Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 2056

1. This is an application for judicial review of a decision of the then Administrative Appeals Tribunal (the Tribunal), dated 1 June 2021, affirming a decision of a delegate of the first respondent (the delegate), to refuse to grant the applicant a subclass 600 Visitor visa (the visa).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of India.
2. On 27 July 2020, the applicant applied for the visa. At the time of application, the applicant was in Australia and held a Bridging (Class A) visa, which had been granted on 28 April 2020. The last substantive visa held by the applicant was a Tourist visa which expired on 13 June 2020.
3. Clause 600.223 in Schedule 2 the Migration Regulations 1994 (Cth) (the Regulations) was as follows:

1. If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. 2. If the applicant was in Australia at the time of application, and did not hold a substantive visa:

1. the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and 2. the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
2. Criterion 3001(1) in Schedule 3 to the Regulations required for a visa application to be validly made it needed to be made within 28 days after the 'relevant day'. For an applicant who had ceased to hold a substantive visa on or after 1 September 1994, the expression 'relevant day' was defined in criterion 3001(2)(c)(iii) as 'the last day when the applicant held a substantive ... visa'.
3. On 22 February 2021, the delegate refused to grant the applicant the visa on the basis that she did not meet criterion 3001 in Schedule 3 to the Regulations and therefore did not satisfy cl 600.223 in Schedule 2 of the Regulations.
4. On 2 March 2021, the applicant applied to the Tribunal for review of the delegate's decision.
5. The applicant attended a hearing before the Tribunal on 24 May 2021.
6. On 1 June 2021, the Tribunal affirmed the decision not to grant the applicant the visa.

1. At [1]-[4], the Tribunal set out the application for review and the background of the matter.
2. At [5], the Tribunal identified that the issue in the applicant's case was whether she satisfied criterion 3001 in Schedule 3 to the Regulations for the purposes of cl 600.223 in Schedule 2 of the Regulations.
3. At [7], the Tribunal noted that the applicant did make an application for the visa on 28 April 2020, however on 21 July 2020 that the applicant received notification from the Department that the application was invalid.
4. The Tribunal noted at [8], that the applicant then made a further application for the visa on 21 July 2020, however on 23 July 2020 the applicant received notification from the Department that the application was also invalid.
5. The Tribunal, at [9], noted the applicant's claim that the valid application was only received outside of the 28-day time period as it was submitted by post.
6. At [10], the Tribunal noted that the applicant's husband made an electronic application for the same visa, in the same manner as did the applicant, but this application was accepted, and his visa was granted on 22 June 2020.
7. The Tribunal noted that the applicant suggested that the reason as to why her visa was not initially accepted was because an error was made on the form and an application fee was not paid, whereas for the applicant's husband, the application fee was paid [11]. The applicant claimed that the failure to pay the application fee was simply an inadvertent error, and not intentional [11].
8. At [12], the Tribunal identified that because the applicant did not hold a substantive visa at the time of the application, she was required to satisfy criterion 3001, which required that the visa application be validly made within 28 days of the last day she held a substantive visa.
9. At [13], the Tribunal accepted that the applicant last held a substantive visa (a Class FA Subclass 600 Visitor visa) on 13 June 2020; that the applicant did apply for the Visitor (Class FA) Subclass 600 visa on 28 April 2020, but this application was invalid due to the visa application fee not being paid; that the applicant received notification of the invalid visa application on 21 July this application was also invalid; and that the applicant then lodged a paper-based application for the Visitor (Class FA) Subclass 600 visa which was received by the Department on 27 July 2020.
10. The Tribunal accepted that the applicant made errors in the application process, that the applicant's husband's visa application did not have errors and was successful [14]. The Tribunal accepted that this was an unfortunate situation for the applicant [14].
11. The Tribunal was not satisfied by the explanation that the applicant was not reasonably aware that at the time of the visa application on 28 April 2020 that she should also have paid the relevant application charge at the time because her husband's visa application fee was paid [15].
12. The Tribunal found that the applicant ought to have reasonably been aware of the importance of complying with the visa application requirements, including paying the relevant application charge [15]. The Tribunal further found that, as per s 47(3) of the Migration Act 1958 (Cth) (the Act), an invalid application for a visa cannot give rise to an obligation under s 65 of the Act to grant a visa.
13. Ultimately, the Tribunal found that the applicant applied for the visa on 27 July 2020, which was not within 28 days after the last day she held a substantive visa, and therefore she did not satisfy Criterion 3001 [16]. Hence, the Tribunal found that the applicant did not meet cl 600.223 and therefore was unable to meet the criteria for the grant of the visa [16].
14. Accordingly, at [18], the Tribunal affirmed the decision not the grant the applicant the visa.

