Amodi v Minister for Immigration [2013] FMCA 70

1. On 1 September 2011 the applicant, who is a citizen of India, lodged an online application for a Skilled (Provisional) (Class VC) subclass 487 (Skilled - Regional Sponsored) visa. Subclass 487 visa applicants must be nominated by a participating state or territory government agency or be sponsored by an eligible relative living in a designated area of Australia. In his application form the applicant indicated that he was sponsored by his cousin.
2. On 23 November 2011 an officer of the department administered by the first respondent ("Minister") wrote to the applicant requesting that he provide, within twenty-eight days, his cousin's sponsorship undertaking. The letter stated:

Please note that you must either provide this via the interenet [sic] Form 1277 attached to your application, or alternatively complete the paper Form 1277 and send the letter to the Adelaide General Skilled Migration processing office.

1. On 30 November 2011 the applicant submitted a Form 1277 "General Skilled Migration Sponsor Form" online, which had been completed by his cousin, together with supporting documentation. On 17 January 2012 he was advised by the departmental officer that his application was invalid because item 1229(3B)(d) of sch.1 to the Migration Regulations 1994 ("Regulations") required that the sponsorship be entered into on the Form 1277 at the time of application. The officer found that as the applicant's application was invalid, it could not be accepted or processed.
2. The applicant has applied to this Court for judicial review of that decision.
3. For the reasons which follow, the officer's decision will be set aside and the matter remitted to the Minister to be determined according to law.

1. Section 31 of the Migration Act 1958 ("Act") relevantly provides:
   • 31 Classes of visas
     • (1) There are to be prescribed classes of visas.
     • (2) ...
     • (3) The regulations may prescribe criteria for a visa or visas of a specified class ...
     • (4) ...
     • (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
2. Section 45 of the Act provides:
   • 45 Application for visa
     • (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
3. Section 46 sets out conditions for the validity of visa applications. Relevantly, it provides:
   • 46 Valid visa application
     • (1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
       • (a) it is for a visa of a class specified in the application; and
       • (b) it satisfies the criteria and requirements prescribed under this section; ...
     • ...
     • (2) Subject to subsection (2A), an application for a visa is valid if:
     • (a) ...
       • (b) under the regulations, the application is taken to have been validly made.
     • ...
     • (3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
   • ...
4. Section 47 of the Act provides:
   • 47 Consideration of valid visa application
   • (1) The Minister is to consider a valid application for a visa.
   • ...
     • (3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
     • ...
5. Respectively, regs.2.01 and 2.02 provide that the visa classes referred to in s.31 of the Act are to be found in sch.1 to the Regulations and that the subclasses of those visa classes are to be found in sch.2 to the Regulations. Regulation 2.07 provides that the conditions for valid visa applications are prescribed in sch.1 to the Regulations and reg.2.03 provides that the criteria for the granting of visas are prescribed in sch.2 to the Regulations.
6. Regulation 1.20 also relevantly provides:
   • 1.20 Sponsorship undertakings
     • (1) The sponsor of an applicant for a visa is a person ... who undertakes the obligations stated in subregulation (2) in relation to the applicant.
     • (2) Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:
       • ...
       • (b) if the application is for a temporary visa ... - the sponsor undertakes to accept responsibility for:
         • (i) all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant's stay in Australia; and
         • (ii) compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and
         • (iii) unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia;
   • ...
   • (3A) A person who is a sponsor of an applicant for:
     • ...
     • (d) a Skilled (Provisional) (Class VC) visa;

must complete the relevant approved form and give it to the Minister prior to the Minister approving the person as a sponsor.

1. The matters specifically conditioning the validity of an application for the grant of a subclass 487 visa are set out in item 1229 of sch.1 to the Regulations. At the time the applicant lodged his application, item 1229 relevantly provided:
   • 1229 Skilled (Provisional) (Class VC)
   • ...
   • (3) Other:
     • ...
     • (da) Applicant seeking to satisfy the primary criteria for the grant of a Subclass 487 (Skilled - Regional Sponsored) visa must meet the requirements of subitem (3A) or (3B).
     • ...
   • (3A) The applicant is nominated by a State or Territory government agency.

