The 9 February 2016 determination
17 In order to construe the true nature of the determinations made by the Minister in respect of the third to fifth appellants' additional visa applications, certain of the key events and correspondence previously referred to above need to be elaborated upon.
18 By the letter dated 1 May 2015 directed to the first appellant, the Department acknowledged the "valid application" for the visa lodged on 28 April 2015. The visa application summary enclosed with the letter of 1 May 2015 recorded that the first appellant was the "Primary Applicant". The summary also erroneously recorded that the second appellant was the other applicant, despite the second appellant not having been designated as a migrating partner in the 28 April 2015 application. This error is of no consequence in the determination of this appeal.
19 On 7 January 2016, by order of a court in Vietnam, the second appellant was granted "full custody" of the third, fourth and fifth appellants, those being children of the deceased son of the first and second appellants.
20 The orders made by the Court included:
2. Give full custody of the three children: Truong Anh Lam was born on 29/08/2008 …; Truong Hoanh Bao Linh was born 03/08/2011 … and Truong Hoang Bao Tran …. (Tran and Linh are twins) to Mr Truong Van Sen for him to care and raise. Ms Tran Thi My Anh no longer has custody rights over the children. Due to the needs of the children, the parties can apply to the court for changes to the arrangements.
(Emphasis added.)
21 I interpolate at this stage that, by Article 13(6) of the Law on Adoption of Vietnam 2010, grandparents are prohibited from adopting their grandchildren.
22 By a letter dated 4 February 2016 directed to the Department, Nguyen & Co Solicitors advised that they had been instructed to act on behalf of the sponsor and applicants, and enclosed a Form 1436 entitled 'Adding an additional applicant after lodgement', together with further documentation going to the identities of the third to fifth appellants whom the first appellant wished to add to her visa application.
23 On 9 February 2016, the first appellant was sent a letter by the Department. The trial judge at J[9]-[10] referred in particular to three details of this letter. First, that the letter recorded the same "Application ID" details and "File Number" details as were recorded on the 1 May 2015 letter sent by the Department to the first appellant, and under those details in the 9 February 2016 letter there appeared exactly the same heading as in the 1 May 2015 letter from the Department to the first appellant, namely:
"Acknowledgement of valid application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) CONTRBUTORY PARENT (Subclass 143) visa."
24 Further, the letter's next paragraph was exactly the same as the first paragraph of the letter of 1 May 2015 sent by the Department to the first appellant, and was as follows:
"This letter refers to your application for a CONTRIBUTORY PARENT (MIGRANT) (Class CA) visa, which was validly lodged at Perth Offshore Centre on 28 April 2015. You indicated on your application that you wish to be considered for the grant of a CONTRIBUTORY PARENT (Subclass 143) visa."
(underlining added)
25 The trial judge went on to construe the 9 February letter at J [11] to [13] and concluded at [22] to [26] that there was in fact no 'first determination' made in respect of the validity of the added applications:
[11] It is significant that to the extent that in the 9 February 2016 letter the Department acknowledged that a visa application which had been lodged was valid, the only application referred to, in that regard, was the visa application made by the first applicant on 28 April 2015. Had the Department wished to acknowledge as valid the lodgement of the application to add additional applicants sent to the Department as an enclosure to the Nguyen & Co letter to the Department of 4 February 2016, one would have expected that the Department would have done so in its 9 February 2016 letter. It did not do so. There is otherwise no documentary material before the Court which suggested that there was any such acknowledgement or concession. The latter is significant because the first applicant has proceeded on the erroneous basis that the letter of 9 February 2016 "…acknowledges the lodgement of a valid application for the visa, now including the Third to Fifth Applicants" when that was not the case.
[12] The fact that the Third, Fourth and Fifth applicants were identified as being "Other Applicants" in the Visa Application Summary attached to the letter of 9 February 2016 was not an acknowledgement that the application for their inclusion as applicants was valid. The Court infers that it was an administrative recognition by the Department that an application for their inclusion as applicants had been lodged. Such recognition was not otherwise determinative of the validity of the application for their inclusion as applicants. The letter, in its terms, made it clear that no decision had been made concerning the application for the visa when it said, under the heading "Processing your Application", as follows:
"You will be contacted by your case officer about any additional information that may be required in order to make a decision on your application."
