VWYC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 456

FEDERAL COURT OF AUSTRALIA

VWYC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 456

MIGRATION – bridging visa – approved form – failure to specify class of bridging visa – application invalid

Migration Act 1958 (Cth) ss 45, 46, 47, 54, 55
Migration Regulations 1994 reg 2.07

VWYC v THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MS LIZ KERRISH (IN HER CAPACITY AS AN OFFICER OF THE FIRST RESPONDENT’S DEPARTMENT)

VID 281 of 2005

FINKELSTEIN J
1 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 281 of 2005

BETWEEN:	VWYC Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MS KERRISH (IN HER CAPACITY AS AN OFFICER OF THE FIRST RESPONDENT’S DEPARTMENT) Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay one half of the respondent’s costs of the day.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 281 of 2005

BETWEEN:	VWYC Applicant
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and MS KERRISH (IN HER CAPACITY AS AN OFFICER OF THE FIRST RESPONDENT’S DEPARTMENT) Respondents

JUDGE:	FINKELSTEIN J
DATE:	1 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is a difficult case.  Ordinarily it is the type of case in which, if I had the opportunity, I would have reserved my decision as it raises some intricate questions of construction of both the Migration Act 1958 (Cth) and the Migration Regulations 1994. Because the applicant claims to be unlawfully detained by the Commonwealth (he is presently in Baxter Detention Centre) and seeks relief in the nature of habeas corpus, it would be wrong for me to delay ruling on the application. I am indebted to counsel for their very helpful submissions which have made my task easier.

2. The facts are largely not in dispute.  The applicant is an Albanian national.  He arrived in Australia in May 2003.  Shortly thereafter he applied for a protection visa.  That application was refused by a delegate of the Minister on 7 January 2004 and the delegate’s decision was affirmed on 25 October 2004 by the Refugee Review Tribunal.

3. On 21 March 2005 the applicant filed an application for review of the tribunal’s decision. So that he could remain in Australia pending the resolution of the review application, the applicant applied for, and was granted, a bridging visa. The visa however was cancelled following an incident at an Adelaide nightclub on 4 March 2004. It is alleged that on that day the applicant, while he was intoxicated, drove his car onto the pavement near the nightclub and attempted to run down some patrons. Section 116(e) of the Migration Act allows the Minister to cancel a visa if she is satisfied that “the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community”. The events which occurred at the nightclub led the Minister to exercise this power. Following the cancellation of his visa, the applicant was detained and placed in immigration detention.

4. On 22 March this year, the applicant, by facsimile transmission to the Minister’s Department in Adelaide, sent what purported to be a further application for a bridging visa, being Bridging Visa (WE) Visa sub-class 050. Whether or not this was a valid application for a visa is at the heart of the present dispute. If the applicant had made a valid application for a bridging visa that would bring into operation s 75 of the Migration Act. Section 75 provides that if a non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class, and the Minister does not make a decision within the prescribed period to grant or refuse to grant the bridging visa, then the non‑citizen is taken to have been granted a bridging visa of the prescribed class at the end of the prescribed period. According to reg 2.24 (2) of the Migration Regulations 1994 the prescribed period within which the Minister must make a decision in order to avoid the otherwise automatic operation of s 75(1)(b) is two working days.

5. The Minister (through her delegate) did not make a decision on the bridging visa application because the delegate thought that the application was “invalid”.  Rather, the delegate acted as if no application for a visa had been made.

6. The Migration Act operates in the following way relevant to this application. Section 47(1) requires the Minister to consider every “valid application for a visa”. Section 47(3) states that “[t]o avoid doubt, the Minister is not to consider an application that is not a valid application”. Section 47 is mandatory both in its positive and negative aspects.

7. As I have said, the issue here is whether the applicant made a valid application for a visa. To determine that question it is necessary to consider s 46. That section prescribes certain criteria, each of which (when applicable) must be satisfied for there to be a valid visa application. Section 46(1)(a) provides that an application for a visa is valid if, and only if, “it is for a visa of a class specified in the application”. Section 46(3) states that “[t]he regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application”. Section 46(4)(b) also provides that “[w]ithout limiting sub-section (3), the regulations may also prescribe how an application for a visa of a specified class must be made”. Sub-sections 46(3) and (4) make clear that the method by which a valid application for a visa is made depends upon the regulations. Here the relevant regulation is reg 2.07. That regulation provides:

   (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”.

