Validity of Forms - Forms Do Not Triumph Over Substance


Substantial compliance is sufficient for forms for lodging an application to a migration merit review tribunal.  This was determined unanimously by a 5 member bench of the Full Federal Court in MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25, 9 March 2016.

The Tribunal had held that the appellant used a superseded version of the approved Form R1; therefore, the purported review application to the Tribunal was not made on an approved form for the purposes of s 412(1)(a) of the Migration Act 1958. The Tribunal therefore concluded there was no valid application for review.

The Full Federal Court found that such an approach was a triumph of “form over substance”.

The Court said that if you compare the superseded form and the new form if they are substantially the same then the substantial compliance will do to make a valid application. Of the mere use of the term substantial compliance indicates there has been some non-compliance. The issue to determine is – is the level of non-compliance take the case outside the realm of “substantial compliance

In terms of the jurisprudence of migration law this case indicates a softening of the previously strict approach the courts have taken to the formalities of migration law. Being a 5 member bench this will have some weight.

Buchanan J in MZAIC was particularly pungent about the formalistic approach by the tribunal. He said if that approach were approved by a court, it would “bring the administration of justice in this country, and the Court system upon which it depends, into disrepute” Here is exactly what he said :

“137. If I might permit myself two further observations, they are as follows:  first, the result for which the first respondent contends in the present case would rightly be thought to bring the administration of justice in this country, and the Court system upon which it depends, into disrepute.  I do not feel compelled to contribute to that outcome.”

Buchanan J went further and concluded that previous Federal Court decision being strict about form were ‘plainly wrong’.  He continued :

“74.I would overrule SZJDS [SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27; 201 FCR 1].  With great respect to the very able judges who constituted the Full Court in that matter, in my view so much of the judgment as compelled the outcome in the present case in the RRT and the FCCA is erroneous in point of law.  If it is necessary to go so far as to say that it was “plainly wrong” to overcome the constraints of comity then I feel compelled to go so far in this case.” 

The other 4 judges did not go that far but nevertheless the approach of the Court as a whole indicates a softening of the approach to compliance with the formalities of migration law.

Despite what was concluded unanimously by a five member Full Federal Court, the AAT website still states :

“September 2015

From 1 October 2015, the Administrative Appeals Tribunal will only accept applications for review made to the Migration and Refugee Division on M1, M2 and R1 paper forms with design date 07/15, or those generated by the online lodgement system.

This means application forms with a design date before 07/15 are not approved forms and any applications for review made on these forms may not be valid..”

In MZAIC the Full Federal Court applied s 25C of the Acts Interpretation Act 1901 which states :

“25C  Compliance with forms

Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.”

Section 412 of the Migration Act states :

“[412] (1)      An application for review of a Part 7-reviewable decision must:

(a)      be made in the approved form;”

Section 5(1) stated :

approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.

Below is an extract of the reasons of Kenny, Tracey, Robertson and Mortimer JJ which comprehensively demolished the argument that s 25C did not apply to s 412 of the Migration Act:

22.For the reasons we set out below, s 25C of the Acts Interpretation Act is applicable to s 412(1)(a) of the Migration Act. …., ultimately the questions raised by the appeal can only be answered, in the present circumstances, by comparing what it was the appellant submitted in the form he used, with what was required by the approved form or forms at the time of his application to the Tribunal……

  1. The inconvenience of the construction adopted by the Tribunal and by the primary judge in the present case is self-evident. That construction also prefers form over substance…..

47.The assistance we derive from QUYD Pty Ltd v Marvass is that, first, in the context of the statutory provisions there under consideration and which might be seen to warrant a stricter approach to compliance than s 412 of the Migration Act, an argument as to the form of the form and the claimed impermissibility of using a form which had been revoked was rejected. Secondly, the Court of Appeal rejected the submission that s 134(1) of the Property Agents and Motor Dealers Act provided a contrary intention to the application of s 49 of the Acts Interpretation Act. Thirdly, the Court of Appeal proceeded by reference to the purpose of s 134. Fourthly, the Court of Appeal adopted the approach of substantive compliance by reference to s 49 in circumstances where s 134(1) of the Property Agents and Motor Dealers Act used the language of “must” and “in” in requiring that the appointment must be in the approved form.

