Wang (Migration)

[2021] AATA 3162

Wang (Migration) [2021] AATA 3162 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhonghao Wang

CASE NUMBER:  2017402

DIBP REFERENCE(S):  BCC2020/1384310

MEMBER:Nicole Burns

DATE:11 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 11 August 2021 at 9:48am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – relevant date of a valid application – earlier application using incorrect version of the form – valid application – substantial compliance – retrospective validation of an invalid application – decision under review affirmed           

LEGISLATION

Acts Interpretation Act 1901 (Cth), s 25
Migration Act 1958 (Cth), ss 45, 46, 47, 65
Migration Regulations 1994 (Cth), r 2.07; Schedule 2, cl 600.223; Schedule 3, Criterion 3001

CASES

MIAC v Mon Tat Chan [2008] FCAFC 155
Mohammed v MIBP [2015] FCA 184
MZAIC v MIBP [2016] FCAFC 25
MZYIE v MIAC [2010] FMCA 994
SZMOV v Minister for Immigration [2017] FCCA 1584  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 November 2020 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 April 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because at the time of the application he did not hold a substantive visa and did not meet criterion 3001 of the Schedule 3 criteria.

4. The applicant gave oral evidence to the Tribunal on 18 June 2021 via telephone. His representative participated in the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets Schedule 3, Public Interest Criterion 3001 for the purposes of cl 600.223(2) of Schedule 2 to the Regulations.

7. Clause 600.223(2) states as follows:

   (2) If the applicant was in Australia at the time of application, and did not hold a substantive visa:

   a)the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic Consular) stream; and

   b)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. Criterion 3001 states that the application is validly made within 28 days after ‘the relevant day’. In the applicant’s circumstances, the relevant day is the last day when he held a substantive visa.

9. According to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review) the applicant last held a substantive visa when his student (Subclass 500) visa ceased on 21 February 2020. The current application was made on 14 April 2020. As the application was not made within 28 days after the applicant last held a substantive visa, the applicant does not satisfy criterion 3001 of the Schedule 3 criteria. Accordingly, the applicant does not meet cl 600.223.

10. In written and oral submissions to the Tribunal the representative contended that the applicant meets criterion 3001 on the basis of an internet application for a Subclass 600 (Visitor) visa in the Tourist stream made on 5 March 2020, before the 28 days had expired. The representative argues that the 5 March 2020 application should be considered valid on the basis that it ‘complied substantially’ with the relevant form (Form 1419), and cites case law[1] (among other things) to support his contention in this regard. He argues that judicial authority appears to suggest that it is possible for the principle of substantial compliance to apply to circumstances where an incorrect version of the application form is used but the substance/content of the form fits the purpose for which the form is required.

    [1] For example: MZAIC v MIBP [2016] FCAFC 25 and SZMOV v Minister for Immigration [2017] FCCA 1584

11. The Tribunal has considered the argument that the applicant’s internet application for a Subclass 600 (Visitor) visa in the Tourist stream made online on 5 March 2020 is valid and therefore he satisfies criterion 3001 for the purposes of cl 600.223(2) of Schedule 2 to the Regulations. However, whilst it is, arguably, possible for the principle of substantial compliance to be applied to the form used to make the visa application, this alone does not make the application valid as there are other requirements for the making of a valid visa application, including that it is made at the place and in the manner as specified. The Tribunal has explored these matters further, as they apply to the particular circumstances of this case, below.

12. Section 46 of the Act sets out the requirements for a valid visa application and specifies that an application for a visa is valid if, among other things, it satisfies the criteria and requirements prescribed under s 46 (s 46(1)(b)). Section 46(3) further provides that the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application, and reg 2.07 sets out these additional criteria. Relevantly, reg 2.07(1) provides that for ss 45 and 46 of the Act, if an application is required for a particular visa class, the relevant item in Schedule 1 sets out matters including the approved form to be completed by the applicant and other matters relating to the application. If an item in Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under reg 2.07(5), the Minister may, by legislative instrument, specify matters for the purposes of such a criterion or requirement, which includes the approved form; the way in which an application for a visa of a specified class must be made; the place at which it must be made; and any other matter.

13. In the applicant’s case he applied for a Subclass 600 (Visitor) (Class FA) visa in the Tourist stream. Item 1236 of Schedule 1 to the Regulations and the legislative instrument LIN 20/046 (made under reg 2.07(5) and item 1236(6)) prescribe the relevant requirements and matters that must be met for an application for a Class FA visa to be valid. A note to Schedule 1 states that ‘an application that is not made as set out in this Schedule is not valid and will not be considered’, which is consistent with s 47(3) of the Act that the Minister is not to consider an application that is not a valid application.

