Bhatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1748
•7 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bhatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1748
File number(s): SYG 383 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 7 June 2021 Catchwords: MIGRATION – Student Temporary Class 2U Higher Education Sector (Subclass 573) visa – whether the delegate failed to provide an opportunity for review – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), s 47(3), 379C(5), 388, 474(3)(g),
Migration Regulations 1994 (Cth), r 2.07(5), sch 1, item 1222(1), 1222(3)(a), ME17/011
Cases cited: Minister for Immigration & Border Protection v Kim [2014] FCAFC 47
Muradzi v Minister of Immigration & Citizenship [2011] FCA 976
Plaintiff S157/2002 v Commonwealth Australia [2003] 211 CLR 476
SZYBR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190
Number of paragraphs: 25 Date of last submission/s: 7 June 2021 Date of hearing: 7 June 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: Ms Kelly ORDERS
SYG 383 of 2020 BETWEEN: PARIKSHIT BHATTA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
7 JUNE 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the Respondent’s costs, fixed in the amount of $6000.00.
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Nepal. On 12 September 2014, the applicant was granted a Student Temporary Class 2U Higher Education Sector (Subclass 573) visa. On 8 March 2018, a delegate of the Minister for Immigration (“the delegate”), cancelled the applicant’s student visa on the ground that the applicant had not complied with condition 8202, and the grounds for cancellation of the applicant’s visa outweighed those against not cancelling the visa. The applicant sought a merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 7 November 2019, the Tribunal set aside the decision under review and in its place, decided not to cancel the applicant’s student visa.
On 15 January 2020, the applicant applied for a further Student visa which is the subject of these proceedings. The application was made in writing and sent to the Department of Immigration (“the Department”) by post. On 20 January 2020, the Department sent the applicant a letter notifying him that his visa application was invalid. The notification informed the applicant that his application was invalid because it did not meet item 1222(3)(a) of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”), as the application was not made not made in the format specified by the Minister in the legislative instrument made for item 1222(1) under r 2.07(5) of the Regulations.
The applicant now seeks judicial review of the delegate’s decision. The decision of the delegate is short and to the point: it simply states that the application made by the applicant for a student visa is invalid as it was not made in the manner specified under sub regulation 2.07(5) of the Regulations, which is then set out in the refusal letter. The refusal letter also notes that there is no right of merits review of an assessment of an application that is invalid.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are set out in his Initiating Application filed with the Court on 19 February 2020. They are as follows verbatim:
Ground One
I was not provided an opportunity to submit a student visa application despite Minister Delegate has power to provide opportunity.
Ground Two
Minister Delegate did not give any review right to go to Administrative Appeals Tribunal (AAT), so I was deprived from fair trial.
Ground Three
Despite winning the case at AAT which would have pave the way to study in Australia, Minister did not provide opportunity to recommence my study in Australia.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter. The Court was satisfied that the applicant was able to meaningfully participate in the hearing. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and the respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper, so he could take notes during the course of the hearing should he wished to.
At the commencement of the hearing, the Court explained to the applicant that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken. Despite Court orders, no written submissions or other material were supplied by the applicant in support of his case. In an Affidavit sworn on 19 February 2020 which was received into evidence, the applicant states inter alia the following:
Following the favourable Tribunal decision, the applicant started looking for a college or university to enrol in a Bachelor of Accounting course. The applicant applied for a bridging visa and was granted a visa from 5 December 2019 until 6 January 2020. The applicant finally received a letter offering him a place in a Bachelor of Accounting course at the Holmes Institute commencing on 23 March 2020. The applicant acknowledges posting his student visa application together with supporting documents to the Department.
The applicant complains that even though he convinced the Tribunal that he was ready to commence his study in a Bachelor of Accounting course, the Department did not allow him extra time to submit his documents. The applicant states that his immigration account did not allow him to lodge the application online, so this was the reason for posting the documents before his Bridging visa expiry date. The applicant told the Court that he wanted to get a chance to complete his course and for the matter to be reconsidered.
The applicant used a Migration Agent, and the Migration Agent did not indicate to him there were time limits. Further, the Migration Agent told him that they could lodge the application via post. The applicant claimed that the Migration Agent did not explain that that time had expired to lodge his visa application and that, in those circumstances, there was little point in doing so. At the conclusion of the respondent’s oral submissions, the applicant was asked if he had anything further he wished to say to the Court. The applicant simply indicated, again, that he wanted an opportunity to be considered for the course, and that the situation in Nepal at the moment, in COVID-19 circumstances, was quite grave, and that he would have difficulty returning to Nepal if he was required to do so within the near future.
THE RESPONDENT SUBMISSIONS
The legal representative for the first respondent noted that this matter involved a determination of an administrative nature by a delegate of the Minister, that being that the applicant’s student visa application lodged on 15 January 2020 was invalid. Accordingly, the Court has jurisdiction to hear the matter pursuant to s 474(3)(g) of the MigrationAct 1958 (Cth) (“the Act”): (see; Plaintiff S157/2002 v Commonwealth Australia [2003] 211 CLR 476). The validity of an application for a visa is an objective question for the Court to decide: (see; Minister for Immigration & Border Protection v Kim [2014] FCAFC 47 at [27]).
