Huynh v Minister for Immigration
[2012] FMCA 864
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUYNH v MINISTER FOR IMMIGRATION | [2012] FMCA 864 |
| MIGRATION – Skilled sponsored (subclass 886) visa – criteria for valid visa application – whether criteria may be specified by reference to visa subclasses – whether criteria may include criteria also used to determine whether to grant a visa. WORDS & PHRASES – Class of visa – visa of a particular class. |
| Migration Act 1958, ss.31, 45, 46, 47 Migration Regulations 1994, regs.2.01, 2.02, 2.03, 2.07, cl.1136 of sch.1 |
| Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315 Kim vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 51 |
| Applicant: | HAI BANG HUYNH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 630 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 13 August 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Vietaust Lawyers |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 630 of 2012
| HAI BANG HUYNH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Vietnam, applied for a Skilled (Residence) (Class VB) subclass 886 (Skilled – Sponsored) visa on 31 May 2011. On 28 February 2012 an officer of the department administered by the first respondent minister (“Minister”) wrote to the applicant advising him that his application was not a valid application. The officer found the application to be invalid because the applicant had failed to meet the requirement of cl.1136(3B)(d) of sch.1 to the Migration Regulations 1994 (“Regulations”).
The applicant has applied to this Court for judicial review of the officer’s decision. He seeks a declaration that cls.1136(3)(ca), 1136(3A) and 1136(3B) of sch.1 to the Regulations are invalid. He also seeks writs of certiorari and mandamus.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The Skilled (Residence) (Class VB) subclass 886 (Skilled – Sponsored) visa allows overseas students who have completed their study in Australia to apply for permanent residency with the sponsorship of an eligible relative living in Australia.
Section 31 of the Migration Act 1958 (“Act”) relevantly provides:
31 Classes of visas
(1)There are to be prescribed classes of visas.
(2)…
(3)The regulations may prescribe criteria for a visa or visas of a specified class …
(4)…
(5)A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
Section 45 of the Act provides:
45 Application for visa
(1)Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
Section 46 sets out conditions for the validity of visa applications. Relevantly, it provides:
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; …
…
(2)Subject to subsection (2A), an application for a visa is valid if:
(a) …
(b)under the regulations, the application is taken to have been validly made.
…
(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 47 of the Act provides:
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.
Respectively, regs.2.01 and 2.02 provide that the visa classes referred to in s.31 of the Act are to be found in sch.1 to the Regulations and that the subclasses of those visa classes are to be found in sch.2 to the Regulations. Regulation 2.07 provides that the conditions for valid visa applications are prescribed in sch.1 to the Regulations and reg.2.03 provides that the criteria for the granting of visas are prescribed in sch.2 to the Regulations.
The matters specifically conditioning the validity of an application for the grant of a subclass 886 visa are set out in cl.1136 of sch.1 to the Regulations. At the time the applicant lodged his application cl.1136 relevantly provided:
1136 Skilled (Residence) (Class VB)
…
(3) Other:
…
(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).
…
(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.
Background facts
In his application for a Skilled (Residence) (Class VB) subclass 886 (Skilled – Sponsored) visa the applicant indicated that he would be sponsored by his uncle. On 18 October 2011 the Minister’s department wrote to the applicant requesting further information on his application, including evidence that his sponsor would be able to fulfil the sponsorship undertaking. Subsequently, the applicant provided a Form 1277 “Application for sponsorship under general skilled migration” completed by his uncle and dated 19 October 2011, along with supporting documentation. On 28 February 2012 the departmental officer wrote to the applicant advising him that his application was invalid and could not be accepted or processed. The officer found that the applicant’s application was invalid under cl.1136(3)(ca) of sch.1 to the Regulations because his sponsorship had not been entered into on Form 1277 at the time his application was made as required by cl.1136(3B)(d).
Proceedings in this Court
The first ground of the applicant’s further amended application was not pressed. In the second ground of that application the applicant alleged:
2.The delegate erred by finding that the applicant’s application for a Skilled (Residence) (Class VB) Visa was invalid because he failed to meet the requirements of Items 1136(3)(ca), 1136(3A) or 1136(3B) of Schedule 1 of the Migration Regulations, 1994.
