Le v Minister for Immigration
[2019] FCCA 2167
•12 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION | [2019] FCCA 2167 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to bring application for review against decision not to waive condition – consideration of factors applicable to extension of time application. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 75 |
| Cases cited: Ahmed v Minister for Immigration & Border Protection [2015] FCA 812 |
| Applicant: | THI LINH LE |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 1 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 21 February and 2 May 2017 |
| Date of Last Submission: | 2 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 12 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr S Walker |
| Solicitors for the Applicant: | Chang Lawyers |
| Counsel for the First Respondent: | Ms E Tattersall (on 21 February 2017) and Mr A Burgess (on 2 May 2017) |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s application for an extension of time in relation to proposed grounds 3 and 4 as set out in the Further Amended Application filed on 3 May 2017 be dismissed.
The originating application filed 5 January 2016, as amended on 5 February 2017, and further amended on 3 May 2017, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 1 of 2016
| THI LINH LE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 January 2016 the applicant, Ms Thi Linh Le (“Ms Le”), lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of a delegate of the respondent, the Minister for Immigration and Border Protection (“Minister”) made on 16 December 2015 (“First Decision”).
An amended Judicial Review Application was filed on 5 February 2017 seeking review of the First Decision pursuant to s.476 of the Migration Act or s.39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) (“Amended Judicial Review Application”). On 3 May 2017, Ms Le filed a further amended Judicial Review Application (“Further Amended Judicial Review Application”) seeking review of the First Decision and the decision of another delegate of the Minister dated 8 April 2016 (“Second Decision”).
The First Decision was a decision to deem Ms Le’s application for a Partner (Temporary) (class UK) (subclass 820) (“Partner Visa”) invalid. The Second Decision was a decision not to waive Condition 8503 of sch.8 to the Migration Regulations 1994 (Cth) (“Condition 8503” and “Migration Regulations” respectively) in order to enable Ms Le to make a valid Partner Visa application.
The matter was heard over two days, 21 February 2017 (“First Hearing”) and 2 May 2017 (“Second Hearing”). The Court adopted this course after it emerged that it was only the day prior to the First Hearing that Ms Le became aware of the Second Decision, and in light of s.14 of the Federal Circuit Court of Australia Act 1999 (Cth) requiring this Court to determine all matters in issue and avoid multiplicity of proceedings, the Court considered that it was appropriate to adjourn the matter to allow Ms Le and the Minister to address the Second Decision. Both parties agreed to this course, and at the commencement of the Second Hearing the Minister raised no objection to Ms Le having leave to rely upon the Further Amended Judicial Review Application.
The Court notes that there were three Court Books tendered in these proceedings, namely:
a)the initial Court Book (“ICB”);
b)the Supplementary Court Book (“SCB”); and
c)the Further Supplementary Court Book (“FSCB”).
The ICB is Exhibit 1 in the proceedings; the SCB is Exhibit 2; and the FSCB is Exhibit 3.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Further Amended Judicial Review Application;
b)the ICB filed 2 March 2016 tendered at the First Hearing and marked as Exhibit 1;
c)the SCB filed 20 February 2017 tendered at the First Hearing and marked as Exhibit 2;
d)the FSCB filed 1 May 2017 tendered at the Second Hearing and marked as Exhibit 3;
e)the Form 956 completed by Ms Le tendered at the Second Hearing and marked as Exhibit 4 (“Form 956”);
f)the notification letter from the Department dated 8 April 2016 tendered at the Second Hearing and marked as Exhibit 5 (“Department’s Notification Letter”);
g)the affidavit of Ms Le affirmed 25 April 2017 (“Ms Le’s Affidavit”);
h)the affidavit of Mr Morrison affirmed 25 April 2017 (“Mr Morrison’s Affidavit”);
i)Ms Le’s outlines of submissions filed 7 February 2017 and 26 April 2017 respectively;
j)the Minister’s outlines of submissions filed 15 February 2017 and 1 May 2017 respectively; and
k)the transcript of the hearing on 21 February 2017 (“Transcript Day One”) and the transcript of the hearing on 2 May 2017 (“Transcript Day Two”).
