Minister for Immigration and Border Protection v Kumar [2017] HCA 11: Temporary Graduate Visa

The High Court has by majority ruled today (8 March 2017) that The Federal Court of Australia had erred in ruling that section 36(2) of the Acts Interpretation Act 1901 (Cth) allowed the respondent to submit his visa application without adequately meeting the conditions of the visa application. In the case of Minister for Immigration and Border Protection v Kumar [2017] HCA 11, the High Court allowed the appeal from the Federal Court on the grounds that s36(2) only applied to a time limit and not a state of affairs.

Background to the Case

The respondent was the holder of a Temporary Graduate visa (Subclass 485) which would expire on the 12 January 2014 (being a Sunday). The respondent sought to apply for a Vocational Education and Training Sector Visa (Subclass 572). A condition of the 572 visa is that it must be applied for before the expiry of a 485 visa. The respondent submitted his application on Monday the 13 January 2014. In May 2014, a delegate of the department refused to grant the 572 visa because the respondent did not satisfy the conditions for the visa on the date of application (namely that he was required to hold a valid 485 visa under clause 572.211 of the Migrations Regulations 1994).

The respondent appealed the decision to the Migration Review Tribunal who upheld the delegate’s decision. The respondent took the matter to the Federal Circuit Court for judicial review. He argued that under section 36(2) of the Acts Interpretation Act (which held that if an Act “requires or allows a thing to be done" and "the last day" for the doing of the thing is a Saturday, Sunday or holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday) that he continued to meet the requirements of the visa on the 13 January 2014 as the 12 January 2014 was a Sunday.

The Federal Circuit Court dismissed the respondent’s argument and held that the visa condition required a state of affair to be met at the time of application rather than a prescribed time in which a thing may be done. To this extent, the Court ruled that s36(2) did not apply. The Federal Court disagreed with the Circuit Court on appeal. It held that regardless of anything else, factually, the last day on which the respondent could make the application was a Sunday and so therefore s36(2) applied to allow the application to be made on the following Monday.

Appeal to the High Court

The High Court by majority held that when construing s36(2) properly, it did not apply to the current case. A proper reading of the visa condition does not expressly or implicitly describe a time limit on which the visa may be made. It instead describes a set of affairs that must be met at the time of application. The Court found that section 36(2) merely allowed an extension on a time limit where the time limit expires on a Saturday, Sunday or public holiday. It cannot deem a thing to be done as if it had been done on an earlier date and it definitely cannot deem a state of affairs that existed on an earlier date to exist on a later date. The High Court therefore reinstated the decision of the Circuit Court and found that the respondent’s application did not meet the criteria for the visa at the time of application. 

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Minister for Immigration and Border Protection v Kumar [2017] HCA 11 and Judgment Summary