Mann v Minister for Immigration
[2011] FMCA 667
•30 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANN & ANOR v MINISTER FOR IMMIGRATION | [2011] FMCA 667 |
| MIGRATION – Visa – visa application – internet application – where making of internet application which would have been valid not possible due to system error – where subsequent paper application late and hence invalid because applicant no longer held a student visa requisite for application – whether attempt to make internet application was sufficient in the circumstances – reg.1229 of Migration Regulations 1994 (Cth). |
| Migration Act 1958 (Cth), ss.46, 368(2), 368A, 417, 476 Migration Regulations 1994 Work Health Act 1986 (NT) |
| Wang v Minister for Immigration [1997] 71 FCR 386 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) [1981] 147 CLR 297 Thompson v Groote Eylandt Mining [2003] NTCA 05 Lesi v Minister for Immigration [2003] 134 FCR Minister for Immigration & Multicultural Affairs v Li [2000] 103 FCR 486 Christie v Neaves [2001] 113 FCR 279 Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315 Minister for Immigration v Polat (1995) 57 FCR 98 |
| First Applicant: | RAMANDEEP KAUR MANN |
| Second Applicant: | AMANDEEP SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 951 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 August 2011 |
| Date of Last Submission: | 19 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Juris Australia Lawyers |
| Counsel for the Respondent: | Mr B Kaplan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicants to pay the Respondent’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 951 of 2011
| RAMANDEEP KAUR MANN |
First Applicant
| AMANDEEP SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Ms Mann was granted a student visa on 24 July 2009. She studied at the Australian Hair and Beauty College and over time obtained her appropriate qualifications entitling her to apply for a general skilled migration 485 visa. Her husband was also entitled to make an application as a dependent who was at the time living with her in Australia. Ms Mann completed her two year study on 11 March 2011 and received her completion letter on that day. She had applied for a PSA assessment. So far as she was concerned she had all the necessary papers to lodge an application for a Skilled – Graduate (Temporary) Visa (sub-class 485). 11 March 2011 was a Friday. On the Monday she contacted her migration agent, Mr Sandhu. She provided him with her information and supporting evidence. She requested his assistance to make the application. 14 March 2011 was an important day because it was on the next day that her current student visa expired. Therefore, 15 March 2011 appeared to be the last day upon which she could make an application for a sub-class 485 visa and she understood that she had to have a valid student visa at the time she made the application for that visa.
Schedule 1 to the Migration Regulations 1994 (the “Regulations”) commences with this annotation:
“Note This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47.”
Paragraph 1229 of the Schedule relates to Skilled (Provisional) (Class VC) visas and states:
“(1) Forms: 1276 and 1276 (Internet).
(2) Visa application charge: …
(3) Other:
(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.
…
Note An 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.
(aa) If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 485 (Skilled -- Graduate) visa; and
(ii) has not nominated a skilled occupation specified by the Minister in an instrument in writing for paragraph (ab);
the applicant's skills must have been assessed by the relevant assessing authority as suitable for the applicant's nominated skilled occupation.
(ab) If the applicant:
(i) is not seeking to satisfy the criteria for the grant of a Subclass 485 (Skilled -- Graduate) 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.
(b) Applicant claiming to be a member of the family unit of a person who, having satisfied the primary criteria, holds a Skilled (Provisional) (Class VC) visa may be in or outside Australia when making his or her application, but not in immigration clearance.
(c) Applicant to whom paragraph (b) does not apply must be in Australia, but not in immigration clearance, when making his or her application.
(d) 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.
(da) Applicant seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled -- Regional Sponsored) visa must meet the requirements of subitem (3A) or (3B).
(e) The requirements of subitem (4), (5), (6), (7), (8) or (9) 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 a designated area of 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 487 (Skilled -- Regional 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
(F) a grandparent or first cousin;
(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.
Note For designated area , see regulation 1.03.