14. Whether an applicant has made a valid application for a visa is usually a decision for the Department when it considers the application as required under s 47 of the Act. In the circumstances of this case, it appears from information on the Departmental file that the Department considered a valid application was made on 14 April 2020, and made its decision to refuse that visa application, which is the subject of the current review. The purported online visa application made by the applicant on 5 March 2020 appears to have been deemed invalid by the Department and was not considered in accordance with s 47(3) of the Act.

15. As pointed out by the representative in his submissions, there is case law that suggests it is possible for the principle of substantial compliance to apply to circumstances where an incorrect version of the application form is used but the substance/content of the form fits the purpose for which the form is required: MZAIC v MIBP [2016] FCAFC 25 and SZMOV v Minister for Immigration [2017] FCCA 1584. Also a failure to respond to every question or comply with every direction on a form will not necessarily be fatal to the application’s validity: MZYIE v MIAC [2010] FMCA 994. Further, s 25C of the Acts Interpretation Act 1901 (Cth) provides that ‘where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.’ Accordingly, in circumstances where an approved visa application form is available as an internet version and a paper form and the information required in both forms are substantially the same – as in the applicant’s case – substantial compliance with an approved form could be met by completing either form.

16. However, as noted, this is not the end of the valid application assessment because in addition to the prescribed form, there are other requirements for a visa application to be valid. In the applicant’s case he was required to satisfy items 1236(1) (approved form), 1236(2) (visa application charge) and 1236(3) (additional requirements for an applicant seeking to satisfy the primary criteria in the Tourist stream) in order for his visa application to be valid. In relation to item 1236(3), table item 1 required that ‘the application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under sub regulation 2.07(5)’. The applicable instrument in this case, LIN 20/046, specifies the approved form, place and manner for this purpose. For a Visitor visa application in the Tourist stream, s 6 of the instrument provides that for each applicant described in Column A of the table in Schedule 1 of the instrument, the approved form is specified in the corresponding row in Column B of that table and the place and manner for making an application is specified in the corresponding row in Column C. As an applicant in Australia whose substantive visa had ceased, the applicant in this case is an applicant described in row 3 of Column A of the table in Schedule 1 (i.e. ‘any other applicant’). Accordingly, the prescribed approved form is Form 1419 (i.e. not an internet form), and the applicable place and manner of making the application would appear to be by post or courier as set out in item (b) of Column C.

17. In those circumstances, the applicant must have completed the paper Form 1419 and sent it to the Department by post or courier with the correct visa application charge for his application to be valid. It appears that this was done on 14 April 2020.

18. In relation to the purported internet application made on 5 March 2020, while it may be possible to find that Form 1419 (Internet) substantially complied with the approved form requirement, the applicant would still be unable to satisfy the requirements in relation to the place and manner by which the application must have been made, that is, by posting or delivery by courier to the relevant address in Column C of the table in Schedule 1 of LIN 20/046. Further, it is unclear if other requirements such as payment of the prescribed fee were met on 5 March 2020.

19. The Tribunal notes further Federal Court authority that confirms that a visa application has not been ‘made’ unless all the requirements for a valid application have been satisfied and there is no room for retrospective validation of an invalid application: Mohammed v MIBP [2015] FCA 184 at [19]–[28]. The majority reasoning in MIAC v Mon Tat Chan [2008] FCAFC 155 also supports the view that an invalid application cannot be rendered valid to the date it was lodged by a later valid application.

20. Having regard to the above, the Tribunal is not satisfied that the internet application made on 5 March 2020 in this case is a valid visa application. Even if the Tribunal accepted that an application was ‘started’ on 5 March 2020, it appears that all of the requirements for a valid visa application prescribed in the Act and the Regulations were only satisfied on 14 April 2020. Therefore, 14 April 2020 is the relevant date on which a valid application was made for the purposes of assessing criterion 3001 for cl 600.223(2) of Schedule 2 to the Regulations.

21. Accordingly, based on the available facts and the legislative requirements, the Tribunal finds that 14 April 2020 is the correct date on which a valid visa application was made in this case, which was 28 days after the applicant last held a substantive visa.

22. The representative also submitted that in the applicant’s case the effect of the refusal decision would be the applicant having to go offshore during a pandemic, and be separated from his partner who holds an Australian visa.  Furthermore he has engineering qualifications from an Australian university, making him valuable. The Tribunal has no reason to doubt the representative’s submissions in this regard. However as explained at hearing, it has no discretion to extend the 28-day period or waive the requirement by taking into account such circumstances when determining if the applicant satisfies criterion 3001 of the Schedule 3 criteria.

23. For the reasons above the applicant does not satisfy criterion 3001 of the Schedule 3 criteria. Accordingly, the applicant does not meet cl 600.223.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Nicole Burns
    Member