It is also relevant to note that there was no oral witness evidence given, or oral examination of witnesses who filed affidavits, at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
The relevant background is as follows:
a)Ms Le met her partner, Mr Brennan Morrison (“Mr Morrison”), in Kuala Lumpur in July 2014, and Ms Le visited Perth in December 2014, and the couple “decided” they were a “fully-fledged de facto couple” on around 5 December 2014 and spent Christmas in Australia together in December 2014: ICB 6;
b)Ms Le and Mr Morrison sought advice on Ms Le applying for a “fiancé visa”, however, they were advised against this option until such time as Mr Morrison, who was married at the time he commenced his relationship with Ms Le, had been granted a divorce, and therefore in February 2015 Ms Le returned to Vietnam: ICB 6;
c)Ms Le learned she was pregnant around March 2015 and Ms Le returned to Australia on 6 May 2015 on a Visitor Visa (Class FA) Subclass 600 (“Visitor Visa”). The Visitor Visa had Condition 8503 imposed, and expired on around 2 August 2015: ICB 1 and FSCB 12;
d)on 3 August 2015 Ms Le sent a written application for a waiver of Condition 8503 to the Minister’s department (“Department”) for consideration, including a statutory declaration of Mr Morrison detailing “compelling” circumstances (if Condition 8503 was waived, Ms Le could apply for a Partner Visa): FSCB 1-15;
e)on 20 August 2015 the delegate made a decision refusing to waive Condition 8503 to enable Ms Le to apply for a Partner Visa: FSCB 16-18;
f)on 22 October 2015 Ms Le gave birth to her and Mr Morrison’s child: ICB 1;
g)on 14 December 2015 Ms Le applied for the Partner Visa and in an undated letter, her migration agent made submissions as to the “compelling circumstances” for the grant of the Partner Visa and a waiver of Condition 8503: ICB 1-4;
h)on 16 December 2015 a delegate made the First Decision, that the application for a Partner Visa was invalid: ICB 9-10;
i)the Judicial Review Application and the Amended Judicial Review Application were filed in this Court on 5 January 2016 and 5 February 2017 respectively, both seeking review of the First Decision; and
j)on 8 April 2016 the decision not to waive Condition 8503, the Second Decision, was made by another delegate: SCB 1-4.
The First and Second Decisions
The First Decision was that the application for the Partner Visa made on 14 December 2015 was invalid under s.46(1A) of the Migration Act due to Ms Le having entered Australia on a Visitor Visa subject to Condition 8503, and that the associated bridging visa application was also invalid because of the invalidity of the Partner Visa application: ICB 9. Section 46(1A) of the Migration Act provides as follows:
46 Valid visa application
…
(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.
Condition 8503 relevantly provided as follows:
8503 The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
In the First Decision the delegate found as follows:
Your application for a visa is invalid because it did not meet subsection 46(1A) of the Migration Act 1958 (the Act). That provision provides that your application is invalid as since you entered Australia you held a visa subject to condition 8503 “No Further Stay”.
Where a visa is subject to this condition, the visa holder may only make a valid application in Australia for certain limited classes of visas, unless the condition is waived.
Invalid applications cannot be considered. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.
ICB 9 (transcribed verbatim).
The Second Decision noted the information and evidence before the delegate in respect of the request to waive Condition 8503, including the “Notification of Invalid Spouse Application”. A different delegate made the Second Decision. The delegate set out reg.2.05(4) of the Migration Regulations as follows at SCB 2:
For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i)over which the person had no control; and
(ii)that resulted in a major change to the person’s circumstances; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
The delegate then went on to find as follows:
Regulation 2.05(4), of the Regulations, sets out the circumstances in which the Minister may waive a certain condition, in this case, condition 8503. Where the Minister has previously refused to waive the condition on 20 August 2015, the Minister must be satisfied that compelling and compassionate circumstances have developed since you were granted the Visitor visa that was subject to condition 8503, over which you had no control, and resulted in a major change to your circumstances; and are substantially different from those considered previously.
Having considered the circumstances of your second request under paragraph 2.05(4)(b) of the Regulations, I am satisfied that they are substantially different.
The client travelled to Australia on a tourist visa knowing she is in the late stages of pregnancy, expecting to give birth and remain with her partner. While I acknowledge that the client circumstances have undergone a major change with the birth of her daughter on 22 October 2015, giving birth is not a circumstance that is outside the client’s control.
The client is the mother of an Australian citizen minor child who has the right to remain in Australia and has the right not to be separated from either parent under the Convention of the Rights of the Child (CRC). Due consideration has been given to the Convention of the Right of the Child (CRC) in the context of the request to waive condition 8503.