48.It follows…. there is no authority for the proposition that merely to use a superseded form prevents there being an analysis of “substantial compliance” with the current form. The present appeal is not a case of no form at all being used, or a form which the appellant was expressly or impliedly prohibited from using.

49.Indeed, the present form is not an application for a visa at all, which may well involve precise and detailed information, but an application for a review of the merits by the Tribunal of an identified decision. We would distinguish the cases concerned with visa applications, to which we have referred and those on which the Minister relies, as concerned with different and more specific statutory language and as having a different purpose in the scheme of the Migration Act.

50….. it would be counter to the scheme of the legislation to hold that the mere use of a superseded form, subject to the question of substantial compliance with the current form, rendered ineffective an application to the Tribunal which had been made. Indeed, in the present case, such is the similarity of the forms that those not versed in the identification system in very small print at the foot of each page would be hard pressed to tell whether or not the form currently approved was being used. It follows, in our opinion, that s 412(1)(a), in context, does not show a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act: see Australian Broadcasting Tribunal v Bond (1989) 86 ALR 424 at 430, per Burchett J, with whom Shepherd and Beaumont JJ agreed, who cited Sin Poh Amalgamated (HK) v Att-Gen (HK) [1965] 1 WLR 62 for the proposition that the application of the Acts Interpretation Act is not easily excluded…..

58.Our reasons for concluding that there was substantial compliance are as follows. First, the purpose of the form is to indicate that the visa applicant invokes the jurisdiction of the Tribunal and for that purpose states who he is and identifies the decision that is being challenged. Secondly, the appellant’s application to the Tribunal attached a copy of the notification letter from the Department which contained the appellant’s name, date of birth, client ID, application ID and file number. Thirdly, many applicants to the Tribunal would not have passport numbers. … the Minister accepted that the Tribunal could still deal with applications by those who did not have passports. Fourthly, the request for a passport number appears to be directed, at best, to the administrative convenience of the Tribunal rather than to whether, as a matter of substance, its jurisdiction has been duly invoked. Fifthly, in context, the request for a passport number provides merely a further or additional means, as a matter of detail, of the purpose stated on the form: “ … to collect information about the person, or persons, applying for review.” It is also significant that, unlike an application for a visa which occurs at an early stage of the process, an application to the Tribunal of necessity follows a substantial administrative process. If there is a dispute before the Tribunal as to whether the visa applicant truly is a national of a particular country then that is a matter for the review itself rather than the validity of the application. Lastly, assuming the Secretary fulfils his or her obligation under s 418(3) of the Migration Act, as soon as practicable after being notified of the application to the Tribunal the Secretary will give to the Registrar of the Tribunal each other document in the Secretary’s possession or control considered by the Secretary to be relevant to the review of the decision. In the present case, this would include the appellant’s passport number referred to at item 29 of the appellant’s application for a Protection (Class XA) visa. A photocopy of part of that passport was annexed to that application.

This five member unanimous decision by the Full Federal Court may very well have application to migration law generally. It may turn out to be a seminal decision allowing a flexibility with formalities in migration law which was not previously endorsed by the courts. Immigration in particular often states administratively that there have been ‘essential’ changes to a form making earlier editions of the form inapplicable. That logic probably has been put to bed by MZAIC. In the era of on-line applications MZAIC’s significance is not so much in the forms but with the unshackling of strict adherence to formalities in the migration law.

The case is perhaps on par with Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, 5 March 2010, (2010) 84 ALJR, 251, the case which determined that in some instances time of application criteria could be met at time of decision.

MZAIC in rejected the argument that “form” triumphs “over substance”. So if one is ever in a situation in migration law where one considers that “form”triumphs “over substance” consider if the answer may be found in cases like MZAIC and Berenguel.

Barbara Davidson