.55), and the Minister may seek additional information (s.56).
The Minister is ultimately under a statutory duty to make a decision on every “valid application for a visa”, and is specifically precluded from considering an application that is not ‘valid’. This is the effect of sections 47 and 65:
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.
…
Section 65 - Decision to grant or refuse to grant visa
(1)After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
…
If the Minister or his delegate makes a decision under s.65, then he is obliged to notify the applicant of his decision, and it may become reviewable on its merits by a review tribunal under Part 5 or Part 7. A tribunal has power to consider issues of validity of a visa application, only in the sense that its own jurisdiction is precluded if it decides, contrary to an opinion previously taken by the Minister’s delegate, that the visa application which is the subject of the application for review was invalid (see Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 at [80]-[82], and SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at [30]).
Under this decision-making structure, a whole range of matters can be prescribed, particularly under s.46(3) and (4), which go to matters both of form and substance and upon which the ‘validity’ of a visa application might depend for the purposes of ss.47 and 65. Obviously, the Act expects the Minister or officers of his Department to address these matters, and to arrive at opinions on the validity of an application before it is ‘disposed of’. Unlike the making of substantive decisions under s.65, the preliminary power to address issues of validity is not attended by any requirements of administrative form or finality, but is implicit and incidental to the Minister’s duty under s.65, by reason of that duty being conditional upon his satisfaction that there exists a valid application. Moreover, there is no expectation shown in the Act that prescribed matters going to validity must be addressed at the time of application or within any particular time period before the application is ‘disposed of’. A consideration of the requirements of validity can, and often is, left to the occasion when the Minister and his delegate would also address substantive criteria under s.65 if the application is first found to be valid.
The Minister’s powers to receive and obtain additional relevant information therefore encompass matters going to validity, as well as substantive visa criteria which will be addressed under s.65. In situations such as the present, where visa applications are received and acknowledged automatically by a computer, and placed at the bottom of a long queue of applications awaiting consideration, there must be an expectation that the validity of the application, if it was accepted by the computer, will be addressed in the future, and that this might occur at any time before the visa application is withdrawn and before it is addressed by a substantive decision of the Minister under s.65.
The consequences of a visa application being disposed of on a preliminary decision that it is not valid, rather than by a substantive decision made under s.65 are significant. In particular, important procedural rights of visa applicants do not apply to decisions concerning validity, due to the absence of any structured process for the making of a final decision on validity by the Minister or a delegate, and the exclusion of a right of merits review. The structure of the Act suggests that there are implicit differences between the types of conditions which the Act intends to be imposed by regulations concerning validity, as compared with the power to prescribe substantive visa criteria. It has been said that “the dichotomy between valid and invalid application serves a particular and specific purpose in the Act. It provides the barrier or gateway to the exercise by the minister of the power to consider the application having regard to s.47” (see Moore J in Minister for Immigration & Citizenship v Chan (2008) 172 FCR 193 at [7]). The lack of finality and administrative review of a decision by the Minister that a visa application is invalid, has been suggested to carry implications for the permissible content of regulations made under s.46(3), whereby they may not trespass into territory reserved for substantive visa criteria prescribed under s.31 and elsewhere (see Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315).
In the course of debate at the hearing, I raised the question whether, on the true construction of the contested sponsorship provisions of Sch.1 item 1136 which were inserted in 2010, they would be better analysed as substantive visa criteria prescribed for the purposes of s.31, rather than validity conditions prescribed under s.46(3). Such a construction might reconcile the duplication of sponsorship conditions now found in Sch.1 and Sch.2, which I shall note below. However, both parties presented their submissions on the common assumption that the contested provisions of Sch.1 were intended, and took effect, as conditions on the validity of a subclass 886 visa application. Regulation 2.07(1)(c) provides support for this construction, and I have proceeded upon the assumption made by the parties.
I also note that neither party invoked implicit requirements or limits on the power to prescribe conditions on validity under s.46(3), in support of their contended constructions of Sch.1 item 1136(3B)(d). Mr Hooda did not submit that the regulation would be invalid if it were construed to require that a Form 1277 should have been both executed and also lodged at the time of visa application. For his part, the Minister’s counsel did not submit that a construction which allows the existence of an executed Form 1277 to be determined by the Minister on evidence which is submitted to the Minister subsequent to time of visa application, would be inconsistent with the intended role of prescribed conditions on validity.