I have given consideration to Australia’s obligations under the United Nations Convention on the Rights of the Child (CRC), however this does not outweigh the fact that the applicant does not meet all of the criteria and failure to satisfy any part of regulation 2.05(4) requirements must result in the waiver request being refused.
The term ‘compelling’ is not defined in the migration legislation. It is therefore given its ordinary meaning. ‘Compelling’ means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition. I have considered the reasons and information provided in the waiver request and I am not satisfied that they are sufficiently forceful to make a decision to waive the condition.
Therefore while I accept the circumstances are compassionate in nature, I am not satisfied they are compelling.
Decision
As I find that the circumstances in subregulation 2.05(4) are not met by the client, I therefore refuse the request by the client for a waiver of condition 8503.
SCB 2-3 (transcribed verbatim).
Further Amended Judicial Review Application
It is unnecessary to refer to the previous applications made by Ms Le prior to the Further Amended Judicial Review Application, as it was the grounds of review in the Further Amended Judicial Review Application that were before the Court for consideration.
In the Further Amended Judicial Review Application, Ms Le relied upon two grounds (grounds 1 and 2) in respect of the First Decision and two proposed grounds (grounds 3 and 4) in respect of the Second Decision. Those grounds are set out at [22] (First Decision – grounds 1 and 2) and [46] (Second Decision – proposed grounds 3 and 4) below.
Jurisdiction and jurisdictional error
The Minister’s response to the Judicial Review Application was amended to include a ground that this Court did not have jurisdiction as the First Decision was not a “migration decision” for the purpose of s.476(1) of the Migration Act. This caused Ms Le to submit that the Court, if not under s.476(1) of the Migration Act, then under s.39B of the Judiciary Act had jurisdiction. Ms Le’s counsel at the first hearing on 21 February 2017 addressed the Court on this. It is noted that it is the first duty of every court to determine whether or not it has jurisdiction: Federated Engine-Drivers & Firemen’s Association of Australasia v The Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285, CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Issacs J; Re Boulton; Ex parte Construction, Forestry, Mining & Engineering Union (1998) 73 ALJR 129; (1998) 85 IR 468, ALJR at 133 per Kirby J.
The Minister conceded in the written submissions dated 1 May 2017 that this Court does have jurisdiction to consider the validity of a visa application. As to the First Decision, the question of validity of a visa application is a question the Court should decide: Minister for Immigration & Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 at [27] per Yates, Robertson and Wigney J. As to the Second Decision, there is no right of merits review, and therefore the “first port of call” is this Court: Ahmed v Minister for Immigration & Border Protection [2015] FCA 812 at [11] per Perram J. The First and Second Decision are not reviewable under Pts.5, 7 or 7AA of the Migration Act, as they are not primary decisions, and therefore this Court is satisfied it does have jurisdiction under s.476(1) of the Migration Act. There is no need to consider s.39B of the Judiciary Act any further.
A further issue arises in respect of the Second Decision, whereby the Court must determine if it should exercise the discretion to extend time in accordance with s.477(2) of the Migration Act. Unless the Court exercises that discretion in Ms Le’s favour, the Court has no jurisdiction to review the Second Decision. The Court will address the Second Decision, including the extension of time at [46]-[49] below.
While this Court is satisfied it has jurisdiction to consider the First Decision, and if the Court exercises the discretion to extend time pursuant to s.477(2) of the Migration Act allowing it to consider the Second Decision, that jurisdiction is confined to determining whether the First and Second Decisions might be set aside by this Court upon judicial review if they are affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error may constitute jurisdictional error if the decision-maker:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material;
d)relies on irrelevant material;
e)in certain circumstances, denies procedural fairness to which an applicant is entitled under the Migration Act; or
f)deals with a matter in a manner which is legally unreasonable: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”).
The First Decision
Grounds 1 and 2 of the Further Amended Judicial Review Application relate to the First Decision and are as follows:
1. In dealing with the Applicant’s application for a Partner (Temporary) (class UK) (subclass 820)/Partner (Residence) (class BS) (subclass 801) visa (Visa Application), the Respondent committed a jurisdictional error by failing:
(a) to have regard to, and
(b) to decide as a preliminary matter,
her request to waive condition 8503, when he had a statutory duty under s 54 of the Migration Act 1958 (Act) to do so, and that error vitiated his decision that her visa application was invalid, as it is a purpose of the Act that an act done in breach of s 54 should be invalid.
2. In the alternative to Ground 1, if the Respondent did not have a duty to first decide the waiver request, he had a discretionary power to do so, and his failure to positively exercise that power by first deciding the waiver request was legally unreasonable.
