Cheche v Minister for Immigration

[2014] FCCA 1380

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHECHE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1380

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal – Show Cause Hearing – No arguable case for relied raised – Application dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth), s.474

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Tang v Minister for Immigration and Citizenship [2011] FCA 1273

Applicant: VALENTINE MUKOYA CHECHE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 783 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 27 June 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

The Applicant: The applicant appeared in person.

Solicitor for the First Respondent: Ms A. Wong of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 25 March 2014 be dismissed pursuant to reg.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 783 of 2014

VALENTINE MUKOYA CHECHE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 25 March 2014 the applicant, Valentine Mukoya Cheche filed an application under the provisions of the Migration Act 1958 (Cth) in this Court seeking review of a decision of the Migration Review Tribunal (the “Tribunal”) in case no. 1308961 made on 25 February 2014 affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The application came before the Court for first directions on 13 May 2014 where it was set down for a show cause hearing on 27 June 2014 pursuant to reg.44.11(a) of the Federal Circuit Court Rules 2001 (Cth). The applicant was granted leave to file written submissions in support of her application, however, elected not to do so. The first respondent filed written submissions and a list of authorities on 10 June 2014.

3. The solicitors for the Minister filed on 1 May 2014 a bundle of documents which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.   

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.

2. It is convenient at this point to reproduce the Decision Record of the Tribunal that the applicant seeks to review (CB 93-96).  In respect of the applicant’s Student (Temporary) (Class TU) visa, the Tribunal stated:

   APPLICATION FOR REVIEW

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 June 2013 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

   2. The applicant applied for the visa on 1 May 2013 to undertake study in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course, and the subclass for which the type of course was specified by the Minister under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule to the Migration Regulations 1994). The relevant subclass in this case is Subclass 573.

   3.     The criteria for the grant of a Subclass 573 visa are set out in Part 573 of Schedule 2 [to] the Regulations.  Relevantly to this case they include cl.573.211.  Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of a substantive visa or to have made the visa application within 28 days of the last substantive visa ceasing.

   4.     The delegate refused the [visa] on the basis that the first named applicant did not satisfy the requirement of cl.573.211 because she did not hold a substantive visa at the time of this application and she could not satisfy Schedule 3 criterion 3005.  This required that the applicant had not previously been granted a visa on the basis of the satisfaction of any of the criteria set out in Schedule 3.

   5.     The applicant appeared before the Tribunal on 21 February 2014 to give evidence and present arguments.  The applicant was represented in relation to the review by her registered migration agent.

   6.     The applicant gave evidence to the Tribunal that she had previously sought and was granted a visa after an earlier student visa expired.  She stated that she was ‘innocent’ and that she had not seen any information online or elsewhere to make her aware that she could not seek to rely on the satisfaction of the criteria set out in Schedule 3.  She stated that when she applied for her ‘second’ student visa she had only one month left before completing her studies.  When her visa was refused, she applied to the MRT and she was able to finish her studies and graduate.  She is aware that the law is strict, but she had no information about the applicable provisions.  All she wanted to do was to finish her studies.  She is a good student and has been studying.  She felt that the decision of the department was ‘tough’.  She stated that she is not currently enrolled in a course of study.

   7.     For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   8.     The issue in the present case is whether the applicant satisfies cl.573.211.  That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:

   ·The last substantive visa held was of a specified type, which relevantly includes a student visa: cl.573.211(3)(b); and

   ·The visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review 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 the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.573.211(3)(c); and

   ·The applicant satisfies Schedule 3 criterion 3005: cl.573.211(3)(d).

   9.     In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a substantive visa of a type specified in the criteria.  As such, the applicant must meet the requirements of subclause (3) set out above.

   Was the last substantive visa of the specified type?

   10.    The Tribunal finds that the last substantive visa held by the applicant was a student visa which meets the requirements of cl.573.211(3)(b).

   Was the visa application made within 28 days of the last substantive visa ceasing?

   11.    On the evidence before it, the Tribunal finds that the current visa application was made on 1 May 2013.  The applicant’s last substantive visa ceased to be in effect on 8 April 2013.

