Chan v Minister for Immigration
[2007] FMCA 1943
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1943 |
| MIGRATION – Whether an incomplete application for a student visa can be completed after the filing of the application. |
| Migration Act 1958 (Cth), ss.39, 47, 359A Migration Regulations 1994 (Cth), sch.1 (item 1222), sch.2 (item 573.211) |
| Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964 |
| Applicant: | MON TAT CHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1643 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 26 October 2007 |
| Date of last submission: | 26 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | Mr J. Wang of Lawside Lawyers |
| Counsel for the Respondents: | Mr S. Lloyd |
| Solicitors for the Respondents: | Ms H. Blackman of Blake Dawson Waldron |
ORDERS
A writ of certiorari issue quashing the decision of the Migration Review Tribunal signed on 13 April 2007 (Case Number: 060740043).
A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1643 of 2007
| MON TAT CHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 13 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Student (Temporary) (Class TU) visa.
Background
The applicant applied for a Student (Temporary) (Class TU) visa with the Department of Immigration and Multicultural Affairs (Court Book “CB” 1). The application was refused by a delegate of the first respondent on 17 August 2006 (CB 35) and by the Tribunal on review on 13 April 2007 (CB 95). The matter is now before this Court pursuant to an application for judicial review filed on 24 May 2007, and an amended application on 22 August 2007.
Issues for determination
The issues before the Court are as follows:
·Whether an application for a student visa can be completed after the day of filing.
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal made an error of law amounting to jurisdictional error by incorrectly interpreting and construing the relevant law when deciding the application lodged by the applicant on 27 March 2006 was not accompanied by the required evidence of enrolment in its decision handed down/sent on 04 May 2007.
Particulars
The Migration Review Tribunal (at page 6 of its decision) commented as follows:
“The applicant is effectively arguing that the visa lodged on 27 March 2006 was a valid application when he submitted his confirmation of enrolment of 31 March 2006. The Tribunal is satisfied that the applicant submitted a visa application on 27 March 2006 but it was not accompanied by confirmation of enrolment.”
The Migration Review Tribunal made the jurisdictional error by affirming that the Department’s decision that the application lodged on 27 March 2006 was invalid appear to be in accordance with requirements set out in item 1222 of the Regulation there being no requirement that proof of enrolment can only be by way of Certificate of Enrolment (COE) thus construing the requirements too narrowly in construing the regulations/legislation.
The applicant submits that the other forms of evidence of enrolment provided to Department in March/April 2006 is sufficient to constitute the requirements under the regulation as a proof of enrolment for substantive visa application.
(2)The Tribunal made jurisdictional error by failing to take into account relevant considerations.
Particulars
The Tribunal failed to take into account the Certificate of Enrolment dated 4 April 2007 provided by the applicant to the Department. The Tribunal failed to take into account other forms of enrolment confirmation as provided in the Statutory Declaration of the applicant sworn on 26 February 2007.
(3)The Tribunal made an error of law amounting to jurisdictional error by failing to take into account relevant considerations.
Particulars
The applicant repeats the particulars in paragraph 1.
The applicant filed an amended application on 22 August 2007 setting out the following grounds and particulars:
(1)[The applicant repeats ground 1 of the application]
Particulars
[The applicant repeats the particulars of ground 1 of the original application]
The Tribunal made a jurisdictional error by failing to consider that the applicant’s COE was provided to the delegate of the Minister within time in which the delegate requested the COE and certainly within 28 days of the expiry of the substantive visa. The Tribunal erred in finding that there was no COE before the delegate (at CB 69 – para 25). Upon acceptance that there was a COE from the applicant and/or prior electronic transmission by education provider (CB 99.5) on 03 April 2007, the Tribunal committed jurisdictional error by stating that there was no COE before the delegate (the MRT having decided against the applicant on this consideration only); the applicant contends that there was a proper application before the delegate within the relevant period. The Tribunal interpreted the law too narrowly.
(2)The Tribunal made jurisdictional error by failing to take into account relevant considerations and taking into account irrelevant [sic] considerations.
Particulars
[The applicant repeats the particulars of ground 2 of the original application]
The Tribunal erred into taking into account the application made in August 2006.