Ms Le’s submissions
Ms Le made the following submissions in support of grounds 1 and 2 of the Further Amended Judicial Review Application:
a)in the covering letter accompanying Ms Le’s Partner Visa application it is stated the previous Visitor Visa “may” have had Condition 8503 applied, and “If so, please accept this letter as a request to waive the No Further Stay condition...”, the remainder of the covering letter then being wholly dedicated to advocating for the request for waiver of Condition 8503 and of the requirements in sch.3 of the Migration Regulations applicable to the Partner Visa;
b)the delegate had a duty under s.54 of the Migration Act to have regard to the waiver request and submissions, as they were “information in the application”, being information in a document attached to the Partner Visa application;
c)the expression “have regard to” in s.54(1) of the Migration Act suggests a process of consideration of information and therefore the duty imposed by that provision would not be discharged if there was no realistic or genuine regard given to the information;
d)in the present case, the request and supporting submission informed the delegate that Ms Le was requesting that the bar to validity of her Partner Visa application be waived, and that request was crucial to the outcome of the Partner Visa application and highly relevant;
e)the failure to either have regard to the waiver request or to not decide it prior to rejecting the Partner Visa application is unfair, and this is a case in which a consideration of the purpose of the duty or power in question connects an unfair action with a substantive obligation on the part of the decision-maker;
f)it follows from the terms of s.54 of the Migration Act that there was at least a duty to consider whether it would be appropriate in the circumstances to decide upon the waiver request as a first step, before moving to a conclusion as to the validity of the Partner Visa application and the material before the Court leads to the inference the delegate failed to do so;
g)further, if the delegate did not have a duty to decide upon the request prior to rejecting the Partner Visa application as being invalid, there was at least a discretion to do so, as there is nothing in the Migration Act or Migration Regulations requiring the contrary, nor is there a time stipulated for the making of a decision upon a waiver request;
h)if such a power was discretionary, the failure to exercise it before reaching a conclusion that the Partner Visa application was invalid was, on the facts of this case, unreasonable, and lacks an evident and intelligible justification, and the Court should infer there has been a failure to properly exercise the discretion as the result is unreasonable or plainly unjust; and
i)the word “may” is used in the reg.2.05(4) of the Migration Regulations not to give a discretion, but to confer a power which is to be exercised upon the repository being satisfied of the matters described in the provision.
At the Second Hearing Ms Le made the following further submissions:
a)that Vahaakolo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 648 (“Vahaakolo”) is not a case that can survive following Li;
b)there is a code of procedure for dealing with visa applications and it does not state that a visa waiver request must be submitted or lodged prior to the application for a visa, and given it is a detailed set of provisions if that was desired it should have been expressed. Time limits are notoriously important in visa applications and if that was what was intended one would expect to see that expressly set out in the provisions;
c)it does not make administrative sense, nor sense in terms of fairness to an applicant, to contend that an applicant has to lodge a waiver request first and separately;
d)there was a duty to “deal with” the waiver request, and the most appropriate conclusion to draw, is that it was necessary to do so before determining the Partner Visa application, but in the alternative, there was a duty for the delegate to at least consider if they should “deal with” the waiver request first, and, in the further alternative, the delegate at least had a discretion enabling them to decide upon the waiver request prior to rejecting the Partner Visa application;
e)unreasonableness can arise by either a pure failure to deal with an issue, in this case the failure to deal with the waiver application, or in a case of errant fact-finding in certain circumstances that can make a decision unreasonable and sufficiently demonstrate a failure to exercise jurisdiction;
f)in ground 1 the jurisdictional error is established in the delegate failing to have regard to and decide as a preliminary matter the request to waive Condition 8503 when there was a statutory duty to do so and that error therefore vitiated the First Decision;
g)if the delegate did not have a duty to first decide the waiver request, there was a discretionary power to do so and the failure to positively exercise that power was legally unreasonable;
h)section 46(1A) of the Migration Act is directed to the time when the application for a visa comes to be considered, not the time when the application is lodged, and there is nothing in the Migration Act that prevents a person lodging an application that is invalid, the adjective “invalid” goes to the legal status of the application when it comes to be considered and in Ms Le’s case it should not have been considered until the waiver issue had been addressed; and
i)the question of a visa application’s validity falls to be determined when it is considered, and having regard to the material presented with Ms Le’s Partner Visa application, in this case a request for waiver, the delegate could not lawfully move to determine or conclude that the Partner Visa application was invalid until the waiver request had been considered.