1. The applicant advances three grounds of judicial review contained in an Originating Application filed with the Court on 5 July 2021. They are as follows:
   1. A Tribunal did not outweigh to my past application.
   2. A Tribunal did not focus on my interest of current situation and did not consider my forms submitted to immigration with previous application.
   3. I am not satisfied with this decision made by the Tribunal.

1. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book and that the first respondent's written submissions had been translated to her.
2. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of her case. The applicant told the Court that she understood when she submitted her first visa application, she made an error, and the fee was not paid. After the applicant was notified of the rejection of her visa application, she tried to rectify the situation on the phone with the Department. The applicant was asked to make a paper application which she did. This caused the application to arrive late.
4. The applicant stated that had she been asked to pay the fee in relation to her first application, she would have done so.
5. At the conclusion of the first respondent's oral submissions, the applicant was asked if she wished to state anything in reply. The applicant answered "No."

1. The applicant's grounds of review are devoid of merit and should be dismissed.
2. Ground One claims that the Tribunal failed to consider the applicant's previous visa application. Ground Two claims that the Tribunal failed to consider the applicant's interests and current situation. There is no merit in these claims.
3. The Tribunal, at [7], [8], [13] and [15], was plainly aware of the applicant's previous invalid applications for a Visitor visa on 28 April 2020 and 21 July 2020.
4. At [13], the Tribunal clearly considered the applicant's previous visa application and current situation to the extent they were relevant to determining whether the applicant satisfied criterion 3001, including that the applicant applied for a Visitor visa on 28 April 2020 and received notification of the invalid visa application on 21 July 2020. At [17], the Tribunal stated that while it had sympathy for the applicant and the difficulties posed by her circumstances, the Tribunal had no discretion in this matter as she clearly did not meet a mandatory requirement for the grant of the visa.
5. The Tribunal was correct to conclude that the applicant did not meet criterion 3001 for the following reasons:

(1) At the time of the visa application, the applicant was in Australia and held a Bridging (Class A) visa which had been granted on 28 April 2020.

(2) Pursuant to the definition of 'substantive visa' in s 5 of the Act, a bridging visa is not a substantive visa. The applicant therefore came within cl 600.223(2) and needed to satisfy Schedule 3 criterion 3001.

(3) Criterion 3001(1) required that the visa application be validly made within 28 days after the 'relevant day'. For an applicant who had ceased to hold a substantive visa on or after 1 September 1994, the expression 'relevant day' was defined in criterion 3001(2)(c)(iii) as 'the last day when the applicant held a substantive ... visa'.

(4) The last substantive visa held by the applicant was a Tourist visa which expired on 13 June 2020. The visa application was not made within 28 days of this date, and the applicant was therefore incapable of satisfying cl 3001(1).

(5) Although 27 July 2020 was the date the visa application was received by the Department, rather than the date it was dispatched, the ordinary position is that a visa application is made when it was received by the Department: Minister for Immigration and Border Protection v Kumar [2017] HCA 11 at [25], [32] and [37]. In any event, the visa application form was signed on 26 July 2020, which is also after the 28-day limit.

(6) The previous invalid applications had no effect on when this visa application was made.

1. Accordingly, the only decision open to the Tribunal was the one it made, and therefore its decision cannot have been affected by jurisdictional error.
2. Ground Three is a mere expression of disagreement with the outcome of the Tribunal's decision and does not identify jurisdictional error in that decision.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
2. Grounds One and Two can be dealt with together.
3. Ground One is a claim that the Tribunal 'did not outweigh to my [her] past application (sic).' Exactly what jurisdictional error this purports to allege is difficult to ascertain.
4. Ground Two is an assertion that the Tribunal did not consider the applicant's forms submitted to the Department with previous application. As set out be the respondent, it is clear that the Tribunal fully appraised the history of the multiple applications made by the applicant. The Tribunal expressed sympathy for the applicant, but in my view correctly applied the law in that the second application was received outside of the 28-day time limit.
5. There is nothing legally unreasonable, illogical or irrational in that conclusion. It may be harsh, but that is the test the Court is applying. Grounds One and Two have no merit.
6. Ground Three is a mere expression of dissatisfaction with the decision of the Tribunal. It is not a proper ground of review as it does not identify any jurisdictional error. Accordingly, Ground Three has no merit.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.