Wang v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1603
•2 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Minister for Immigration and Citizenship [2025] FedCFamC2G 1603
File number(s): SYG 1688 of 2021 Judgment of: JUDGE KAUR-BAINS Date of judgment: 2 October 2025 Catchwords: MIGRATION – judicial review – Visitor (Tourist) (subclass 600) visa – whether this Court has jurisdiction to review the Department of Home Affairs decision that an application for a visitor visa was invalid – whether to grant an extension of time to the applicant to bring an application to challenge the Department’s decision that an application for a visitor visa was invalid – delay of five years – extension of time refused in the interests of the administration of justice – application dismissed Legislation: Commonwealth of Australia Constitution Act 1900 (Cth), s 75(v)
Acts Interpretation Act 1901 (Cth), s 25C
Migration Act 1958 (Cth), ss 5, 5E, 46, 47(3), 47(4), 48, 338, 474(2), 476(1), 476(2), 477(1), 477(2), 477(3) and 477(3)(c)
Migration Regulations 1994 (Cth) sub-reg 2.07(5), sch 1, item 1236, subitem 1236(3)
Migration (LIN 20/046: Arrangements for Visitor (Class FA) Visa Applications) Instrument 2020, ss 6, 6(1), 6(2), sch 1
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Chen v Minister for Immigration and Border Protection [2013] FCAFC 133
Commonwealth of Australia; Ex-Parte Marks [2000] HCA 67; 177 ALR 491
Kuk v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 235
Lababidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 541
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZIAC v Minister for Immigration and Border Protection [2016] FCAFC 25
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936
SZUSZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1165
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Vella v Minister for Immigration and Border Protection [2015] HCA 42
New Shorter Oxford English Dictionary, Clarendon Press, 1993
Division: General Federal Law Number of paragraphs: 64 Date of last submission/s: 29 August 2025 Date of hearing: 26 May 2025
20 August 2025Place: Sydney Counsel for the Applicant: Mr P Berg Solicitor for the Applicant: KWL Lawyers Counsel for the First Respondent: Ms F McNeil Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitted appearance save as to costs ORDERS
SYG 1688 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHONGHAO WANG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
2 OCTOBER 2025
THE COURT ORDERS THAT:
1.The Amended Application dated 17 December 2021 is dismissed.
2.The Applicant’s application seeking an extension of time to bring an application for judicial review to challenge the Department of Home Affairs’ decision dated 1 April 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
By application dated 9 September 2021, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 August 2021. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a Visitor (Tourist) (subclass 600) visa (visitor visa), which had been the subject of a paper “Form 1419” application dated 14 April 2020 (second visa application). On 17 December 2021 the applicant filed an amended application.
The hearing of the application was first listed for hearing before me on 26 May 2025. At that hearing, the applicant was represented by Mr Peter Berg of Counsel (Mr Berg) (applicant’s Counsel), and the Minister was represented by Ms Fiona McNeil of Counsel (Ms McNeil) (Minister’s Counsel).
On considering the judicial review application, it appeared to me that the applicant was seeking to challenge an earlier decision of the Department of Home Affairs (Department) made on 1 April 2020 (Invalidity Determination), whereby the Department determined that the applicant’s application for a visitor visa dated 5 March 2020 was invalid (first visa application). I raised with the parties that there appeared to be an issue with the current judicial review application, in that it was seeking in truth to challenge the Invalidity Determination, and if that decision had been reviewed by the Tribunal (which was questionable), the Tribunal had no jurisdiction to so review. I made orders inviting the parties to file written submissions in relation to the issue raised. Subsequently, the Minister filed written submissions dated 6 June 2025.