I accept both of these positions. It appears to me that there is nothing in s.46 or any other provision of the Act, which requires that the satisfaction of conditions on validity must always be immediately observable on the face of a visa application or determinable immediately upon lodgement. Rather, I consider that the section allows the prescription of a condition on validity, which intends that the condition may be found by the Minister to have been satisfied by additional evidence submitted after the date of lodgement and before the application is finally ‘disposed of’ by the Minister. Whether this is intended, turns upon the language of the particular condition on validity, and, in particular, whether it expressly requires that evidence showing that the condition is satisfied must accompany the visa application or be provided within a specified time. So much, in my opinion, is the effect of the authorities on ‘perfected’ visa applications cited in Chan (supra) by Marshall J at [14], and the recognition by Allsop J in Kim (supra) at [40] that the ascertainment of the validity of a visa application “may take time, but it is a state referable to the application as made and thereafter as subsisting”.
I do not believe that anything I have said above was in controversy in the parties’ submissions. It provides the legislative background to the present issue as to the intention of a condition on validity for a subclass 886 visa, which is prescribed in Sch.1 item 1136(3B)(d) and requires that “the sponsorship was entered into on Form 1277 (Internet) or 1277”. In particular, the issue is whether satisfaction of this requirement is to be decided only upon a Form 1277 which has accompanied the visa application at the time of lodgement of the application, or can be decided by reference to evidence of such a form which existed at the date of visa application and is submitted later at any time before the Minister has disposed of the visa application under ss.47 and 65.
The regulations governing sponsorship of Subclass 886 applicants
The present issue arises as a result of amendments to the Migration Regulations which took effect from 1 July 2010 (see Migration Amendment Regulations 2010 (No.6) SLI 2010 No.133). Before these amendments, it was not a requirement going to the validity of a subclass 886 visa application that there be provided to the Minister a Form 1277 executed by the proposed sponsor, whether accompanying the application or submitted later. Rather, the existence of an acceptable sponsor was a matter solely addressed within the substantive ‘time of decision’ criteria in Sch.2 item 886.222(3).
The relevant Sch.2 criteria before the 2010 amendments have remained in operation unchanged by the amendments. Under these criteria, the visa applicant could tender evidence to the Minister (or to the Tribunal on review) at any time prior to decision, showing that a Form 1277 had been executed by the proposed sponsor and had been given to the Minister by post or courier at an appointed address. The ‘time of decision’ criteria also required that the Minister had ‘accepted the sponsorship’ before time of decision, but – as the extract from the ‘Procedures and Process’ guidelines cited by Mr Hooda’s agent suggest – it was administrative practice for the acceptability of the proposed sponsorship to be determined by a delegate at the same time when addressing the other visa criteria. The acceptance of the proposed sponsor was regarded, in effect, as part of the substantive determination of the visa eligibility at time of decision.
The relevant Sch.2 criteria before and after the 2010 amendments were:
Subclass 886 Skilled – Sponsored
…
886.2Primary criteria
886.21 Criteria to be satisfied at time of application
886.211
(1)The applicant meets the requirements of subclause (2), (3) or (4).
(2)The applicant met the requirements of subitem 1136 (4) of Schedule 1, and:
(a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made; and
(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
(3)The applicant met the requirements of subitem 1136 (5) of Schedule 1, and:
(a) if the applicant holds a Subclass 476 (Skilled — Recognised Graduate) visa, the qualification used to obtain that visa is closely related to the applicant’s nominated skilled occupation; or
(b) if the applicant holds a Subclass 485 (Skilled — Graduate) visa, each degree, diploma or trade qualification used to satisfy the Australian study requirement to obtain that visa applicant is closely related to the applicant’s nominated skilled occupation.
(4)The applicant met the requirements of subitem 1136 (6) of Schedule 1, and:
(a) the applicant must have completed the apprenticeship for which the Subclass 471 (Trade Skills Training) visa was granted; and
(b) the apprenticeship is closely related to the applicant’s nominated skilled occupation.
…
886.22 Criteria to be satisfied at time of decision
…
886.222
(1)Either:
(a) if the applicant was nominated by a State or Territory government agency in accordance with subitem 1136 (3A) of Schedule 1 at the time of making the application — the requirements of subclause (2) are met; or
(b) if the applicant was sponsored in accordance with subitem 1136 (3B) of Schedule 1 at the time of making the application — the requirements of subclause (3) are met.