(a) the applicant is sponsored by a person who:

• (i) has turned 18; and

• (ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

(b) the applicant has declared on the application that the sponsor:

• (i) is usually resident in a designated area of Australia; and
• (ii) is related to the applicant, ... as:

  • ...

  • (F) a grandparent or first cousin;

...

(d) the sponsorship was entered into on Form 1277 (Internet) or 1277.

(4) The following requirements must be met:

• (a) one of the following subparagraphs must be satisfied by the applicant:

(ii) the applicant must be the holder of a Bridging A (Class WA) visa or Bridging B (Class WB) visa that was granted on the basis of a valid application for a visa ...

and must also have held an eligible student visa at any time during the period of 6 months ending immediately before the day on which the application is made;

1. Annexed to the applicant's affidavit affirmed on 30 October 2012 was a copy of a Form 1277 "Application for sponsorship under general skilled migration" ostensibly signed by his cousin and dated 31 August 2011. That form did not include the applicant's family and given names or his date of birth but was complete in all other respects. The applicant deposed that he received the form from his cousin in the early hours of 1 September 2011 by email. In his oral evidence at the hearing of this application the applicant said that his given name could be spelt in two ways, his surname could be written in three ways and his cousin had not been certain what the appropriate spellings were. The applicant's evidence was that she told the applicant that, to avoid a mistake, he could complete the form using the spellings used in his passport. She also did not know his birthday.
2. The applicant conceded that a sponsorship form was not lodged with the department until some time after his visa application had been lodged.
3. I accept the applicant's evidence and find that the applicant's cousin signed the incomplete Form 1277 referred to in his affidavit and that she did so on 31 August 2011, the date the form bears.
4. The Minister tendered a court book of relevant documents which included a Form 1277 completed by or on behalf of the applicant's cousin which indicated that it was lodged electronically on 30 November 2011. I accept that such a Form 1277 was lodged electronically with the Minister's department on 30 November 2011.
5. The Minister also tendered documentary evidence of relevant aspects of the applicant's visa history. Based on those documents I accept that the applicant held a subclass 485 visa which expired on 23 October 2011 and also a subclass 010 (class WA) bridging visa which was granted on 1 September 2011 and expired on 14 February 2012. Related to the latter visa I note that the following appears amongst the criteria for its grant:
   • 010.21 Criteria to be satisfied at the time of application
   • 010.211
     • (1) The applicant meets the requirements of subclause (2), (3), (4), (5) or (6).
     • (2) An applicant meets the requirements of this subclause if:

(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

(b) that application has not been finally determined; and

(c) he or she held a substantive visa at the time that application was made; and ...

