By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
Procedural issues in visa criteria can be aspirational rather compulsory. A lot of things that look like they are mandatory in visa criteria, but may not be mandatory at all, especially those related to timing. Of course a criterion specified in the Regulations still has to be met but the timing for meeting that criterion may be flexible.
This emerges from the High Court decision of Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13.
In Miller the applicant failed to specify the grounds of review to the then Administrative Appeals Tribunal even though this was a specific requirement of the AAT Act.
The High Court, by a unanimous 5 member bench, found that the requirement to specify the grounds was an ‘aspiration or exhortation’ and a failure to set out the grounds of the review was NOT a disqualifying condition.
Miller was applied in the Federal Circuit & Family Court decision on the requirement to lodge the BAS documents with the visa application.
Wu v Minister for Immigration and Citizenship [2025] FedCFamC2G 831, concerned the interpretation of cl 888.224 which stated:
888.224
Each Business Activity Statement required by the Commissioner of Taxation during the 2 years immediately before the application was made has been submitted to the Commissioner and has been included in the application.
In Wu the BAS were not lodged at the date of visa application but were not filed in Immiaccount until almost a year later although they were filed before the delegate made a decision. The delegate took no issue with the lateness but refused the subclass 888 visa application on other grounds.
At the AAT, the member focused on the failure to supply the BAS on the date the visa application was lodged as the main ground for rejecting the review.
The Federal Circuit Court found otherwise and applied the reasoning in Miller where the High Court stated:
28…that mere use of imperative language to express a condition imports no presumption that non-compliance with the condition is intended to result in invalidity.
The Court in Wu also adopted the following from Miller:
25….It is not unknown for a condition regulating the exercise of a statutory power to be construed as no more than an aspiration or exhortation or for such a condition to be construed as giving rise only to administrative consequences in the event of non-compliance.
In Wu the Court concluded:
19.The Court finds that it was not a mandatory requirement under cl. 888.224 of Schedule 2 to the Regulations that the two BAS statements were to be included in documentation provided to the Minister at the time of the making of the visa application. To find otherwise would lead to an absurdity.
It is useful to go back and identify the exact provision which was under consideration in Miller which was s29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) which stated:
Section 29 Manner of applying for review
- An application to the Tribunal for a review of a decision:
(a)….
(b)….
(c) unless paragraph (ca) or (cb) applies or the application was oral—must contain a statement of the reasons for the application;
As can be seen, the word ‘must’ is the driving verb. In Miller the applicant did not include a statement of the ‘reasons’ for the AAT application.
The failure to supply the ‘reasons for the application’ did not make the AAT application invalid. Hence, as the High Court stated in Miller “a condition regulating the exercise of a statutory power [is] to be construed as no more than an aspiration or exhortation”.
Earlier decisions like Nasirzadeh v Minister for Immigration [2019] FCCA 1115 would now be considered out of date and indeed inaccurate. Judge Driver said:
‘… clause 892.221(2) [should be 892.211(2)] imposes a “time of application” criterion requiring, among other things, that BAS “have been included in the application”. This,
too, imports an “objective temporal test”.
That is simply wrong following the reasoning in Miller.
The question now is what is the effect of the reasoning in Miller on issues like the requirement to lodge evidence of having lodged a Australian Federal Police check or the language test. All previous jurisprudence on this point may now be inapplicable.
It does allow a lot more scope to recover these procedural errors in the Administrative Review Tribunal.
Miller may give new life to the decision of Berenguel v Minister for Immigration and Citizenship [2010] HCA where the High Court found that it was absurd not to recognise an English language test done after the visa application was lodged.
485.212
(1) The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
(2) Subclause (1) does not apply to an applicant:
(b) who meets the requirements of clause 485.232, 485.233, 485.234 or 485.235; or
(c) who nominated the Replacement stream in the application.
485.213
(1) When the application was made, it was accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.
(2) Subclause (1) does not apply to an applicant who meets the requirements of clause 485.232, 485.233, 485.234 or 485.235.
485.215
(1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements for health insurance .
(2) The applicant has had adequate arrangements for health insurance since the time the application was made.
485.2:
All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.