(2)The Minister has accepted the nomination of the applicant by a State or Territory government agency mentioned in subitem 1136 (3A) of Schedule 1.
(3)All of the following apply:
(a) the applicant, and all persons included in the application, are 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; and
(iii)is usually resident in Australia; and
(iv)is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also an applicant for a Subclass 886 visa), as:
(A)a parent; or
(B)a child or a step‑child; or
(C) a brother or sister, an adoptive brother or sister, or a step‑brother or step‑sister; or
(D)an aunt or uncle, an adoptive aunt or uncle, or a step‑aunt or step‑uncle; or
(E)a nephew or niece, an adoptive nephew or niece, or a step‑nephew or step‑niece;
(b) the sponsorship was made:
(i)on Form 1277 (Internet); or
(ii)on Form 1277:
(A)by posting the form (with the correct pre‑paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this sub‑subparagraph; or
(B) by having the form delivered by a courier service to the address specified by the Minister in an instrument in writing for this sub‑subparagraph;
and the Minister has accepted the sponsorship.
Under the scheme of the Regulations prior to 1 July 2010, once the Minister had accepted the sponsorship and granted the visa, the sponsor was then required by reg.1.20(3) to “enter into the sponsorship by completing the relevant approved form and (to) give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor”. It is unclear to me whether, in fact, prior to 2010 there was an additional approved form which sponsors were required to complete and give to the Minister after they had been approved, or whether the Minister in practice accepted as sufficient for this purpose the sponsorship undertakings in the sponsor’s previously executed Form 1277.
The 2010 amendments to the Regulations, in their application to subclass 886 visa applications, substituted in a new reg.1.20(3A) which had a differently worded obligation in relation to the giving of the sponsor’s undertakings to the Minister. Rather than providing for the sponsor’s undertaking to be given after approval, the new regulation required a proposed sponsor for this class of visa to offer undertakings in an executed Form 1277 given to the Minister prior to approval of the sponsorship and prior to a decision on the visa application. In this respect, I note that Part G of Form 1277 now contains an extensive ‘sponsorship undertaking’, in which the sponsor agrees to ‘ensure that adequate accommodation is available’, to ‘provide financial assistance as required’, to ‘provide support as required’ for attendance at English language courses, and to allow an exchange of information with Centrelink and other agencies.
However, there was no indication in the amendments to reg.1.20 made in 2010, that the physical delivery of the approved form of undertakings to the Minister was expected to occur no later than the lodgement of the visa application. Rather, the newly worded obligation on the sponsor is less prescriptive, and requires only that it be given to the Minister before approval. After the amendments, it provided relevant to Class VB subclass 886 skilled residence visas:
1.20Sponsorship undertakings
(1)The sponsor of an applicant for a visa is a person (except a person who proposes on the relevant approved form another person for entry to Australia as an applicant for a permanent humanitarian visa) 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:
(a)if the application is for a permanent visa (other than a Partner (Migrant) (Class BC) or Partner (Residence) (Class BS) visa) — the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:
(i)if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa; or
(ii)if the applicant is outside Australia — during the period of 2 years immediately following the applicant’s first entry into Australia under that visa;
including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period;
…
(3A)A person who is a sponsor of an applicant for:
…
(b)a Skilled (Residence) (Class VB) visa; or
…
must complete the relevant approved form and give it to the Minister prior to the Minister approving the person as a sponsor.
The 2010 amendments also inserted new provisions concerning sponsorship into Sch.1 item 1136. As amended, and relevant to subclass 886 visa applicants in the situation of Mr Hooda, this item provided:
1136.Skilled (Residence) (Class VB)
(1) Forms: 1276 and 1276 (Internet).
(2) Visa application charge:
(a)First instalment (payable at the time application is made):
(i) In the case of an applicant who is the holder of:
(A)a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(B)a Skilled — Designated Area‑sponsored (Provisional) (Class UZ) visa; or
(C)a Subclass 475 (Skilled — Regional Sponsored) visa; or
(D)a Subclass 487 (Skilled — Regional Sponsored) visa; or
(E)a Bridging A (Class WA) or Bridging B (Class WB) visa granted on the basis of a valid application for:
(I)a Skilled — Independent Regional (Provisional) (Class UX) visa; or
(II)a Skilled (Provisional) (Class VC) visa (other than a Subclass 485 visa): $235
(ii) In any other case: $2 575.