   I note that reg 2.07 is headed "Application for Visa - General." I am entitled, if necessary, to take into account the heading to discover the precise subject matter of the regulation.

8. It is also necessary to note other sections of the Migration Act. Section 54(1) provides that “[t]he Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application”. Section 54(2) states that “[f]or the purposes of subsection (1), information is in an application if the information is (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55”. Section 55(1) permits the Minister to have regard to "any additional relevant information" to which the Minister might be referred to by the visa applicant.

9. The provisions in the statute and in the regulations to which I have referred establish the following regime: (1) In the case of applications for certain categories of visa (of which a bridging visa is one) a valid application must be in the approved form; (2) If the approved form contains instructions regarding the manner in which the application is to be completed, those instructions must be complied with; (3) The document which in reg 2.07(1)(a) is referred to as "the approved form", is the approved form for an application for a visa.

10. This does not mean that an application for a visa must consist only of the approved form.  Commonly, an application will comprise the approved form as well as other documents.  The other documents may be expressly incorporated so as to form part of the application or they might be incorporated by inference having regard to the manner in which they are presented to the Minister.

11. I now turn to the particular facts which give rise to the dispute.  The bridging visa application was sent to the Minister at 5.17 pm on Monday 22 March.  The approved form required the applicant to provide the Minister with certain information which was identified; the information was to be inserted in the space provided.  The applicant’s solicitor filled out the approved form but did not provide an important piece of information.  The visa applicant was given the following instruction:  “Write the name of the class of bridging visa for which you are applying, for example bridging visa A, bridging visa B, bridging visa C in the box below”.  The information was not provided, that is the approved form did not specify the class of visa which the applicant was seeking.

12. There may be occasions where an approved form of application may only be used for one class of visa.  Perhaps in that case the visa need not specify the class of visa for that will be apparent to the Minister.  However, that is not one of those cases.  The approved form used by the applicant may be used for various categories of visas.

13. Although the application did not specify the class of visa which the applicant sought, the letter from his solicitors, under cover of which the application was submitted, identified the particular visa. The first sentence of the solicitor's letter reads: “I act for [VWYC] and enclose herewith an application for a Bridging E Visa on the basis of his judicial review application which has been lodged with the Federal Court today (22 March 2005)”. The critical question in this case is whether the specification in the solicitor's letter of the class of visa which the applicant was seeking constitutes compliance with ss 46(1)(a) and 46(3).

14. I think that the answer to that question depends upon the proper identification of what in this case is the application for the visa. I said earlier that the application must be made in the prescribed form; that form was used. I also said that the application need not comprise only the approved form of application; other documents can form part of the application for the purposes of the Act. If in this case the application is constituted by only the approved form then, subject to s 54, neither ss 46(1)(a) nor 46(3) have been complied with. A different result would arise if the visa application is constituted by the approved form and the solicitor's letter. In that event each of ss 46(1)(a) and 46(3) will have been satisfied.

15. In the end, although the result might seem unfair, I have reached the conclusion that it is the approved form and not the letter, which constitutes the application.  I have reached this conclusion because that is what the applicant’s solicitor designated as the application.  I earlier quoted the first sentence from the solicitor's letter.  That refers to the approved form as the application.  It did not invite the Minister to treat the letter as part of the application.

16. Putting the matter another way, once an applicant has identified a particular document as constituting his application for a visa, the Minister is not entitled (except in a case of obvious error) to go beyond that identification.  The result might be harsh in this case, but the opposite conclusion would produce an unworkable situation for those who administer the legislation.

17. That leaves s 54. In my view it does not aid the applicant. Section 54 imposes an obligation on the Minister to have regard to certain information when dealing with an application for a visa. The information is in three categories. The first is information in the application itself. The second is information which is attached to the application. Here the word attached should be given a beneficial construction; it need not be confined to information in a document which is physically attached to the application. The third category is information given under s 55. Section 54 is not concerned with defining what constitutes an application. Its subject matter is different. The section is concerned with imposing an obligation on the Minister to take into account information over and above that which might be found in the application. In any event, s 54 only comes into operation when the Minister has in her possession a valid application for a visa and that is not what occurred in this case.

18. The application must be dismissed with the applicant to pay one half of the respondent’s costs of the day.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:             19 April 2005

Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Clothier Anderson & Associates
Counsel for the Respondent:	Mr P Gray
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 April 2005
Date of Judgment:	1 April 2005