The matter came back before me on 2 July 2025, at which time Mr Berg, the applicant’s Counsel, conceded that the applicant was in fact seeking to challenge the Invalidity Determination. Mr Berg also conceded that even if jurisdictional error was found in the Tribunal’s decision, it would be futile for this Court to remit the matter to the Tribunal because the Tribunal in fact had no jurisdiction to determine the validity of the first visa application. This is because Part 5 of the Migration Act 1958 (Cth) (Act) conferred on the Tribunal power to only review the merits of “Part 5-reviewable decisions”. Section 338 of the Act provides a definition of “Part 5-reviewable decisions”, which does not include reviewing a decision of the Department as to the validity of visa applications. As a necessary consequence of the assessment that the application was not a valid application for the purposes of s 46 of the Act, the Minister was obliged by s 47(3) of the Act not to consider that application and s 47(4) of the Act makes it clear that “a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa”.
The applicant’s Counsel made an application seeking an extension of time to bring an application for judicial review to challenge the Invalidity Determination on the basis that the first visa application was in fact valid (extension application). I made orders for the filing of written submissions in relation to the extension application.
The issue that arises for determination is whether to grant the applicant the extension of time sought. For the reasons set out below, I have not granted the applicant an extension of time to amend the judicial review application to seek to challenge the Invalidity Determination.
BACKGROUND
The applicant is a citizen of China. The applicant held a substantive visa, being Student (subclass 500) visa (student visa), which ceased on 21 February 2020.
On 5 March 2020, the applicant made an application within 28 days after his last held substantive visa ceased for a visitor visa for up to three months with an end date of 31 May 2020 (Court Book (CB) 1 to 11). The applicant stated that the purpose of the further stay was to attend a graduation ceremony at the University of Sydney, following the completion of a Master’s programme, which was scheduled for April or May 2020 (CB 1 to 2). The applicant attached a letter from the University of Sydney dated 4 March 2020, which confirmed the applicant had completed the requirements of a Master of Professional Engineering (Geomechanical) degree and the graduation ceremony was to be held at the University of Sydney (CB 12).
On 1 April 2020, the Department advised the applicant that his first visa application was invalid because it did not meet the relevant regulatory requirements in that for the applicant (who was within Australia but not the holder of a substantive visa) he needed to make an application by using the paper form “1419” and posting it to the Department, or sending it by courier to the Department (CB 18 and 19). The letter stated that an invalid application cannot be considered and therefore his application had not been assessed against the visa criteria for grant or refusal. The letter further stated that there was “no right of merits review of the assessment that an application is invalid”.
On 14 April 2020, the applicant submitted a paper “Form 1419” application for the visitor visa (CB 20 to 32). On 20 November 2020, the Department refused the application on the basis that the criteria for the grant of the visa were not satisfied because the application was lodged more than 28 days after the applicant’s last held substantive visa ceased on 21 February 2020. Therefore, the applicant did not meet Sch 3 criteria 3001 of reg 600.223(2) (delegate’s 2020 decision) (CB 60 to 63).
On 3 December 2020, the applicant applied to the Tribunal for review of the delegate’s 2020 decision (CB 64 to 65). The Tribunal in reviewing the delegate’s 2020 decision considered the facts surrounding the first visa application, as the applicant’s Counsel, Mr Berg, who appeared before the Tribunal raised that matter.
On 11 August 2021, the Tribunal affirmed the delegate’s 2020 decision on the same basis as the delegate, that the application was lodged more than 28 days after the applicant last held substantive visa ceased (CB 177 to 181).
PROCEEDINGS BEFORE THE COURT
On 20 August 2025 the matter came back before me for the hearing of the application seeking an extension of time to bring an application for judicial review to challenge the Invalidity Determination on the basis that the first visa application was in fact valid. The applicant in the draft “Further Amended Application” set out the following proposed ground (as per original):
The Minister’s delegate has made an error of law. In correspondence to the applicant dated 1 April 2020, the delegate relevantly stated:
“Item 1236(3) subitem 1 of Schedule 1 to the Migration Regulations 1994 requires applicants in Australia seeking to satisfy the requirements of the Tourist stream, to make their application in Australia, in the way specified by the Minister in an instrument in writing for Item 1236(3) subitem 1. Your application for a visa is invalid because it did not meet Item 1236(3). Subitem 1 of that provision required you to apply by paper:”
(emphasis added)
Item 1236(3) requires the applicant to make a visa application using Form 1419. A visa application using Form 1419 can be made “as an internet application”. The application on 5 March 2020 was made in that matter. The Minister’s delegate has made an error by finding that the application did not comply with the ‘place and manner of application’ rules for Form 1419.