(b) Second instalment (payable before grant of visa):
(i) In the case of an applicant who:
(A)had turned 18 at the time of application; and
(B)is assessed as not having functional English; and
(C)has not paid a second instalment of visa application charge in relation to the application for the visa, mentioned in paragraph (a), that the applicant holds: $3 575
(ii) In any other case: Nil.
(3) Other:
(a) Application must be made:
(i) as an Internet application; or
(ii) by posting the application (with the correct pre‑paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or
(iii) by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph.
NoteAn Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory, that corresponds to the time at which the Internet application is made: see regulation 2.10C.
(b)Applicant must be in Australia but not in immigration clearance.
(ba)If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 887 (Skilled — Regional) visa; and
(ii) has not nominated a skilled occupation specified by the Minister in an instrument in writing for paragraph (bb);
the applicant’s skills must have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
(bb) If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 887 (Skilled — Regional) visa; and
(ii) has nominated a skilled occupation specified by the Minister in an instrument in writing for this paragraph;
the applicant’s skills must have been assessed by the relevant assessing authority, on or after 1 January 2010, as suitable for the applicant’s nominated skilled occupation.
(c)Application by a person claiming to be a member of the family unit of a person who seeks to satisfy the primary criteria may be made at the same time and place as, and combined with, an application by that person.
(ca)Applicant seeking to satisfy the primary criteria for the grant of a Subclass 886 (Skilled — Sponsored) visa must meet the requirements in subitem (3A) or (3B).
(d)The requirements of subitem (4), (5), (6) or (7) must be satisfied.
(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 Australia; and
(ii) is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is also seeking to satisfy the criteria for a Subclass 886 (Skilled — Sponsored) visa), as:
(A)a parent; or
(B)a child or step-child; or
(C)a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or
(D)an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or
(E)a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece;
(c) each person who:
(i) is an applicant; and
(ii) claims to be a member of the family unit of the applicant;
is sponsored by the same person;
(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) the applicant must be the holder of an eligible student visa;
(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 other than 1 of the following visas:
(A)a Subclass 570 (Independent ELICOS Sector) visa;
(B)a Subclass 571 (Schools Sector) visa;
(C)a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa, that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake a course of study paid for, wholly or in part, by:
(I)the Commonwealth or the government of a State or Territory; or
(II)the government of a foreign country; or
(III)a multilateral agency;
and for which a condition of payment by that body for the course is that the student will leave Australia on the completion of the course;
(D)a Subclass 572 (Vocational Education and Training Sector) visa, a Subclass 573 (Higher Education Sector) visa, or a Subclass 574 (Postgraduate Research Sector) visa that was applied for on the basis that the applicant seeking to satisfy the primary criteria for the grant of that visa intends to undertake a course of study or training under a scholarship scheme or training program approved by:
(I)the AusAID Minister; or
(II)the Defence Minister;
and for which a condition of that scheme or program is that the student will leave Australia on completion of the course;
(E)a Subclass 575 (Non‑Award Sector) visa;
(F)a Subclass 576 (AusAID or Defence Sector) 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 other than a visa mentioned in sub‑subparagraphs (ii) (A) to (F); and
(B) have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application for the Skilled (Residence) (Class VB) visa is made;
(iv) the applicant must have been taken, under sections 368C, 368D and 379C of the Act to have been notified that the Migration Review Tribunal has set aside and substituted the Minister’s decision not to revoke the cancellation of the applicant’s eligible student visa not more than 28 days before the day on which the application is made;
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i) must be less than 45; and
(ii) must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
(5) (Not presently relevant)
(6) (Not presently relevant)
(7) (Not presently relevant)
(8) Subclasses:
885 (Skilled — Independent)
886 (Skilled — Sponsored)
887 (Skilled — Regional)
As is apparent, after the 2010 amendments to the Regulations there was a curious duplication of the provisions concerning sponsorship in Sch.1 item 1136(3B) and Sch.2 item 886.222(3). The only additional provision found in Sch.2, might appear to be the implied power of the Minister to decide whether he is willing to ‘accept the sponsorship’ under item 886.222(3)(b). Yet, the amendments did not delete from Sch.2 the sponsorship conditions which were now also made conditions under Sch.1, nor insert any new provision in Sch.2 to suggest that its continuing provisions were intended to operate differently.