Minister’s submissions
The Minister made the following submissions in response:
a)the delegate correctly concluded that the application for the Partner Visa was invalid having regard to s.46(1A) of the Migration Act;
b)whilst it is accepted that Ms Le applied for waiver of Condition 8503 in conjunction with her Partner Visa application, such waiver had not been granted prior to the lodgement of the Partner Visa application;
c)the present matter is materially indistinguishable from Vahaakolo and the relevant fact which formed the basis of the Federal Court’s decision in Vahaakolo, and consistent with the legislation, is whether the condition had been waived prior to the lodgement of the application;
d)accordingly, although Ms Le may have been entitled to seek a waiver of Condition 8503 at any time, as the waiver request had not been granted prior to the lodgement of the Partner Visa application, s.46(1A) of the Migration Act applied and the Partner Visa application was invalid;
e)this is not a matter in which Ms Le simply filled out an application form incorrectly, and any invalidity cannot be cured by any subsequent event, even if that subsequent event involved a cessation of the previous state of affairs: Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597; (2001) 114 FCR 126 (“Sevim”);
f)as such, there was no duty on the delegate to consider whether it would be appropriate to decide the waiver request prior to determining the validity of the application, and the delegate had no discretion to do so; and
g)there was an imperative obligation not to consider the Partner Visa application, and having regard to that fact, it cannot be said that an error occurred by the delegate not considering the fact that Ms Le was seeking a waiver.
Consideration – ground 1
The First Decision was that Ms Le’s Partner Visa application was invalid under s.46(1A) of the Migration Act.
Ms Le’s Partner Visa application was held to be invalid by the delegate as the Visitor Visa was the subject of Condition 8503 and the Minister had not waived that condition: Migration Act, s.46(1A)(b) and (c).
Section 54 of the Migration Act provides as follows:
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
Ms Le is mistaken in her reliance on s.54 of the Migration Act as compelling the delegate to “at least consider” that the waiver request had been made prior to determining the validity of the Partner Visa application. Section 54(1) of the Migration Act explicitly states “...in deciding whether to grant or refuse to grant a visa...”. The First Decision was not a decision to grant or refuse the Partner Visa: Migration Act, s.47(3) and (4): Vahaakolo at [9] per Hely J. A decision to grant or refuse a visa is made pursuant to s.65 of the Migration Act, the delegate was prohibited from considering and determining whether to grant or refuse the Partner Visa by virtue of s.47(1) of the Migration Act which states the Minister may only consider a “valid application”, thus s.65 of the Migration Act and the power to grant or refuse a Partner Visa is only enlivened upon there being a valid application. Ms Le’s Partner Visa application was not valid. It follows that the reliance on s.54 of the Migration Act is misplaced.
Although handed down in the months following the hearing of the present application it is necessary to refer to two cases, the first determined by the Full Court of the Federal Court, and the second determined by this Court, namely:
a)in Maharjan & Ors v Minister for Immigration & Border Protection & Anor [2017] FCAFC 213; (2017) 258 FCR 1; (2017) 161 ALD 203 at [104] per Gilmour and Mortimer JJ a majority of the Full Court of the Federal Court observed that:
The scheme of Pt 2 of the Migration Act is premised upon the existence of a valid visa application. Subject to presently irrelevant exceptions, from the submission of a valid visa application flows a statutory obligation to consider it until a decision is made under s 65: s 47(1) and (2). Similarly there is an imperative obligation not to consider a visa application which is not a valid application: s 47(3).
b)in SZNZP v Minister for Immigration [2017] FCCA 2193 (“SZNZP”) the applicant had neither applied to the Minister for a waiver of Condition 8503 nor received the benefit of such a waiver prior to lodging an application for a medical visa: SZNZP at [14] per Judge Dowdy. The Court having set out the relevant legislative provisions then observed at SZNZP at [16] per Judge Dowdy as follows:
16. In other words, the Minister had to have waived cond.8503, to which the Tourist visa had been made subject, prior to the Applicant's lodgement of the Medical visa application for such application to be valid. Such is made clear by Vahaakolo … at [11] and [12] per Hely J …
In SZNZP v Minister for Immigration & Border Protection (No 2) [2018] FCA 160 (“SZNZP Appeal”) an appeal from SZNZP was dismissed, with the Federal Court observing that “… in the absence of any application for a waiver, there was no basis for doubting the correctness of the decision”: SZNZP Appeal at [12] per Dowsett J. That finding does no more than reflect the factual circumstance of the absence of an application for waiver, rather than indicating that had there been an application for a waiver the position would have been different.
