MURADZI v Minister for Immigration
[2011] FMCA 342
•31 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURADZI v MINISTER FOR IMMIGRATION | [2011] FMCA 342 |
| MIGRATION – Decision that visa application not validly made – visa application lodged by facsimile rather than by internet, by post or by courier delivery – whether method of lodgement prescribed by regulations mandatory or directory. |
| Migration Act 1958, ss 45, 46, 47 Migration Regulations 1994, reg 2.07, 2.10, schedule 1, item 1205, item 1220B, item 1227A, item 1229 |
| Fang v Minister for Immigration (1996) 64 FCR 245; (1996) 135 ALR 583 Onea v Minister for Immigration (1997) 80 FCR 254; [1997] FCA 1472 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Vahaakolo v Minister for Immigration [2002] FCA 648 |
| Applicant: | TATENDA MURADZI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 18 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 10 May 2011 |
| Date of last submission: | 10 May 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 31 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Anthony Bonnici |
| Solicitors for the Applicant: | Belleli King & Associates |
| Counsel for the Respondent: | Warren S. Mosley |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The application filed on 19 July 2010 be dismissed.
The applicant pay the respondent’s costs, fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 18 of 2011
| TATENDA MURADZI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for an order to show cause that was filed in the original jurisdiction of the High Court. The High Court by consent granted an extension of time in which the applicant was able to file the application and remitted the matter to this court for hearing.
The applicant is a citizen of Zimbabwe. She came to Australia in 2005 on a student visa. In 2006, she obtained a diploma in business. By 15 November 2009, the applicant satisfied the academic requirements for a Bachelor of Commerce from Deakin University.
In the meantime, on 22 October 2009, the applicant and her sister applied for protection visas. They were refused by a delegate on 8 January 2010. On 28 January 2010, the applicant and her sister applied to the Refugee Review Tribunal. The Tribunal affirmed the delegate’s decisions on 4 June 2010. That decision is not the subject of this proceeding.
In the meantime, the applicant attempted to lodge an application for a general skilled migration visa on 15 March 2010, being the last day on which she was able to do so. By letter dated 25 March 2010, the migration department advised the applicant that her application was not valid because:
a)it was received on 16 March 2010, instead of the last possible day, being 15 March 2010; and
b)it was received by facsimile instead of by one of the prescribed methods, being internet, post or courier.
As to the timing, the facsimile electronic date and time stamp on the application showed that one copy of it was received at 5.01 pm and another at 5.24 pm on 15 March 2010. However, as the application was presumably received after normal office hours, it is manually stamped as having been received on 16 March 2010.
The applicant gave unchallenged evidence by affidavit that she attended the offices of her migration agent at 11 am on 15 March 2010 to complete her application by internet. However, it did not transmit for some reason. The applicant, with the assistance of her migration agent, then sent the application by facsimile to an office of the immigration department in Adelaide, being the only immigration office in Australia where applications for general skilled migration visas are processed. The regulations do not permit applications for general skilled migration visas to be lodged in Melbourne, where the applicant and her agent were located.
Legislation
Section 45 of the Migration Act 1958 provides that:
Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
Section 46 of the Act provides that:
(1) Subject to subsections (1A), (2) and (2A), and 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
…
(1A) …
(2)Subject to subsection (2A), an application for a visa is valid if:
(a)it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b)under the regulations, the application is taken to have been validly made.
(2A)…
NOTE: An invalid application for a visa cannot give rise to an obligation under s.65 to grant a visa: see subsection 47(3).
…
(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.
Section 47 of the Act provides that:
(1) The Minister is to consider a valid application for a visa.
…
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
Regulation 2.07 of the Migration Regulations 1994 provides that:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b)the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b)in a separate document that accompanies the application.
Regulation 2.10 of the regulations provides that:
(1)For section 46 of the Act, an application for a visa (not being an Internet application) must be made in accordance with this regulation.
(2)If an application for a visa is made outside Australia, the application must be made:
(a) in accordance with any requirements in:
(i) this Division; or
(ii) the item in Schedule 1 that relates to the visa;
about where to make the application; or
(b)if there are no requirements of that kind -- at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
Note 1Schedule 1 explains whether applications for particular visas may be made in Australia, outside Australia, or in or outside Australia.
Note 2A provision in this Division or in Schedule 1 may also state that an application is taken to have been made at a particular place if specified requirements are met.
(2A)If an application for a visa is made in Australia, the application must be made:
(a) in accordance with any requirements in:
(i) this Division; or
(ii) the item in Schedule 1 that relates to the visa;
about where to make the application; or
(b)if there are no requirements of that kind -- at an office of Immigration in Australia.
