Case of HOODA v MINISTER FOR IMMIGRATION [2012] FMCA 1018

A review of Mr. Hooda’s case was sought pursuant to Judiciary Act, concluded with a declaration that the application was not rendered invalid, a writ of certiorari to quash the decision that the application was invalid, and a writ of mandamus issue to the respondent to determine the application according to law. We are today to discuss the justification of Smith FM and the implication of the case in terms of valid visa application, which will mainly focus on ‘statutory interpretation of law’ and ‘the rule of precedence’.

The critical point in the case was, to be considered as a valid application, whether the law requires Form 1277 be submitted at the time of application was lodged. No indication in the legislation that the physical delivery of the approved form of undertakings of the sponsorship to the Minister was expected to occur no later than the lodgement of visa application, but only requires that it be given to the Minister before approval. Smith FM concluded that terms such as ‘sponsorship’ and ‘sponsorship entered into on Form 1277’, their meanings are no more and no less than what they are, not in the sense of ‘legally effective’. This reflects the implementation of the Literal Rule, which requires the interpretation of the law give the words meaning in plain ordinary literal meaning, rather than inferred interpretation. This is also reflected in Smith FM’s comments that there is no requirement of ‘contemporaneous delivery to the Minister’ in the express language of item 1136, while indications are commonly added to other visa criterion, that “the application is accompanied by evidence…”, expressly requiring forms or other evidence be present and submitted at the time of application. Based on these, Smith FM concluded that “…a strict temporal conjunction was not required between the giving by sponsor to the Minister of a Form 1277 and the lodgement of application by the applicant...”, hence leading to the declaration that the application is not rendered invalid.

Smith FM also gives considerations of basic fairness and expressed that courts will be unwilling to “add technical bars on the validity of the visa application, if not expressed in clear words…”. This reflects The Mischief Rule as the intent of the law was examined that the remedy Parliament was trying to provide is to let the applicants be lawfully residing in Australia when certain criterion are met. Also, “…the reasonable administrative processing of the application would not be jeopardised if the Minister were provided with the Form 1277 at a later stage, considering it will take months after a computer has accepted the visa application…” This also reflects the Purposive Rule, which has regards to changes in attitudes toward the Minster’s processing delays and inconsistences in dealing with invalid visa applications, as in Ombudsman media release 28 July 2009.

Smith FM cited a few cases to conclude that Minister is under no duty under the Act to address Mr. Hooda’s eligibility under criteria for other prescribed classes or subclasses of visa, as visa application on its face was confined to the criteria for ‘skilled sponsored’. This has reflected the importance of case law and the rule of precedents. Under the doctrine, the decision of a higher court on a precedent case with similar facts will be binding authority on a lower court, so cases Smith FM cited from FCA, which are superior to FMCA, are binding authority. In addition, the cases are relatively recent, which has increased their reliability to be authority.

Smith FM ordered the respondent pay the applicant’s cost, is as per Part 8B of Migration Act 1958 (Cth), that the court may order costs against a person, who brings a case without due consideration of its chance of success of litigation. As the counsel for the Minster failed at foundation to justify its determination that ‘non-submission of Form 1277 at the time of application’ has made the application invalid. Minister’s decision was not supported by any mandatory requirement in expressed language, so the chance of success for the court to support the decision would be minimal. This has become the reason why Smith FM made the order for the respondent to pay the cost.

Smith FM’s conclusion will have some implication on future cases of similar situation, that if not clearly expressed in legislation, ‘at-the-time of application’ requirement shall not be inferred and cannot be based upon for the determination of whether a visa application is valid or not. Mr. Hooda’s case will become a precedence case law and act as binding authority on lower court within same jurisdiction. However, it might also lead to the consideration by the Parliament to amend the wording and language in the respective sections in the Act and Regulation to clarify the requirements in the criterion, so as to avoid ambiguity and similar argument in the future.

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[ 1 ]. Judiciary Act 1903 s 398
[ 2 ]. “…a less demanding meaning must be intended by the reference to “the sponsorship” sponsorship’ in item 1136(3B)(d) than to “a sponsorship”
[ 3 ]. ’ “…required no more and no less than that a form has been executed by the proposed sponsor with an intention of being bound by it…”
[ 4 ]. “…both reg.1.20(3A) and Sch.2 item 886.222(3)(b)(ii) suggest that the form is to be given to the Minster by the sponsor directly, not necessarily by the visa applicant. The transmission of a Form 1277 to occur in a different process to the lodgement of the visa application itself...”
[ 5 ]. “… in the situation when the applicant is only give a 6 month window of opportunity to apply and qualify for permanent residence after completing their studies in Australia (Sch. 2 item 886.211(2), Sch. 1. Item 1136 (4))”
[ 6 ]. DIAC processing puts visa applicants at risk, Ombudsman media release 28 July 2009, Commonwealth Ombudsman’s Office < http://www.ombudsman.gov.au/media-releases/show/97>
[ 7 ]. Quarm v Minister for Immigration& Citizenship [2008] FMCA 287 at [52],
Quarm v Minister for Immigration & Citizenship[2008] FCA 1156 at [27]and [35],
Chaddha v Minister for Immigration & Multicultural Affairs[2002] FCA 92at [27]-[28], and Huynh v Minister for Immigration & Citizenship[2012] FMCA 864 at [18]-[20]
[ 8 ]. Migration Act 1958 (Cth) s.65(1)(a)
[ 9 ]. Skilled Sponsored (Class VB, subclass 886)