Boparai v Minister for Immigration

[2013] FCCA 1873

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOPARAI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1873

Catchwords:
MIGRATION – Migration Review Tribunal – student visa – application requirements for student visa – application for student visa made outside 28 day period prescribed by the Migration Regulations 1994 (Cth) – no discretion to extend time for application for student visa.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.31, 65

Migration Regulations 1994 (Cth), cl.572.211

Chen v Minister for Immigration and Citizenship [2008] FMCA 1285

Applicant: GERMANJIT SINGH BOPARAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1604 of 2013

Judgment of: Judge Manousaridis

Hearing date: 4 September 2013

Delivered at: Sydney

Delivered on: 15 November 2013

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $3,326.

3. The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1604 of 2013

GERMANJIT SINGH BOPARAI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant filed an application in this Court for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.

2. When the matter came before the Court on 13 August 2013 on a first court date, the first respondent (Minister) submitted that the application raised no arguable case for the relief the applicant seeks, and that the Court, therefore, should dismiss the application pursuant to r.44.12 of the Federal Circuit Court Rules 2001. The application was listed on 4 September 2013 before me for a hearing under r.44.12.

3. On 2 September 2013, the applicant, without prior leave, filed an amended application together with written submissions. When the matter came before me on 4 September 2013, with the consent of the Minister, I granted leave to the applicant to file the amended application. Ms Rayment, the legal representative of the Minister, submitted that the amended application also raises no arguable case for the relief it seeks. Accordingly, on that day, I heard submissions from the parties on whether the amended application raised an arguable case for relief.

4. In my opinion, for the reasons set out below, the amended application raises no arguable case for the relief it seeks.

Facts

1. On 12 October 2012, the applicant applied to the Minister for a Student (Temporary) (Class TU) visa. The purpose of the visa was to enable the applicant to undertake the Advanced Diploma of Management course offered by the Apex Institute of Education. This course had been specified by Gazette Notice as a type of course for a subclass 572 visa.[1]

   [1] CB41

2. To be granted a subclass 572 visa, the applicant, at the time of application, had to satisfy a number of criteria. One set of criteria is contained in clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Regulations). Relevant to this application is the criteria specified in cl.572.211(3) which relevantly provides:

   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;

   .    .    .    .    ; and

   (c)the application is made within 28 days (or within such period specified by Gazette Notice) after:

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

3. At the time he applied for the subclass 572 visa, the applicant did not have a substantive visa. The last substantive visa the applicant held was a subclass 572 visa which ceased to have effect on 4 July 2010. This is obviously more than 28 days before the applicant applied for the subclass 572 visa on 12 October 2012.

4. On 18 October 2012 a delegate of the Minister refused to grant the visa because, among other grounds, the applicant’s last substantive student’s visa ceased on 4 July 2010. On 19 June 2013 the Tribunal affirmed the delegate’s decision. In its reasons for decision, the Tribunal noted that the applicant understood that “the visa was refused because he did not lodge the application within 28 days of his previous student visa ceasing”, and that the applicant had “confirmed that he lodged the student visa application more than 2 years after his previous visa ceased”.

The amended application

1. The amended application contains two grounds of review. The first is that the Tribunal should have found that the delegate “misconstrued the law in that the delegate erred in the application of s 65 and should have found that Clause 572.211(3)(c) was inconsistent with s 65 in that it imposed 28 day visa limitations as criterion under the clause”. This ground was particularised as follows:

   The Tribunal should have found that the Applicant was a class of person whom s 65 enabled to make application and clause 572.211(3)(c) is inconsistent with the Act to extent it imposes arbitrary limit as to the number of days the substantive visa had not been held (so long as another class of visa was held and that is not inconsistent with other sections of the Act such as s 48) and not authorised by the Act as proper “criterion”.

2. The second ground is that the Tribunal denied the applicant procedural fairness “as it failed to allow the applicant opportunity to advance reasons and explanations as to the visa situation and simply focused on the Department’s record”. This ground was particularised as follows:

   The Tribunal failed to allow the Applicant opportunity to argue such negligence of the migration agent in the application and hear whether any inchoate substantive visa application was made within 28 days.

First ground - inconsistency

1. It is not arguable that clause 572.211(3)(c) of Schedule 2 to the Regulations is inconsistent with s.65 of the Migration Act 1958 (Act). On the contrary, they are complementary provisions. Section 65 sets out the circumstances in which the Minister must grant or must refuse to grant a visa. One of the specified circumstances is the Minister’s being satisfied or not satisfied that criteria prescribed by the Act or by regulations have been satisfied. Clause 572.211(3)(c) are regulations which have been prescribed pursuant to s.31(3) of the Act which must be satisfied in relation to the granting of a particular class of visa which has been prescribed by regulations made pursuant to s.31(1) of the Act. Section 65 does not say anything about the types of visa that may be granted or the criteria that must be attached to their being granted.

2. Counsel for the applicant submitted that the Act was “beneficial legislation” and that the 28 day requirement prescribed by clause 572.211(3)(c) is contrary to the Act’s character as “beneficial legislation”. That submission, too, is not arguable. No sense can be assigned to the expression “beneficial legislation”. The applicant’s submission is one which invites the Court to ignore the Act and Regulations altogether.

Second ground – procedural fairness

1. It is also not arguable that the Tribunal failed to accord the applicant procedural fairness. The Tribunal’s reasons for decision show that the applicant submitted to the Tribunal that there “were compelling and compassionate circumstances which delayed him lodging the visa application”. The Tribunal informed the applicant there was no discretion to grant a visa of the class for which the applicant applied if the 28 day requirement prescribed by clause 572.211(3)(c) has not been satisfied. That proposition is correct. As Barnes FM (as her Honour then was) said in Chen v Minister for Immigration and Citizenship:[2]

   . . . the reasons the applicant gave for lodging her student visa application outside the prescribed 28 day period had no bearing on the Tribunal decision. The Tribunal was required by law to refuse the grant of the visa if the applicant did not meet the mandatory criteria prescribed in the Migration Regulations for the class of the visa in issue.

   It is not open to the Tribunal or, indeed, to the Court to disregard an applicable criterion for the class of visa in issue in the manner which the applicant suggested. The Tribunal was obliged to consider and apply the criteria for the visa in question. The Court has no discretion to direct that her student visa be considered without regard being had to applicable criteria.

   [2] [2008] FMCA 1285 at [32]

2. There is nothing in the material before the Court which indicates that the applicant raised with the Tribunal any claimed negligence of his migration agent. It cannot be suggested that the Tribunal was bound to afford the applicant the opportunity to make submissions about a matter of which the Tribunal was unaware. Nor has the applicant submitted how any negligence on the part of the applicant’s agent was relevant to the question of whether the Tribunal had no jurisdiction to grant the subclass 572 visa to the applicant.

Disposition

1. The amended application raises no arguable case for relief and should be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 November 2013