Both counsel before me submitted that the repeated provisions in Sch.2 concerning sponsorship might function as a substantive added requirement, directed at establishing the existence of a sponsorship both at time of application and at time of decision. Both counsel submitted to me that this would perhaps allow, for example, a visa applicant to present a new sponsor between time of visa application and time of decision. Whether or not the duplication implies that this is permitted, it is clear from the sponsorship provisions as now found in both Sch.1 and Sch.2 that the ‘acceptability’ of the sponsorship has continued to be a matter which is to be addressed at time of decision and not earlier, and to be addressed by consideration of a Form 1277 executed and provided to the Minister prior to decision by whoever is identified as a sponsor proposed at time of decision.
Conclusions
All of the above discussion, still leaves the critical question of construction, which is whether the inserted new requirements in Sch.1 item 1136(3B), carried an implication that the sponsor proposed in the visa application should have submitted a Form 1277 to the Minister no later than at the time of visa application. There is also an issue of construction whether it implicitly also required the Form 1277 to have been executed no later than that time, even if it could be given to the Minister subsequently. However, that issue is not critical in the present case, since it is now common ground that Mr Hooda’s uncle had completed and executed the form before the date of lodgement of the visa application.
Clearly, no requirement of contemporaneous delivery to the Minister is found in the express language of item 1136, and in the language of item 1136(3B)(d) in particular. The absence of an expressed temporal requirement for the giving of the Form to the Minister no later than time of application is, in my opinion, of significance. Such indications are frequently found elsewhere in the Regulations, when they are intended to provide added time-of-application requirements, which cannot be satisfied by the later tender of evidence which proves the earlier existence of a required time of application event. Commonly, this is done by adding references to “the application is accompanied by evidence that …”. Such words are found in relation to some substantive time-of-application criteria for 886 visas (see item 886.214, which I examined in Gulati (supra)), as well as in some Sch.1 conditions on validity for other visas (e.g. item 1113(3)(d)).
Moreover, under the relevant regulations, the giving of the Form 1277 to the Minister is expressed as a requirement of the sponsor, rather than of the visa applicant. Both reg.1.20(3A) and Sch.2 item 886.222(3)(b)(ii) suggest that the Form is to be given to the Minister by the sponsor directly and not necessarily by the visa applicant. If item 1136(3B) is read with those provisions, the transmission of a Form 1277 executed by the sponsor is expected to occur in a different process to the process of lodgement of the visa application itself, even if later satisfaction as to the existence of the executed Form has become a time-of-application requirement going to validity of the visa application. This might explain why a strict temporal conjunction was not required between the giving by the sponsor to the Minister of a Form 1277, and the lodgement by the visa applicant of his visa application which relies upon that sponsorship. The absence of any express reference in item 1136(3B) suggesting a necessary temporal relationship between lodgement of the visa application and delivery of the sponsorship Form then appears understandable and deliberate.
Considering the practical administrative relevance of whether a Form 1277 executed by a proposed sponsor prior to visa application accompanies the lodgement of the visa application in a strict temporal sense, it is difficult to see how the reasonable administrative processing of the visa application would be jeopardised if the Minister were not provided with the Form 1277 until some later time in the course of the processing of the application prior to determination of its validity and substantive merits. As the history of the present matter illustrates, this processing might not occur until many months after a computer has accepted the visa application.
In a situation where visa applicants for this subclass of visa in the position of Mr Hooda are given only a six month window of opportunity to apply and qualify for permanent residence after completing their studies in Australia (see Sch.2 item 886.211(2), applying Sch.1. item 1136(4)), considerations of basic fairness might suggest that the Court should be reluctant to find added technical bars on the validity of the visa application, if these are not expressed in clear words.
The above administrative, historical and textual points were made by Hooda’s solicitor, in support of his submission that the case-officers in the Minister’s Department erred in law by implying into item 1136(3B)(d) a required temporal conjunction between the lodgement of the visa application and the forwarding of a sufficient Form 1277, and by refusing to accept the sufficiency of his evidence that, in fact, his sponsor had executed a Form 1277 and authorised its transmission to the Department before Mr Hooda applied for his visa.
