Wu v Minister for Immigration and Citizenship
[2025] FedCFamC2G 831
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v Minister for Immigration and Citizenship [2025] FedCFamC2G 831
File number(s): BRG 530 of 2023 Judgment of: JUDGE EGAN Date of judgment: 4 June 2025 Catchwords: MIGRATION LAW – whether the provision of two BAS statements under cl. 888.224 of Schedule 2 to the Regulations was required to be undertaken at the time of the making of a visa application to the Minister – where such a requirement would be capricious – jurisdictional error established – application granted. Legislation: Migration Act 1958 (Cth), s. 65
Migration Regulations 1994 (Cth), Schedule 2 cl. 888.222, cl. 888.224
Cases cited: Miller v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCA 13
Wei v Minister for Immigration and Border Protection [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 14 April 2025 Place: Brisbane Counsel for the Applicants: Mr L. Boccabella of Counsel Solicitor for the Applicants: AJ Torbey & Associates Solicitor for the Respondents: Ms L. Helsdon, Sparke Helmore ORDERS
BRG 530 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JINGLAN WU
First Applicant
KAI SHEN
Second Applicant
HAOZHE SHEN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”
2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
3.The Originating Application for Review filed on 27 October 2023 be granted.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine according to law the Applicants’ Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Review Tribunal for re-determination.
5.For the purpose of the Administrative Review Tribunal again re-determining the Applicants’ application, that it be constituted by a different member than the member who handed down the decision on 25 September 2023.
6.The First Respondent pay the Applicants’ costs of and incidental to the Application for Review, such costs to be as agreed between the parties, or failing agreement, as assessed pursuant to the provisions of Rule 22.02(2)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The first applicant and her family arrived in Australia from the People’s Republic of China. The secondary applicants were members of the first applicant’s family unit.
On 12 November 2019, the first applicant applied for a Business Innovation (Sub-class 888) Visa. The other applicants made applications for the visa as members of the family unit. The success or otherwise of the first applicant’s application for a visa would determine the success or lack of success of the other visa applications.
On 2 December 2020, the Department requested that the first applicant provide more information relevant to the visa application – inter alia copies of all BAS statements lodged with the ATO during the two-year period preceding the making of the visa application.
Clause 888.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) relevantly provided as follows:
888.224
Each Business Activity Statement required by the Commissioner of Taxation during the 2 years immediately before the application was made has been submitted to the Commissioner and has been included in the application.
(bold inserted)On 10 August 2021, a delegate of the Minister refused to grant the first applicant the visa under the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that the first applicant had been actively operating the main business in Australia for a period of two years at the time of the making of the visa application as was required under clause 888.222 of Schedule 2 to the Regulations.
The first applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
In its written reasons handed down on 25 September 2023, the Tribunal at [6] of its reasons identified that there were two issues to the application – the first being whether the failure to provide BAS statements at the time of the making of the visa application was fatal to the application, and secondly, whether the first applicant had actively been operating the main business in Australia for a two-year period immediately before the visa application had been made.
As to the operation by the first applicant of the business for the relevant two-year period, at [27] of its reasons, the Tribunal recorded that the first applicant satisfied clause cl. 888.223 of Schedule 2 to the Regulations.
As to whether the first applicant had complied with cl. 888.224 of the Schedule 2 to the Regulations, at [28] – [34] of its reasons, the Tribunal found as follows:
28. The Regulations do not provide a definition of the words 'included in the application as used in cl.888.224. Departmental policy about BAS is limited to:
'For 888.224, certified copies of original BAS or printed copies of the online version from the ATO portal that cover at least 2 years before the application is made must be provided to the department before a visa can be granted.'
29. In Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115 at [45] Judge Driver said in relation to cl.892.211 (2), which is similarly worded to cl.888.224:
' ... clause 892.221 (2) [should be 892.211 (2)] imposes a "time of application" criterion requiring, among other things, that BAS "have been included in the application". This too, imports an "objective temporal test".
30. The Tribunal must be satisfied at the time of its decision whether the BAS were included in the application. Regardless of what headings may or may not appear in the regulations, Nasirzadeh effectively imposes an objective temporal test, which means there must be a close connection in time between the action required by the criterion and the time of application.
31. The textual aspects of cl.888.224, point strongly to the conclusion an application will be unsuccessful if it failed to contain evidence:
(a) each BAS required by the Commissioner of Taxation during the two years immediately before the application was made had been submitted to the Commissioner, and
(b) copies of those BAS had been included in the application.
32. The requirements in cl.888.224 are expressed in imperative or obligatory terms. The regulation specifies the BAS have been lodged with the Commissioner of Taxation and included in the application. The use of the imperative 'has been' in cl.888.224 naturally indicates the requirements to which they relate are necessary constituent elements of a Subclass 888 visa application. In the ordinary course, the natural meaning of the words 'has been' means the matter to which they relate are obligatory.