The applicant relied on his Counsel’s written submissions filed on 7 August 2025. The Minister relied on written submissions filed on 6 June 2025, 22 July 2025 and submissions in reply dated 19 August 2025. After the hearing, the Minister filed supplementary submissions dated 26 August 2025 and relied on them, and the applicant filed supplementary submissions in reply dated 29 August 2025 and relied on them. Mr Berg and Ms McNeil also made helpful oral submissions in relation to the extension application.
The evidence before the Court comprised of a document headed “Form 1419 – Application for a Visitor visa – Tourist stream”, which was tendered by the applicant without objection and marked “Exhibit A1”, and the Court Book tendered by the Minister, which was marked “Exhibit R1”.
CONSIDERATION
Whether this Court has jurisdiction to review the Invalidity Determination
The first question that arises is whether this Court has jurisdiction to hear an application for review of the Invalidity Determination. I note that both parties agreed that this Court did have jurisdiction, but such consent cannot bestow jurisdiction.
I am satisfied that this Court does have jurisdiction to determine whether the first visa application was valid for the reasons that follow.
Section 476(1) of the Act gives this Court the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Commonwealth of Australia Constitution Act 1900 (Cth). The meaning of migration decision is defined in s 5 of the Act, which relevantly include “a privative clause decision” and “a purported private clause decision”.
A “privative clause decision” is relevantly defined in s 474(2) of the Act as follows:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not).
A “purported privative clause decision” is defined in s 5E of the Act as a decision that would have been a privative clause decision if there were not a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision.
The Invalidity Determination made by the Department was a decision of an administrative character. This Court’s jurisdiction is not excluded in such decisions under s 476(2) of the Act. Her Honour Given J helpfully distilled the relevant principles in Lababidi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 541 at [6]-[7]:
6At first blush, the decision appears to be a primary decision. However, the Federal Circuit and Family Court of Australia has jurisdiction to hear an application for review of a determination that an application is invalid: see ss 476, 474 and 5 of the Migration Act 1958 (Cth) (Act) (definition of 'migration decision') and BPW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1422 at [14] per Judge Jarrett.
7Whether an application is invalid is an objective question of law for the Court to determine: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [26] to [27] per Yates, Robertson and Wigney JJ.
In the two decisions of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 and Chen v Minister for Immigration and Border Protection [2013] FCAFC 133, the Full Court stated that the validity of applications is to be determined by the Court rather than one by the Minister on remitter. Further, I note that in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47 at [25]-[27], the Full Court Yates, Robertson and Wigney JJ made the following comments:
25In our opinion, the first issue to be decided is whether or not the validity of an application for a visa is an objective question.
26The issue is the validity under the Act of the visa application. The factors or criteria by reference to which an application for a visa is valid in s 46 are stated objectively and do not rest in the Minister’s or an officer’s discretion or opinion. Further, s 47 imposes obligations on the Minister, as opposed to conferring a discretion on him or her. These considerations point in favour of validity being an objective question for the Court and we so find.
27The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.
I will now turn to consider whether to grant the applicant an extension of time.
Extension of time
Sections 477(1) and 477(2) of the Act provides:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The meaning of the date of the migration decision is set out at s 477(3) of the Act. Relevantly, in this case, the Invalidity Determination satisfies the definition of a migration decision and s 477(3)(c) of the Act provides that the date of the migration decision is the date of the written notice of the decision. Therefore, the application to this Court for judicial review needed to be made within 35 days of the date of the Invalidity Determination, which was made on 1 April 2020. Therefore, the applicant needs this Court to extend the time in which the applicant can bring the review to challenge the Invalidity Determination.
It is helpful to first set out the relevant legal principles that apply to this Court’s consideration as to whether to exercise the power to extend the time within which to allow an applicant to make an application for judicial review.
