Aujla v Minister for Immigration

[2018] FCCA 1078

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUJLA & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1078

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal correctly applied cl.572.211 of schedule 2 to the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.2, cl.572.211

First Applicant: SUKHRAJ SINGH AUJLA

Second Applicant: AMANDEEP KAUR JHAJJ

Third Applicant: BACHITAR SINGH AUJLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 198 of 2016

Judgment of: Judge Nicholls

Hearing date: 7 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Sydney

Delivered on: 9 May 2018

REPRESENTATION

Applicant: First applicant in person and on behalf of the second and third applicants

Solicitor for the Respondents: Ms L Ashworth of Sparke Helmore Lawyers

ORDERS

1. The application made on 2 February 2016 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 198 of 2016

SUKHRAJ SINGH AUJLA

First Applicant

AMANDEEP KAUR JHAJJ

Second Applicant

BACHITAR SINGH AUJLA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 2 February 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 January 2016, affirming a decision of the Minister’s delegate (“the delegate”) made on 5 June 2015, not to grant the applicants Student (Temporary) (Class TU) visas.

2. The evidence before the Court consists of a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Lauren Ashworth, solicitor, made on 16 March 2018 attaching a complete copy of a letter sent to the first applicant (Mr Aujla) from the Minister’s department on 4 May 2015.

Background

1. The applicants are citizens of India (CB 3, CB 11 and CB 12). The first and second applicants are married and the third applicant is their child. They made an application for student visas which was received by the Minister’s department on 29 May 2015 (CB 1 to CB 45). Mr Aujla applied as the student, and the second and third applicants as his dependents (CB 2 and CB 57). The applicants were assisted by a registered migration agent at this time (CB 20).

2. Mr Aujla had previously held a student visa which ceased on 17 January 2015 (CB 58.3). On 16 January 2015, Mr Aujla made an application for another student visa, however this application was subsequently withdrawn on 4 May 2015 (see CB 46).

3. In relation to the applicants’ later application for the student visas (on 29 May 2015 and see CB 1 to CB 45), the delegate refused to grant the visas on the basis that Mr Aujla could not satisfy cl.572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 51 to CB 63).

4. The applicants applied to the Tribunal for review of the delegate’s decision on 22 June 2015 (CB 64 to CB 74). On 22 October 2015, the Tribunal wrote to the applicants’ representative by email to invite the applicants to a hearing scheduled on 25 November 2015 (CB 78 to CB 81). On 12 November 2015, the applicants’ representative sent an email to the Tribunal requesting a postponement of the hearing due to the representative’s unavailability (CB 85). The Tribunal refused the postponement and advised the applicants’ representative of this on 12 November 2015 (CB 87 to CB 91). Mr Aujla attended the hearing to give evidence and present arguments (without the representative) (CB 104 to CB 107).

5. On 19 December 2015, the applicants’ representative provided post-hearing written submissions to the Tribunal. [I note that the attachments referred to in those submissions do not appear in the Court Book].

6. The Tribunal affirmed the delegate’s decision on 11 January 2016 (CB 115 to CB 118). The issue before the Tribunal was whether Mr Aujla satisfied cl.572.211 of Schedule 2 to the Regulations. Clause 572.211(3)(c) of Schedule 2 to the Regulations required that where an applicant is not a holder of a substantive visa, and the last substantive visa held by the applicant was a student visa, the application for another subclass 572 visa must be made within 28 days after the day which the last student visa ceased to be in effect.

7. The Tribunal found that Mr Aujla’s last student visa ceased to be in effect on 17 January 2015 ([15] at CB 117). It accepted that the applicants had made a new application for student visas on 16 January 2015, but found that on Mr Aujla’s own evidence, that that application had been withdrawn ([14] at CB 117).

8. The Tribunal considered the applicants’ claims that they made a further application for a student visa on 17 April 2015. It was prepared to accept that such an application was made. However, it noted that 17 April 2015 was more than 28 days later than 17 January 2015 (when the last substantive visas ceased) ([14] at CB 117).

9. The Tribunal found that the current visa application was made on 29 May 2015. It was therefore not made within 28 days of 17 January 2015, and as a result, Mr Aujla did not satisfy cl.572.211(3)(c) of Schedule 2 to the Regulations ([15] at CB 117). It followed that the other applicants also did not meet the relevant criteria for the grant of the student visas ([16] at CB 118).

The Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. My circumstances were not considered.

   2. My 17^th April 2015 application has not been accounted for.”

Before the Court

1. By orders made, by consent, by a Registrar of the Court on 24 March 2016, the applicants were given the opportunity, amongst other things, to file any amended application and further evidence by way of affidavit. The applicants filed no further documents in this regard. By orders made by a Registrar of the Court on 14 July 2016, the parties were given the opportunity to file written submissions. The Minister filed written submissions on 28 February 2018 (“the Minister’s first written submissions”). The applicant’s filed no written submissions pursuant to these orders. I note that the applicants were represented by a solicitor during the period 20 December 2017 to 26 February 2018. After the final hearing on 7 March 2018, the parties were given the opportunity to file further written submissions. The Minister filed written submissions on 16 March 2018 (“the Minister’s second written submissions”). The applicants filed written submissions on 26 March 2018.

Consideration

1. At the relevant time, cl.572.211(3) of the Schedule 2 to the Regulations was in the following terms:

   “572.211 

   …

   (3)  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; or

   (ii)  a special purpose visa; or

   (iii)  a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

   (iv)  a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

   (v)  a Subclass 497 (Graduate—Skilled) visa; and

   (c)  the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

   (i)  the day when that last substantive visa ceased to be in effect; or

   (ii)  if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

   (A)  the day when that last substantive visa ceased to be in effect; and

   (B) the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

   (d) the applicant satisfies Schedule 3 criterion 3005.”

2. Ground one of the application complains that the Tribunal “did not consider my [in context, Mr Aujla’s] circumstances”. No particulars whatsoever were provided. The ground misconstrues the basis for the Tribunal’s decision.

3. As set out above, the relevant regulation requires that the application of the visa must be made within 28 days after Mr Aujla’s last substantive visa had ceased. That date, on the evidence before the Court, is 17 January 2015. The application for the visa was not made until 29 May 2015. That is more than 28 days after the cessation of Mr Aujla’s previously held substantive visa.

4. This is not a case where the Tribunal was required, by the statutory or regulatory scheme, to consider Mr Aujla’s personal circumstances. This was outside the scope of the tasks set for the Tribunal by the relevant regulations.

5. Ground two asserts that the Tribunal did not consider Mr Aujla’s claim to have made another application for a visa on 17 April 2015. This is contrary to the evidence before the Court. The Tribunal also plainly considered this claim made by Mr Aujla to the Tribunal at the hearing ([11] at CB 117). The Tribunal found that there was no evidence that any such application was received by the Minister’s department. Even if it had, this “application” was still outside the 28 day period. Given that finding (which was reasonably open to the Tribunal), the Tribunal could not have considered any such application for the visa, given the relevant regulatory requirements set out above.

6. During the course of the hearing before the Court, Mr Aujla stated that he had become confused by the terms of a letter sent to him from the Minister’s department dated 4 May 2015 (see CB 46 and annexure “LA-1” of Ms Ashworth’s affidavit).

7. The background to this, and also drawing on what is set out above, is as follows.

8. Mr Aujla arrived in Australia as the holder of the student visa. This visa ceased on 17 January 2015. On 16 January 2015, he made an application for another student visa.

9. Mr Aujla withdrew this application, effective from 4 May 2015 (see CB 46.7 and annexure “LA-1” of Ms Ashworth’s affidavit). The Minister’s department wrote to Mr Aujla by letter of the same date (“the Minister’s letter”). The Minister’s letter acknowledges the withdrawal of the application made on 16 January 2015.

10. For current purposes, the relevant parts of the letter are as follows (CB 46):

    “The application has now been withdrawn, effective from 04 May 2015, and no further processing can be undertaken for this applicant.

    It is not possible to reconsider at a later time an application that has been withdrawn. If at any time in the future the applicant wants to apply for another visa to Australia, a new visa application must be lodged.

    Your immigration status

    You currently hold a Bridging A (subclass 010) visa that was granted in association with this visa application, which will cease 28 days from the date the application was withdrawn. This means that your bridging visa will cease on 01 June 2015.”

11. Before the Court, Mr Aujla submitted that the Tribunal was in error to find that he needed to lodge a “further” application within 28 days after the date on which his last student visa had ceased (see [15] at CB 117).