In relation to the substantive application, it was submitted that the grounds of the application did not address the objective question that the visa application was invalid. For an application for a student visa to be a valid application, it must, amongst other things, be made at the place and in the manner, if any, specified by the Minister, in a legislative instrument made under r 2.07(5) item 1222(3)(a) of Schedule 1 to the Regulations. The relevant legislative instrument applicable at the time, was ME17/011, and was specified for the purposes of item 1222(3)(a) of the Regulations that the place and manner for making the application was as follows:
Application must be made:
a. as an internet application; or
b. by submitting the application in accordance with the directions in the authorising email, and with a copy of the authorising email, before midnight (AEST or AEDST when applicable) on the day following the date on which the authorising email was sent by (the authorised officer of) the Department;
or
c. If the applicant is outside Australia the authorised application may also be made at a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia.
It was submitted that the applicant accepts in his Affidavit, filed in support of the application for judicial review, that his application for a student visa was provided to the Department by post. There was no evidence to suggest that the applicant, who had the benefit of a Migration Agent, ever contacted the Department to obtain an email authorising the use of form 157A, which was the form used by the applicant for the making of the application other than by an internet application. The applicant also was not outside Australia at the time of the application. On that basis, the application was required to be made as an internet application.
In Muradzi v Minister of Immigration & Citizenship [2011] FCA 976 at [34], it was held that lodging a visa application in the prescriptive manner dictated by the regulations is essential to the validity of the application. As the applicant’s visa application was made on paper on form 157A, it did not meet the requirements of item 1222(3)(a) and ME17/011 of the Regulations. In these circumstances, it is submitted the application to the court is entirely misconceived.
In relation to ground one, the applicant was not denied an opportunity to submit a visa application and in the required form in accordance with item 1222(3)(a) and ME17/011 of the Regulations. The applicant could have done so but did not, despite having the benefit of a Migration Agent.
In relation to ground two, there is no right of appeal to the Tribunal as the Tribunal’s jurisdiction is confined to those matters in s 338 of the Act. In these circumstances, it cannot be said that the applicant has been “deprived of a fair trial”.
In relation to ground three, the applicant’s contention the Minister did not provide an opportunity to recommence his studies is without merit; the Minister cannot consider an invalid visa application: (see; s 47(3) of the Act).
Further, even if the applicant were able to identify a jurisdictional error, which is not conceded, it would be futile for the Court to remit the matter as no useful result could ensure: (see; SZYBR v Minister for Immigration & Citizenship [2007] 81 ALJR 1190). In the present matter, the applicant’s student visa was granted on 12 September 2014 and he had a valid visa until 15 March 2018. Thus, on 7 November 2019, when the Tribunal set aside the cancellation of that visa, the visa had already ceased.
In accordance with s 379C(5) of the Act, the applicant was taken to be notified of the decision of the Tribunal by 8 November 2019 when the Tribunal emailed him a copy of its decision. The applicant then had 28 days from 8 November 2019, being until 6 December 2019 to lodge a valid student visa application. As the applicant did not apply for the visa until 15 January 2020, the applicant did not and cannot meet the requirements of item 1222(4) of Schedule 1 to the Regulations. As such, even if the matter were remitted to the Minister, the only determination open to the Minister would be to again find the visa application as invalid.
CONSIDERATION
It is, perhaps, unsurprising that the applicant feels a legitimate sense of grievance, having been successful in the Tribunal in overturning the decision of the Department to cancel his visa, that his subsequent application for a further student visa has been refused on a technicality, that being, that the application was made out of time and was not made in the correct form. Having said that, the Court is required to give effect to the legislation. In that regard, the legislation is quite clear. The applicant was required to submit his application via the internet and not via post, unless he had received permission to do so.
The applicant admits that he did not have permission to submit the application other than via the internet. The application for the student visa was submitted late due to the difficulty in obtaining a letter of offer from his education institution. This was due to his admitted poor study record. This is, perhaps, not surprising. It is difficult, however, to understand why the applicant was not given proper advice by his Migration Agent as to the time limits that were involved and what he would need to do in order to submit a valid application. Why the Migration Agent would have submitted the application via post in circumstances where the Migration Agent should have known that it would be deemed invalid, is simply beyond the Court’s comprehension.
In terms of the grounds of review, ground one has no merit. The applicant would like the opportunity to submit his visa application in the required form, in accordance to item 1222(3)(a) and ME17/011 of the Regulations. This is not a proper ground of judicial review. The applicant was not denied an opportunity to submit his application, he simply did so late and not in the required form.
Ground two is entirely misconceived. Ground two asserts that the applicant was unable to have the decision to determine that his application was invalid, reviewed by the Tribunal. The Court accepts that the jurisdiction of the Tribunal is limited and has no jurisdiction in matters such as the current one. The only right of review, is judicial review by this Court. This is what has occurred.
Ground three is simply without merit. The respondent cannot consider an invalid application pursuant to s 47(3) of the Act. The application was and remains invalid.
As the applicant is unrepresented, the Court has perused the decision record of the delegate but can find no jurisdictional error which has been unarticulated.
CONCLUSION
Accordingly, the Court has no choice other than to dismiss the application.
Written reasons for judgment requested by parties, on 29 July 2021 and published on 30 July 2021.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 30 July 2021
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