Particulars
(a)Items 1136(3)(ca), 1136(3A) and 1136(3B) of Schedule 1 of the Migration Regulations, 1994 are invalid because they are inconsistent with the Migration Act.
Further Particulars
(i)Sections 45 and 46 of the Migration Act permit a person to apply for a visa of a particular class.
(ii)The making of Regulations specifically governing the validity of an application for a visa of a particular class is permitted by section 46 of the Act.
(iii)Section 47 of the Migration Act requires the Minister to whether [sic] an application for a visa is valid.
(iv)Those requirements do not permit consideration of whether an applicant is seeking to satisfy criteria for a sub class of visa.
Further or alternatively
(v)The distinction drawn by s 47 between the Minister’s deciding that an application is not valid and the Minister’s duty to consider a valid application requires that a decision as to the validity of a visa application is capable of being made on objective standards and without consideration being given to the content of the visa application (see Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 956).
(vi)Items 1136(3)(ca), 1136(3A) and 1136(3B) of Schedule 1 of the Migration Regulations, 1994 are ultra vires because they require consideration of the content of the visa application.
First argument
The applicant’s first argument was that ss.45 and 46 of the Act, which are concerned with the validity of visa applications, do not authorise the validity of an application to be determined by reference to criteria used to determine whether a visa is to be granted.
It was also said that ss.45 and 46 only authorise the Regulations to prescribe application validity criteria by reference to visa classes and do not authorise application validity criteria to be prescribed for individual visa subclasses.
The applicant submitted that:
a)the Act draws a distinction between the criteria for a valid visa application and the criteria for the grant of a visa consequent upon the making of a valid application;
b)s.31 of the Act provides that there are to be prescribed classes of visas and that the Regulations may prescribe criteria for the grant of a visa or visas of a particular class whereas ss.45 and 46 govern the validity of applications for visas;
c)the criteria for the validity of a visa application are to be found in sch.1 to the Regulations, a schedule which is concerned with visa classes, whereas the criteria for the granting of visas are found in sch.2 to the Regulations, which is a schedule concerned with visa subclasses;
d)ss.45 and 46 of the Act speak only of visa classes which means, by implication, that there is no authority for the Regulations to prescribe application validity criteria by reference to visa subclasses. It was said that because sch.2 deals with visa subclasses, nothing it contains may be incorporated in sch.1; and
e)the validity of a visa application must be determined prior to and independently of the question of whether an applicant meets the criteria for the grant of the relevant visa: Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315. Indeed, sch.2 criteria do not exist until the question of validity is determined. Clause 1136(3)(ca) is concerned with applicants and not with applications and introduces criteria from a sch.2 subclass which is not to be considered until after validity is decided.
On these bases it was said that cl.1136(3)(ca) is not authorised by the Act.
Consideration
The applicant’s submission is that where the Act speaks of visa classes it impliedly excludes visa subclasses. In light of the terms of s.31(3) that submission carries the additional implication that the entirety of sch.2 to the Regulations is ultra vires because it is not concerned with
… criteria for a visa or visas of a specified class …
but with the criteria for visas of various subclasses.
The Act does not define what a visa class is. Visa subclasses are a creation of the Regulations. Because the Act does not limit the meaning of visa “class” by defining it, that word comprehends every variety of visa “class”, “subclass” or other category or classification which could be applied to a visa or group of visas. The Act is not prescriptive in this respect and each category meets the definition of “class of visa”. The approach taken by the Regulations is arbitrary and not required or imposed by the Act. There is no statutory requirement for there to be “head” visa classes set out in one schedule and subsidiary classes set out in another and the fact that the Regulations are drawn in that way is of no relevant significance.
Similarly, the argument that sch.1 can only specify application validity criteria by reference to visa classes and cannot also specify such criteria in respect of visa subclasses depends on the Act recognising such distinctions when it does not.