1. Ground 1 of the amended application alleged:
   • 1. The Respondent erred in law in his interpretation of the relevant legal requirements for lodging a valid application for a Class VC visa in reliance on the criteria for subclass 487.
     • Particulars
     • The Respondent took the view that, in order to be a valid application of this type, it was necessary for the Applicant to lodge a completed Department of Immigration form 1277 at the same time as the visa application. On a proper reading of item 1229(3B) of Schedule 1 and Part 487 of Schedule 2 to the Migration Regulations 1994 this is not the case. Where an application is lodged online, as permitted by the regulations, it is impossible to lodge a form 1277 until after the visa application has been lodged and a reference number ("TRN") issued. A correct reading of the relevant regulations is that the form must be lodged within a reasonable time after the visa application has been lodged, failing which the visa application may be treated as invalid. What is a reasonable time is a matter of fact depending on the circumstances of the case. Since the Minister's delegate had allowed the Applicant 28 days from 23 November 2011 in which to lodge the form 1277, the delegate must have considered that a reasonable time for lodging the form would be at least until 21 December 2011. The Applicant did in fact lodge the form within the time allowed, and the Respondent cannot now say that the Applicant did not lodge the form within a reasonable time. The application was therefore a valid application for Class VC.
2. The applicant referred to cl.487.225 of sch.2 to the Regulations which provides as a time of decision criterion for the grant of a subclass 487 visa that if, at the time of making the visa application, an applicant is sponsored in accordance with item 1229(3B) he or she must have lodged a (Form 1277) sponsorship form by internet, post or courier and have it approved by the Minister. The applicant submitted that as the assessment of a sponsorship would not occur until the visa application was under active consideration and the sponsorship form could be lodged by post or courier independently of the visa application, the proper interpretation of the Regulations was that an applicant was only required to lodge the sponsorship form within a reasonable time of making the visa application. In this regard, he also pointed to the fact that on 23 November 2011 the Minister's department wrote to him giving him until 21 December 2011 to lodge the sponsorship form.
3. The Minister submitted that the threshold question was whether a sponsorship had, in fact, been entered into and, if so, when. Relying on the terms and ostensible purpose of the Form 1277, he submitted that the undertaking set out in Form 1277 was an undertaking to him and, until it was properly completed, did not amount to a sponsorship undertaking. Citing Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908; (2000) 101 FCR 352 and Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456; (2000) 103 FCR 486, he submitted that until the Form 1277 was fully completed the sponsorship it purported to evidence was "inchoate". The Minister therefore argued that even if the applicant's cousin had signed the Form 1277 prior to 1 September 2011, the sponsorship had not been "entered into" and so he was not sponsored when his visa application was lodged.
4. The Minister also submitted that there was nothing in items 1229(3)(da) or (3B)(d) to suggest that a Form 1277 could be submitted within a reasonable time after making a visa application but, in the alternative, said that by the time a completed undertaking was communicated to him on 30 November 2011, the applicant no longer satisfied a different criterion for the grant of the visa and thus the application had to be refused in any event.

1. At the outset it should be stated that the officer erred in saying that that item 1229(3)(b) of sch.1 to the Regulations deemed the applicant's visa application to be invalid because it was not accompanied at the time of lodgment by a Form 1277. Item 1229(3)(b) does not require that. It states that an applicant for a subclass 487 visa must not be in immigration clearance at the time he or she applies for such a visa. Assuming that the officer's letter contained a typing error and that he intended to refer to item 1229(3B), the conclusion is no different. The item does not require a subclass 487 visa application to be accompanied by a Form 1277. Relevantly all it requires is that the sponsorship be entered into on that form: see Hooda v Minister for Immigration & Citizenship [2012] FMCA 1018 at [53].
2. Because the officer misunderstood the Regulations, his decision was erroneous and should be set aside unless it would be futile to do so, a qualification which directs attention to the requirements relevantly imposed by the Regulations and whether, on remittal, the decision on the validity of the application would have to be the same as the one presently under review.
3. I accept that the sponsorship of an applicant for a subclass 487 visa is something between the sponsor and the Minister; the undertakings set out in the Form 1277 are plainly ones given to the Minister, not to the visa applicant, and so much also appears clear from reg.1.20(2)(b). However, it is equally apparent that there can be no effective sponsorship unless and until the Minister has approved it. In this regard cl.487.225 of sch.2 to the Regulations (especially cl.487.225(3)(b)) relevantly provides, in terms echoing item 1229(3B):
   • 487.225
   • (1) Either:
     • (a) ...
     • (b) if the applicant was sponsored in accordance with subitem 1229 (3B) at the time of making the application - the requirements of subclause (3) are met.
   • (2) ...
   • (3) All of the following requirements are met:
     • (a) the applicant, and all persons included in the application, are sponsored by a person who:
       • (i) has turned 18; and
       • (ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
       • (iii) is usually resident in a designated area of Australia; and
       • (iv) is related to the applicant, or the applicant's spouse or de facto partner (if the applicant's spouse or de facto partner is also an applicant for a Subclass 487 (Skilled - Regional Sponsored) visa), as:

(C) a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or

(D) an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or

(E) a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece; or

(b) the sponsorship was made:

• (i) on Form 1277 (Internet), and the Minister has accepted the sponsorship; or
• (ii) on Form 1277:

(A) by posting the form (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this sub-subparagraph; or

(B) by having the form delivered by a courier service to the address specified by the Minister in an instrument in writing for this sub-subparagraph;