12. Mr Aujla asserted that the Tribunal erred because the Minister’s letter had indicated that he could apply for another visa, and no time limitation had been stated.

13. As mentioned above, I gave both parties the opportunity to make further written submissions after the hearing. In particular, I wanted to give the applicants the opportunity to explain their submission, which on its face, appeared to rely on a misreading of the Minister’s letter. The Minister filed written submissions on 16 March 2018. The applicants filed written submissions on 26 March 2018.

14. In the written submissions filed on 26 March 2018, the applicants correctly point out that the Minister did not reproduce the entire letter in the Court Book.

15. The affidavit of Ms Ashworth filed on 16 March 2018 produces a copy of the entire letter at annexure “LA-1”. It is important to note that Mr Aujla does not say that he did not receive the entire letter from the Minister’s department at the relevant time. Whatever omission may have occurred in the compilation of the Court Book (which was addressed by Ms Ashworth’s affidavit), this could not have been the source of any confusion on the part of the applicants at the relevant times in 2015. Further, [5] - [6] of Ms Ashworth’s affidavit are in the following terms:

    “[5] On 13 March 2018, I received an email from the Department attaching a complete copy of the Letter. Annexed hereto and marked “LA-1” is a true copy of the complete letter referred to above from the Department dated 4 May 2015.

    [6] On 16 March 2018, I received an email from the Department attaching a screen shot of the Department’s electronic record keeping system, Integrated Client System Environment (ICSE), confirming that a complete copy of the letter was sent to the applicant on 4 May 2015. Annexed hereto and marked “LA-2” is a true copy of the ICSE screen shot sent to me by the Department.”

16. The applicants’ written submissions drew attention to two parts of the Minister’s letter. Although some of the terms of the letter are reproduced at [23] above, it is convenient in understanding Mr Aujla’s complaint to note the parts of the letter on which he focused. The first part of the letter Mr Aujla drew attention to was as follows (see “LA-1” of Ms Ashworth’s affidavit and CB 46):

    “It is not possible to reconsider at a later time an application that has been withdrawn. If at any time in the future the applicant wants to apply for another visa to Australia, a new visa application must be lodged.”

17. The second part of the letter Mr Aujla drew attention to was as follows (see “LA-1” of Ms Ashworth’s affidavit):

    “You must depart Australia by the date your bridging visa ceases, unless you hold another visa”.

18. Mr Aujla submitted that this caused “confusion” for him, and raised “so many questions” which he sets out at [2] – [3] of the applicants’ written submissions as follows:

    “[2] the Department of Immigration did not attach the remaining pages of Acknowledgement of Withdrawal of an application in the Court Book. It is written by the Department of Immigration on each page that ‘it is not possible to reconsider at a later time an application that has been withdrawn. If at any time in the future the applicant wants to apply for another Visa to Australia, a new Visa application must be lodged.’

    And in another paragraph, the Department of Immigration said

    ‘you must depart Australia by the date your Bridging Visa ceases, unless you hold another Visa’

    The above statements raised so many questions and creating confusions like

    (a) Can I apply for a Visa after withdrawal or not?

    (b) Can I stay after 28 days period after withdrawal?

    (c) Can I hold Visa after withdrawal?

    (d) Why did the Department of Immigration not clearly mentioned that we must leave Australia within 28 days after withdrawal?

    (e) Do I have a legal right to stay in Australia after the Withdrawal of Application?

    [3] In the fourth point of Respondent’s submissions, the Respondent said that the Department of Immigration notified that I must depart Australia by the date that my Bridging Visa ceases, unless I have obtained another Visa. This point also raising questions in my case, such as:

    (a) Can I hold another Visa and how?

    (b) Am I allowed to apply for a further Visa after the Withdrawal of Application, and if so, why did the Department of Immigration not mention this in the Acknowledgement.

    (c) Why did the Department of Immigration not give me clear instructions that I have to depart Australia within 28 days after the Withdrawal of my Application?

    (d) Do I have any chance to hold another Visa or be issued with one? If not, then why did the Department of Immigration advise in the acknowledgement that I must depart within 28 days unless I hold another Visa?”

19. It is to be remembered that to succeed in the application to the Court the applicants must show (and the Court must accept), that the Tribunal’s decision is affected by jurisdictional error.

20. For the reasons that follow, the applicants’ complaint in the grounds and submissions in explanation of those complaints, do not reveal any such jurisdictional error on the part of the Tribunal.