(4) The following requirements must be met:
(a) one of the following subparagraphs must be satisfied by the applicant:
the applicant must be the holder of an eligible student visa;
…”
The address specified by the Minister for sending a postal application was an address in Adelaide. Ms Mann and her migration agent therefore decided to make an internet application. This they did. It is not in dispute that the application was made in accordance with Regulation 1.18 in respect of approved forms nor that it was not made by:
“Electronic transmission using a facility made available at an internet site mentioned in sub-paragraph 1.18(2)(b)(ii) in a way authorised by that facility. [Migration Regulations 1994 Reg 1.03 definitions]
Unfortunately the application made on behalf of Ms Mann hit a cyber hurdle. After 20% of it had been received by the Department an error message appeared. It stated:
“Our records indicate that a family unit member Amandeep Singh cannot be included as a migrating independent in this online application. Please record their details as a non-migrating dependent. For further information or assistance please contact an office of this department. See E visa enquiries and technical help.”
A “screen dump” of this message is found as an annexure A to an affidavit of Ms Mann filed on 12 May 2011. There was another message that came through indicating that the application had been successfully saved and giving a saved application ID which was needed to continue or amend the application online in the future.
Ms Mann says in her affidavit:
“13. Mr Sandhu started completing my visa application online whilst my husband and I was sitting with him.
14. Mr Sandhu attempted few times to complete my application online but the computer refused to acknowledge details of my husband Amandeep Singh.
15. We attach herewith a printout of the failed online application marked ‘A’.
16. Mr Sandhu advised me to attend DIAC office next morning to find out the reason of this computer glitch.
17. On 15 March 2011 at or about 10 am Mr Sandhu and I attended the DIAC office in Parramatta.
18. Mr Sandhu had the following conversation with a DIAC officer on the counter in my presence:
“He said: I am unable to lodge this application due to a system error.
She said: I can’t do anything I will call my supervisor.
She then called Ms Bhavan.”
19. Ms Bhavani then took my husband and my passport inside the office. She came back after approximately 40 minutes and said the following:
“She said: it’s a system fault and we cannot fix it. You must file paper base application. She further said that she has noted in the system that I have attended the DIAC on 15 March 2011 to file my application but due to the system error she is unable to file.”
The paper application was completed on 15 March but Mr Sandhu was unable to get to the post office before it closed. He sent it on 16 March. It is not disputed that Mr Amandeep Singh was a person who could have been included on Ms Mann’s internet application or that the error message sent to Mr Sandhu was itself in error or that officers of the department acknowledged the problem or that under normal circumstances the application would have been made by an appropriate method on 15 March at which time Ms Mann held a valid student visa.
On 2 May 2011 Chelsea Horne, an officer of the department, wrote to Ms Mann advising her that the application that she had submitted by post had been received at the prescribed departmental address on 17 March 2011 and that on that day the applicants did not hold any Australian visas and were unlawfully in Australia. It confirmed that Ms Mann and her husband had previously held TU 572 student visas which ceased on 15 March 2011 and:
“As the applicants were not the holders of an Australian visa on 17 March 2011, they did not hold an eligible pre-requisite visa at the time this VC 485 application was made.
As the applicants did not hold an eligible pre-requisite visa at the time this application was made, this application is invalid under Migration Regulations Item 1229(3)(e).
As this application is not valid it is being returned together with all the supporting documentation included. Any authorised credit card deductions have not been processed.”
Somewhat ironically the letter continued:
“A valid application for a GSM visa can be made by applying online or by using the application Form 1276 (and Form 1277) if applicable). These forms can be downloaded at as required.
The expansion of online lodgement across all GSM subclasses provides an opportunity for the department to offer a streamlined service to clients who use this preferred method of lodgement. Applications lodged electronically will offer a number of additional advantages to applicants such as, immediate confirmation of lodgement, auto grant of bridging visas (for onshore subclass applicants), auto notification of process stages and credit card payment options.”
The decision that a visa application has not been validly made is not a merits reviewable decision. It is, however, capable of review by this court exercising the court’s powers under s.75(5) of the Constitution: Migration Act 1958 (the “Act”) s.476.
