Christopher Levingston Blog

The Evisa system is predicated on the model permitted by section 495A.

MIGRATION ACT 1958 - SECT 495A

Minister may arrange for use of computer programs to make decisions etc.

             (1)  The Minister may arrange for the use, under the Minister's control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:

                     (a)  make a decision; or

                     (b)  exercise any power, or comply with any obligation; or

                     (c)  do anything else related to making a decision, exercising a power, or complying with an obligation.

             (2)  The Minister is taken to have:

                     (a)  made a decision; or

                     (b)  exercised a power, or complied with an obligation; or

                     (c)  done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;

that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).

             (3)  For the purposes of this section, the following provisions are the designated migration law :

                     (a)  Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);

                     (b)  any provision of this Act or of the regulations that the Minister, by legislative instrument, determines to be part of the designated migration law.

Thus, all decisions made by Computer program in the online visa system constitute an administrative decision authorised by section 495A which is taken to be a decision of the Minister personally. That being the case in any program where there is in effect a progress bar to the rest of the application which stops the completion of the application must be a requirement of the statutory scheme or it is ultra vires the Act.

Let me give you an example, a 31 year old holder of a working holiday visa which was granted before she turned 30 cannot lodge an online application because the computer program requires that person to be under 30 years of age. However the bar to the completion of the Evisa by reason of that programme in effect denies  the applicant the right to make a valid permissible application by denying access to the Evisa application to the completion and payment stage.

What this does is to import the schedule 2 provision ( regarding age limits) into the valid permissible application stage which incorporates schedule 1 of the Regs as well as section 46 of the Act.

In such a case the Applicant would be able to commence legal proceedings seeking mandamus  to require DIBP to accept their application irrespective of the considerations of merit.

No doubt DIBP would argue that in doing so the application is futile and seek for the application to be struck out on the grounds of futility. However, this may be a “pathway” through section 48 to the minister for example a spouse 820/801 “concessional “ application which cannot be launched at this time because the applicant is under a disability because  , for example when their working holiday visa was expiring they only had a defacto relationship of 9 months and by using the pathway of a further working holiday visa they can remain onshore, go to the MRT and from there to the Minister with 2 years under their belt.

This is of course completely lawful and may in some cases be a sensible  solution to the clients strategic and tactical position.

After all a man is entitled to take account of the operation of a statute in order to organise his personal affairs  which is why the Code of conduct contemplates what appears to be the contradiction arising out of the requirement to act lawfully and to purse the legitimate legal interests of the client in the context of the vexatious application and the “out” provided for in paragraph 2.17(b) of the Code.

However thinking like that is a ‘thought crime’ which  may well lead the Stasi to knock on your door.

Room 101 here I come...I hope they have fed the rat!