33. So much was recognised in cognate circumstances in Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, 419 [50] (Fernando) where Finkelstein J said:
'Then there is the language of s 412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what it says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid.'
34. Clause 888.224 is not expressed in indeterminate language rather it imposes a requirement which can be easily identified and applied. Where BAS are not included in the application [for a Subclass 888 visa], and are first provided at some later time, the regulation is not satisfied, and the application cannot succeed.
At [40] of its reasons, the Tribunal found as follows:
40. The Tribunal's case management system shows the date the BAS were included in the department file as 2 December 2020. The Tribunal accepts this as the date the BAS were first provided to the delegate. That date is more than 12 months after the application was lodged. There are no other dates in the Tribunal's case management system to indicate the BAS were lodged at an earlier time and as Ms Wu declined the invitation to a hearing this issue could not be put to her. The BAS were provided direct to the Tribunal on 14 August 2023 in response to a letter dated 21 July 2023 requesting further submissions under s 359(2) of the Act.
The Tribunal affirmed the decision of the delegate in its reasons dated 25 September 2023.
On 27 October 2023, the applicants filed an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
The Grounds of Review were as follows:
1. The AAT failed to properly apply and interpret ss. 54 and 55 of the Migration Act and cl. 888.224 of the Migration Regulations 1994 and other provisions for the subclass 888 visa.
2. The AAT failed to conduct a proper review under ss. 347 and 348 and generally under Part 5 of the Migration Act 1958.
3. The decision of the AAT was unreasonable.
It was submitted on behalf of the Applicant that under cl. 888.2 of Schedule 2 to the Regulations, it was provided that “All criteria must be satisfied at the time a decision is made on the application.” It was argued that because the Tribunal was reviewing the decision of a delegate, it was involved in a de novo decision making exercise, and that, therefore, the relevant time for the satisfaction of the criteria was before the time that the Tribunal made the decision - namely on 25 September 2023 - rather than at any earlier time. It was submitted that, accordingly, the non-provision to the Department/Minister of the two relevant BAS statements at the time of the making of the visa application was of no moment.
Counsel for the applicant further relied upon Miller v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCA 13 at [24] – [38] per Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ where it was held as follows:
24. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ explained:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
The explanation continued:
"Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."
25. Their Honours went on to observe that breach of a condition regulating the exercise of a statutory power which does not result in invalidity might nevertheless result in an unlawful act capable of being restrained by injunction. Contrary to a theme of the argument of the Minister in the present appeal, that observation cannot be taken to indicate that a condition which, if breached, does not result in invalidity can only ever be a condition which is otherwise capable of enforcement by a court. It is not unknown for a condition regulating the exercise of a statutory power to be construed as no more than an aspiration or exhortation or for such a condition to be construed as giving rise only to administrative consequences in the event of non-compliance. Indeed, s 29AB of the Migration Act is a ready example. In the language of the Explanatory Memorandum for the amending Act which inserted its predecessor, s 29AB is a provision designed to "encourage" and to carry no specific "sanction" for non-compliance.
26. The principle of statutory construction expounded in Project Blue Sky operates in the same way in respect of a condition that is a condition precedent to the exercise of a statutory jurisdiction as it does in respect of a condition that is a condition of the exercise of a statutory jurisdiction. Contrary to another theme of the argument of the Minister, a condition precedent to the exercise of jurisdiction neither stands outside the principle nor calls for any modification of its operation.
27. Two other aspects of the principle of statutory construction expounded in Project Blue Sky are of present significance.
28. The first is that mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity. That is not to deny that juxtaposition of an imperative term ("must") with a permissive term ("may") to express different requirements of the one statutory scheme might in an appropriate statutory context indicate that the imperative term is used to express a legislative intention that non-compliance is to result in invalidity whilst the permissive term is used in contradistinction to express a legislative intention that non-compliance is not to result in invalidity.
29. The second is that identical imperative language might be used in a particular statutory scheme to express a suite of requirements, some of which will admit of one answer to the Project Blue Sky question and some of which will admit of another answer. Thus, it is unsurprising to find that the parties to the present appeal were agreed that non-compliance with s 29(1)(a) of the AAT Act results in invalidity of an application, were agreed also that non-compliance with s 29(1)(b) does not result in invalidity of an application, and were in dispute as to whether non-compliance with s 29(1)(c) results in invalidity of an application.
30. The answer to the ultimate question whether non-compliance with the condition of the making of an application to the Tribunal in s 29(1)(c) of the AAT Act – that an application contain a statement of the reasons for the application – results in invalidity of the application accordingly turns on the answer to the Project Blue Sky question whether there is to be discerned a legislative purpose to invalidate an application that fails to comply with that specific condition.
