Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Outcome: distinguished
In this case, there is no suggestion that the final application submitted to the delegate contained other than the substance of the appellant's complaints. This is also not a case like SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , where the appellant was advised of the hearing and advised not to attend. Although she said she did not receive the invitation to hearing, the evidence was that it was sent to both her agent and herself. The letter sent to her was not returned. 28 The only question in this case is whether the signing of the blank application means that the application was invalid. 29 Section 47(1) of the relevant Act requires the Minister to consider a valid application for a visa. Section 47(3) precludes the Minister from considering an application that is not a valid application. Section 65 requires the Minister, after considering a valid application for a visa, to grant the visa (s 65(1)(a)) or refuse to grant the visa (s 65(1)(b)). Section 46 addresses the requirements for a valid application for a visa. Regulation 2.07(3) of the Regulations provides that an applicant must complete an approved form in accordance with any directions on the form. The prescribed form for a Protection (Class XA) visa is Form 866. That form provides for a statutory declaration to be completed by the applicant. 30 The Minister contended that the failure of the appellant to complete the form did not mean that the application was not valid. Section 98 provides that a non-citizen is taken to have filled out his or her application form "if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf." 31 In this case the application was filled out by the appellant's migration agent's secretary from information supplied by the appellant. I think the Minister's contention in that regard must be accepted. The application may be taken to have been filled in by the applicant. 32 The appellant said in her submissions to this Court that she signed the blank application in the presence of the migration agent's secretary. In her evidence before the Federal Magistrate she suggests, without making it clear, that she signed the blank application in the migration agent's presence. The appellant's signature is witnessed by a person who has identified himself or herself as a "JP". The migration agent did not witness the appellant's signature. However, there is no evidence that the migration agent's secretary is not that person or not a "JP". There is, therefore, no evidence that the application was not signed in accordance with the form's own instruction. 33 Even if there were, the Minister says that the decision made by the delegate of the Minister and the Tribunal are still valid. Section 69 of the Act provides: (1) Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. (2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.