Alharthi v Minister for Immigration
[2017] FCCA 283
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALHARTHI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 283 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – effect of Criterion 3005 which cannot be used twice by an applicant – Administrative Appeals Tribunal made no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1999 (Cth) |
| Cases cited: Sapkota v Minister for Immigration and Border Protection (2014) 226 FCR 455 Tang v Minister for Immigration and Citizenship [2011] FCA 1273 |
| Applicant: | HANADI ABDULAZIZ HAMED ALHARTHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1514 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms A Wong |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 15 June 2016 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1514 of 2016
| HANADI ABDULAZIZ HAMED ALHARTHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a female citizen of Saudia Arabia aged 25 years, having been born on 9 November 1992.
By Application filed in this Court on 15 June 2016 she seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal) dated 24 May 2016 which affirmed a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 20 August 2015 refusing to grant her a Student (Temporary) (Class TU) Independent ELICOS Sector (Subclass 570) visa (Student visa) under s.65 of the Migration Act 1958 (Cth). She had applied for the Student visa on 17 July 2015 (current Student visa application), on which date she was not the holder of a substantive visa and thus was an unlawful non-citizen.
The applicable criteria for the grant of the Student visa were set out in Subclass 570 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Relevant Background
On 22 May 2014 the Applicant had been granted an earlier substantive visa, which was also a Student visa. This ceased on 12 July 2015 (previous Student visa), on which date she thus became an unlawful non-citizen.
Unfortunately, when the Applicant lodged her application for the previous Student visa she had also been an unlawful non-citizen and did not hold a substantive visa. Accordingly, at the time of her application for the previous Student visa she had to rely on and satisfy the criteria set out in cl.570.211(3) which required that, as an applicant not holding a substantive visa:-
(a) The last substantive visa held by her was a Student visa;
(b)Her application for the previous Student visa was made within 28 days of the day when her last substantive visa had ceased to be in effect; and
(c)She satisfied Schedule 3 criterion 3005 to the Regulations (Criterion 3005).
Clause 570.211(3) relevantly provided that:-
An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa;
…
(c) the application is made within 28 days … after:
(i) The day when that last substantive visa ceased to be in effect; and
…
(d) the applicant satisfies Schedule 3 criterion 3005.
Criterion 3005 relevantly provided as follows:-
3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a) this Schedule…
…
In other words, the Applicant as an unlawful non-citizen had utilised and relied upon Criterion 3005 for the purposes of her previous Student visa application.
Decision of Delegate to Refuse Current Student Visa Application
The Delegate was not satisfied that the Applicant had satisfied the prescribed criteria for a Student visa and refused to grant one to the Applicant. The Delegate found that Criterion 3005 allowed an applicant only one opportunity to be granted a substantive visa if that applicant did not hold a substantive visa at the time when the visa application being considered was lodged. The Delegate found that when the Applicant had applied for the previous Student visa which was granted on 22 May 2014 she had been an unlawful non-citizen and had used Criterion 3005 to be granted that previous Student visa. The Delegate found that therefore the Applicant could not again rely upon Criterion 3005.
Decision of Tribunal Affirming Delegate’s Refusal of Current Student Visa Application
The Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
The Tribunal found that the last substantive visa held by the Applicant was a Student visa and that the Applicant therefore satisfied the requirement of cl.570.211(3)(b)(i).
The Tribunal also found that the previous Student visa ceased on 12 July 2015 and the current Student visa application was lodged on 17 July 2015 and was therefore made within 28 days after the previous Student visa ceased to be in effect, and accordingly the Applicant met cl.570.211(3)(c)(i).
However, the Tribunal found that because when the Applicant made the current Student visa application she was an unlawful non-citizen and had already utilised Criterion 3005 for the purpose of being granted the previous Student visa, she could not again rely upon and satisfy Criterion 3005 and thereby satisfy cl.570.211(3)(d).
Consideration
The meaning and effect of Criterion 3005 has been considered and explained by the Full Court of the Federal Court of Australia in Sapkota v Minister for Immigration and Border Protection (2014) 226 FCR 455 (Sapkota).
Ms Sapkota had applied for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The factual circumstances in which Ms Sapkota found herself were similar to those of the Applicant in the present case and it was necessary for the Full Court to consider the nature, effect and relationship of Criterion 3005 to cl.573.211(3) of Subclass 573 (set out in Schedule 2) which was the equivalent of and in nearly identical terms to cl.570.211(3) under consideration here. Accordingly, the Full Court’s analysis in Sapkota is relevant for present purposes.
Ms Sapkota, as with the Applicant in this case, had previously applied for a visa at a time when her last substantive visa had ceased and she was an unlawful non-citizen, but the provisions of Criterion 3005 were utilised to grant her visa application. She then made an application for another Student visa but did so after her last visa had expired and when she was again an unlawful non-citizen. The Tribunal had decided that because a visa had previously been granted to Ms Sapkota on the basis of her satisfaction of Criterion 3005, she could not again utilise that criterion and it refused to grant her a visa.