Relevant legal principles for extension of time
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Katoa) at [12], the High Court observed that the Court’s power to extend time is not focused on the interests of the applicant, rather on the broader interests of the administration of justice. The Act does not specify any criteria which must be satisfied to establish that it is in the interests of the administration of justice to grant an extension of time but the Court may look at a myriad of facts and circumstances including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.
The principles regarding an application under s 477(2) of the Act were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that case, Jagot and Halley JJ found that the Court has an obligation to “evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”. Further, their Honours identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time, although it is noted that this list is not exhaustive:
(a)the length and explanation of delay;
(b)any prejudice to the parties if an extension were granted;
(c)the impact on the applicant if the time was not extended;
(d)the interests of the public at large; and
(e)the merits of the substantive application.
Length and explanation of delay
The delegate made the Invalidity Determination and set its decision to the applicant in the letter dated 1 April 2020 (CB 18 to 19). The proposed further amended application was provided to the Minister on 1 July 2025. There is no dispute the application sought to be made is over five years out of time.
The Minister referred me to the decision in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38], where his Honour Wigney J described a delay of 18 months as excessive and observed that, in general, the longer the delay, the more persuasive the explanation for the delay needs to be. In a case of long delay, the absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time: Kuk v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 235 at [13].
There is no question that the delay of over five years is significant and requires an explanation from the applicant. Mr Berg candidly admitted that the reason for the delay was that the applicant’s legal representative had not appreciated they could not seek a review of the Invalidity Determination before the Tribunal and that they needed to challenge the Invalidity Determination before this Court. The applicant’s legal representative thought that they could seek a review of the Invalidity Determination before the Tribunal and therefore took steps in making an application to the Tribunal.
In relation to Mr Berg’s explanation that the delay was a result of a “mistake” on the part of the applicant’s legal representative, the Minister referred me to the High Court decision of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 per Gaudron J at [107], McHugh J [149]-[153] and Kirby J [215]-[222] (Miah), where his Honour Kirby J at [219] said the following:
Obviously, the prosecutor's former solicitor should have commenced the proceedings in this Court promptly, instead of losing time in the ultimately fruitless appeals for an indulgence from the Minister. However, it would be wrong to treat this mistake as fatal. Clearly enough, having become enmeshed in a procedural difficulty that complicated the reconsideration of his substantive application, the prosecutor himself would simply have acted as he was advised. No effective remedy could be secured by his suing his former solicitor. The Minister did not seek to demonstrate any actual prejudice resulting from the overall delay. If the prosecutor were able to persuade a decision-maker that he was entitled to protection as a refugee, his removal from Australia to Bangladesh would be contrary to Australia's protection obligations under the Convention. There are additional considerations which lead me to the view that, despite the great delays, time for these proceedings should be extended and relief granted in the exercise of this Court's discretion.
The Minister argued that in Miah, the High Court was concerned with an application for a protection visa, while the present proceedings relate to a visitor visa, which is not a permanent visa. Therefore, that fact is relevant in the exercise of the Court’s discretion.
Prejudice to the parties
The Minister argued that he may not suffer substantial prejudice, other than as to costs. However, the delay is very significant and extreme delay itself naturally would cause some prejudice to the Minister if an extension of time was granted in the present case: SZUSZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1165 at [57].
The Minister also argued that significant delay prejudices the public interest in the finality of administrative decision making: Commonwealth of Australia; Ex-Parte Marks [2000] HCA 67; 177 ALR 491 at [17]. As the High Court observed in Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [34], where the delay is extensive, only an “exceptional” case may warrant the grant of extension. The Minister reiterated that the present case does not raise exceptional circumstances warranting the grant of the extension of time sought.
Further, the Minister contended that the overall circumstances of this case are that the applicant initially applied for a visitor visa for up to three months with an end date of 31 May 2020 for the purpose of attending his university graduation ceremony in 2020, whereas the applicant has been allowed to stay in Australia on a bridging visa since 2020, which is five years beyond the duration requested in the original subclass 600 visa application.