(3)The Tribunal made an error of law amounting to jurisdictional error by wrongly rejecting the application for review as not being a ‘reviewable’ decision and thus affirming the decision of the delegate of the first respondent Minister.
Particulars
The applicant repeats the particulars in paragraph 1.
(4)The Tribunal made jurisdictional error by failing to properly advice [sic] the applicant as to why the letter issued pursuant to section 359A of the Act (at Cb 60-61) clear particulars of information that would be relevant for review (section 359A(1)(a) and (b)) and providing particulars as to why it is relevant for review.
Particulars
The Tribunal asserted a conclusion that the visa lodged on 27 March 2006 was ‘invalid’ and certainly did not make any reference to the lack of COE which later formed the basis of affirming the decision of the delegate. The Tribunal was required to give proper section 359A notice: Wang v Minister for Immigration and Citizenship [2007] FCA 488 [at 27-30]; Minister for Immigration & Multicultural Affairs v Awan [2003] FCAFC 140.
(5)The Tribunal made jurisdictional error by reviewing decision is that is not MRT reviewable decision pursuant to section 338 of the Migration Act such error of law constituting jurisdictional error.
Particulars
The Tribunal accepted that a valid visa application on 17 August 2006 (at CB 101.3) was lodged and found that the application was made more than 28 days after the applicant’s last substantive visa ceased (at CB 101.4). The applicant contends that the Tribunal did not have jurisdiction to review this application and thus made jurisdictional error by purporting to review this application. The Tribunal erred in reviewing this application for which it had no jurisdiction.
Findings of the Court
Evidence of enrolment
Ground one alleges that the Tribunal made an error of law in deciding that the application for a visa lodged on 27 March 2006 was not accompanied by the required evidence of enrolment. That finding by the Tribunal is at CB 100.1. Sub-clauses 3(b) and (c) of Item 1222 of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”) sets out relevant requirements for making a valid application for a Student (Temporary) (Class TU) visa as follows (emphasis added):
(b)Applicant must be in Australia to make an application in Australia.
(c)If the application is made on form 157A or 157E and the applicant seeks to satisfy the primary criteria, the application is accompanied by satisfactory evidence that:
(i) the applicant is enrolled in a registered full‑time course of study:
(A)of a type that has been gazetted under regulation 1.40A; and
(B)the provider of which is not a suspended education provider; or
(ii) the applicant has been offered a place in a registered full‑time course of study:
(A)of a type that has been gazetted under regulation 1.40A; and
(B)the provider of which is not a suspended education provider; or
The Tribunal found that as the visa application lodged on 27 March 2007 was not accompanied by such evidence, the decision of the Department that the application was not valid was in accordance with Item 1222. The Tribunal records that the applicant submitted his confirmation of enrolment on 31 March 2006 (CB 101.1), which was after the application for a visa was lodged.
The applicant submits that there is “no requirement that proof of enrolment can only be by way of Certificate of Enrolment (COE)”. In the letters from Accentro Legal to the Department on 16 August 2006 (CB 1), it is recorded that “DIMIA advised our client that he was missing relevant ‘COE’” and that the “relevant ‘COE’ was made available to the DIMIA since 28 March 2006”. It is clear from those statements that the relevant COE was not lodged with the application on 27 March 2006. Indeed, the COE at CB 19 shows that it was issued on 28 March 2006.
It is alleged for the applicant that the Tribunal should have received the COE by 28 March 2006 “simply by checking it”. It is alleged that it is an incorrect interpretation of the law to find that the application lodged on 27 March 2006 was not accompanied by the required evidence of enrolment. It is alleged for the applicant that the documents lodged on 27 March 2006 and 31 March 2006 “should be taken together, the period of compliance being within 28 days of the expiry of the visa”. It is submitted for the applicant that
other forms of evidence of enrolment provided to the Department in March/April 2006 is sufficient to constitute the requirements under the regulation as a proof of enrolment for substantive visa application.
There is no proof that another form of evidence of compliance was submitted.
It is alleged that “fairness to the student” is a factor that should be taken into account, and that “at no stage was the applicant advised that there was no application”. The Court refers to the letter at CB 1 that records that the applicant was told that “he was missing relevant ‘COE’”. The applicant was therefore alerted to the fault in his application.