[13] At no time after the sending of the letter of 9 February 2016, did the Department acknowledge or concede that the lodgement of the Form 1436 seeking to add the Third, Fourth and Fifth applicants as additional applicants was a valid visa application. Indeed, email correspondence sent by the Department to the email address for Nguyen & Co Solicitors on 5 December 2017 indicated that the Department was at that time still at an early stage of the processing of the visa application. The letter requested documentation required for assessment by the Department, and relevantly said as follows:
"Your parent visa application is not yet assigned for assessment by a case officer.
…
Applicants should be aware that the requesting of these documents and checks does not imply that the primary criteria have been assessed and are met.
… "
…
[22] The applicants reduced their argument to three (3) propositions, namely:
"(a) The first determination had the effect that the Minister was functus officio with respect to the validity of the combined application including the Third to Fifth Applicants, unless the first determination was infected by jurisdictional error. There was no demonstration of jurisdictional error in the first determination by the officer of the Department who purported to make the second determination (first proposition) …"
[23] As to the first proposition, the Court does not accept the premise upon which such proposition was advanced - namely that by letter dated 9 February 2016, the Department had acknowleged the lodgement of a valid application for the visa "now including the Third to Fifth Applicants". As earlier referred to, the letter of 9 February 2016 merely confirmed that the original visa application made by the first applicant and lodged on 28 April 2015 was a "valid application". Neither the Migration Act 1958 (Cth) ('the Act) nor the Regulations provided that the application for additional applicants was taken to have been made on the date on which the original application had been lodged.
[24] The Court finds that the fact that the application for the addition of the three children was combined with the application of the original applicant did not, in the circumstances, mean that the Department had acknowledged or confirmed that such application for their addition as applicants was valid. There was no evidence that it had. The submissions made on behalf of the applicants to the effect that the Department had acknowledged the validity of the applications made in respect of the three children were accordingly misconceived. No question of the Department being functus officio arose.
[25] The concession made by the Departmental officer named 'Orlanda' in the letter from the Department to the migration agent dated 20 April 2020 - that there had been an error in the acknowledgement of validity of the children's applications in the 9 February 2016 letter - was likewise misconceived for the same reasons as last referred to. The person named 'Orlanda' had not written the letter of 9 February 2016. There was no 'first decision' made in respect of the children's applications on 9 February 2016. Section 474(3) of the Act did not apply.
[26] This was not a case of the type considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. This case did not involve the Department having made a decision involving jurisdictional error or involving the failure to exercise jurisdiction. The Department here had simply engaged in the administrative process of considering whether or not all aspects of the first applicant's combined visa application was compliant or not. Though the Department ultimately determined that the applications of the first applicant and the second applicant ought to be granted, it determined that because the children were not dependent children, or 'adopted' children, for the purposes of the Act, the application for their addition was invalid and unable to be considered. The Department did not err in so finding, for the underlined reasons as set out in its 20 April 2020 letter directed to the applicants' migration agent, and as set out above. There is no merit to the first proposition.
26 The interpretation of the 9 February 2016 letter is a matter critical to the first proposition of the appellants' case on appeal that I identified above. While the trial judge's analysis is persuasive in favour of the conclusion that the 9 February 2016 letter in itself does not indicate that a determination or decision was made in respect of the validity of the added applications of the third to fifth appellants, the trial judge's reasoning did not have regard to the cover email sent by the Department to Nguyen & Co Solicitors attaching the 9 February 2016 letter.
27 The cover email contains a number of contra-indicators to the trial judge's characterisation:
(a) First, the subject of the cover email is 'File: OSF2015024300 Additional Applications to CA 143 Parents visa'. The subject of the email clearly indicates that the email is in reference to the additional applications, not just the original 28 April 2015 application.
(b) Second, relevantly, the body of the email reads as follows:
"I confirm lodgement of the additional applications on 09 February 2016. The receipting of the visa application charge validates the application and is evidence that the application is being processed.