Even more recently in Imran v Minister for Immigration & Border Protection [2018] FCA 1137 (“Imran”) the Federal Court has again followed Vahaakolo, citing Vahaakolo at [12] per Hely J, and observing that “ … the terms of the Act are such that the delegate was under an imperative obligation not to consider an application for a further visa when condition 8503 had not been waived”: Imran at [19] per Banks-Smith J.
In Vahaakolo at [11]-[12] per Hely J the Federal Court said that:
11. In the present case, the Minister’s delegate correctly concluded that the application for a Subclass 802 visa was invalid having regard to the provisions of s 46(1A) of the Migration Act. The fact that the applicant may have impliedly requested a waiver of a clause 8503 condition at the same time as he made his visa application is beside the point. The application is invalid unless the Minister had waived the condition prior to the lodgement of the application. That had not occurred. The statutory impediment to the making of an application had not been removed. The applicant was thus not eligible to make the application. It is not simply a case where an application form has been incorrectly or insufficiently completed.
12. The terms of the Migration Act are such that the Minister’s delegate was under an imperative obligation not to consider an application when the condition in question had not been waived. It follows that the delegate’s decision that the visa application could not be considered represented a correct application of the law to the facts, and was not attended by any error.
(Emphasis added).
On a plain reading of s.46(1A)(c) of the Migration Act the Partner Visa application was invalid if the Minister had not “waived” Condition 8503. In context, “waived” is in the past tense denoting that if at the time the Partner Visa application was lodged the Minister had not “waived” Condition 8503, there was no discretion for the delegate not to deem the Partner Visa application invalid. The use of the past tense suggests to the Court that at the time of making the Partner Visa application, as a matter of fact, the Minister must have “waived” Condition 8503.
It is true that Ms Le had made a written request to waive Condition 8503 within the Partner Visa application, however as emphasised in the passage of Vahaakalo above, and again on a plain construction of the text of s.46(1A) of the Migration Act, Ms Le was the subject of the statutory impediment at the time of lodging the Partner Visa application and the delegate was bound to consider the Partner Visa application invalid. The fact that the delegate was bound to consider the Partner Visa application invalid at the time the application was made can be seen from the judgment in Minister for Immigration & Multicultural & Indigenous Affairs v Kim [2004] FCAFC 329; (2004) 141 FCR 315 (“Kim”). In Kim at [21] per Moore J it was observed that “… 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 Kim at [23] per Tamberlin J, agreeing with the other members of the Full Court of the Federal Court, it was said that:
I agree that the question whether an application satisfies the criteria for a valid application must be looked at at the time when the application is made. The validity of an application is not expressed to be dependent on the Minister forming a subjective opinion of the type here under consideration.
The third member of the Full Court of the Federal Court in Kim observed that:
a)section 46 of the Migration Act “is not to be construed in such a way as to permit the question of the validity of the application to depend upon an opinion or view to be arrived at by the Minister”: at [35] per Allsop J;
b)an “application is a request … manifested in a document, but it is the request that is made to the Executive and which subsists as a request until dealt with”: at [36] per Allsop J;
c)section 46 of the Migration Act intended the “request … to be either valid or invalid when made … [and] is a state referable to the application as made and thereafter as subsisting”: at [40] per Allsop J; and
d)at [41] per Allsop J that:
If the respondent’s contention is correct, the application when made and until the Minister forms his or her opinion about the period of the formative years of the applicant, is neither valid nor invalid. It is until that point impossible to state the validity or invalidity of the application. This is in a statutory context that states that an application is either valid or invalid. In my view, given this statutory context, 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.
In Sevim at [44] per Gray J stated:
44. It is easy to see an incomplete form of application as an inchoate application, capable of being rendered complete at a later time. Such an application must be contrasted, however, with the application in the present case. There was nothing incomplete or inchoate about the applicant’s application made on 18 October 1995... The defect in that application was...that it was made at a time when the applicant held the subclass 676 visa, which was subject to condition 8503. Section 46(1)(e) operated to make the application something other than a valid application... It is difficult to see how an application that is not a valid application by reason of s 46(1)(e) at the date when it is lodged could become a valid application by reason of any subsequent event. The factor operating to prevent the applicant’s application from being a valid application was not a deficiency from which the application suffered at the time of its lodgment, but was a past event... Because its lack of validity resulted from a previous state of affairs, the lack of validity could not be cured by subsequent events, even if those subsequent events involved the cessation of that previous state of affairs.
