Karim v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 360
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Karim v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 360
File number(s): SYG 113 of 2020 Judgment of: JUDGE DOUST Date of judgment: 14 March 2025 Catchwords: MIGRATION – application for student visa – application lodged in person at Department of Home Affairs – whether applicant failed to lodge application in the prescribed way – jurisdictional fact – application dismissed Legislation: Migration Act1958 (Cth) ss 46, 46(1)(b), 46(3), 47, 476
Migration Regulations1994 (Cth) regs 2.07, 2.07(1), 2.07(1)(a), 2.07(5), sch 1 item 1222, sch 1 item 1222(3)(a)
Cases cited: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 22 January 2025 The Applicant: In person Solicitor for the Respondents: Ms E Warner-Knight, Office of the Australian Government Solicitor ORDERS
SYG 113 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASIF KARIM
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DOUST:
THE APPLICATION BEFORE THE COURT
The applicant is a citizen of Bangladesh born 21 November 1993, who made an application for a student visa which he lodged with the Department of Home Affairs on 12 December 2019 (the visa application).
On 16 December 2019, an officer of the Department of Home Affairs wrote to the applicant and advised the applicant that his application for a student visa was invalid because it did not meet item 1222(3)(a) of schedule 1 to the Migration Regulations1994 (Cth) (Regulations), which item required the applicant to make his visa application at the place and in the manner specified by the Minister in a legislative instrument made for the item under reg 2.07(5) of the Regulations:
(a)as an internet application; or
(b)by submitting the application in accordance with the directions in the authorising email and with a copy of the authorising email, before midnight (AEST or AEDST when applicable) on the day following the date on which the authorising email was sent by (the authorised officer of) the Department; or
(c)if the applicant is outside Australia the authorised application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
The applicant lodged an application with the Court on 15 January 2020 (application) seeking an order that the respondent, the Minister for Immigration, Citizenship, Migrant Services and the Multicultural Affairs, now Minister for Immigration and Multicultural Affairs (Minister), show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (Act) in respect of the decision communicated by the letter dated 16 December 2019.
The application contained a single ground, as follows:
The respondent has failed to apply the correct test pursuant to 1222(3)(a) of Schedule 1 to the Migration Regulations 1994.
Particulars:
In dealing with the applicant’s claims the respondent explicitly failed to disaggregate the statutory formulae under item 1222(3)(a) of Schedule 1 to the Migration Regulations 1994.
THE HEARING
The applicant appeared in person at the hearing on 22 January 2025, and had the assistance of an interpreter in the Bengali language.
In the course of the hearing, the following were received into evidence without objection:
(1)The affidavit of the applicant dated 15 January 2020. That affidavit annexed a copy of the Department of Home Affairs letter dated 16 December 2019;
(2)A bundle of documents from the Department of Home Affairs file, which bundle had been filed and served by the respondent on 20 March 2020 in accordance with directions made by the Court (Court Book);
(3)An affidavit of Kirby Alexandra Dunlop, a lawyer from the Office of the Australian Government Solicitor, dated 28 May 2020, which annexed a screenshot of records from the Department of Home Affairs showing the applicant’s movement into and out of Australia.
The relevance of the latter document was that it showed that the applicant was in Australia at the time of the visa application in December 2019. During the hearing the applicant accepted that was the case.
At the hearing, the applicant also tendered a single page document, which was received on a provisional basis and marked as Exhibit A2. The document was a single page headed “Outcome of Review” from the Administrative Appeals Tribunal recording an oral decision made on 14 October 2019 to set aside the decision under review and substitute that decision with a decision not to cancel the applicant’s visa (cancellation revocation).
At the hearing, the applicant also sought to tender a letter to me which purported to make a statement in relation to the applicant’s case. The letter was dated 8 January 2025. The letter is a mixture of evidence and submission. On its first page, it recites the applicant’s history between 2013 and 2018, which involved a number of misfortunes.
The letter then went on to narrate, on its second page, the applicant’s conduct following the cancellation revocation. The letter narrates a series of conversations the applicant alleges that he had with the “Australian Immigration Office” in which he was initially asked to wait to be contacted, and then advised to apply for a bridging visa. On 15 November 2019, the applicant alleges that he was called by an officer of the Department of Home Affairs and advised that he was supposed to apply for a student visa, not a bridging visa, and as a result had violated the rules, and was to be detained. The letter alleges that the conversation ended with the officer allowing the applicant 28 days to sort things out.
During the hearing, the applicant expanded as to how unpleasant that experience had been.
