Kumar v Minister for Immigration

This matter concerned an appeal by Mr Kumar against a decision of the Tribunal, which affirmed the delegate's refusal to grant Mr Kumar and Mrs Arora Student (Temporary) (Class TU) visas. The primary issue was whether Mr Kumar's visa application satisfied criterion 572.211, which requires an application to be made before the expiration of the applicant's last substantive visa. The Tribunal found that Mr Kumar's last substantive visa expired on 12 January 2014, and his new application was lodged on 13 January 2014, thus failing to meet this criterion.

The legal issues before the court were whether the Tribunal erred in its interpretation and application of criterion 572.211, and whether section 36 of the *Acts Interpretation Act 1901* (Cth) operated to extend the time for lodging the visa application. Specifically, the court had to consider if the *Migration Act 1958* (Cth) "requires or allows a thing to be done" within the meaning of section 36(2) of the *Acts Interpretation Act*, and if so, whether the lodgement date of 13 January 2014, being the day after the expiry of the substantive visa, was permissible.

The court considered submissions that section 36 of the *Acts Interpretation Act* should be given a beneficial interpretation as a remedial provision. This section provides that if the last day for doing something falls on a Saturday, Sunday, or holiday, it may be done on the next non-weekend or non-holiday. The applicant argued that the *Migration Act* requires or allows a visa application to be made, and that the expiry date of a visa should be treated as the last day for making such an application. The court noted the explanatory memorandum for the amendment to section 36, which indicated it was intended to modernise and clarify time calculations, not to substantively change existing policy, and to capture situations where a place for doing something might be closed. The court also had regard to the object of the *Migration Act* and the requirements for a valid visa application under section 46.

The Tribunal's decision was affirmed. The court found that the Tribunal correctly interpreted criterion 572.211 as requiring the application to be lodged *before* the expiry of the last substantive visa. The court determined that section 36 of the *Acts Interpretation Act* did not apply to extend the time for lodging the visa application in this instance, as the expiry date of the substantive visa was not a Saturday, Sunday, or holiday, and the *Migration Act* did not "require or allow" the application to be made on the day after expiry in the manner contemplated by section 36(2). Consequently, Mr Kumar did not satisfy the criterion, and as Mrs Arora's application was dependent on his, her application also failed.