The argument for Ms Le in these proceedings was, in essence, the same argument that was rejected by the Federal Court in Sevim at [44] per Gray J: see, for example, Transcript Day Two, pages 39-44. Also, this is not a case of an inchoate or incomplete visa application, or the failure to complete an approved form: compare Minister for Immigration & Multicultural Affairs v “A” [1999] FCA 1679; (1999) 91 FCR 435; (1999) 168 ALR 594; (1999) 57 ALD 550. Nor is Ms Le assisted by a consideration of whether the Court had to consider the issue of compelling circumstances (as in Waensila v Minister for Immigration & Border Protection & Anor [2016] FCAFC 32; (2016) 241 FCR 121) because that presupposes a valid application, which is not the case in this matter.
It follows from the above that where the waiver request and the application for a visa, itself a request, are lodged together, and the application for a waiver is not therefore granted prior to the application for a visa being made, then the application must be invalid. It is the case, as was observed in Kim at [40] per Allsop J, that the application is “either valid or invalid when made”, and cannot be dependent upon a consideration of the waiver request at a time subsequent to the making of the application. In those circumstances, the applicant’s contention that the delegate was required to have regard and decide as a preliminary matter the request to waive Condition 8503, and that it was unreasonable in a Li sense, not to do so, cannot be made out.
To the extent Ms Le submitted that Vahaakalo was plainly wrong and obiter, and that this Court should not follow it, the Court is of the view it ought to follow the considered observations in a Federal Court judgment, obiter or otherwise. In that regard, it suffices for the Court to repeat what it said in CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev:
51 Judgments of the Federal Court which are on point, not distinguishable and not plainly wrong are binding on this Court. In Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ (“SZANS”) a Full Court of the Federal Court observed that:
“Even if the Federal Magistrate [now Federal Circuit Court Judge] was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court [now the Federal Circuit Court of Australia] and judgments of single judges of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong.”
52 In Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ (“Suh”) another Full Court of the Federal Court observed that a Federal Magistrate was correct to regard herself as bound by an earlier Federal Court judgment, and went on to observe that:
“That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court's appellate jurisdiction or in the Court's original jurisdiction and, if the former, on appeal from any particular court or judicial officer.”
53 Following an erudite examination of relevant authority (including Suh and SZANS cited above) one learned author has observed as follows:
“It follows that a decision of the single judge or the Full Court of the Federal Court is always binding on the … [Federal Circuit Court of Australia], regardless of the capacity in which it was given. Further, a decision of the Full Court should always be followed in preference to a decision of a single judge, even if the latter alone was on appeal from the … [Federal Circuit Court of Australia]. This is because the Full Court could in another case be hearing an appeal from the single judge or the … [Federal Circuit Court of Australia] itself. That is, in its other capacities, the same court would prevail over the single judge or … [Federal Circuit Court of Australia]. Accordingly, it must be followed at all time.
O Jones, ‘When is the Federal Magistrates Court bound by the Federal Court?’ [2012] 86 ALJ 478 at 483 (‘Jones’).”
54 This Court is also bound by authoritative obiter of the Federal Court, irrespective of the capacity in which it is pronounced by the Federal Court: Jones at 484.
55 The circumstances in which this Court may depart from a judgment of the Federal Court include the following:
“a) where this Court considers the judgment of the Federal Court to be ‘plainly wrong’: Suh and SZANS ;
b) where the Federal Court decision is distinguishable, ‘so long as the point of distinction is “relevant to the subject matter upon which the Court has given its decision”’: Jones at 484, citing Algama v Minister for Immigration & Multicultural Affairs [2001] FCAFC 1884; (2001) 115 FCR 253; (2001) 194 ALR 37 at [50] per Whitlam and Katz JJ (with whom French J agreed);
c) where the decision has been reversed or affirmed in an appeal to a higher court, but on different grounds from those adopted below: Jones at 484-485;
d) where the decision is impliedly overruled by the decision of a higher court in a subsequent case: Jones at 484 and 485-486; and
e) where the decision is inconsistent with an earlier decision of equal or higher status: Jones at 484 and 486-488.”