1. Confusingly, that clause and item 1229(3B) both indicate that the validity of a subclass 487 visa application and the grant of such a visa will partly depend on the Minister approving a sponsorship arrangement which has already been, respectively, "made" or "entered into" on a Form 1277. However, as Smith FM pointed out in Hooda's case:
   • ... the validity requirements of item 1136(3B) are referring to 'sponsorship entered into on Form 1277' in an inchoate sense, and not in the sense of a 'legally effective' sponsorship entered into on that Form. ...
   • In the context of the Sch.1 requirement, I consider that the reference to "the sponsorship was entered into on a Form 1277" required no more and no less than that a form of sponsorship in terms of Form 1277 has been executed by the proposed sponsor with an intention of being bound by it, if and when it is ultimately submitted to, and accepted by the Minister when granting the visa. When these words are used in item 1136(3B)(d) as a condition on the validity of a visa application, they require no more than that the Minister must be satisfied as to the existence of a properly completed and executed form relating to the visa applicant, before he decides that a valid visa application has been made and before he proceeds to address the substantive criteria, including the approval of the proposed sponsor. (at [52]-[53])

I respectfully agree with his Honour's observations and conclusions.

1. Federal Magistrate Smith went on to observe at [54] that it was possible that item 1136(3B)(d) allows the Minister to be satisfied that a Form 1277 has been properly completed and executed even if that occurs, not before the visa application is lodged, but while the visa application is under consideration. In this regard, although an application will not be valid until a related completed and executed Form 1277 is in existence, applying the reasoning of Hill J in Nader's case at 364 [51] I conclude that an application which is invalid on lodgment because a completed and executed Form 1277 is not in existence becomes valid, although not with retrospective effect, upon the completion and execution of such a form.
2. In this case there is no evidence that the Form 1277 signed by the applicant's cousin on 31 August 2011 was ever completed but I have accepted that a completed form was lodged electronically on 30 November 2011. Given the latter circumstance, I find that upon despatch of the soft version of the Form 1277 on 30 November 2011, the criterion for the validity of the application based on Form 1277 was satisfied. In this regard I infer that the form came into existence in its completed form when it was despatched and that the despatch was effectively the equivalent of signing a paper version of the form.
3. The Minister submitted that even if I accepted that the form was completed and the application otherwise perfected as at 30 November 2011, the applicant did not, at that time, satisfy item 1229(4)(a). This was said to be because at that time he no longer held an eligible visa. In particular, the bridging visa which he did hold, and which would ostensibly have satisfied item 1229(4)(a), "had not been granted to him on the basis of a valid application for a visa, as required by item 1229(4)(a)(ii)".
4. The evidence supports the Minister's submission that the applicant's substantive subclass 485 visa expired on 23 October 2011 and that, as at 30 November 2011, he no longer satisfied item 1229(4)(a)(iii). However, I do not accept the Minister's argument that on 30 November 2011 the applicant did not hold a bridging visa which had been granted to him on the basis of a valid application for a visa. In light of the date of the bridging visa I infer that it was granted because the applicant had made the application which is the subject of these proceedings. Although it can be accepted that at that time the visa application was not a valid application, that does not mean that the bridging visa was not granted on the basis that it was. It must be accepted that the bridging visa would not have been granted if the visa application was believed to have been invalid and as a consequence I conclude that it was granted on the basis that the visa application was valid.
5. The bridging visa existed until it expired or was cancelled. Relevantly, it was on foot on 30 November 2011. That being so, I do not accept the Minister's argument that it would be futile to remit the matter for further consideration on the basis that on 30 November 2011, when the application became a valid application, the applicant did not satisfy item 1229(4)(a)(ii).
6. Consequently, the relief sought by the applicant will not be refused on discretionary grounds.