Mr Berg submitted that the applicant obtained a Master’s degree in Australia and sought employment as a geomechanical engineer in this country. However, due to the visa refusal decision, s 48 of the Act prevented him from applying for a work visa. Further, Mr Berg argued that the applicant has a social and professional network in Australia and if he returned to China, it would be for an indefinite time. The applicant would be severed from his network, and his employment prospects would be harmed. Accordingly, it was contended that the applicant faced substantial prejudice.
In addition, Mr Berg argued that there is prejudice to third parties because it is inevitable that numerous visa applicants submitted “Form 1419” according to incorrect instructions. This argument is premised on the basis that Mr Berg is correct as to the construction of the relevant provisions, which I deal with at [39] to [61] of this judgment.
Merits of the substantive application
The proposed further amended application raises the following ground:
The Minister’s delegate has made an error of law. In correspondence to the applicant dated 1 April 2020, the delegate relevantly stated:
“Item 1236(3) subitem 1 of Schedule 1 to the Migration Regulations 1994 requires applicants in Australia seeking to satisfy the requirements of the Tourist stream, to make their application in Australia, in the way specified by the Minister in an instrument in writing for Item 1236(3) subitem 1. Your application for a visa is invalid because it did not meet Item 1236(3). Subitem 1 of that provision required you to apply by paper:”
(emphasis added)
Item 1236(3) requires the applicant to make a visa application using Form 1419. A visa application using Form 1419 can be made “as an internet application”. The application on 5 March 2020 was made in that manner. The Minister’s delegate has made an error by finding that the application did not comply with the ‘place and manner of application’ rules for Form 1419.
Usually, in considering whether the proposed amendments to the application has merit, the Court will do so at a “reasonably impressionistic level”, by assessing whether the proposed grounds are “arguable”, “reasonably arguable” or “sufficiently arguable”, to warrant the grant of extension of time: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392 at [62]-[63].
However, the discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Before considering the merits of the applicant’s challenge to the Invalidity Determination, it is helpful to outline the relevant statutory scheme.
Relevant statutory scheme
Item 1236(3), table Item 1 of Sch 1 to the Migration Regulations 1994 (Cth) (Regulations) in relation to Visitor (Class FA) visa applications, required that the “application must be made at the place, and in the manner (if any) specified by the Minister made in a legislative instrument made for this item under sub regulation 2.07(5)”.
The relevant legislative instrument made for Item 1236 under sub-reg 2.07(5) of the Regulations was “Migration (LIN 20/046: Arrangements for Visitor (Class FA) Visa Applications) Instrument 2020” (LIN 20/046).
LIN 20/046 sets out different requirements for Visitor (Class FA) Visa Applications depending on:
(a)the “stream” in which the application is made; and
(b)the kind of applicant.
Section 6 of LIN 20/046 falls within Part 2, “Making a Visitor (Class FA) visa application”, and provides:
6 Making an application in the Tourist stream
(1)For subitem 1236(1) of Schedule 1 to the Regulations, subject to section 11, for each kind of applicant described in Column A of the table in Schedule 1, the approved form is specified in the corresponding row in Column B.
(2)For the item 1 of the table in subitem 1236(3) of Schedule 1 to the Regulations, subject to section 11, for each kind of applicant described in Column A of the table in Schedule 1, the place and manner for making an application is specified in the corresponding row in Column C.
At the relevant time, Sch 1 in LIN 20/046 contained the following table.
Item No. Column A:
Kind of ApplicantColumn B:
FormColumn C:
Place and manner1 An applicant who:
is outside Australia; and
is the holder of a passport issued by a country, territory or organisation specified in Column 1 of the table in Schedule 7 to this instrument and subject to the conditions (if any) specified in Column 2 of the table in Schedule 7 to this instrument.149 (Internet);
or1419
Applications must be made:
as an internet application; or
if not as an internet application and the applicant is located in Australia:
by posting the application with the correct prepaid postage to:Department of Home Affairs Onshore Visitor Visa Processing GPO Box 9984 Sydney NSW 2001 AUSTRALIA;
or
by delivery by courier service to:
Department of Home Affairs Onshore Visitor Visa Processing Level 3 26 Lee Street Sydney NSW 2000 AUSTRALIA;
or
If not an internet application and the applicant is outside Australia at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth.