The Full Court found that Schedule 3 was incorporated into Schedule 2 by cl.573.211(3)(d) when read with reg.2.03(2). This latter regulation relevantly provided that if a criterion in Schedule 2 referred to a criterion in Schedule 3 by number, that numbered criterion must be satisfied by an applicant as if it were set out at length in the criterion in Schedule 2.
The Full Court was consequently of the view that Criterion 3005 was not satisfied where a visa had previously been granted to an applicant on the basis of the satisfaction of that criterion and therefore Ms Sapkota had not satisfied the requirements of cl.573.211(3) because she had not satisfied para. (d) of that subclause. The Full Court comprised of Kenny, Greenwood, Tracey, Perram and Robertson JJ in Sapkota at [28]-[31] stated as follows:-
[28]The reference to “this Schedule” in cl 3005 means Sch 3. The effect of transposing cl 3005 into cl 573.211(3) is that a visa applicant does not meet the requirements of cl 573.211(3) where the applicant has previously relied on cl 3005.
[29]The unchallenged finding of the Tribunal at [15] of its reasons was that the appellant previously applied for a visa as an unlawful non-citizen and the provisions of Sch 3 were utilised to grant her a substantive visa on 6 July 2010. The primary judge made the same finding at [3] of his reasons in stating that on 6 July 2010 the appellant was granted a subclass 572 visa on the basis of satisfaction of the criteria set out in Sch 3 to the Regulations. The criteria to be satisfied for the visa in 2010 included Sch 3 criterion 3005.
[30]Thus the appellant had previously relied on criterion 3005 as incorporated into Sch 2 by cl 573.211(3)(d) when read with reg 2.03(2). The effect of cl 573.211(3)(d) is that the appellant could not again satisfy that criterion because she had already done so in 2010.
[31]In the context of cl 573.211(3), we accept the Minister’s submission that cl 3005 is effectively a matter of drafting technique to avoid repetition.
Hearing
At the hearing, the Applicant appeared and addressed the Court with the aid of an interpreter. She also read her affidavit affirmed on 9 June 2016 which replicated the eleven Grounds appearing in her Application.
Both the Grounds and her affidavit confirm and agree with the factual position outlined above. She does dispute the fact that her current Student visa application under consideration was lodged after she had become an unlawful non-citizen, as her previous Student visa had ceased on 12 July 2015 and her current Student visa application was lodged on 17 July 2015. She concedes that her previous Student visa had been granted after she had become an unlawful non-citizen. She concedes in her second Ground what she called:-
…technically violating Schedule 3 criterion 3005. Cl.570.211 requires me to be the holder of a substantive visa or to have made the visa application in Australia within 28 days of the last substantive visa ceasing.
Nevertheless, she appears to blame her migration agent for not telling her that with respect to her previous Student visa application there had to be reliance upon Criterion 3005 and she had not known at the time of this reliance. In Ground 6 of her Application and at [6] of her affidavit, she further stated with respect to her current Student visa application that she had needed to return to Saudi Arabia because her father had become ill and that by the time she returned, her Confirmation of Enrolment had expired, and she had been unable to get another Confirmation of Enrolment until three days after her previous Student visa had expired.
I accept that circumstances have turned out most unfortunately for the Applicant. However, in my view there was no discretion reposed in the Tribunal to take compassionate circumstances or considerations of that nature into account.
Authority for the irrelevance of compassionate circumstances in connection with a Student visa application and Criterion 3005 is found in the decision of Collier J in Tang v Minister for Immigration and Citizenship [2011] FCA 1273. At [10]-[11] her Honour said as follows:-
[10]The Tribunal examined the relevant legislative provision, and noted the appellant’s claims that his application for a visa was delayed because he had been in dispute with his former college about payment of fees, and was unable to obtain a Confirmation of Enrolment from the college before the application date in respect of his visa had expired. The Tribunal also accepted the appellant’s evidence that he was unable to sit his final semester examinations at the college as he was ill with the flu and had to be quarantined. The Tribunal accepted that the appellant had been a genuine student in Australia and genuinely wanted to finish the last semester of his course. However the Tribunal found that, unfortunately, there was no discretion in the legislation to allow it to take into account the reasons why the appellant had been delayed in lodging his visa application.
[11]Accordingly, the Tribunal concluded that because the appellant did not meet one of the elements of subcl 572.211(3), he had failed to meet the requirements of cl 572.211 of Sch 2 to the Migration Regulations.
Her Honour, who was hearing an appeal from a decision of Federal Magistrate Scarlett, recounted at [14] that his Honour had found that the Tribunal was correct in finding that it had no discretion to allow it to take into account any reasons why the appellant was delayed in lodging his visa application.
While sympathising with the appellant’s predicament, her Honour then found at [20]-[21] that the Tribunal had properly interpreted and applied the relevant provisions and she dismissed the appeal from Federal Magistrate Scarlett.
The Grounds in the Application relied upon by the Applicant invite the Court to rely upon compassionate considerations in asking that the Tribunal decision be quashed. Such compassionate considerations and the reasons for not lodging the current Student visa application on time are not relevant to the Tribunal’s decision, which I consider was the only one open to it in the circumstances.
Conclusion
Accordingly, I cannot discern any jurisdictional error and the Application must be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 28 February 2017
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