31. The starting point of the requisite analysis is to recognise that the circumstance that s 29(1)(c) of the AAT Act provides that an application "must" contain a statement of the reasons for the application is little more than that which poses the Project Blue Sky question. The use of that imperative terminology does not in the context of the AAT Act necessarily point to an affirmative answer.
32. Multiple considerations point inexorably to a negative answer. Unlike s 29(1)(a) of the AAT Act, which sets out how an application "must be made", s 29(1)(c) sets out information that an application which is made "must contain". The information to be provided in compliance with s 29(1)(c) is not as to any objective circumstance but is limited to the subjective reason of the applicant for making the application. In the language of s 29AB, it is at most information as to why the applicant believes that the decision sought to be reviewed is not the correct or preferable decision. That information is to be provided in the application notwithstanding that the very fact of the making of the application carries with it the necessary implication that the applicant is dissatisfied with the decision sought to be reviewed.
33. Accordingly, the information to be provided in compliance with s 29(1)(c) need not be information of the slightest assistance to the Tribunal or any other party to the proceeding. No doubt, as the Minister argues, compliance with the condition might assist the Tribunal in making an early assessment of the standing of the applicant and of the issues that might be sought to be raised and the evidence that might be sought to be led by the applicant in the proceeding before the Tribunal. But equally, compliance with the condition might be so perfunctory or formulaic as to be of no assistance whatsoever, as is demonstrated by the Minister's acceptance that a statement as uninformative as "[t]he Minister erred in concluding that there is not another reason why the original decision to cancel [Mr Miller's] Resident Return (Subclass 155) visa should be revoked" would have been sufficient compliance with the condition had the statement been contained in Mr Miller's application.
34. Moreover, leaving s 29AB of the AAT Act to one side, the Tribunal has ample capacity to compel an applicant to provide reasons for the application at a meaningful and appropriate level of detail from the moment the proceeding is commenced. The Tribunal can compel an applicant to provide those reasons by directing the provision of further information under s 33(2A)(a) of the AAT Act and has the ability to enforce any such a direction under s 42A(5)(b) by making an order dismissing the application in the event of non-compliance.
35. The Minister argues that s 29AB of the AAT Act indicates to the contrary in that the section on its proper construction empowers the Tribunal to request an applicant to amend a statement in an application, to clarify the respects in which the applicant believes that the decision is not the correct or preferable decision, only where there has been compliance with s 29(1)(c) by inclusion of a statement in an application. Absent a statement having been made in an application in compliance with s 29(1)(c), so the argument goes, there is simply nothing to amend.
36. Acceptance of the Minister's construction of s 29AB would not compel the conclusion that non-compliance with s 29(1)(c) is intended to result in the invalidity of an application. At most, acceptance of the Minister's construction of s 29AB would compel the conclusion that non-compliance with s 29(1)(c) is intended to result in the unavailability of the power conferred by s 29AB.
37. To discern within this overall context a legislative purpose to invalidate an application and thereby to deprive the Tribunal of jurisdiction for want of compliance with a condition which requires the provision of information entirely subjective to the applicant, compliance with which might be entirely inutile and non-compliance with which would be readily remediable by directions made by the Tribunal within jurisdiction, would be to attribute to the legislature an intention which would be arbitrary to the point of being capricious. Hardly needing to be repeated is that attribution of a legislative intention to produce a consequence which appears to be "absurd" or "capricious" or "irrational or unjust" is to be avoided where the statutory text is not intractable.
38. To discern such a legislative purpose would also be to attribute to the legislature an intention wholly at odds with the express legislative imposition on the Tribunal of the obligation in s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is accessible, fair, just, economical, informal, and quick. Antithetically to each of those legislative aspirations, invalidity of an application for non-compliance with s 29(1)(c) would result in a mechanism for review which would shut out persons adversely affected by reviewable decisions who might have substantial reasons for seeking review of those decisions but who, through mistake or misfortune or lack of education or linguistic skills, failed to express those reasons in their written application. Antithetically also to the legislative aspiration of s 33(1)(b), that a proceeding before the Tribunal be conducted without undue formality and technicality, and with due expedition, invalidity of the application would give rise to the farcical (and, in terms of public administration, highly inconvenient) prospect of a contestable preliminary issue in a proceeding before the Tribunal as to whether markings contained in an application (which might be in a language other than English or in the form of a scribble or an emoji) conveyed sufficient information to comply with s 29(1)(c).
As a matter of construction, the Court finds that the provisions of cl. 888.224 relating to the inclusion of the BAS statements “in the application” does not preclude the provision of such statements after the time that the application was made, but before the time of the making of the decision. The words “in the application” ought to be construed as “during the course of the application process”.
