Huynh v Minister for Immigration and Citizenship
[2013] FCA 103
•20 February 2013
FEDERAL COURT OF AUSTRALIA
Huynh v Minister for Immigration and Citizenship [2013] FCA 103
Citation: Huynh v Minister for Immigration and Citizenship [2013] FCA 103 Appeal from: Huynh v Minister for Immigration and Citizenship [2012] FMCA 864 Parties: HAI BANG HUYNH v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 1556 of 2012 Judge: NICHOLAS J Date of judgment: 20 February 2013 Catchwords: MIGRATION – whether cl 1136(3)(ca) of the Migration Regulations 1994 (Cth) is invalid because it is not authorised by s 46(4) of the Migration Act 1958 (Cth)
Held: cl 1136(3)(ca) of the Migration Regulations 1994 (Cth) authorised by s 46(4) of Migration Act 1958 (Cth) – appeal dismissed with costs
Legislation: Migration Act 1958 (Cth) s 31, s 45, s 46 s 476
Migration Regulations 1994 (Cth) reg 2.07, cl 1136Cases cited: Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 51
Minister for Immigration and Multicultural and Indigenous Affairs v Kim (2004) 141 FCR 315Date of hearing: 15 February 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: Mr L Karp Solicitor for the Appellant: VietAust Lawyers Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1556 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: HAI BANG HUYNH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 FEBRUARY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1556 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: HAI BANG HUYNH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
NICHOLAS J
DATE:
20 FEBRUARY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant brought an application for relief in the Federal Magistrates Court under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of a decision of a delegate of the respondent made on 28 February 2012. By that decision the delegate determined that the appellant’s application for a Skilled Sponsored Visa (Class VB, Subclass 886) was invalid.
The primary judge dismissed the appellant’s application. The appellant now appeals against his Honour’s order.
There is only one point raised in the appeal. It is identified in the appellant’s written submission in these terms:
The issue in this appeal is whether the Court Below was correct in holding that Cl.1136(3)(ca) of Schedule 1 of the Migration Regulations, and those provisions which are directly dependent on it (i.e. Clauses 1136(3A) and 1136(3B) of Schedule 1) are valid.
The appellant contended before the primary judge that cl 1136(3)(ca) of Schedule 1 of the Migration Regulations 1994 (Cth) (the Regulations) was invalid. His Honour rejected that contention.
THE RELEVANT PROVISIONS
The Migration Act
Section 31 of the Act provides:
(1) There are to be prescribed classes of visas.
(2)As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B.
(3)The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(4)The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(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 provides that, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
Section 46(1) of the Act provides:
(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).
It is not necessary to set out s 46(1A)-(2) of the Act because they do not bear on the particular issue raised in this appeal.
Section 46(3)-(4) of the Act provides:
(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.
The Migration Regulations
Regulation 2.07(1) provides:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b)the visa application charge (if any) payable in relation to an application;
(c)other matters relating to the application.
Clause 1136 is found in Sch 1, Pt 1 of the Regulations. Clause 1136(1) and (2) are concerned with prescribed forms and charges. At all relevant times, cl 1136(3) provided:
(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.
[emphasis added]
THE APPELLANT’S LEGAL ARGUMENT
As already mentioned, the delegate decided that the appellant’s visa application was invalid by reason of non-compliance with cl 1136(3)(ca). It requires that an applicant seeking to satisfy the primary contention for the grant of a subclass 886 visa meet the requirements of subitem (3A) or (3B). Clause 1136(3B)(d) requires that “the sponsorship was entered into on [sic] Form 1277 (Internet) or 1277”. It is now common ground that the appellant’s visa application did not comply with the latter requirements.
The validity of cl 1136(3)(ca) must be assessed by reference to s 46(3) and (4) of the Act. The appellant says that cl 1136(3)(ca) is beyond the regulation-making power conferred by s 46(3) and (4).
The appellant’s argument, in essence, is that cl 1136(3)(ca) is concerned with the intention of an applicant to apply for a subclass 886 visa. Adopting the proposition that cl 1136(3)(ca) is concerned with the applicant’s intention as the starting point, the appellant’s argument was developed in his counsel’s written submissions in these terms (at para 29):
On analysis, the only paragraph of sub section 46(4) which could conceivably support Cl 1136(3)(ca) of Schedule 1 in [sic] paragraph (a). However, the intention of the visa applicant in seeking to satisfy primary criteria for a particular sub class of visa does not fit within “circumstances [of the applicant] which must exist …”. The visa applicant’s intention cannot be described as a circumstance.
DISCUSSION
Regulation 1136(3)(ca) provides that a person seeking a particular class of visa must comply with a number of requirements that are specified in items (3A) and (3B). In my view, reg 1136(3)(ca) does no more than provide that a person who is applying for a subclass 886 visa must satisfy the requirements of subitems (3A) or (3B). Whether or not a person is seeking a subclass 886 visa is a question of fact. If a person is applying for a subclass 886 visa then he or she must satisfy the requirements of subitems (3A) or (3B) if the application is to be valid.
In my opinion reg 1136(3)(ca) “prescribe[s] the circumstances that must exist for an application for a visa of a specified class to be a valid application” and is plainly authorised by s 46(4)(a).
In support of his argument to the contrary, counsel for the appellant referred me to the decision of Branson J in Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 51. Her Honour drew a distinction (at para [26]) of her reasons for judgment between a requirement that is founded upon some “objective standards” as opposed to those that depend upon “the formation of judgments”. An appeal from her Honour’s decision was allowed in part: see Minister for Immigration and Multicultural and Indigenous Affairs v Kim (2004) 141 FCR 315 (Moore, Tamberlin and Allsop JJ).
It is unnecessary to analyse the reasoning of Branson J or the Full Court in detail. It is sufficient to say that the relevant regulation in issue in that case was very different to that with which I am concerned. In particular, it required that the Minister be of the view that the applicant “before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia”: see para [8] of Moore J’s reasons in the Full Court where the relevant regulation is conveniently reproduced. In any event, the Full Court concluded (contrary to Branson J) that the regulation in issue in that case was not concerned with a matter going to the validity of the visa application.
The present case is not analogous to Kim’s case. Here, as I have said, the relevant regulation is concerned only with a matter of fact namely, whether the applicant is seeking a subclass 886 visa. And if the applicant is seeking such a visa, then his or her application must comply with the requirements of items (3A) or (3B) if it is to be a valid application for the purposes of the Act.
DISPOSITION
For the above reasons, the appeal will be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 20 February 2013
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