The respondent objected to the letter being received on the basis that it was not relevant. That submission is accepted. Whilst the applicant may have been confused and distressed in his dealings with the Department of Home Affairs, the interactions related in the applicant’s letter do not inform the task of the Court, which is to determine whether or not the decision of the officer that the applicant was not validly made is correct.
The letter was not admitted into evidence, but, was received as a submission, given that the applicant had not filed any written submission. The respondent was not opposed to that course.
The applicant was given an opportunity to make submissions in support of his application.
The applicant submitted that he had been in Australia since 2013 and had tried to abide by the law. He submitted that he was from a well-educated family and wished to uphold that tradition. He said he had no intention of contravening any law and wished to achieve his dreams of studying.
The Court intends no disrespect to the applicant by observing that his submission did not shed light on the ground in his application, nor did it develop any argument about a failure of “disaggregation” by the Department of Home Affairs officer.
The respondent relied on its written submissions. The respondent submitted that the matter raised for determination a question of “jurisdictional fact” as to whether the applicant’s application had been validly made or not. The respondent submitted that there was no error demonstrated in the decision that the application was invalid.
DETERMINATION
There was no error by the Departmental officer in determining that the applicant’s application was invalid.
Under the Act, the validity of a visa application is critical to what may follow.
Pursuant to s 47 of the Act, the Minister has a duty to consider any valid application for a visa, and may not consider any application that is not a valid application.
Section 46 of the Act articulates the criteria that must be met for an application to be valid. That section provides as follows:
Valid visa application
(1) Validity--general
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 any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi)section 501E (earlier refusal or cancellation on character grounds); and
(e)it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i)section 46AA (visa applications, and the grant of visas, for some Act-based visas);
(ii)section 46A (visa applications by unauthorised maritime arrivals);
(iii)section 46B (visa applications by transitory persons);
(iv)section 91E or 91G (CPA and safe third countries);
(v)section 91K (temporary safe haven visas);
(vi)section 91P (non-citizens with access to protection from third countries).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a)the applicant is in the migration zone; and
(b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c)the Minister has not waived that condition under subsection 41(2A); and
(d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(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) Provision of personal identifiers
An application for a visa is invalid if:
(a)[repealed]
(aa)the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab)the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
(b)the applicant has not complied with the requirement.
Note:An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
(2AA) [repealed]
(2AB) [repealed]
(2AC) [repealed]
(2B) [repealed]
(2C) [repealed]
(3) Prescribed criteria for validity
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.
(5)To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Importantly, s 46(1)(b) of the Act provides that an application for a visa will be valid if it satisfies the criteria and requirements prescribed under the section (that is, section 46). By s 46(3) of the Act, the Regulations made under the Act may prescribe the requirements for a valid application. Taken together, those two provisions operate such that an application will only be valid where it complies with any requirement established under the Regulations
The requirements for a valid application in the present circumstances were prescribed pursuant to the Regulation.
Regulation 2.07 of the Regulations provided, as at 16 December 2019, as follows:
Application for visa—general
(1)For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a)the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b)regulation 2.12C and the relevant item of Schedule 1 set out:
(i)the visa application charge (if any) payable in relation to an application; and
(ii)the components that may be applicable to a particular application for the visa; and
(c)the relevant item of Schedule 1 sets out other matters relating to the application.
Note:An item of Schedule 1 may provide for matters to be specified by the Minister in a legislative instrument made under subregulation (5).
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.
(5)If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a)an approved form for making an application for a visa of a specified class;
(b)the way in which an application for a visa of a specified class must be made;
(c)the place at which an application for a visa of a specified class must be made;
(d)any other matter.
Note 1:For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.
Note 2:Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.
(6)The legislative instrument may specify different matters for:
(a) different kinds of visa (however described); and
(b) different classes of applicant.
By reg 2.07(1) of the Regulations, for the purposes of s 46 of the Act, the relevant item of schedule 1 of the Regulations sets out both the approved form (reg 2.07(1)(a)) and any other matters relating to the application. By reg 2.07(5) of the Regulations, the Minister could, by legislative instrument, specify an approved form for the making of any application, the way in which an application for a visa of a particular class must be made, the place at which such application must be made, and any other matter.
The “relevant item of schedule 1” (as referred to in reg 2.07(1) of the Regulations) at the relevant time was item 1222 of schedule 1 to the Regulations). That item prescribed the criteria that must be satisfied for an application for a Student (Temporary) (Class TU) visa to be valid. Item 1222 of schedule 1 of the Regulations as at 16 December 2019 provided as follows:
Student (Temporary) (Class TU)
(1)Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
(i)for an applicant who is included in a class of persons specified in an instrument under paragraph (5)(a), the amount is nil; and
(ii) for any other applicant:
First instalment Item Component Amount 1 Base application charge $620 2 Additional applicant charge for any other applicant who is at least 18 $460 3 Additional applicant charge for any other applicant who is less than 18 $150 Note 1: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non‑internet application charge. Not all of the components may apply to a particular application.