In the circumstances of this case, none of the reasons justifying the Court to depart from a judgment of the Federal Court, namely Vahaakalo, exist, and it follows that the Court is bound by Vahaakalo, which in the Court’s view is directly on point, and not obiter (although even if it was obiter, in these circumstances the Court would still be bound to follow it). Likewise, the Court is bound by Kim, SZNZP Appeal and Imran, all of which lead to the same conclusion dictated by Vahaakalo, namely, that the Partner Visa application was invalid by reason of s.46(1A) of the Migration Act.
For the reasons outlined above, ground 1 must be dismissed, as there was no obligation on the delegate to make the Second Decision prior to the First Decision because the Partner Visa application was invalid when lodged.
It follows from the above that no jurisdictional error is made out in respect of ground 1.
Consideration – ground 2
Ground 2 asserts that the delegate had a discretionary power to decide the waiver request first, that is prior to the Partner Visa application, and that the delegate’s failure to do so was legally unreasonable. In circumstances where the Partner Visa application was invalid for the reasons set out at [29]-[42] above, the delegate had no basis for considering the waiver application because the Partner Visa application to which it related was invalid. There was therefore nothing to found the waiver application, and nothing upon which the waiver application could legally operate or have effect. It follows that the non-consideration of the waiver application by the delegate cannot have been unreasonable, because there was no valid application in respect of which any waiver decision could have been made by the delegate.
It follows that no jurisdictional error is made out in respect of ground 2.
The Second Decision
Proposed grounds 3 and 4 of the Further Amended Judicial Review Application relate to the Second Decision and are as follows:
3. The Respondent’s delegate’s decision dated 8 April 2016 to refuse the Applicant’s request for a waiver of condition 8503 (Waiver Decision) was legally unreasonable, as:
(a) the delegate found or assumed, incorrectly and without any or any adequate evidence for any such findings, that:
(i) the Applicant had travelled to Australia on a tourist visa:
• knowing she was in the late stages of pregnancy; and
• expecting to give birth and remain with her partner in Australia; and
(ii) her giving birth was not a circumstance beyond her control;
(b) in concluding that the circumstances of the Applicant were not compelling, the delegate gave insufficient weight to the impact of refusal on the prospects of the Applicant’s child born in Australia, and too much weight to her apparent decision to travel to Australia while pregnant; and
(c) in any event, the decision and its result itself bespeak error, as in the circumstances it could not have been decided that the condition should not be waived if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the power.
4. In making the Waiver Decision the Respondent’s delegate fell into jurisdictional error, by asking herself a wrong question and ignoring relevant material, as a result of not correctly identifying or understanding the task before her, in that she regarded the effects of non-waiver on the child, and particularly the rights of the child under the Convention on the Rights of the Child, as being outside and apart from the matters to be weighed in the exercise of the discretionary waiver power.
Proposed ground 3(a)(iii) of the Further Amended Judicial Review Application was abandoned during the hearing, and has thus been omitted from the above proposed grounds: Transcript Day Two, page 13.
In circumstances where for the reasons set out at [29]-[42] above the delegate’s non-consideration of the waiver application did not disclose jurisdictional error, and where the Partner Visa application is invalid, it is unnecessary to consider the application for an extension of time in respect of proposed grounds 3 and 4 or, in any event, the grounds themselves, because the Partner Visa application is invalid, and there is no Partner Visa application upon which the waiver decision can operate. Even the later waiver of Condition 8503 would not cure the fact that the Partner Visa application was invalid. Indeed, in the circumstances, the waiver decision itself is invalid, and an extension of time in respect of proposed grounds 3 and 4 would be futile in the above circumstances. An application for an extension of time ought not be granted where the substantive matters to which it relates have no prospect of success, as is the case here: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [39] per Foster J; MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [5] per Mortimer J.
It follows that the application for an extension of time in which to file proposed grounds 3 and 4 of the Further Amended Judicial Review Application must be dismissed.
Conclusion and orders
The Court has concluded that:
a)grounds 1 and 2 of the Further Amended Judicial Review Application disclose no jurisdictional error in the First Decision; and
b)the application for an extension of time in which to seek review of the Second Decision and pursue proposed grounds 3 and 4 of the Further Amended Judicial Review Application is to be dismissed; and
c)having regard to the conclusions reached in subparagraphs (a) and (b) of this paragraph there will be orders that:
i)the application for an extension of time in which to file grounds 3 and 4 of the Further Amended Judicial Review Application be dismissed; and
ii)the Further Amended Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 12 August 2019
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