To meet these points, counsel for the Minister submitted that a close temporal conjunction between lodgement of visa application and providing the Form 1277 to the Minister was implicit in the words of item 1136(3B)(d) “the sponsorship was entered into on Form 1277”. In effect, he submitted that the Form had no legal operation as a ‘sponsorship’ for the purposes of this paragraph and regulation 1.20, unless it had been completed and executed by the sponsor, and also had been transmitted to the Minister. The ‘sponsorship’ could therefore only be ‘entered into’ by transmission of the Form to the Minister, and this was therefore implicitly required to be done at or before the making of the visa application. He presented this argument in his written submissions as follows:
10.“Sponsor”, used as a noun, is relevantly defined by reg 1.20(1) as a person who “undertakes the obligations stated in subregulation (2) in relation to the applicant”. Other parts of speech and grammatical forms of that word are to be given corresponding meanings; so that “entering into” sponsorship involves the making of such undertakings, and the state of being “sponsored” involves such undertakings having been given. For the purposes of an application for a Subclass 886 visa (which is a permanent visa), the relevant obligations are those set out in reg 1.20(2)(a): “to assist the applicant, to the extent necessary, financially and in relation to accommodation” for a specified period. (Part G of Form 1277 provides that the signatory “agrees” to do a number of things, including a dot-point in similar terms to reg 1.20(2)(a).)
11.An undertaking, in this sense, is a promise made to another person or persons. The undertaking mentioned in reg.1.20(1) is to be understood, in context, as one given to the Minister, since:
(a)its statutory relevance is to decisions that are to be made by the Minister, as to whether the person to whom the promise relates will be granted a visa;
(b)its evident purpose is to provide some level of comfort that, if the applicant is permitted to live in Australia, government agencies and the community generally will not be called on to provide material support to him or her; and
(c)reg 1.20(1) describes the undertaking as one “in relation to” the visa applicant, which is inconsistent with an understanding that it is given to that person.
12.Such undertakings are not capable of fulfilling the purpose for which they are required, and nor are they capable of consideration by the Minister to determine whether they are adequate (see, relevantly, cl 886.222(3)(b)), unless and until they are communicated to the Minister. For that reason, reg.1.20(1) should be taken to refer to a person who has not only decided to accept the relevant obligations but communicated that acceptance to the Minister; and references to sponsorship in other provisions such as cl 1136(3B) should be correspondingly understood.
13.On that basis, cl 1136(3B)(d) does not have the effect that completing and signing Form 1277 is all that is necessary to enter into a sponsorship. Indeed, no reference is made to completing and signing. Rather, the paragraph does no more than prescribe the particular form as the vehicle by which “sponsorship” is to be “entered into”. The steps that need to be taken, using that form, are dictated by the concept of sponsorship as discussed above. In accordance with that concept, sponsorship is “entered into” (and the applicant “sponsored”) only when the relevant undertakings have been communicated (using the prescribed form) to the Minister.
14.The Applicant was therefore not “sponsored”, in the relevant sense, until a copy of Form 1277 signed by his uncle was provided to the Minister’s Department.
However, I do not accept these submissions. In my opinion, they fail at their foundation, which is premised upon there being nothing which can be described as a ‘sponsorship entered into’ until the Form 1277 has been given to the Minister. But if a legalistic approach is taken to the words ‘sponsorship entered into’, the Form 1277 undertakings of the sponsor do not take effect when the Form has been executed and given to the Minister, but only when the Minister has made decisions to ‘accept’ the sponsor and to grant the visa upon which it is intended to operate. In my opinion, manifestly, item 1136 is not referring to ‘sponsorship entered into on Form 1277’ in the sense of a sponsorship having legal effect and operation at the time of visa application. A less demanding meaning must be intended by the reference to “the sponsorship” in item 1136(3B)(d) than to “a sponsorship” which has taken legal effect to bind a sponsor to his or her undertakings in Form 1277, only after the occurrence of all the necessary steps of execution by the sponsor, delivery to the Minister, acceptance by the Minister, grant of visa by the Minister, and use of the visa by the visa applicant.
In my opinion, it is apparent from the time of decision criteria in Sch.2 item 886.222(3)(b), that the validity requirements of item 1136(3B) are referring to ‘sponsorship entered into on Form 1277’ in an inchoate sense, and not in the sense of a ‘legally effective’ sponsorship entered into on that Form. In context, the words need to refer to no more than a Form 1277 which has been completed and executed by the person who has been proposed as sponsor in the visa application.