It would indeed be capricious for it to be held that two BAS statements erroneously not included in a bundle of other documents delivered to the Minister at the time of the making of the visa application would have the effect of invalidating thw whole of such application. That would particularly be so where such initial non-provision of the two BAS statements was inconsequential to the consideration by the decision maker of the merits of the visa application, and inconsequential to the making of the decision.
The provisions of cl. 888.2 relating to the satisfaction of criteria at the time the decision is made on the application supports such construction. So too, with respect, does the reasoning of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection [2015] HCA 51 at [25] – [35] where it was held:
25. The analysis of Gleeson CJ in Plaintiff S157/2002 shows that, notwithstanding the note of caution sounded in Project Blue Sky Inc v Australian Broadcasting Authority, there remains utility in maintaining the traditional terminological distinction between an "imperative" (or "mandatory") duty on the one hand, and a "directory" duty on the other hand, for the purpose of describing whether or not a material breach of an antecedent statutory duty results in an invalid exercise of a decision-making power. That distinction was explained in Clayton v Heffron when it was said:
"Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void."
26. Consistently with Project Blue Sky Inc, what is critical to be borne in mind is that assignation of one or other of those labels to a particular statutory duty imposed by a particular statutory provision marks "the end of the inquiry, not the beginning". To label a particular statutory duty either "imperative" or "directory" is to express the conclusion of a process of statutory construction. Central to that process of statutory construction is an inquiry as to whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.
27. Considerations bearing on an inquiry of that nature have long been recognised to include the justice and convenience of holding that a breach of the duty invalidates an exercise of the decision-making power. Thus, in Montreal Street Railway Company v Normandin, in which the issue was whether the verdict of a civil jury was to be set aside on account of non-compliance by a designated court officer with a statutory duty annually to revise a list of jurors, the Privy Council said:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
28. The same considerations of justice and convenience tell in favour of the conclusion that a duty is imperative where a material breach would work to the peculiar disadvantage of an individual.
29. The duty with which we are presently concerned is that imposed by s 19 of the ESOS Acton a registered provider to upload onto PRISMS confirmation of enrolment of a person holding a student visa. Within the statutory scheme, there is little difficulty in concluding that the statutory purpose of that duty would be advanced by holding that an exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act that is affected by a breach of that duty is invalid.
30. The statutory scheme establishes PRISMS as a repository of information available to be taken into account in decision-making under the Migration Act, and makes the requirement of s 19 of the ESOS Act for a registered provider to upload information onto PRISMS the means by which the integrity of that information is sought to be ensured. That scheme furthers the express statutory object of the ESOS Act: to complement Australia's migration laws by ensuring that institutions providing courses of education or training to holders of student visas collect and report information relevant to the administration of the law relating to student visas.
31. The injustice to the holder of the student visa of the power to cancel that visa being exercised on the basis of incorrect information downloaded from PRISMS is manifest. The facts of the present case well illustrate that such injustice is not necessarily mitigated by either the requirement to give notice of the decision or the availability of merits review.
32. The requirement of s 19 of the ESOS Act that a registered provider upload onto PRISMS confirmation of enrolment of a person holding a student visa is therefore properly characterised as an imperative duty, in the sense that material non-compliance with the requirement will result in an invalid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act.
33. The "satisfaction" required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power. The imperative duty imposed on a registered provider by s 19 of the ESOS Actis such a condition.
34. Here, the delegate's satisfaction that the plaintiff was in breach of the visa condition that he be enrolled in a registered course was formed by a process of fact-finding which was tainted by Macquarie University's antecedent breach of its duty, under s 19 of the ESOS Act, to upload onto PRISMS confirmation of the plaintiff's then current enrolment. The delegate reached that satisfaction because the delegate found as a fact that the plaintiff was not enrolled in a registered course. The delegate found that fact on the basis of information contained in PRISMS. That finding was wrong because the information contained in PRISMS was wrong. The information contained in PRISMS was wrong because of Macquarie University's failure to perform its imperative statutory duty.
35. The case is one of jurisdictional error.
Conclusion
The Court finds that it was not a mandatory requirement under cl. 888.224 of Schedule 2 to the Regulations that the two BAS statements were to be included in documentation provided to the Minister at the time of the making of the visa application. To find otherwise would lead to an absurdity.
The decision of the Tribunal was capricious, and an example of extreme illogicality. [1]
[1] DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] per Kenny, Kerr
and Perry JJ and Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and
[42] per Wigney J.
The Tribunal was legally unreasonable in affirming the decision of the delegate. The Tribunal fell into jurisdictional error.
Ground 1 of the Application for Review must succeed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 June 2025
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