Note 1Schedule 1 explains whether applications for particular visas may be made in Australia, outside Australia, or in or outside Australia.
Note 2 A provision in this Division or in Schedule 1 may also state that an application is taken to have been made at a particular place if specified requirements are met.
(3)An unlawful non-citizen who is located by an officer of Immigration may apply for a bridging visa directly to that officer.
(4)For Division 2.2 (not including regulation 2.09) and Schedule 1, an office occupied by an officer of Immigration at an airport or a detention centre is an office of Immigration.
NoteRequirements about where the applicant must be when making an Internet application are in Schedule 1.
Schedule 1 to the regulations begins with a note which says:
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.
The item in Schedule 1 to the regulations that relates to general skilled migration visas is item 1229. It provides as follows:
(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.
NoteAn 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) … .
(4) The following requirements must be met:
(a)one of the following subparagraphs must be satisfied by the applicant:
…
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i) must be less than 45; and
(ii) must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
(5) The following requirements must be met:
(a) the applicant must be:
…
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa must:
…
(6) The following requirements must be met:
…
(7) The following requirements must be met:
(a) the applicant must be:
…
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa:
(i) must be less than 45; and
(ii) must nominate a skilled occupation for the applicant in the application for which at least 50 points are available as specified by the Minister in an instrument in writing for this subparagraph.
(8) The following requirements must be met:
(a) the applicant must be the holder of:
…
and must not have previously held more than 1 of any of those visas;
(b)the applicant seeking to satisfy the primary criteria for the grant of the visa must have been, for a total of at least 2 years before the day on which the application was made, the holder of 1 of the following visas:
…
(9)The applicant must claim to be a member of the family unit of an applicant who holds a Skilled (Provisional) (Class VC) visa granted on the basis of satisfying the primary criteria for the grant of the visa.
(10) Subclasses:
485 (Skilled - Graduate)
487 (Skilled - Regional Sponsored)
The respondent said in footnote 10 of his submissions, and the applicant did not dispute, that:
Post Office Box and Courier Addresses have been specified by the Minister pursuant to Instrument, IMMI 07/057. The post office box specified for the purpose of subparagraph 1229(3)(a)(ii) of Schedule 1 is: Adelaide Skilled Processing Centre, Department of Immigration and Citizenship, GPO Box 1638 ADELAIDE SA 5001, AUSTRALIA. The address for courier delivery for the purpose of subparagraph 1229(3)(a)(iii) of Schedule 1 is: Adelaide Skilled Processing Centre, Department of Immigration and Citizenship, 4th Floor, 55 Currie Street, ADELAIDE SA 5000, AUSTRALIA.
Ground 1
The first ground of review in the application filed on 19 July 2010 is:
The primary decision maker fell into jurisdictional error in that she misconstrued the provisions prescribed by Item 1229(3)(a) of Schedule 1 of the Migration Regulations 1994 in finding that because [the plaintiff’s] facsimile application for a Skilled (Provisional) (Class VC visa) (Skilled visa) was not an Internet application, was not posted to the post office box address specified by the Minister or delivered by courier to the address specified by the Minister the application is not a valid application.
The applicant argued that the word “must” in item 1229(3)(a) of Schedule 1 to the regulations means “may”, in the sense that the word “must” should not be construed as mandatory but as directory. The respondent conceded that, if the word “must” were construed as “may”, it would mean that an applicant could lodge an application in any manner he or she chose.
The applicant supported her argument by reference to various texts and authorities but did not refer to the leading case of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In that case, at [93], McHugh, Gummow, Kirby and Hayne JJ noted:
[93]… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … .
Hence, the question for the court is whether the legislative intention was that a general skilled visa application, lodged by a means other than one of those prescribed, should be invalid. Having said that, the applicant was clearly right in submitting that the court may construe a statute to correct an unintended and manifest inconvenience or absurdity. However, that is not to say that the court can correct an intended inconvenience. Ultimately, the court’s task is to ascertain what the legislature intended.
There appears to be no authority on whether a failure to lodge a visa application by a method prescribed by the regulations results in invalidity. However, an examination of the legislation set out above indicates that the legislature very definitely intended that a visa application that was not lodged by the prescribed method would not be valid.