In the context of the Sch.1 requirement, I consider that the reference to “the sponsorship was entered into on a Form 1277” required no more and no less than that a form of sponsorship in terms of Form 1277 has been executed by the proposed sponsor with an intention of being bound by it, if and when it is ultimately submitted to, and accepted by the Minister when granting the visa. When these words are used in item 1136(3B)(d) as a condition on the validity of a visa application, they require no more than that the Minister must be satisfied as to the existence of a properly completed and executed form relating to the visa applicant, before he decides that a valid visa application has been made and before he proceeds to address the substantive criteria, including the approval of the proposed sponsor.
It is possible that item 1136(3B)(d) allows the Minister to be so satisfied by the giving to the Minister of a Form 1277 executed at any time while the visa application is under consideration by the Minister. It is not necessary for me to decide this in the present matter. At least, in my opinion, the words of item 1136(3B) do not allow the Minister to refuse to consider a visa application supported by a Form 1277 which was duly executed before the date of visa application and has been given to the Minister by or on behalf of the sponsor before the visa application was disposed of, on the ground that the Form did not accompany the lodgement of the visa application in a proximate temporal sense.
I consider that this error of law is exhibited in the letter from Ms Roads dated 23 May 2012, which refused to address the merits of the visa application under s.65 on grounds of invalidity. The subsequent correspondence shows that her erroneous opinion was maintained within the Minister’s Department notwithstanding the presentation of evidence of an executed Form 1277 at time of visa application, and justifies the grant of appropriate relief. I consider that the Court should make a declaration addressing the particular issue of validity. It should also order the issue of writs of certiorari to quash the Department’s decisions, and of mandamus to require the Minister to address other outstanding aspects of Mr Hooda’s visa application.
I note that there are statements in some communications from the case officers, which were also referred to in the submissions of counsel for the Minister, suggesting that further difficulties might face the visa application on the ground that it was premature by seven days when made on 30 June 2011, because the date of completion of the applicant’s course at the Catholic University was later certified as being 7 July 2011. This was suggested to be relevant either to the ‘validity’ criterion in Sch.1 item 1136(4)(a) in relation to the holding of a relevant student visa, or to the substantive ‘date of application’ criterion in Sch.2 item 886.211(2)(a) that Mr Hooda must satisfy “the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made”.
However, it is not clear to me that Mr Hooda’s efforts to obtain his visa must inevitably fail under either of these pathways. It does not appear to me that item 1136(4)(a) prevents the making of a visa application before a formal date of completion of studies of an eligible student visa. There also appears to me to be room for a factual investigation as to exactly when Mr Hooda finished his studies. It is also not clear to me that any difficulties under either Sch.1 or 2 could not be met by sensibly treating the visa application as having been made or perfected on 7 July 2011, if this date is critical.
These issues were not fully explored before me, and are best left to the Minister’s officers and delegates and the Tribunal to address in the course of future decision-making. I did not understand counsel for the Minister to submit otherwise. I therefore would not refuse relief on the ground that Mr Hooda’s visa application is doomed to failure for a reason other than that which was taken by the Department of Immigration in its letter of 23 May 2012 and subsequent correspondence.
Since the applicant has succeeded in establishing material error, I consider that costs should follow the event.
My above conclusions mean that it is unnecessary for me to address the alternative contention made under Ground 1. This was that, even if Mr Hooda’s application for a subclass 886 visa was invalid, there remained an outstanding obligation on the Minister to address his eligibility under the criteria for other subclasses of Class VB, i.e. subclass 885 ‘skilled-independent’, and subclass 887 – ‘skilled-regional’.
In my opinion, the short answer to the contention is that the Minister can be under no duty under s.65(1)(a) of the Act to address Mr Hooda’s eligibility under criteria for other prescribed classes or subclasses of visa, in a situation where the visa application made by Mr Hooda was on its face confined to the criteria for ‘skilled sponsored (Class VB, subclass 886)’ (cf. Quarm v Minister for Immigration & Citizenship [2008] FMCA 287 at [52], Quarm v Minister for Immigration & Citizenship [2008] FCA 1156 at [27] and [35], Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 at [27]-[28], and Huynh v Minister for Immigration & Citizenship [2012] FMCA 864 at [18]-20]). I would therefore not have upheld this contention.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 21 November 2012
4
8
2