Note 2: Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant’s application.
(b) the second instalment (payable before grant of visa) is nil.
(3) Other:
(a)An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b)An applicant may be in or outside Australia, but not in immigration clearance.
(c)If the applicant seeks to satisfy the primary criteria for the grant of a Subclass 500 (Student) visa, the application must be accompanied by evidence of the applicant’s intended course of study in Australia, or activities related to study in Australia, being evidence that satisfies the requirements specified in an instrument under paragraph (5)(b).
(d)If the applicant seeks to satisfy the primary criteria for the grant of a Subclass 500 (Student) visa and will be under 18 years of age at any time while in Australia, the application must be accompanied by evidence of intended arrangements for the applicant’s accommodation, support and general welfare.
(e)An application by a person claiming to be a member of the family unit of a person who is an applicant for a Subclass 500 (Student) visa may be made at the same time and place as, and combined with, the application by that person.
(f)An application by a person claiming to be a member of the family unit of a person who is seeking to satisfy the primary criteria for the grant of a Subclass 590 (Student Guardian) visa must be made at the same time as, and combined with, the application by that person.
(4)If the applicant is in Australia, the applicant must hold a substantive temporary visa (other than a substantive temporary visa specified in an instrument under paragraph (5)(c)), or must satisfy the following paragraphs:
(a) the applicant is not the holder of a substantive visa;
(b) the last substantive visa held by the applicant was:
(i) a student visa; or
(ii) a special purpose visa; or
(iii)a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse or de facto partner, or a dependent relative, of a diplomatic or consular representative of a foreign country;
(c) the application is made within 28 days after:
(i)the day when that last substantive visa ceased to be in effect; or
(ii)if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:
(A)the day when that last substantive visa ceased to be in effect; and
(B)the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision;
(d)the applicant has not previously been granted a visa based on an application made when the applicant did not hold a substantive visa.
(5)The Minister may, by legislative instrument, specify all or any of the following:
(a)classes of persons to whom subparagraph (2)(a)(i) applies;
(b)the requirements that evidence required by paragraph (3)(c) must satisfy;
(c)substantive temporary visas for the purposes of subitem (4).
(6) Subclasses:
500 (Student)
590 (Student Guardian)
(7) In this item:
course of study has the same meaning as in clause 500.111.
Item 1222 of schedule 1 of the Regulations prescribes, at sub item (1) a requirement to use the form specified by the Minister in a legislative instrument made for the item under reg 2.07(5) of the Regulations. Subitem 3(a) of item 1222 of schedule 1 of the Regulations provides that an application must be made at any place and in any manner specified by the Minister in a legislative instrument made for the purposes of the item under reg 2.07(5) of the Regulations.
The Minister made a legislative instrument relevant to that visa class: “Arrangements for Student Visa Applications 2017/011”, known as “IMMI 17/011”.
That instrument prescribed both the form, and the place and manner of making a Student (Temporary) (Class TU) visa. In the final column of the table three ways of making the application are prescribed. They are:
i) as an internet application; or
ii)by submitting the application in accordance with the directions in the email authorising the use of form 157A, and with a copy of the authorising email, before midnight (AEST or AEDST when applicable) on the day following the date on which the authorising email was sent by (an officer of) the Department of Immigration and Border Protection; or
iii)If the applicant is outside Australia the authorised application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
The factors that determine the validity of an application are stated objectively. The validity of an application does not turn on the state of satisfaction of an officer, or the exercise of any discretion, and is not amenable to review as such. Rather, the question of validity is a jurisdictional fact, that is, one that may be determined by the Court: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 at 528 [26]-[27].
There was no dispute in the present matter that the applicant was in Australia at the time he lodged the application. As a consequence, the third method of making the application, being lodgement at a diplomatic, consular or migration office outside Australia, was not available to the applicant, leaving the first two means.
The applicant did not contend that he had employed either of the first two means of making his application, and he provided no evidence to that effect. Speaking from the bar table, he claimed to have physically taken the application to the Department himself to submit. The visa application that appears in the Court Book contains on the front page a stamp indicating it was physically received by the Department of Home Affairs. Whilst the applicant had used Form 157A, he did not provide any evidence of any email from the Department authorising the applicant to submit his application by using Form 157A.
In those circumstances, the application was invalid, and there was no error in the decision of the officer communicated by the 16 December 2019 letter.
The application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 14 March 2025
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