Visa Applications' Validity Disputed by the Parties

Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 38 (3 February 2022)

The appellants filed an application to add children to a Contributory Parent.  The combined application for the visa was refused by a delegate of the Minister on health grounds.  The Federal Circuit Court dismissed an application for judicial review concerning whether children were validly added.  The Court, in adjudicating this dispute assessed whether the Minister needed to be satisfied that additional applicants were in fact ‘dependent children’. 

Facts:

On 22 June 2007, Ms Truong, the daughter of the first and second appellants, migrated to Australia as an Australian citizen.  By 28 April 2015, the first appellant lodged an application for the Contributory Parent (Class CA – Migrant) (subclass 143) visa, which referred to the second appellant as a non-migrating partner and for which Ms Truong was the Australian resident sponsor. 

The second appellant was given ‘full custody’ of his paternal grandchildren, the third to fifth appellants, by the People’s Court District 1 – Ho Chi Minh City, following the divorce of his son from their mother and then the death of his son.  Via a migration agent of Nguyen & Co Solicitors, the first appellant applies to add the second to fifth appellants to the application for the visa (even though the second appellant had been acknowledged already as an ‘Other Applicant’.  

An officer of the Minister’s Department issued to the appellants an invitation to commence document preparation, noting that the ‘requesting of these documents and checks does not imply that the primary criteria have been assessed and are met. 

On 8 October 2019, the combined application for the visa was refused by a delegate of the Minister on health grounds concerning the first appellant.  Following a further medical assessment, the Administrative Appeals Tribunal (the ‘Tribunal’) notified the appellants that it has set aside the decision of the delegate and remitted the visa applications for reconsideration. 

An officer of the Minister’s Department notified the first appellant that the third to fifth appellants have not been validly added to the application in compliance with reg 2.08A of the Regulations and so their applications are invalid, on the basis that the third to fifth appellants are the first appellant’s grandchildren, not her ‘dependent children’ as required by the regulation.  

The Federal Circuit Court dismissed an application for judicial review concerning whether children were validly added under reg 2.08A of the Migration Regulations 1994 (Cth) (the ‘Regulations’) to the first appellant’s application for a Contributory Parent (Class CA – Migrant) (subclass 143) visa. 

The Minister determined on 9 February 2016 that the Third to Fifth Applicants had been validly added to the application for the visa (first determination). 

The Minister determined on 7 April and 20 April 2020 that the Third to Fifth Applicants had not been validly added to the application for the visa (second determination). 

The appellants submit that the ‘first determination’ on 9 February 2016 held that the third to fifth appellants had been validly added to the application, and in the absence of demonstrated jurisdictional error, that determination remains valid and cannot be disturbed (by the principle of functus officio) and further and in the alternative, the ‘second determination’ on 7 April and 20 April 2020 was infected by legal error, as the Minister’s delegate failed to consider whether there were arrangements in the nature of adoption under reg 1.04(2) of the Regulations and to conduct proper inquiries in circumstances where it was legally unreasonably not to do so.

Issue:

I. Whether or not the application to add children to a Contributory Parent visa application was valid.

II. Whether or not the Minister needed to be satisfied that additional applicants were in fact ‘dependent children’.

Applicable law:

Analysis:

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. 

The appellants’ case proceeded on the basis that reg 2.08A required the Minister to ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant.  However, paragraphs (b) and (c) of reg 2.08A do not require the additional applicant at this point of the application to be determined to be a dependent child or for the Minister to ascertain or be satisfied that the additional applicant is in fact a dependent child. 

The regulation requires only a request that includes a statement claiming that the additional applicant is a dependent child of the original applicant.  If it were otherwise and in fact the Minister was required to be satisfied that the additional applicant was properly a dependent child, it is unclear what function the statement required by paragraph (c) would have in the regulatory scheme.

Conclusion:

The Court concluded that the additional applications were valid on the basis of objective criteria being satisfied.  The Court allowed the appeal with costs.  The orders of the Federal Circuit Court made on 1 June 2021 are set aside and in lieu thereof it be ordered that:

(i) The determinations of the respondent dated 7 and 20 April 2020 be set aside.

(ii) The visa application of the third to fifth applicants (deemed to be added to the application of the first and second applicants on 9 February 2016) be remitted to the respondent for consideration according to law.

(iii) The respondent pay the applicants’ costs of and incidental to the Application for Review as agreed, or failing agreement, to be taxed pursuant to the provisions of r 21.11 of the Federal Circuit Court Rules 2001 (Cth).