On 12 May 2011 Ms Mann and Mr Singh filed an application with this court seeking such a review. Those ground were contained in an Amended Application filed on 19 August 2011:
“1. On 2 May 2011 the Minister’s delegate made a decision in which she construed paragraphs 1229(3)(e) and 1229(4)(a)(i) in Schedule 1 of the Migration Regulations 1994 (Cth) to mean that the applicants needed to hold eligible student visas at the time their application for subclass 485 visas were received by the Department of Immigration and Citizenship on 17 March 2011. The delegate erred in the construction of paragraphs 1229(3)(e) and 1229(4)(a)(i). On the proper construction of paragraphs 1229(3)(e) and 1229(4)(a)(i), it was sufficient that the applicants held eligible student visas on 15 March 2011, being the day they attempted to lodge the visa application by the method prescribed in clause 1229(3)(a) of Schedule 1 but, due to a system fault which was the responsibility of the respondent, the applicants were unable to complete and send or lodge the application.”
Discussion
Ms Mann did not hold an eligible student visa on 17 March 2011, the date when her paper application was received by the appropriate office of the department in Adelaide. She had held an eligible student visa on 15 March 2011, the day upon which she attempted to “make” the application. She argues that this is sufficient. The argument commences with s.46 of the Act, the relevant parts of which are set out below:
“Valid visa application
(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
…
(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.”
She points out that the only temporal qualification in these sub-sections is the one found at s.46(4)(a) in the use of the word “exist”. She notes that it is argued by the respondent that the use of that word has the effect of implying into 1229 4(a) of the Regulations a requirement that the applicant be the holder of the eligible student visa at the time the application is made but she says that those words do not appear in the Schedule the relevant parts of which are cited above at [3] of these reasons and 1229(5)(a):
“(5) The following requirements must be met:
(a) the applicant must be:
(i) …
(ii) the holder of a Subclass 485 (Skilled -- Graduate) visa;”
There is a distinction to be drawn between criteria that relate to the applicant and criteria that relate to the application. It is the latter that we are concerned with here. That is because it is the validity of the application that is in issue, not whether the applicant herself is able to comply with the visa requirements. If the application itself is invalid that is the end of the matter and there is no discretion in the Minister to provide a more favourable outcome, nor is there a merit’s review from the Migration Review Tribunal. If the applicant fails to convince a delegate that she complies with criteria for the visa then there is scope for both of these methods of reconsideration. The applicant argues that there is nothing in Regulation 1229 4(a)(i) that indicates that it is a regulation that is solely authorised by the provisions of s.46(4)(a). She argues that if the Minister wishes to make this submission then he must satisfy the court that the requirement for a valid visa is a requirement and not a criteria, i.e. it could only be made under s.46(4) and not under s.46(3). If the Minister fails to satisfy me of that fact then there is no temporal qualification of the date upon which the application was the holder of an eligible student visa. There is nothing in the wording of Regulation 1229(4)(a)(i) that excludes holding the visa as being a criteria and thus being authorised under s.46(3).
The applicant comes to this position by saying:
“[15]First, where the legislature prescribes the methods by which a visa application must be made in order to be valid, the legislature:
a)intends that the application can be made by each prescribed method; and
b)does not intend that an application could be invalid because, due to a fault of (or perhaps due to a matter within the control of) those charged with the responsibility of administering the Act, the application could not be made on a particular day by a prescribed method.”
[16]Second, on application of the principle in the above paragraph to the present matter:
a)The legislature intended that a subclass 485 visa application could be made by each of the methods prescribed in paragraph 1229(3)(a) of Schedule 1.
b)the legislature did not intend that an application could become invalid because, due to the fault of (or perhaps due to a matter within the control of) those charged with the responsibility of administering the Act, the application could not be made on a particular day by a prescribed method.”
She then proceeds to argue:
“[17]Third, following the principles stated in paragraphs 15 and 16, the proper construction of paragraphs 1229(3)(e) and 1229(4)(a)(i) in Schedule 1 of the Regulations is that the applicant must be the holder of an eligible student visa at the time the application was received by the Department or at the time the application would have been received but for the fact that:
a)due to an event which was the fault of (or perhaps lay within the control of) the Department, the application could not be received on a particular day; or alternatively
b)due to an event which was not the fault of the applicant, the application could not be received on a particular day.
[18]The difference between (a) and (b) in the above paragraph is that (b) accommodates matters outside the control of both the applicant and the Department, such as:
a)a postal strike which prevents mail being received b the Department in the usual time; or
b)a telecommunications or power outage or disruption which causes a delay in the Department receiving an Internet application.
