Sudario (Migration)

[2021] AATA 48

Sudario (Migration) [2021] AATA 48 (12 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Glonilo Sudario

CASE NUMBER:  1930275

DIBP REFERENCE(S):  BCC2019/4708833

MEMBER:Alison Mercer

DATE:12 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 12 January 2021 at 6:50pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application not made in accordance with relevant legislation – made on general division review application form – substantial compliance – review applicant’s standing to apply – brother-in-law not a specified Australian relative – application fee not paid – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 5, 65, 347(1), 495, 496

Migration Regulations 1994 (Cth), rr 4.10, 4.13

Acts Interpretation Act 1901 (Cth), s 25C

CASES

Braganza v MIMA (2001) 109 FCR 364

Kirk v MIMA (1998) 87 FCR 99

MZAIC v MIBP [2016] FCAFC 25

SZJDS v MIAC [2012] FCAFC 27

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration, dated 22 October 2019, to refuse to grant Mr Glonilo Sudario (who is outside Australia) a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. A review application form was lodged with the Tribunal on 24 October 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. The Tribunal notes that the review application was made on a Tribunal General Division review application form.  The review applicant was stated to be Mr Glonilo Sudario, and a Mr David Wilson signed the form and listed his details in the representative section.

4. The Tribunal notes that an application for review of a Part 5-reviewable decision (which includes the decision to refuse a subclass 600 visa in specified circumstances) must be in the approved form or in a form which substantially complies with the approved form.[1] The expression ‘approved form’ is defined in s.5 of the Migration Act as a form approved by the Minister in writing. Under s.495 of the Migration Act, the Minister may, in writing, approve a form for the purposes of a provision in the Migration Act in which the expression ‘approved form’ is used. The power to approve forms has been delegated to the President in accordance with s.496 of the Migration Act.[2] For applications made on or after 1 July 2013, there are no requirements prescribed in the Regulations as to what content the form must include.[3]

   [1] Migration Act s 347(1)(a); Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) s 25C and MZAIC v MIBP [2016] FCAFC 25.

   [2] Instrument of Delegation 2015 (DEL 15/090), 30 June 2015.

   [3] For review applications made before 1 July 2013, the Regulations required a Part 5 review application form to set out the name and address of the review applicant; a brief statement of the capacity in which the person applicant applies for review; details of the decision to which the application relates; the name and address of the visa applicant (where the review applicant is not the visa applicant; and the review application relates to a visa refusal or points test assessed score): reg 4.10(4).

5. For the purposes of s.347, the current Instrument of Approval[4] specifies the following as approved forms:

   ·‘M1’ or ‘eM1’[5] for applicants not in detention;

   ·‘M2’ or ‘eM2’[6] for applicants in immigration detention;

   ·the form transmitted to the Tribunal using the online application system.

   [4] Instrument of Approval – Approvals of application for review forms for the Migration and Refugee Division dated 1 July 2015.

   [5] As generated by printing the online application form.

   [6] As generated by printing the online application form.

6. The Tribunal is satisfied that the review application in this case was not made on an M1 or eM1 form (which is approved for review applications to the Migration and Refugee Division), but was instead made on the form for a review application to the General Division of the Tribunal.

7. However, not using the approved form above may still result in a valid application being made if it is made in a form which substantially complies. Where a form other than the approved form is used, or the approved form is used but is incorrectly or incompletely filled in, the application may still be valid having regard to the principles of substantial compliance.

8. Section 25C of the Acts Interpretation Act provides that ‘Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient’.[7] Although the Migration Act does not ‘prescribe’ a form for Part 5 or Part 7 review applications, it does refer to an ‘approved form’ (as set out above).

   [7] Subject to a contrary intention, the Acts Interpretation Act applies to all legislative instruments, notifiable instruments and other instruments: Acts Interpretation Act s 2.