Please find attached the acknowledgement letter, receipt, and refunds & repayments proforma, for your parent visa application"
(c) Third, the attachments to the email have the following document titles:
(i) 'Form 1424 Refunds and Repayments Proforma.pdf'
(ii) 'Van Sen Truong, Anh Lam, Hoang Bao Tran, Hoang Bao Linh, OSF2015024300.pdf'
(iii) 'Receipt, Van Sen Truong, Anh Lam, Hoang Bao Tran, Hoang Bao Linh, OSF2015024300.pdf'.
28 The first sentence of the part of the email quoted above merely confirms lodgement of the additional applications, and does not explicitly confirm that the additional applications have been determined to be valid in accordance with reg 2.08A. The second sentence refers to the receipting of the visa application charge, which 'validates' the application. The attached receipt document, whose title refers to the additional applicants, can be inferred to be the receipt referred to in the email. The consequence of this receipting is said to be that it is 'evidence that the application is being processed'. It is not entirely clear what 'validation' and 'being processed' means in this context. It may mean that the application has been determined to be valid and is now being substantively considered for the purpose of the granting or refusal of the visa. It may alternatively mean only that the lodgement process is complete and the application is being considered, including for the purpose of assessing validity. However, more clearly, it is to be inferred that the 'application' being referred to is the additional application. Moreover, the attached acknowledgement letter referred to in the email, whose title again refers to the additional applicants, is to be inferred to be in relation to the additional applications.
29 Now interpreting the 9 February 2016 acknowledgement letter in the context of the cover email, the heading of the letter (including the words 'Acknowledgement of valid application') and the inclusion of the additional applicants in the 'Other Applicants' section of the Visa Application Summary enclosed with the letter are best interpreted as an acknowledgement of the validity of the additional applications.
30 This is arguably supported by some of the further correspondence between the Department and the appellants' migration agent in the following years regarding the substantive assessment of the appellants' combined visa application. For example, the 5 December 2017 email from the Department to the appellants' migration agent, which refers to each of the appellants in the combined application, is an invitation for the appellants to commence document preparation ahead of the assessment process, including in relation to police clearances and medical examinations. The email states that 'the requesting of these documents and checks does not imply that the primary criteria have been assessed and are met'. However, it might be inferred from this communication that the appellants' combined application had at that time been determined to be valid so that it was now to be substantively considered and assessed as against the criteria for the granting of the visa.
31 Further, the Department's letter of 8 October 2019 refusing the granting of the visa application on the basis of the first appellant's failure to meet certain health criteria is in respect of each of the applications of the appellants and refers to the 'combined application'. In order to be considered for granting or refusal, the combined visa application must have been determined to be valid first, pursuant to s 47 of the Act.
32 Finally, the Department ultimately informed the appellants by letter on 7 April 2020 that the third to fifth appellants' applications had been assessed as invalid by reason of reg 2.08A (the 'second determination', in the appellants' submission), on the basis that the third to fifth appellants were the first appellant's grandchildren, not her 'dependent children' as required by the regulation. However, the further email sent by the Department to the appellants on 20 April 2020 concedes that the Department had previously 'deemed this action [the lodgement of the additional applications in February 2016] to be valid and responded in writing that the spouse and 3 grandchildren had lodged valid applications'. The email then refers to the acknowledgement as 'an administrative error', before explaining in detail why the additional applications had now been found to be invalid pursuant to reg 2.08A.
33 The trial judge at J[25] referred to the Departmental officer's concession as 'misconceived' since his characterisation of the 9 February 2016 letter was that it was not an acknowledgement of the validity of the additional applications and noting that the Departmental officer making the concession was not the same Departmental officer who had written the letter of 9 February 2016. In my view, whether the 9 February 2016 acknowledgement letter constituted a decision that the additional applications were valid is primarily to be determined by the contemporaneous documents themselves, rather than a later characterisation by a different Departmental officer. However, the Departmental officer's concession on 20 April 2020 further weighs in favour of the appellants' submission that the 9 February 2016 was in fact a determination by the Department that the additional applications were validly made.
34 Having regard to the above analysis, I find that the 9 February 2016 communication to the appellants constituted a determination by the Department that the additional applications of the third to fifth appellants were validly made pursuant to reg 2.08A and s 46 of the Act.