Vahaakolo v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 On 17 December 1993, the appellant's wife (since deceased), made application to the Minister for what was described on the form of application as a "December 1989 (permanent) entry permit". Her husband, the present appellant, was included in the application. There were three children of the marriage, including Sione Vahaakolo to whom reference will later be made. At the time of the application, the children were resident in Tonga. The section of the form which ought to have been completed if children in Australia were to be included in the application as family members was simply endorsed: "N/A" (see RD10). 2 In September 1994 the Migration Act 1958 (Cth) ("the Act") was substantially amended. The effect of Reg 23(2)(b) of the Migration Reform (Transitional Provisions) Regulations (Cth) is that on and from 1 September 1994 the appellant's wife's application was taken thereafter to be an application for a "transitional (permanent) visa". 3 By letter dated 2 June 1998 the appellant's wife and the appellant wrote jointly to the Minister, in response to a Departmental enquiry, stating that they were the only persons included in the applicant wife's application. 4 On 22 January 1999 the appellant's wife died, her deemed application for a transitional (permanent) visa still remaining undetermined. 5 On 27 January 1999 the son, Sione Vahaakolo, was granted in Tonga, a visa to remain in Australia for one month from the date of his arrival, subject to a condition endorsed on the visa (AB61): "Conditions Mig. Regs, Sched 8 ... 8503 No further stay" Schedule 8 to the Migration Regulations, item 8503 is a visa condition that: "The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia." 6 The son arrived in Australia on 29 January 1999 to attend his mother's funeral which took place the following day. On 19 February 1999 the appellant lodged with the Department a letter bearing date 18 February 1999. The letter included the following: "I wish to request that my dependent child Mr Sione Vahaakolo to be included as part of my original application for residence visa pursuant to Regulation 2.08A effective 1 October 1996 under Statutory Rule 211." 7 Regulation 2.08A was inserted into the Migration Regulations by Statutory Rule No 211 of 1996, so as to commence on 1 October 1996. Relevantly, it provides as follows: "Addition of ... dependent children to certain applications for permanent visas 2.08A(1) If: (a) a person (in this regulation called 'the original applicant') applies for a permanent visa of a class for which Schedule 1 permits combined applications ...; and (b) after the application is made, but before it is decided, the Minister receives ... a request from the original applicant to have ... a dependent child ... of the original applicant (in this regulation called 'the additional applicant') added to the original applicant's application; and (c) the request includes a statement that the original applicant claims that the additional applicant is the ... dependent child ... of the original applicant; and (d) at the time when the Minister receives the request, the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class; then: (e) the additional applicant is taken to have applied for a visa of the same class; and (f) the application of the additional applicant: (i) is taken to have been made at the time when the Minister receives the request; and (ii) is taken to be combined with the application of the original applicant; and (iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant." 8 By letter dated 22 February 1999 a departmental officer advised the appellant that the request to include Sione in the application "is invalid, he therefore cannot be considered for the grant of a visa as part of your application." The reason the request to include Sione was said to be invalid is that he "last entered Australia as the holder of a visa endorsed with the condition 8503 'No Further Stay'". 9 Section 46 of the Act sets out the circumstances in which an application for a visa is a valid application. Section 47(3) of the Act provides that the Minister is not to consider an application for a visa that is not a valid application. One of the criteria for a valid application for a visa, in the circumstances of the present case, is that the applicant has not, since last entering Australia, held a visa subject to condition 8503: s 46(1)(e). Sione could not satisfy that requirement. 10 It was, apparently, in reliance on these provisions that the departmental officer advised the appellant of the invalidity of the request to include Sione in the application.