Khati v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 750

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Khati v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 750

File number(s):

SYG 660 of 2023

Judgment of:

JUDGE CAMERON

Date of judgment:

22 August 2023

Catchwords:

MIGRATION – Temporary Activity (subclass 408) visa – invalid application – application not determined to be valid by a request being made under s.65 of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth) ss 47, 48, 56, 474, 501, 501A, 501B

Migration Regulations1994 (Cth) reg 2.12

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25

Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523

Division:

General

Number of paragraphs:

18

Date of hearing:

9 August 2023

Place:

Sydney

Solicitor for the Applicant:

Residency Legal

Solicitor for the Respondent:

MinterEllison

ORDERS

SYG 660 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BIMAL KHATI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE CAMERON
DATE OF ORDER:	22 August 2023

THE COURT ORDERS THAT:

1.The application be 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 CAMERON

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia on 18 May 2014.  On 23 March 2021 he lodged an application for a Temporary Activity (subclass 408) visa with the Department of Home Affairs (“Department”).  On 21 March 2023 that application was assessed as invalid by a delegate (“Delegate”) of the first respondent (“Minister”).  The applicant has applied to this Court for judicial review of the Delegate’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Delegate’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   BACKGROUND FACTS

   Initial student visa application

4. A solicitor representing the Minister, Sophie Edmondstone, filed an affidavit affirmed on 12 July 2023 to which were annexed copies of correspondence and various documents held by the Department which referred to an earlier visa application made by the applicant. Ms Edmondstone’s evidence was to the effect that in 2016 the applicant had been refused a Student (subclass 500) visa for reasons unrelated to ss.501, 501A or 501B of the Act.

   The Department’s decision

5. On 21 March 2023 the Department informed the applicant that his visa application was invalid because it did not meet s.48 of the Act, which prevented him from applying for a Temporary Activity (subclass 408) visa because in 2016, after last entering Australia, he had been refused the Student (subclass 500) visa referred to in Ms Edmondstone’s affidavit.

6. Six weeks before that decision, the Department had written to the applicant seeking certain information from him concerning police clearances.  He responded to that request.

   LEGISLATION

7. Section 48 of the Act provides relevantly as follows:

   48Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas

   (1)       A non‑citizen in the migration zone who:

   (a)       does not hold a substantive visa; and

   (b)       after last entering Australia:

   (i)was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or

   (ii)…

   may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

   (1A)     A non‑citizen in the migration zone who:

   (a)       does not hold a substantive visa; and

   (b)after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non‑citizen’s behalf, whether or not:

   (i)        the application has been finally determined; or

   (ii)the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or

   (iii)the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;

   may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

   . . .

8. Section 48 prevents a person who has previously been refused a visa or had a visa cancelled from applying for a visa that is not mentioned in reg.2.12 of the Migration Regulations1994 (Cth) (“Regulations”), which relevantly provided as follows:

   2.12 Certain non‑citizens whose applications refused in Australia (Act, s 48)

   For section 48 of the Act the following classes of visas are prescribed:

   (a)        Partner (Temporary) (Class UK);

   (b)        Partner (Residence) (Class BS);

   (c)       protection visas;

   (ca)      Medical Treatment (Visitor) (Class UB);

   (e)       Territorial Asylum (Residence) (Class BE);

   (f)       Border (Temporary) (Class TA);

   (g)       Special Category (Temporary) (Class TY);

   (h)       Bridging A (Class WA);

   (j)        Bridging B (Class WB);

   (k)       Bridging C (Class WC);

   (l)        Bridging D (Class WD);

   (m)       Bridging E (Class WE);

   (ma)     Bridging F (Class WF);

   (mb)     Bridging R (Class WR);

   (o)       Resolution of Status (Class CD);

   (p)       Child (Residence) (Class BT);

   (q)       Retirement (Temporary) (Class TQ);

   (r)        Investor Retirement (Class UY).

9. The visa which the applicant sought was not one of those listed in reg.2.12 of the Regulations.

   THE PROCEEDING IN THIS COURT

10. In the application commencing this proceeding the applicant alleged:

    1.The Delegate has made a jurisdictional error by exercising the power to determine the validity of the application when his power to do so has already been exhausted and utilized by the first officer in making such determination.

    a.The Applicant applied for the visa for himself and his wife as an accompanying family member on 23 March 2021. 

    b.The officer of the Department requested further information on the matter under section 56 on 03 February 2023.

    c.At the time of section 56 request an officer of the Department has already made a determination on validity of the application under section 46.

    d.The second delegate/officer of the Department made a second determination about the validity of the application and determined the application to be invalid on 21 March 2023.

    e.This determination is an exercise of the same power already extinguished and cannot be made by the second officer, once the decision by the first officer has been made it cannot be revisited by the second officer under section 46.

    f.In Minister for Home Affairs v Brown [2020] FCAFC 21 at 17 (also, Makasa [2020]), it has been suggested that the power once exercised is exhausted in particular set of factual circumstances. 

    g.The applicant seeks this Court’s determination as to the questions: in considering the application and determining validity, ‘when is the validity of the application determined, and whether the validity once determined and assessed as valid be determined again by a separate officer’?

    h.The applicant seeks to quash the decision of the second officer as to validity of the application made 2 years after the application. 

11. A second allegation was abandoned.

12. It was submitted that the request for information about police documents had been made pursuant to s.56 of the Act which relevantly provides:

    56       Further information may be sought

    (1)In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

    …

    It was argued that as s.56 of the Act only permitted the seeking of further information in circumstances where a visa application was being considered, the request for information implied that a decision had been made that the application was a valid one. In that regard the applicant also referred to s.47 of the Act, which relevantly 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.

    …

    The point was that if the Minister, through the Delegate, could only consider valid visa applications, the making of a s.56 request for information necessarily implied that the visa application in question had been accepted to be valid. It was further said that such a conclusion was one from which the Minister could not later resile, the implication being that, once the request for information was made, the Minister was functus officio, at least on the question whether the application was a valid one.  It was therefore argued that it had not been open in this case for the Delegate subsequently to conclude that the applicant’s application had not been valid.

13. I do not agree.  To the extent that any decision to seek information was based on a finding or conclusion that the visa application was valid, it has not been shown that such a decision possessed the quality of finality and irreversibility that renders a decision-maker, in this case the Minister and his or her delegates, functus officio:  Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25. In any event, the Minister’s assessment of a visa application’s validity is no more than the forming of a view on an objective fact and is not the exercise of a power conferred on the Minister by the Act: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at 528 [26]–[27]. As such it is not an act to which the doctrine of functus officio has any relevance.

14. The applicant also argued in his written submissions:

    46. The applicant also submits that the validity of any application should be temporal and cannot be made after 2 years.

    47. The applicant seeks to quash the decision of the second officer as to validity of the application made 2 years after the application.

    48. The Second delegate acted otherwise and hence fell into jurisdictional error.

15. No basis for the proposed 2 year limitation period was identified.  However, even if one had been, the facts of this matter do not support the argument as the application was made on 23 March 2021 and the Delegate’s decision to refuse it was made on 21 March 2023, that is to say less than two years later.

16. The application discloses no error on the Minister’s part.

    CONCLUSION

17. Jurisdictional error on the part of the Delegate has not been demonstrated.

18. Consequently, the application will be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       22 August 2023