Time limit hitch – it all gets tighter

 
 

The High Court has tightened situations when time limits apply in migration law. If the criteria say one has to hold a substantive visa when applying for further visa and the first visa expires on a Sunday then there is no leeway to apply for the second visa on the Monday.

In Minister for Immigration v Kumar [2017] HCA 11, 8 March 2017, the person’s subclass 485 visa expired on Sunday, 12 January 2014. She applied for a subclass 572 student visa on Monday 13 January 2014.

Here is the relevant criteria:

 572.21—Criteria to be satisfied at time of application

572.211

(1)        If the application is made in Australia, the applicant meets the requirements of subclause (2) ...

(2)        An applicant meets the requirements of this subclause if the applicant is:

...

(d)        the holder of a visa of one of the following subclasses:

...

(iia)      Subclass 485 (Temporary Graduate)".

Obviously by Monday 13 January 2014 her Subclass 485 visa had expired. He sought to rely on s 36(2) of the Interpretation Act, which provides:

"If:

(a)        an Act requires or allows a thing to be done; and

(b)        the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. 

Bell, Keane & Gordon JJ simply said that s 36 did not alter the status of the applicant on the Monday. On the Monday shoe no longer held a subclass 485 visa – end of story. They stated :

25……As earlier explained, no time limit is imposed expressly or by necessary implication under the Act and the Regulations on the making of an application for a 572 visa.  It is common ground that the first and second respondents' application was validly made on 13 January 2014.  On that day the first respondent was not the holder of a 485 visa.  He did not meet any of the criteria specified in cl 572.211(2) or (3) for the grant of a 572 visa.  The last day on which the first respondent might have applied for a 572 visa relying on his status as the holder of a 485 visa was Sunday, 12 January 2014[1].  However, recognition of that fact does not engage s 36(2).  Section 36(2) states a rule with respect to the time for the doing of a thing which an Act requires or allows to be done.  It does not otherwise alter the rights or obligations conferred or imposed by the Act.  The language of s 36(2) cannot be read as deeming the thing to be done as if it were being done on the earlier date, nor as deeming a state of affairs that existed on the earlier date to be in existence on the later date. 

Nettle J the only Justice agreeing with the visa applicant and was more expansive in his reasoning :

 

72…., it can be seen that the provision is essentially remedial in nature and thus aptly described as providing a "safeguard"[2] for persons required or allowed to do a thing by the operation of an Act.  Remedial legislation like s 36(2) should be construed in a manner that gives effect to the remedy and secures the result which it is the purpose of the legislation to achieve

The lesson from Kumar is that if the criteria require that a particular visa be held before another visa is applied for then a visa applicant cannot wait until the weekend is over to apply for the second visa if the first visa expires over the weekend. One must apply electronically on the weekend or better still on the last business day before the visa expires. 

[1]              Since the first and second respondents' application was validly made, one avenue to the grant of 572 visas remained:  following unsuccessful review before the Migration Review Tribunal (now the Administrative Appeals Tribunal), the Minister was empowered under s 351 of the Migration Act 1958 (Cth) to substitute a decision more favourable to the applicant whether or not the Tribunal had the power to make that other decision. 

[2]              Elan Copra Trading Pty Ltd v JK International Pty Ltd (2005) 226 ALR 349 at 359 [36] per White J (Doyle CJ and Perry J agreeing at 350 [1], [2])

Barbara Davidson