9. Section 25C of the Acts Interpretation Act applies to the making of an application in the approved form, with the Full Federal Court in MZAIC v MIBP holding that the correct question to be asked was whether the application for review was made in, or substantially in, the approved form.[8] In that case, the applicant had applied using a superseded version of the approved form with the only material difference between the form used and the one approved at the time of his application being the addition of a request for passport details in the later form. The Court held that the purpose of the application form was to indicate that the visa applicant invoked the jurisdiction of the Tribunal and that, in the circumstances of that case, the application made (which identified who the applicant was and the decision to be challenged and also included a copy of the decision notification letter from the Department which included the applicant’s name, date of birth, client ID, application ID and file number) substantially achieved that.[9] The Court also observed that the question in this case could only be answered by comparing what was submitted in the form used, with what was required by the approved form or forms at the time of the application to the Tribunal.[10]

   [8] MZAIC v MIBP [2016] FCAFC 25 at [51]–[52], [58], [135]. The Full Federal Court held that the Tribunal erred in finding that it lacked jurisdiction because the applicant had applied using a superseded version of the R1 form instead of the version approved at the time he was applying for review. In considering whether s 25C of the Acts Interpretation Act applied to s 412(1)(a) of the Migration Act, the majority expressly disagreed with paragraphs [26]-[28] of the Full Federal Court’s reasoning in SZJDS v MIAC [2012] FCAFC 27 and distinguished that case on the basis of SZJDS being about an applicant who was not within the particular class of applicant for review contemplated by the form that had been used. This was in contrast to MZAIC in which the applicant had only used an older version of the correct form approved for applicants of his class (at [24], [25], [134]). Justice Buchanan, in a concurring but separate judgment, expressly overruled SZJDS in its entirety, noting that the appeal in MZAIC had been constituted to a Full Court of five judges because it was proposed by the applicant to argue the correctness of that case (at [73], [74], [93], [135]).

   [9] MZAIC v MIBP [2016] FCAFC 25 at [58], [135].

   [10] MZAIC v MIBP [2016] FCAFC 25 at [22].

10. Although the reasoning of the Full Federal Court in MZAIC applies to the use of a superseded version of an approved form, the extent to which it applies beyond those facts is presently unclear. This is because the majority of a differently constituted Full Federal Court in the earlier case of SZJDS v MIAC held that the purpose and structure of each approved form was different, each form was designed to elicit different information relevant to its circumstances, and that not using the particular form approved for its class or type of application was a failure to properly make an application for review.[11] Whilst SZJDS was expressly overruled in MZAIC to the extent that it had held s 25C of the Acts Interpretation Act could not apply to s 412(1)(a) of the Migration Act, the majority in MZAIC did not expressly overrule the remainder of SZJDS or hold that it was plainly wrong overall. The extent to which SZJDS still represents the current law regarding forms approved for different categories of applicant following MZAIC is therefore unclear and may be resolved by further judicial consideration.

    [11] SZJDS v MIAC [2012] FCAFC 27. See Rares and Cowdroy JJ at [31]–[33] where they held that the M2 form (for applicants in detention) used by the applicant had no status for the purpose of enlivening the Tribunal’s jurisdiction in respect of the delegate’s decision to cancel his visa because he was not an applicant in detention at the time he was applying, and that the Tribunal was correct to treat that as being the incorrect form. However, this case was primarily about the notification and the authorised recipient provisions and was not specifically about the use of approved forms as was the later Full Federal Court case of MZAIC v MIBP [2016] FCAFC 25.

11. A broad view, however, suggests that the use of a form other than the one specifically approved for the particular class or type of application being made will not, in of itself, invalidate the application. Rather, it will be necessary to consider whether the application was made in a form which substantially complies.

12. Similarly, the partial failure to complete or fill in an approved form in accordance with its stated directions will not, of itself, render the application invalid and it would be necessary to consider whether the application, as made, still contained the information necessary to properly invoke the Tribunal’s jurisdiction and set in train the process of review.[12]

    [12] MZAIC v MIBP [2016] FCAFC 25 at [51], [58]. The information in that case that the Court found sufficient to invoke the Tribunal’s jurisdiction included the applicant’s name, date of birth, client ID, applicant ID and Departmental file number.

13. In this case, a Tribunal officer spoke with Mr Wilson by telephone on 25 October 2019 to provide advice about the correct form which needed to be used and the fee that needed to be paid.