21. First, the Minister’s letter (sent by an officer of the Minister’s department) to Mr Aujla, was not sent by the Tribunal.

22. The Tribunal had before it an application to review the delegate’s decision (made on 5 June 2015), which refused the grant of student visas to the applicants in relation to an application made on 29 May 2015 (CB 57 to CB 63). That is, whatever the contents of the Minister’s letter of 4 May 2015, it could not affect the exercise of the Tribunal’s jurisdiction, or for that matter, the lawfulness of its decision.

23. Second, the applicants appear to have overlooked that the letter whose contents they now seek to impugn, post-dated the withdrawal of the application for the student visa, which they had made earlier on 16 January 2015. On the evidence, they had elected (for whatever reason) to withdraw that application. The Minister’s letter, the terms of which the applicants now seek to impugn, was sent to Mr Aujla in response to the withdrawal of the visa application. The Tribunal accepted that such an application had been made ([11] at CB 117).

24. On the evidence before the Court (not disputed by the applicants now), Mr Aujla (also acting on behalf of the other two applicants), withdrew the application made on 16 January 2015, with effect from 4 May 2015 (see the affidavit of Ms Ashworth and CB 46).

25. The Minister’s letter of 4 May 2015, was plainly drafted and sent in acknowledgement of that withdrawal. Whatever the terms of the letter, it could not have had any bearing on the applicants’ election to withdraw that application. Nor is there any other evidence to indicate that the Minister’s conduct caused the applicants to otherwise withdraw the application of 16 January 2015.

26. Third, the student visas for which the applicants applied on 16 January 2015, and then again on 29 May 2015, were subject to Mr Aujla satisfying, amongst other things, the criterion set out in cl.572.211(3) of Schedule 2 to the Regulations.

27. One of the requirements for the visa was that an applicant must make the application no later than 28 days after the date of the last “substantive” visa (as defined in s.5 of the Act) held by the applicant.

28. There is no dispute on the evidence before the Court that Mr Aujla last held a substantive visa which ceased on 17 January 2015. That meant that to satisfy cl.572.211(3) of Schedule 2 to the Regulations, the application for the “second” student visa need to have been made on or before 15 February 2015 (28 days).

29. On the evidence before the Court, such an application was made on 16 January 2015. However, as set out above, Mr Aujla himself withdrew that application, effective from 4 May 2015. As set out above, that withdrawal was of Mr Aujla’s own doing. No other application for the visa was made by 15 February 2015. In the circumstances, whatever was said in the Minister’s letter of 4 May 2015, and whether Mr Aujla was misled, or not, by the Minister’s letter, could have had no effect whatsoever on Mr Aujla’s capacity to satisfy cl.572.211(3) of Schedule 2 to the Regulations.

30. I note that before the Tribunal, Mr Aujla gave evidence that he had made another application on 17 April 2015. The Tribunal found there was no evidence to support that proposition, in that the Minister’s department had no record of having received any such application. In any event, as the Tribunal also correctly found, any such “application” would have been made at a time after the expiry of the 28 day period.

1. I note also the applicants, at no time, have explained why they would have made a yet further application for the student visas on 17 April 2015 when at that time, they already had a live application for other student visas. That is, the application of 16 January 2015 (which was later withdrawn on 4 May 2015).

2. Fourth, the applicants’ complaint depends on what can only be described as a misreading of the terms of the Minister’s letter.

3. On any plain reading, the first impugned part of the letter simply acknowledges the withdrawal of the application for the visa (made by Mr Aujla himself).

4. The Minister’s letter makes clear that having withdrawn that application for the visa, it cannot be re-enlivened. To be granted another visa, and the letter does not specify what type of visa, therefore any visa, the applicants would have to make a fresh application for any such visa.

5. On any plain reading, it cannot be reasonably said that the Minister’s letter was misleading or confusing.

6. The second impugned part of the Minister’s letter does not provide a basis, let alone a reasonable basis, for Mr Aujla’s complaint. The terms of this part of the letter make plain that unless he is granted another visa, Mr Aujla and his family would remain “unlawfully” in Australia, and therefore may be liable to possible detention and removal from Australia. This is made plainly and abundantly clear.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application to the Court should be dismissed. I will make the appropriate order.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  9 May 2018