1. Ground two of the amended application alleged:
   • 2. For any or all of the following reasons, the application for a Class VC visa made by the Applicant on 1 September 2011 was validly made, and the Minister erred in law in treating it as invalid;
     • a. Item 1229(3)(da) of Schedule 1 to the Migration Regulations and the requirements in Item 1229(3B) are invalid because they are unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
       • Particulars
       • On a strict reading of the requirement in Item 1229(3B), an applicant would have to lodge a form 1277 (internet) or 1277 before lodging the visa application, which is not possible in practice.
     • b. Item 1229(3)(da) and the requirements in Item 1229(3B) are invalid because they are not authorised by reg 2.07(1) of the Migration Regulations.
       • Particulars
       • Regulation 2.07(1)(c) stipulates that, in relation to a class of visa, Schedule 1 is to set out "other matters relating to the application". Classes of visas may be issued under different subclasses on the basis of different sets of criteria under Schedule 2, but an application for a visa is an application for an entire class (Migration Act s 45). It is not possible to treat an application for a class of visa as invalid with respect to the entire class only because it did not meet certain requirements for one of the subclasses of that class. Reg 2.07(1)(c) must be read as only permitting Schedule 1 to set out other matters relating to the application for the class as a whole, not particular subclasses of the class.
     • c. Item 1229(3)(da) and the requirements in Item 1229(3B) are invalid because they conflict with the intention of reg 1.20(3A).
       • Particulars
       • The clear meaning of reg 1.20(3A) is that a sponsor for a class VC visa may complete the sponsorship form and give it to the Minister at any time before the Minister makes a decision about approving the sponsorship.
2. In relation to ground 2(a), the applicant submitted that the interpretation which the Minister's department placed on items 1229(3)(da) and 1229(3B) was unreasonable and might lead to "manifest arbitrariness, injustice or impartiality". For the reasons given in connection with the first ground of the amended application, items 1229(3)(da) and 1229(3B) do not operate in the manner alleged and so this allegation is not made out.
3. In relation to ground 2(b), the applicant observed that sch.1 to the Regulations sets out the application validity criteria for visa classes while sch.2 sets out criteria which must be satisfied before various subclasses of visa can be granted. He submitted that sch.1 could not contain criteria specific to a particular visa subclass that would render applications for a different visa subclass invalid. He submitted that neither the Act nor the Regulations authorised items 1229(3)(da) and 1229(3B) which were therefore invalid. This argument echoes the propositions advanced in Huynh v Minister for Immigration & Citizenship [2012] FMCA 864. For the reasons I gave in that matter, I am not of the view that items 1229(3)(da) and 1229(3B) are not authorised by the Act.
4. The applicant also submitted in connection with this allegation that items 1229(3)(da) and 1229(3B) were not authorised by reg.2.07(1)(c) or by any other provision of the Regulations. However, it is the Act not the Regulations which authorises schedules to the Regulations. Relevantly, reg.2.07(1)(c) merely provides that for the purposes of ss.45 and 46 of the Act, which deal with applications for visas, prescribed matters are to be found in sch.1. It is not an enabling provision, merely a description of what has been prescribed pursuant to s.46. For this reason, this aspect of the second ground of the application is also not made out.
5. As to ground 2(c), the applicant submitted that in relation to the class of visa which he sought, reg.1.20(3A) does not require the sponsorship form to be supplied with the relevant visa application, merely that the relevant approved sponsorship form be given to the Minister before he approves the sponsorship. I have found in connection with the first ground of the application that the Regulations do not require the Form 1277 to be submitted with the related visa application. Consequently, it is not necessary to consider this ground further.

1. Ground three of the amended application alleged:
   • In the alternative, if Item 1229(3)(da) was valid, the present application was validly made, and the Minister erred in treating it as invalid, because on a proper interpretation of Item 1229(3)(da) and (3B), when read together with Reg 1.20(3A), an application may be treated as not validly made only if it is found not to be supported by a sponsorship of the relevant type at the time when the Minister is considering whether or not to approve the sponsorship.
2. For the reasons given in connection with the first ground of the application I find that this ground has also been made out.

1. As the applicant has demonstrated that the officer's decision was affected by jurisdictional error and I have concluded that I should not exercise my discretion to refuse relief, the officer's decision will be set aside and the matter remitted to the Minister to be determined according to law.

I certify that the preceding 39Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-ninethirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM