Australian Immigration Daily News

OK readers, here’s the quiz of the month! It may be the quiz of the year if I can’t find an excuse to have another quiz!

And no, the quiz is not: “What insane tweet came out of the White House today?” That would be way too easy!

No, the quiz is a conundrum that made it all the way up to the High Court of Australia:

“Suppose the criteria for the grant of a visa require that the applicant be the holder of a certain kind of substantive visa. Suppose the applicant’s visa expires on a Saturday, Sunday or a holiday. Does the visa holder get an extra day, until the next business day, in which to still be considered the holder of the substantive visa, and thus to satisfy the criterion for the further visa?”

Here’s the fact pattern that gave rise to this “riddle”:

The applicant in this case – Minister for Immigration and Border Protection v Kumar (2017) HCA 11 (8 March 2017) – was the holder of a Subclass 485 visa.  That visa expired on a Sunday, on 12 January 2014.

On Monday 13 January 2014, the applicant’s application was received at the Department’s Perth office.

The application was for a Subclass 572 student visa.

The criteria for the grant of the Subclass 572 visa required that if the application was made in Australia, the applicant be the holder of one of the visas specified in sub-clause 572.211(2); one of the types of visas specified in this sub-clause was the 485 visa.

Here’s another bit of the background:

Section 36(2) of the Interpretation Act 1901 provides that if an Act, such as the Migration Act, requires or allows a thing to be done, and if the last day for the doing of the thing falls on a Saturday, Sunday or a holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday.

So the question in this case was whether section 36(2) had the effect of extending the period of validity of the applicant’s 485 visa for another day, so that it could be said that he was still the holder of a valid visa, and thus able to satisfy 572.211(2), on the Monday (13 January 2014) after the Sunday (13 January 2014) on which his visa, by its express terms, expired.

The majority of the High Court (Justices Bell, Keane and Gordon) concluded that section 36(2) of the Interpretations Act did not operate to save the applicant’s position in this case.

The reasoning of the majority was that section 36(2) has the effect of allowing an extension of time to be granted when a legislative provision imposes a deadline for the performance of a certain act. 

What section 36(2) does not do, in the view of the majority, is confer any new substantive rights.

Or as the majority put it, this section of the Interpretations Act  “cannot be read as…deeming a state of affairs that existed on an earlier date to be in existence at a later date”. 

In other words, the majority concluded that section 36(2) does not have the effect of extending the period of time when a visa is in effect.

The section simply does not alter the legal rights of a visa holder in respect of the period of time during which the visa is valid and in force.

So, if a visa is stated to expire on a day that is a Saturday, a Sunday, or a holiday, it expires on that date.

And if it is a criterion for the grant of a further visa that the applicant be the holder of another substantive visa at the time of application, it is of absolutely no assistance if the visa holder applies on the first business day after that Saturday, Sunday or public holiday.

So there is a certain moral to be taken from the High Court’s decision:  if it is known that the applicant’s visa is due to expire on a Saturday, Sunday or public holiday, and it is a requirement for the grant of a particular kind of further visa that the applicant be the holder of a substantive visa, DO NOT WAIT UNTILTHE NEXT BUSINESS DAY TO LODGE.  The time period during which a visa is in effect is that which is stated in the visa, and section 36(2) of the Interpretations Act does not have the effect of extending the period during which the visa is in force.

Mark your calendars!

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