While the particular point in issue in the present case does not appear to have been previously determined, it has long been established that failing to use the form prescribed by the regulations, even if the form that was used requires much the same information as the correct form, results in the visa application being invalid. In Fang v Minister for Immigration; (1996) 64 FCR 245; (1996) 135 ALR 583, Nicholson J, with whom Jenkinson J agreed, said at 278-279:
Particular features of s45-s47 of the Migration Act relevant to a proper construction of them are: s45(1) asserts that a non-citizen "must" apply for a visa of a particular class. S46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed "if, and only if" certain requirements are met. One such condition is that the application is made in the way required by subs45(2) and (3), that is as provided for in r207. S47(1) confines the Minister to only considering a valid application for a visa. S47(3), "to avoid doubt", enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial act. It will also be noted that none of these provisions relevantly use "shall" or "may" so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.
Section 25C of the Acts Interpretation Act 1901 (Cth) provides that "where an act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient". The statutory provisions requiring an application form as a necessary pre-condition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a pre-condition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the pre-requisite entry to Ministerial consideration of the application.
It is the case that the use by a legislature of the words "if, and only if" does not in all circumstances mean those words should be equated with "but not otherwise". Where the former words were used to provide in an Act that a company is to be deemed to have ceased to carry on business or to be unable to pay its debts "if, and only if" certain matters are satisfied, it has been held that it cannot have been intended to create an absolute statutory presumption rather than a rebuttable one: Cooper and Dysart Pty Ltd v Sargon (1991) 5 WAR 472. See also Sydar Pty Ltd v K Simmonds Finance Pty Ltd (1995) 13 ACLC 480. In the present context, where the legislature is patently concerned to define the circumstances determining the validity of an application and to relate the concept of validity to the genesis of Ministerial decision-making power, there do not appear to be present any reasons for reading down the effect of the words "if, and only if".
It is the case that the form of application is provided for by the regulations. The form, however, is necessarily imported into the provisions of the Act to which reference has been made so that it is not possible to speak of the former being subsidiary to the latter in the sense that there might be substantial compliance with the Act despite non-compliance with the requirement for use of the approved form: cf Hunter Resources Limited v Melville at 250 per Dawson J.
In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866. Short of that there is no valid application and the Minister is enjoined from considering it. This conclusion finds support in the Note which precedes the Schedule (Classes of Visas) to the Migration Regulations which reads in part:
"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."
Furthermore, the statutory provisions are such that I do not consider anything short of use being made of a Form 866 could constitute an application. There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form. The legislature has gone to abundant lengths to make apparent that an application by way of Form 866 is the only way for these matters to come before the Minister and for the Minister's power in relation to it to be validly activated. In my opinion, this requirement has the result that the prescription of the form is one of substance and is not merely procedural.
Finkelstein J followed Fang in Onea v Minister for Immigration (1997) 80 FCR 254; [1997] FCA 1472 at page 261 where his Honour said:
In ordinary circumstances it would not be unusual for a court to hold, conformably with either s 25C of the Acts Interpretation Act or the applicable principles of statutory construction, that a failure to make an application in accordance with a form that is prescribed for that purpose will not render that application a nullity. However, these are not ordinary circumstances. The precise point has been considered by a Full Court in Fang v Minister for Immigration and Ethnic Affairs & Anor (1996) 64 FCR 245; (1996) 135 ALR 583. There it was held that ss45 and 46 of the Migration Act disclose a clear intention on the part of the Parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists: see 135 ALR at 599 per Carr J and at 616-617 per RD Nicholson J with whom Jenkinson J agreed. Thus s 25C of the Acts Interpretation Act can have no application: its effect has been excluded by clear intention.
In an attempt to overcome the effect of Fang it was submitted that the applicant had substantially complied with the regulations by using Form 147. During the course of his submissions Counsel for the applicant closely analysed and compared Form 147 with Form 1066 to show that almost all of the information that was required to be given to the Minister if Form 1066 had been used was given to the Minister on the Form 147 to the extent that the applicant was able to provide that information. Even if this be true that would not be an answer to the point taken by the Minister. On the proper construction of ss46 and 47(1) and the regulations, the Minister is not required to consider any application for a visa unless that application is made on the appropriate form. It is the condition which must be satisfied before the Minister can exercise his power to consider an application: compare SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 245; Attorney-General (NSW); Ex rel Franklin Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. No other form will do. This is what the Parliament has laid down.
Although I feel sympathy for the applicant her application must be dismissed with costs.
It seems to me that the reasoning in Fang and Onea applies with equal force to the method of lodgement. The intention of the legislature is abundantly clear. It is mandatory that, to be a valid application, the visa application must be lodged by one of the prescribed methods. As the application in this case was not valid, the Minister was prohibited from considering it: s.47(3) of the Act; Vahaakolo v Minister for Immigration [2002] FCA 648 at [12].