In reality, these aspects of the applicant’s argument seek to create statutory substance out of regulatory nomenclature. I find that these arguments are not supported by the terms of the Act.
But in any event, s.46 permits the Regulations to prescribe the criteria for the validity of visa applications in any appropriate manner. This includes criteria which are to be taken into account again at a later stage of the visa application process, should any particular visa application proceed that far. The postulated limitation on what criteria may be employed in sch.1 to the Regulations is not supported by the legislation.
Further, Kim’s case is not apposite to the present circumstances. In that case, the criterion from sch.2 which was the subject of obiter consideration by Moore and Allsop JJ on the basis, for the purpose of argument, that it was a criterion for the validity of a visa application, required the Minister to determine such questions by reference to an opinion which could only be formed at some point after the application had been lodged. That is to say, an applicant could not know whether his or her application would be valid because that depended on the subsequent formation of an opinion by another person. Their Honours concluded that if the sch.2 criterion had been a criterion for the validity of the visa application it would have been ultra vires because it was not supported by s.46 of the Act.
However, that is not the case here. Clause 1136(3)(ca) contains no element similar to the one discussed in Kim’s case. No criterion articulated in that clause depends on the formation by a third person of a post-lodgment opinion. Consequently, it is not invalid for the reasons which Moore and Allsop JJ said the sch.2 criterion in Kim’s case would have been invalid if it had in fact been a criterion for the validity of the visa application then under consideration.
Second argument
The applicant’s second argument was that it was not possible tell at the time a visa application was lodged whether the criteria prescribed in cls.1136(3A) and (3B) were satisfied and they were invalid as a consequence. In this connection he referred to what Branson J had said at first instance in Kim’s case: Kim vMinister for Immigration & Multicultural & Indigenous Affairs (2004) 82 ALD 51 at 57 [26]:
The distinction drawn by s 47 between the minister’s deciding that an application is not valid and the minister’s duty to consider a valid application suggests that the decision that must be made concerning the validity of an application is intended to be a decision capable of being made without consideration being given to the content of the visa application. Section 46(1) reveals the types of criteria that the legislature intended to affect the validity of an application — for example, that it is an application for a visa of a class specified in the application; that the visa application charge has been paid; that any fees payable have been paid. These are criteria that call for evaluation against objective standards, not the formation of judgments. (emphasis in original)
The applicant submitted that if cls.1136(3A) and (3B) were invalid then cl.1136(3)(ca) had to be invalid too as it could not be severed from those two sub-clauses.
Consideration
The reasoning of Branson J in Kim’s case was not endorsed on appeal, and in any event has been superseded by the reasoning in the appeal decision, and thus it to the latter rather than the former to which reference should be made. On appeal Moore J said:
… it is relatively clear from the language of s 46(4) (which speaks of circumstances “that must exist”) that the regulation authorises the creation of a condition precedent concerning the applicant which exists at the time of the application. In the present case, the condition created by reg 2.12(2) necessarily arises after the application is made because the condition is the formation of a particular opinion about the applicant. The condition is not the circumstances of the applicant at the time of the application in an objective sense. (at 321 [21])
Allsop J relevantly said:
In my view, … the criteria that may be prescribed for the purposes of s 46(3) are criteria which enable a judgment to be made whether, from the time of being made and thereafter, the application was valid or invalid. That cannot be known if the question is dependent on the formulation at some time after the application is made of an opinion or view by the Minister about the applicant's history. (at 323-324 [41])
However, neither cl.1136(3A) nor cl.1136(3B) requires the satisfaction of a condition or the making of a judgment which is dependent on the formulation of an opinion at some point after a visa application is lodged. For that reason, this case is distinguishable from the situation discussed by Moore and Allsop JJ in their obiter comments in Kim’s case. The consequence of this is that the applicant’s second argument must be rejected.
Conclusion
I find that the applicant has not demonstrated that cls.1136(3)(ca), 1136(3A) and 1136(3B) of sch.1 to the Regulations are invalid.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 21 September 2012
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