CONSIDERATION
21 The appellant acknowledged that her application for a Skilled Migration Visa was not made by one of the methods prescribed by item 1229(3)(a). She submitted that she had adopted an alternative method which was all that she could reasonably be expected to do when she had been frustrated in her attempts to lodge her application using the internet. She contended that the methods of lodgement prescribed by item 1229(3)(a) should not be treated as exhaustive.
22 Both parties accepted that the guiding principle of statutory construction which the Court should apply was that propounded by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (at 390-1). It was that:
"… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asked itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'".
23 In framing these propositions their Honours adopted views earlier expressed by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4.
24 The visa application scheme prescribed by the Act and Regulations was analysed by a Full Court of this Court in Fang. RD Nicholson J (with whom Jenkinson J agreed) said (at 278-9) that:
"Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen 'must' apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed 'if, and only if' certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 207. S47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), 'to avoid doubt', enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial act. It will also be noted that none of these provisions relevantly use 'shall' or 'may' so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.
Section 25C of the Acts Interpretation Act 1901 (Cth) provides that 'where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient'. The statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a precondition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the prerequisite entry to Ministerial consideration of the application.
It is the case that the use by a legislature of the words 'if, and only if' does not in all circumstances mean those words should be equated with 'but not otherwise'. Where the former words were used to provide in an Act that a company is to be deemed to have ceased to carry on business or to be unable to pay its debts 'if, and only if' certain matters are satisfied, it has been held that it cannot have been intended to create an absolute statutory presumption rather than a rebuttable one: Cooper & Dysart Pty Ltd v Sargon (1991) 5 WAR 472. See also Sydar Pty Ltd v K Simmonds Finance Pty Ltd (1995) 13 ACLC 480. In the present context, where the legislature is patently concerned to define the circumstances determining the validity of an application and to relate the concept of validity to the genesis of Ministerial decision-making power, there do not appear to be present any reasons for reading down the effect of the words 'if, and only if'.
It is the case that the form of application is provided for by the regulations. The form, however, is necessarily imported into the provisions of the Act to which reference has been made so that it is not possible to speak of the former being subsidiary to the latter in the sense that there might be substantial compliance with the Act despite non-compliance with the requirement for use of the approved form: cf Hunter Resources Limited v Melville at 250 per Dawson J.
In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866. Short of that there is no valid application and the Minister is enjoined from considering it. This conclusion finds support in the Note which precedes the Schedule (Classes of Visas) to the Migration Regulations which reads in part:
'NOTE: This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered.'
Furthermore, the statutory provisions are such that I do not consider anything short of use being made of a Form 866 could constitute an application. There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form. The legislature has gone to abundant lengths to make apparent that an application by way of Form 866 is the only way for these matters to come before the Minister and for the Minister's power in relation to it to be validly activated. In my opinion, this requirement has the result that the prescription of the form is one of substance and is not merely procedural."
25 Carr J, although dissenting as to the result, agreed with RD Nicholson J and Jenkinson J on this point.
26 Fang was applied by Finkelstein J in Onea. His Honour there said (at 261) that:
"In ordinary circumstances it would not be unusual for a court to hold, conformably with either s 25C of the Acts Interpretation Act or the applicable principles of statutory construction, that a failure to make an application in accordance with a form that is prescribed for that purpose will not render that application a nullity. However, these are not ordinary circumstances. The precise point has been considered by a Full Court in Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; (1996) 135 ALR 583. There it was held that ss 45 and 46 of the Migration Act disclose a clear intention on the part of the Parliament that unless an application for a visa is made in the prescribed form and in the prescribed manner no valid application exists: see 260-261; 599 per Carr J and at 279-280; 616-617 per RD Nicholson J with whom Jenkinson J agreed. Thus s 25C of the Acts Interpretation Act can have no application: its effect has been excluded by clear intention.
In an attempt to overcome the effect of Fang it was submitted that the applicant had substantially complied with the Regulations by using Form 147. During the course of his submissions Counsel for the applicant closely analysed and compared Form 147 with Form 1066 to show that almost all of the information that was required to be given to the Minister if Form 1066 had been used was given to the Minister on the Form 147 to the extent that the applicant was able to provide that information. Even if this be true that would not be an answer to the point taken by the Minister. On the proper construction of ss 46 and 47(1) and the regulations, the Minister is not required to consider any application for a visa unless that application is made on the appropriate form. It is the condition which must be satisfied before the Minister can exercise his power to consider an application: compare SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 245; Attorney-General (NSW); Ex rel Franklin Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955. No other form will do. This is what the Parliament has laid down."
27 Although both Fang and Onea were decided before Project Blue Sky, the Court, in both cases, approached the issue of construction with which they were confronted consistently with the views expressed by the New South Wales Court of Appeal in Tasker.
28 The appellant sought to distinguish Fang and Onea on the basis that neither of these cases was concerned with prescribed methods of lodgement. They were cases in which the would-be applicant had not used the prescribed form when applying for a visa. They involved provisions equivalent to item 1229(1).
29 The appellant did not identify any basis for distinguishing between the Court's approach to the construction of the requirement that applications for visas must be made on prescribed forms and provisions which governed the method of lodgement of those forms.
30 In my view the Court is required to approach the construction of item 1229(3)(a) in the same manner as it has approached provisions equivalent to sub items (1) (which deals with prescribed forms) and (2) (which deals with fees). Such provisions can be traced back, in the legislative scheme, to Regulation 2.07 and, in turn, to ss 45 and 46 of the Act.
31 As already noted Fang and Onea considered provisions equivalent to item 1229(1).
32 In other cases in which the impediment to the processing of an application has been the non-payment of the prescribed fee, the Court has adopted the same approach to the legislative requirements: see, for example, Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 at 124 (per Finkelstein J); Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 527 (per Weinberg J).
33 Neither party was able to identify any decisions of the Court dealing specifically with requirements as to the method of lodgement of applications. A prescription of this kind may be included in the Regulations pursuant to s 46(4)(b) of the Act. It is one of the "other matters" which Regulation 2.07(1) requires to be satisfied in order for an application to be valid.
34 All of these provisions form part of the same prescriptive legislative scheme. If any of the requirements of that scheme are not met the consequence is that no valid application has been made and the Minister is prevented from considering the purported application.
35 The failure of the appellant to comply with the requirements of item 1229(3)(a) meant that she had not made a valid application and the Minister's delegate was bound not to consider it. The Federal Magistrate was correct to so hold.
36 What I have said is sufficient to dispose of the appeal. The question, raised by "Ground" 5, of whether the purported application should be taken to have been received by the relevant section of the Department on 15 or 16 March 2010 need not be determined. The requirements of item 1229(3)(a) were not satisfied on either day.