Mann v Minister for Immigration - [2011] FMCA 667

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 667
Decision Date: 30 August 2011

CaseChat Overview and Summary

In the case of Mann v Minister for Immigration, the applicant sought judicial review of a decision by the Minister for Immigration, challenging the validity of a regulation concerning student visas. The matter was heard by the Federal Court of Australia, where Allsop J addressed the construction of certain sections of the Migration Act 1958 and related regulations. The central issue revolved around the interpretation of s.46 and its application to the regulations made under it, specifically examining whether there was a substantive difference between regulations made under s.46(3) and s.46(4). The applicant argued that the regulation requiring a student visa to be held at the time of application was invalid, whereas the Minister contended that the regulation was a valid criterion for assessing the application's validity.

Allsop J meticulously dissected the statutory language and the legislative intent behind s.46. The Judge concluded that the regulation in question was not invalid as it pertained to the criteria for assessing the validity of an application at the time it was made, rather than relying on a future opinion of the Minister. This interpretation allowed for the regulation to be part of the legislative scheme, providing both a means for assessment and the potential for review and appeal. The Court found that the regulation did not unjustifiably delegate legislative power to the Minister but instead provided a clear, objective criterion for the validity assessment of visa applications. The ruling highlighted the importance of adhering to the present tense in the regulation, ensuring that the student visa must be held at the time the application is made.

Consequently, the Court dismissed the application and ordered the applicant to pay the respondent's costs, amounting to $6,240.00. This decision underscored the Court's role in ensuring that legislative regulations align with the statutory framework, allowing for valid assessments while maintaining the integrity of the legislative intent.

Orders

Orders of the court

Application dismissed.

Applicants to pay the Respondent’s costs assessed in the sum of $6,240.00.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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