14. On 3 January 2020, the Tribunal wrote to Mr Wilson via email about the application for review made by him in respect of decision to refuse to grant visitor visa for Mr Glonilo Sudario. The Tribunal reiterated that the application needed to be made in the approved form by the person who was entitled to apply to the Tribunal in relation to this decision. The Tribunal noted in addition that an application fee still had not been paid and advised that the application fee was $1,787 which had to be paid before the deadline for lodging the application set out in the Department of Home Affairs notification letter, which also provided information about who was entitled to apply for a merits review in this case. The Tribunal provided a link to information on the fee payable and payment options, which included a 50% fee reduction request if a review application would suffer severe financial hardship if required to pay the full fee.

15. On 6 January 2020, Mr Wilson rang the Tribunal to enquire about the status of the matter. He said that he and his partner had decided that they would not pay the review application fee, as he was of opinion that it was too expensive. A Tribunal officer explained to Mr Wilson that, as the fee had not been paid in this matter, it appeared that it would be processed as a ’No Jurisdiction’ matter and that the parties would be notified accordingly in due time.

16. On 10 January 2020, the Tribunal wrote to Mr Wilson to advise that a preliminary view had been formed that the review application was not a valid application as the application fee had not been paid.  The Tribunal noted that, however, this was a matter which must be ultimately determined by a Member. Mr Wilson was invited to make any comments on the validity of the review application by 24 January 2020, after which his application with any comments he provided, would then be referred to a Member to make a decision on the validity of the review application. 

17. The Tribunal did not receive any further comments from Mr Wilson, or Mr Glonilo, regarding the validity of the review application.

18. The Tribunal has considered whether the review application is invalid due to the fact that the General Division, and not the Migration and Refugee Division, form was used, and/or because it is arguably unclear who lodged the review application.

19. The Tribunal is satisfied that the decision that is sought to be reviewed is a decision to refuse a subclass 600 visitor visa to Mr Glonilo who is offshore, and who applied for the visa offshore. Sections 338(7) and 347(2)(c) provide that the person who has standing to apply for review to the Tribunal in these circumstances is a specified Australian relative (that is, who is an Australian citizen, or an Australian permanent resident), who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen, and whose particulars of the relative concerned are included in the application.

20. In this case, the review application was signed and lodged by Mr David Wilson. He did not clearly identify in the form that he was an Australian relative of Mr Glonilo. However, in the written submissions accompanying the review application, he indicated that Mr Glonilo was his brother-in-law, as he was married to Mr Glonilo’s sister, and it was hoped that Mr Glonilo could visit her and another sister in Australia who was undergoing serious medical treatment.

21. The relevant case law indicates that it is a question of fact for the Tribunal in each case as to who has applied for review, having regard to all the evidence, including the application form.[13]

    [13] In Hassan v MIBP [2015] FCCA 894, the Court held that an application for review had been lodged by the correct person with standing (in this case the visa applicant), notwithstanding that the sponsor had been identified as the review applicant in questions 3 and 5 of Part A of the M1 form. As all of the visa applicant’s details were contained elsewhere in the application form, and, significantly, the visa applicant had signed the formal declaration at the end of the M1 form identifying them as the person seeking review, the Court found, as a question of jurisdictional fact, that the review applicant was the visa applicant (at [14], [19]-[23]).

22. From the above information, it is arguable that Mr Wilson was intending to apply for review of the decision to refuse his brother-in-law’s visa refusal on behalf of Mrs Wilson (Mr Glonilo’s Australian sister, and the person who actually had standing to seek review of Mr Glonilo’s visa refusal decision).

23. Although the matter is not free from some ambiguity, the Tribunal gives the benefit of the doubt and finds that the review application substantially complies with the form and standing of the review applicant requirements. However, that is not the end of the matter.

24. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination had been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 31 December 2019. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

25. As noted above, Mr Wilson was provided with information on several occasions, by telephone and email, that the applicable review fee of $1,787 had to be paid (or a fee reduction sought) before the end of the prescribed period set out in the Department’s refusal notification letter in order for the review application to be valid. However, no fee or fee reduction request was received by 31 December 2019.

26. The Tribunal therefore finds that the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

27. The Tribunal does not have jurisdiction in this matter.

    Alison Mercer
    Member