[19]The applicants are content with the construction in paragraph 17(a) which is narrower than the construction in paragraph 17(b).”
The applicant relies on the decision of Merkel J in Wang v Minister for Immigration [1997] 71 FCR 386. That case concerned the interpretation of s.478 of the Act as it then stood. It required that an application for judicial review of a decision of the then Immigration Review Tribunal had to be lodged with a registry of the Federal Court within twenty-eight days of the applicant being notified of decision and there was a prohibition upon the Federal Court allowing an applicant to lodge an application outside that period. The notification of the Tribunal’s decision was not addressed to Mr Wang although it reached the address at which he was living. He did not open it. Eventually he attended at the Tribunal office and explained that he had not received the decision. Another decision was provided to him but he was told that he was out of time for seeking judicial review. Sometime later the Deputy Registrar of the IRT provided him with a letter setting out his situation and noting that Mr Wang could ask the Federal Court to decide whether he could still file an application for review. This is what he did but once again it was alleged that this was outside the twenty-eight day period even on the assumption that the twenty-eight day period started when he was handed the decision by the Tribunal officer. Merkel J considered the submission on behalf of the applicant that the representations of the IRT officer estopped the Minister from contending that the application was lodged out of time but he was not prepared to accept this:
“In any event estoppel cannot operate, directly or indirectly, to confer any jurisdictional power on a court or public authority which it does not otherwise have; see Wade and Forsyth, Administrative Law (7th ed 1994), pp 270 and 392.”
He then turned to look at the problem as of one of statutory interpretation. Merkel J commenced his consideration by noting that the obligation of notifying the applicant of the decision was a statutory requirement placed upon the Tribunal pursuant to s.368(2) of the Act now s.368A. His Honour said of the notification:
“When the IRT, by one of its officers, exercises that power, unlike a notification which may be made outside the statutory framework by some third party, it is doing so in fulfilment of a function conferred on it under the statute for the purpose of enabling the time for review of its decision to commence. The process of notification pursuant to s 368 may not be exhaustive of the notifications that might occur for the purposes of s 478 but it is the only process of notification provided for under the Act. The sole, or at the least the primary, statutory purpose of "notification" by the IRT of the decision, whether under s 368 or otherwise, is to enable the person notified of the decision to consider the decision, and if so advised, apply to review it within 28 days of the notification. At [393]
His Honour continued:
“It follows from the foregoing that a notification of the decision by the IRT, for the purposes of s 478, which includes or is accompanied by an incorrect or untrue statement that there is no right of review or that the time for review has expired, substantially frustrates or negates the primary statutory function of the notification.
…
There is an alternative construction open. It is that a notification, for the purposes of s 478, must be a notification of the decision which does not or is not calculated to frustrate or negate the entitlement of the person notified of the decision to apply to the Court for its review.”
Merkel J then considered authorities which supported his view that a statute must be read to conform with the legislative intent as ascertained from its provisions; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) [1981] 147 CLR 297
[320-321]. After considering these authorities he opined:
“There are numerous cases in which courts in the United Kingdom have applied similar principles to give effect to, rather than defeat or frustrate, the manifest intention or purpose of the legislature: see Bennion at pp 334-335, 711 and 723-725. This was particularly so where the narrow literal construction leads to an operation of the law that flouts common sense and justice. In such circumstances the Court does not disregard or override the statute but interprets it "in accordance with the judicially presumed parliamentary concern for common sense and justice": Re Maryon-Wilson's Will Trusts; Blofield v St Hill [1968] Ch 268 at 282 per Ungoed-Thomas J.” At [395].
He concluded:
“The application of these principles and authorities in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s 478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28-days of the notification. Another way of putting the implication is that, as the sole or primary statutory function of a notification for the purposes of s 478 is the commencement of the 28-day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function.”