It appears from the applicant’s statutory declaration (commencing at CB 64) that the applicant did not obtain his COE in time to lodge it with his application because he forgot that his visa was about to expire (para.9). He went to the University on 24 March 2006 to get his COE, but was told that his Medibank Private Health Insurance had expired, and that his COE could not be issued until his medical insurance was renewed (para.16). He renewed his medical insurance on 24 March 2006 (para.18) but did not go to the University to get his COE until 30 March 2006 (para.21). All of these factors were within the control of the applicant; he could have re-submitted his application on 28 March 2006 if he had obtained a copy of the COE on the day it was issued. There was no unfairness to the applicant; he had time to comply, but neglected to do so.
The applicant’s visa expired on 1 April 2006 (CB 65, para.10) and he states that he then had 28 days to apply for his visa (CB 75, para.54). Twenty-eight days is the period specified in Item 573.211(3)(c) of Schedule 2 to the Regulations. The applicant could have made a new application with his COE on 28 March 2006, but chose not to do so. The applicant did make a valid visa application on 17 August 2006, but the Tribunal found correctly that this was not valid as it was made more than 28 days after his Subclass 573 visa had expired (CB 100.3).
It is submitted for the applicant that the Tribunal failed to take into account other forms of enrolment confirmation as provided in his statutory declaration of 26 February 2007 (CB 64-75). An examination of that statutory declaration does not show that other forms of enrolment confirmation were provided to the Department. The Department therefore did not fail to take them into account.
Section 359A
It is claimed that the letter sent to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”) (CB 60-61) did not provide clear particulars of the relevant information and why it was relevant. The relevant information set out was that the visa application of 27 March 2006 was deemed to be invalid, and that his visa ceased on 1 April 2006, and, as his other application was not lodged until 17 August 2006, it was outside the 28 day limit. The relevance of that was stated to be that it indicated he did not meet clause 573.211. The Court finds that s.359A was complied with.
It is submitted for the applicant that the failure to provide sufficient information (in the s.359A letter) prevented him from addressing the breach. The Court rejects that submission. The Court finds that the applicant would not have been able to address (cure) the breach at any time after the expiry of 28 days from 1 April 2006, which is when his visa expired (CB 65). Therefore, even if there was a breach of s.359A (which the Court does not find), the Court would, as a matter of discretion, refuse to grant relief. The Court finds that s.359A was complied with.
Power to conduct a review
It is submitted that the Tribunal had no power to conduct a review about the application filed on 17 August 2006. This ground was not pursued at the hearing.
Was there a valid application?
It is clear that the applicant lodged an application on 27 March 2006 (CB 60; see also the affidavit of Joanne Huynh, affirmed on 25 October 2007). It is not relevant whether or not it was handed back to the applicant, and the Court makes no finding on that issue. As submitted for the first respondent, an incomplete application can be completed at a later stage: Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964.
The applicant lodged another application on 17 August 2006, which was accompanied by a COE and the visa charge. At that point the application lodged on 27 March 2006 became complete. That application was made before the expiry of his visa on 1 April 2006. A confirmation of enrolment was submitted on 31 March 2006 (CB 101.1). Section 47 of the Act provides:
Consideration of valid visa application
(1)The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
By s.47(3), the Minister was bound not to consider the application lodged on 27 March 2006 at the time of lodging. If he did consider it, that did not amount to a refusal to grant the visa: s.47(4). The application became complete on 17 August 2006, and the requirement to consider a visa continues until it is withdrawn, or refused, or consideration is prevented by s.39: s.47(2). Section 39 has no relevance here. The application lodged on 27 March 2006 was not withdrawn or refused. Therefore the application should have been considered when it became complete. The Tribunal erred in law in confirming the decision that the visa applicant did not make his application within 28 days after his last substantive visa ceased to be in effect, and that clause 573.211(3)(c) was not satisfied.
As an error of law has been found. The Court is not required to consider the other grounds in the application and amended application.
Conclusion
The Court finds that the Tribunal’s decision has been infected with jurisdictional error. Accordingly, the application and amended application are granted on the limited basis set out above.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
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