Invalid visa application cannot be validated

Invalid visa application cannot be validated

Wang (Migration) [2021] AATA 3162

Can an invalid visa application be retrospectively made valid?

The applicant applied for a Subclass 600 (Visitor) visa on 14 April 2020 where he was required to make the valid application within 28 days after the ‘relevant day’ pursuant to the Criterion 3001. The relevant day in the present circumstances is the last day on which he held a substantive visa. The applicant last held a substantive visa when his Subclass 500 (Student) visa ceased on 21 February 2020.

The purported online visa application made by the applicant on 5 March 2020 was assessed invalid by the Department and was not considered in accordance with s 47(3) of the Act. The applicant must have completed the paper Form 1419 and sent it to the Department by post or courier with the correct visa application charge for his application to be valid: Migration (LIN 20/046: Arrangements for Visitor (Class FA) Visa Applications) Instrument 2020. It appears that this was done on 14 April 2020.

The applicant argues that the application was made on 5 March 2020 and that it should be considered valid on the case law principle of substantial compliance citing:

In relation to the purported internet application made on 5 March 2020, while it may be possible to find that Form 1419 (Internet) substantially complied with the approved form requirement, the applicant would still be unable to satisfy the requirements in relation to the place and manner by which the application must have been made.

The Tribunal notes further Federal Court authority that confirms that a visa application has not been ‘made’ unless all the requirements for a valid application have been satisfied and there is no room for retrospective validation of an invalid application: Mohammed v MIBP [2015] FCA 184 at [19] – [28]. The majority reasoning in MIAC v Mon Tat Chan [2008] FCAFC 155. also supports the view that an invalid application cannot be rendered valid to the date it was lodged by a later valid application.

The Tribunal is not satisfied that the internet application made on 5 March 2020 in this case is a valid visa application. Even if the Tribunal accepted that an application was ‘started’ on 5 March 2020, it appears that all of the requirements for a valid visa application prescribed in the Act and the Regulations were only satisfied on 14 April 2020.

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