2 An applicant who:
is in Australia; and
is the holder of any substantive visa.1419 (Internet);
or1419
3 Any other applicant. 1419 Form
The parties accept that pursuant to s 6(1) of LIN 20/046, the applicant fell within Sch 1, Item No. 3 of Column A and therefore was required to file a paper form of “Form 1419” (paper Form 1419). There is no factual dispute that the applicant did not use the paper Form 1419 on 5 March 2020 but rather used the Form 1419 (Internet) (CB 1 to 11). The Minister submitted that the Form 1419 (Internet) referred to an applicant being on the internet, on the official website for the Department, where questions are posed to the applicant and the responses are typed. At the conclusion of completing all the responses, the applicant is required to submit the form electronically and it follows that the form cannot be posted.
The parties correctly agreed that the fact that the applicant used the Form 1419 (Internet) was not fatal to the validity of the application, because the principle of substantial compliance applied. So, where an incorrect version of the application form is used but the substance and content of the form fits the purpose for which the form is required, then strict compliance with the form is not required: MZIAC v Minister for Immigration and Border Protection [2016] FCAFC 25. This is because 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”.
Place and manner
However, the real question raised in the proposed amended application is whether for the purposes of s 6(2) of LIN 20/046, the “place and manner” for making an application as specified has been complied with.
The applicant submitted his form 1419 over the internet. The Department in the Invalidity Determination found that part of the reason the application was invalid was because the application was required to be posted to the address set out in Column C of Sch 1 pursuant to s 6(2) of LIN 20/046.
Section 6(2) of LIN 20/046 provides:
6 Making an application in the Tourist stream
…
(2)For the item 1 of the table in subitem 1236(3) of Schedule 1 to the Regulations, subject to section 11, for each kind of applicant described in Column A of the table in Schedule 1, the place and manner for making an application is specified in the corresponding row in Column C.
This raises the issue of the proper construction of s 6(2) of LIN 20/046 and the table in Sch 1 to LIN 20/046. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 at [14], the High Court explained:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense [citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2]. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The Minister contended that the proper construction of s 6(1) of LIN 20/046 is that because the form specified in Column B for Item No. 3, namely “1419”, rather than “1419 (Internet)”, as part of the relevant statutory context informs the interpretation of Column C. The Minister contended that the “place and manner” specified in subsection (a) within Column C, which states that applications must be made “as an internet application”, is not engaged in respect of Item No. 3 because the form specified in Column B for Item No. 3 is “Form 1419”, which is a paper form. The Minister contended that if the form in Column B is the paper Form 1419, then under Column C the place and manner to make an application if the applicant is located in Australia is by postage, as specified in subsection (b) of Column C. Further, the Minister submitted that this construction arises as a matter of practicality, as it is physically impossible to submit a form as an “internet application” if it is not in an “internet form”.
For the reasons that follow, I find that it is reasonably arguable that the proper construction of s 6(2) of LIN 20/046, is that for each kind of applicant described in Column A of the table in Sch 1, the place and manner for making an application is specified in the corresponding row in Column C, being the entirety of Column C (so that the paper form 1419 can be made via the internet or by posting), as that is the corresponding row referred to in s 6(2) of LIN 20/046 as there is no demarcation.
First, the ordinary meaning given to the word “corresponding” in the New Shorter Oxford English Dictionary, Clarendon Press, 1993 (New Shorter Oxford English Dictionary) is as follows: “...1 That corresponds to something else”. The ordinary meaning given to the word “row” in the New Shorter Oxford English Dictionary is as follows: “…1 A number of people or things in a more or less straight line”. When this ordinary meaning is applied to s 6(1) of LIN20/046 (as set out in [46] of this judgment), the proper construction of s 6(1) of LIN20/046 is that for each kind of applicant described in Column A of the table in Sch 1, the approved form is specified in the corresponding row in Column B. The corresponding row can clearly be identified because of the presence of demarcations, being the horizontal lines, below each of Item No. 1, Item No. 2 and Item No. 3 respectively in Column A and Column B (as can be seen from the table reproduced on page 11 of this judgment).