Ms Mann also sought to find support in the decision of the Northern Territory Court of Appeal in Thompson v Groote Eylandt Mining [2003] NTCA 05 per Martin CJ. This was a case where a young employee in his first job had, unbeknown to him, been employed not as a PAYE tax payer but as a PPS tax payer, the basis for independent contractors within the building and mining industry. The young man did not know this and assumed that the amounts that were being deducted from his pay were being deducted under PAYE. When he was later injured the mining company who held workers compensation responsibilities for him argued that he was not a worker within the meaning of s.3(1) of the Work Health Act 1986 (NT) and was not entitled to compensation. The court held that the mining company was trying to take advantage of its own wrong:
“[35]Applying those principles to this case, it would be quite wrong to so construe the definition of "PAYE taxpayer" as to permit the employer to take advantage of his own wrong in circumstances such as the present where the appellant is totally innocent of any wrong doing. It is inconceivable that the legislature intended the definition to bring about that result. There is nothing in the Minister's Second Reading Speech to indicate that it was intended to permit employers to take advantage of their own wrong. The purpose of the amendment was to prevent abuse, not create it. Whilst I accept that the concept of an objective test is a feature of this definition, the language of the definition is not so intractable as to preclude the operation of this rule; nor has the legislature clearly expressed an intention that this rule is not to prevail. If a literal interpretation were to be adhered to, the result would also be unjust, would not promote the purposes of either the amending Act or the Act as a whole, and would undermine and weaken the Act's provisions designed to strengthen worker's entitlements and prevent employers from avoiding the Act's provisions to which I have already referred. I would conclude that the words "employer makes deductions" in the definition of "PAYE taxpayer" includes those employers who are required by law to make such deductions, but who do not do so without the knowledge or authority of the worker.”
Ms Mann also sought support from a number of cases which dealt with a situation where the language of an enactment admitted of two constructions. In those circumstances the court made it clear that the advantage would lie with the construction which produced the fairer and more convenient operation so long as it conformed to legislative intention. Particular references were made to Lesi v Minister for Immigration [2003] 134 FCR at [47]; Minister for Immigration & Multicultural Affairs v Li [2000] 103 FCR 486 at [76-77] and Christie v Neaves [2001] 113 FCR 279 at [19-21]. The difficulty which I have with these latter cases is that the applicant is not suggesting that there are two alternative interpretations of the Regulations, she is suggesting a gloss upon the clear words of the Regulation (if made under s.46(4)(a)).
The respondent counters the applicant on a number of bases. First he sought to point out, through a detailed examination of Minister for Immigration & Multicultural & Indigenous Affairs v Kim (2004) 141 FCR 315 that there can be two stages at which the validity of an application is to be assessed and that the Regulations respond to that. The first could be described as the threshold consideration. A Regulation that states that an application must be made within so many days of entering the country would be one such, it is a circumstance that must exist for an application for a visa of a specified class to be a valid application. The second class of criteria are those which require the Minister to form a subjective opinion. In Kim the opinion required to be formed was whether the applicant in question had developed significant ties to the Australian community. If the Minister came to the conclusion that the applicant had not done so then his application will be invalid but the application still had to be considered. A criteria of the first class was not one that required consideration, either it was objectively met or objectively not met. In the instant case the respondent sought to put the requirement to be the holder of a student visa into that category as something that could be assessed objectively as at the date the application was made.
The respondent also sought to argue again from Kim that there was no real difference between Regulations made under s.46(3) or Regulations made under s.46(4). Allsop J considered this question of construction stating first:
“[31]The matter was fully argued, and though expressed as obiter, it is appropriate to deal with the matter on the hypothesis that the construction of reg 2.12 is contrary to that which I think to be correct: see Lockwood Security Products Pty Ltd v Doric Products Pty Ltd.”
And continuing:
[35] In my view s 46 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: in this case what the Minister regards as the period of the applicant’s formative years before the age of 18: subcl 832.211(c)(iv).
[36] An application is a request. Generally in a context such as the present, it is manifested in a document, but it is the request that is made to the Executive and which subsists as a request until dealt with.
[37] If an application is made, it is necessary to understand how validity is to be judged, so that the Minister may obey the will of Parliament in s 47 – to consider it or not to consider it. In order to answer this question one goes to the Act and Regulations.
[38] The terms of s 46(1)(a), (ba), (c) and (d), (1A) and (2) refer to facts presently identifiable at the time of making the application or any time later.
[39] The terms of s 46(4)(b), (c) and (d) refer to facts presently identifiable at the time of the making of the application.