The respondent went to some pains to point out that, for certain visa classes, an application may be lodged by facsimile. For example, item 1220B of schedule 1 to the regulations permits an application for a sponsored training temporary visa to be sent by facsimile to a particular facsimile number in Tasmania. Item 1205 of schedule 1 to the regulations permits applications for special program and professional development visas to be sent by facsimile to one of two other facsimile numbers in Tasmania. The same item permits an application for an entertainment visa to be sent by facsimile to a particular facsimile number in Sydney. Item 1227A of schedule 1 to the regulations permits an application for a superyacht crew visa to be sent by facsimile to a particular facsimile number in Queensland.
I take the fact that the regulations expressly permit applications for some types of visa to be sent by facsimile but not applications for general skilled visas reinforces the legislative intention to exclude lodgement by facsimile in the case of general skilled visas. I refrain from speculating on the reasons for the differences.
Ground 2
The second ground of review in the application filed on 19 July 2010 is:
The plaintiff had legitimate expectations that her application for a skilled visa would be assessed fairly by the primary decision maker. The primary decision maker refuses to assess the plaintiff’s application on the ground that the application is invalid because
(a) it was received by facsimile transmission, and
(b)facsimile transmission is not a prescribed method by which a valid application can be lodged.
Unfortunately for the applicant, any expectation that she might have had, whether legitimate or not, cannot override the clear words of the legislation.
Ground 3
The third ground of review in the application filed on 19 July 2010 is:
The primary decision maker has
(a)taken irrelevant considerations into account in refusing to assess the plaintiff’s application for a Skilled visa on the ground that
(1)the application was not an internet application, was not posted to the post office address specified by the Minister or delivered by courier to the address specified by the Minister as prescribed by Item 1229 (3)(a) of Schedule 1 of the Migration Regulations 1994,
(2)was received by the Adelaide Processing Centre of the Department of Immigration and Citizenship on 16 March 2010, and
(b)failed to take a relevant consideration into account namely that the application was sent by facsimile transmission to 08 7421 7615 and received at the offices of the Department of Immigration and Citizenship, Level 4, Currie Street Adelaide SA 5000 on 15 March 2010 at 17:24.
I do not accept that the primary decision maker took into account irrelevant considerations or failed to take into account a relevant consideration. The legislation is clear. The Minister is only permitted to consider a valid application. An application will only be valid if it is received in one of the prescribed ways.
It is unnecessary to consider the effect of the lodgement being a few minutes late, assuming that it was, because lodgement by facsimile was not permitted.
Ground 4
The fourth ground of review in the application filed on 19 July 2010 is:
The refusal by the decision maker to assess the plaintiff’s application for a Skilled visa is so unreasonable that no reasonable person could have reached such a decision, in that,
(a) the refusal was devoid of plausible explanation,
(b)the decision maker gave excessive weight to the provision of Item 1229 (3)(a) of schedule 1 of the Migration Regulations 1994, and/or
(c)the decision maker failed to give genuine, proper and realistic consideration to the plaintiff’s mode of transmission of her application including making adequate enquiry as to the facts.
The decision maker’s decision was not unreasonable, given the clear legislative dictates. In that context, the decision was entirely plausible. The decision maker gave the required weight to item 1229(3)(a) of schedule 1 to the regulations. The decision maker could not consider the mode of transmission of the application as it was not a prescribed, mandatory mode.
The applicant at one point seemed to be suggesting that item 1229(3)(a) of schedule 1 of the regulations was unreasonable. Accordingly, the court asked the applicant’s counsel about the principles on which the court could find that a regulation was unreasonable. However, the counsel did not then pursue the point, but returned to the mandatory and directory distinction. Subsequently, in his reply, counsel for the applicant noted that Gummow J had said in an unspecified case recently that one had to be very careful when handling delegated legislation because it is not an Act of Parliament, but the work of the public service. However, counsel did not squarely argue that item 1229(3)(a) of schedule 1 of the regulations was unreasonable, in the sense that it should be struck down, and certainly did not seek leave to amend the application to raise a ground to that effect. Accordingly, I take the point no further.
Ground 5
The fifth ground of review in the application filed on 19 July 2010 is:
The primary decision maker did not have the authority and/or jurisdiction to refuse to assess the plaintiff’s application for a Skilled visa on the ground of invalidity and has fallen into error of law.
For the reasons discussed above, the applicant’s purported visa application was not valid and the primary decision maker was not permitted to consider it.
Conclusion
I sympathise with the applicant. However, as none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 31 May 2011
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