Second, s 6(2) of LIN20/046, which appears immediately after s 6(1), and uses similar language to identify the place and manner where the application needs to be made. Subsection 6(2) of LIN20/046 states that “for each kind of applicant described in Column A of the table in Schedule 1, the place and manner for making an application is specified in the corresponding row in Column C” (emphasis added). Thus, if the same construction for “corresponding row”, as used in s 6(1) of LIN20/046, is used for s 6(2), then the presence of the horizontal lines marks off the “corresponding row”. As can be seen from the table reproduced at page 11 of this judgment, Column C, unlike Column A and Column B, does not contain the presence of the horizontal lines between subsections (a), (b) and (c) in Column C. Thus, pointing to the “corresponding row” in Column C being the entirety of Column C, so that the place and manner of making an application is as follows:
(a)if the applicant is within or outside of Australia, the applicant can make the application as an internet application – subsection (a) of Column C;
(b)if the application is not made by an internet application and the applicant is within Australia then by posting the application to the address specified – subsection (b) of Column C; and
(c)if the application is not made by an internet application and the applicant is outside Australia then the application can be sent to the diplomatic consular or migration office – subsection (c) of Column C.
Third, s 6(2) of LIN20/046 requires the kind of applicant described in Column A, to correspond with the row in Column C and is not importantly seeking to correspond the form in Column B with the place and manner in Column C. Therefore, the kind of applicant in Column A, for relevant purposes, is an applicant who is either within or outside Australia, and Column C is in effect saying if you are an applicant who is within or outside of Australia you can make the application as an internet application, but if the applicant does not make it as an internet application and they are within Australia the applicant can post the application to a certain address, or if the applicant does not make it as an internet application and they are outside Australia the application can be posted to the specified address.
Fourth, there is no definition of an “internet application” for LIN20/046. I also note that in relation to what is called a “Form 1419 (Internet)”, this refers to an applicant being on the internet, on the official website for the Department, and being on a specific link where questions are posed to the applicant and they are required to type in responses, and at the conclusion of the process, the responses are required to be submitted electronically. Therefore, Column C can only sensibly be referring to the place and manner for making of an application using the paper Form 1419.
Fifth, the paper Form 1419 (Exhibit A1) in force at the relevant time, expressly stated that if you are within or outside Australia then the applicant can “submit [the] application”, inter alia, “electronically over the internet”, or by mailing the application form to the addresses specified.
Sixth, the Minister did not point to any purpose as to why the paper Form 1419 should not be submitted electronically over the internet and why there had to be a requirement that it be posted. In the absence of any such purpose it would seem improbable that the legislative intent was to require the paper Form 1419 to be posted as opposed to being submitted electronically over the internet.
CONCLUSION
The delay in seeking to bring the current judicial review application is lengthy and excessive. While I accept Mr Berg’s explanation, the length of the delay must still be considered and is significant. Further, I note the first visa application that the applicant is seeking to be declared as valid, was for the applicant to remain in Australia after completing his Master’s programme on 3 March 2020 to attend his graduation ceremony. The visa sought was for the applicant to stay for a further three months ending on 31 May 2020. The applicant has now remained in Australia for over five years and presumably he has already attended his graduation, which was the original purpose for seeking the visa. The applicant has pointed to other prejudices, including to third parties which I have taking into account. I have also considered the merits of the matter, which are in the applicant’s favour. Taking all the matters into account, I am not satisfied that it is in the interests of the administration of justice to grant an extension of time in this case.
Accordingly, I refuse the extension of time and dismiss the applicant’s application seeking an extension of time in which to bring an application for leave to amend the judicial review application to challenge the Department’s decision dated 1 April 2020, that the visa application was invalid.
COSTS
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 2 October 2025
0
22
5