[40] Section 46(3) and s 46(4)(a) can be seen to be of the same character – to deal with facts presently identifiable at the time of the application being made and at any time thereafter. Section 46(4)(a) uses the present tense "exist". Section 46(3) uses a word "criteria", which, standing alone, is wide enough to accommodate a criterion by reference to an opinion or view of the Minister to be formed later. However, s 46(3), as with the balance of s 46, concerns the prescription of indicia against which the validity of the request can be judged. The request, it seems to me, was intended by s 46 to be either valid or invalid when made. The ascertainment of that may take time, but it is a state referable to the application as made and thereafter as subsisting.” [emphasis added]
The respondent argues that the requirement to hold the student visa is a criteria authorised under 46(4)(a) and that the temporal requirement is that it should be held at the time the application is made.
I am of the view that the gravamen of both Allsop J and Moore J’s decisions in Kim was the avoidance of the finding by Branson J at first instance that the Regulation was invalid. Once it becomes clear that the legislature is entitled to make Regulations in respect of validity which are part and parcel of the assessment of the application, then there is no need to strike down such a Regulation. It allows the assessment to be made but it also allows for the review of that assessment and for the possibility of appeal to the Minister to make a more favourable decision. That was the vice in the delegate’s original decision in Kim. It was unreviewable except by the courts. The same situation pertains here but the difficulty is that an assessment as to whether or not an applicant holds a student visa as required by Regulation 1229(4) is one that could objectively be made. This case has not been argued as a “time of application/time of decision” case, it seems clear to me that the scheme of the Regulations is to have one visa follow hard upon the next so that the student visa must be held at the time the application is made given the present tense used in Regulation 1229(4)(a)(i). I do not think that the applicant can succeed in this case by drawing a distinction between ss.46(3) and 46(4) in relation to the regulation making power.
This leaves the applicants’ reliance upon the interpretation of the Regulation to make it sufficient that the applicants held eligible student visas on 15 March 2011, the day they attempted to lodge the visa application by the methods prescribed in cl.1229(3)(a) of Schedule 1 but, due to a system fault that was the responsibility of the respondent, they were unable to complete, send or lodge that application.
I think a distinction can be drawn between the instant case and Wang. That distinction is in the nature of the duty. The duty in Wang was one that fell upon the Tribunal and the duty itself was expressed in the sub-section of the Act. The applicant in that case was the receiver of the entitlement. He had the right, the Tribunal had the obligation. But that is not the case for Ms Mann. It was her obligation to file an objectively valid application on time. She does not argue that what she did on 14 March constituted “making the application”. The application was not “made” until 17 March on which day she did not hold a valid student visa. In Minister for Immigration v Polat (1995) 57 FCR 98 Mr Polat was required to have a valid entry permit at the time he lodged an application under s.47(1) of the Act. He did not have such a permit because he delayed lodging his application until he obtained a copy of his marriage certificate relying upon certain advice from the department. Davies and Branson JJ, with whom Whitlam J agreed, said at [107]:
“It necessarily follows that the several arguments put by Mr de Robillard must fail. Mr de Robillard submitted that, because of what occurred on or about 11 January 1991, Mr Polat should be deemed to have been a person holding a temporary entry permit when he made application for his confirmatory entry permit or, alternatively, to have lodged his application whilst he was the holder of a temporary entry permit. But the facts were otherwise. The court cannot make an order so as to contradict the provisions of a statute. “
It seems to me that the argument being put by the applicant in the instant case is similar, namely that she should be deemed to have lodged the application whilst she was the holder of a student visa, although it is put more elegantly by Mr Zipser. The construction he argues for would still seem to me to go against the clear words of the Regulation. One would have to be very hard hearted not to feel that all occasions have informed against Ms Mann. It was not her fault that the online application failed. She did not ignore it, she went into the department and spoke to them about it. It was not her fault that the Regulations required a paper application to be made, not to Sydney where she was resident, but to Adelaide. And it was not her fault that the Regulations did not provide for a fax application to be made. It is particularly galling that she is unable to ask the Minister to substitute a more favourable decision under s.417. Regrettably, I believe that the authorities are against her and that the law requires that I must dismiss this application and order both applicants to pay the Respondent’s costs which I assess in the sum of $5,800.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 30 August 2011
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