   12.    On the basis of the above, the Tribunal finds that the application was made within 28 days after the last substantive visa ceased to be in effect.

   Is criterion 3005 met?

   13. To meet cl.573.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a 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 Schedule 2 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

   14.    The department’s decision record was provided to the Tribunal with the application for review.  The decision record indicates that the applicant was previously granted a visa on the basis of the satisfaction of the criteria in Schedule 3.  Having previously been granted a visa on the basis of an application made after her then substantive visa had ceased, the applicant cannot rely on the satisfaction of that criterion for another visa grant.

   15.    Accordingly, the applicant does not satisfy criterion 3005 and the requirements of cl.573.211(3)(d).

   16.    On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.573.211(3), and therefore, does not meet the requirements of cl.573.211 of Schedule 2 to the Regulations.

   17.    For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.573.211(3).  For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

   DECISION

   18.    The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas,

Current Proceedings

Application

1. The application filed on 25 March 2014 pleads the following two grounds:

   1.  Decision made by tribunal is wrong.

   2.  The Tribunal did not consider my oral evidence.

2. As noted above, the applicant failed to file and written submissions in support of her claim. This was confirmed at the hearing on 27 June 2014.

Legislative Framework

1. The Student (Temporary) (Class TU) visa contains a number of subclasses.  With limited exception, the subclass of visa that can be granted to an applicant depends on the type of course in which the applicant is enrolled or has an offer of enrolment and the subclass specified by the Minister for that type of course.

2. The relevant criteria for the grant of a subclass 573 visa are set out in clause 573 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). Clause 573.211 sets out the criteria to be satisfied at the time of application for the visa. In circumstances where the visa application is made in Australia (which occurred in respect of the current proceedings) subclause 573.211(1) requires an applicant to satisfy the requirements of one of subclauses (2), (3), (4) or (6).

3. Subclauses (2), (4) and (6) require an applicant to hold one of a number of specified visa classes at the time of application. 

4. Subclause (3) sets out the circumstances in which an applicant can satisfy the criteria for the grant of the visa where they do not hold a substantive visa at the time of the application.  Relevant to these proceedings, subclause (3) states one of those circumstances, inter alia, is that the applicant satisfy clause 3005 of Schedule 3 to the Migration Regulations (clause 573.211(3)(d)).

5. Clause 3005 of Schedule 3 to the Migration Regulations requires as follows:

   A 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; or

   (b) Schedule 6 of the Migration (1993) Regulations; or

   (c)  regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

   The effect of subclause 3005(a) is that a visa must not have been previously granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3. Consequently, an applicant for a subclass 573 visa can only rely once on the provisions set out in clause 573.211(3)(d) and clause 3005(a) of the Regulations.

Minister’s Written Submissions

1. The Minister submits the applicant’s two grounds of review do not establish any jurisdictional error on the part of the Tribunal.

2. In respect of the first ground of review, the Minister contends this seeks to cavil with the merits of the Tribunal’s decision.  Merits review is an impermissible exercise and no part of the function of the Court when dealing with an application for judicial review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).

3. In respect of the second ground of review, the Tribunal set out the applicant’s oral evidence at [6] of its Decision Record (CB 94). The Tribunal was not, however, bound to consider her reasons. There is no discretion in the legislation to allow the MRT to consider why the applicant was not aware she could not seek to rely on the criterion at clause 3005 of Schedule 3 to the Regulations (see Tang v Minister for Immigration and Citizenship [2011] FCA 1273.

4. The Minister contends the factual conclusions drawn by the Tribunal were open to it on the material before it. 

5. The first issue determined by the Tribunal was that the applicant was not the holder of a substantive visa on the date she lodged the present visa application (CB 95 at [9]). The visa application the subject of these proceedings was lodged on 1 May 2013 (CB 1-23). The applicant’s last substantive visa ceased on 8 April 2013 (CB 31). Therefore, the Tribunal was correct to conclude the applicant did not hold a substantive visa at the date of her visa application and it was correct to assess her against clause 573.211(3).

6. The Tribunal next determined the visa application had to be made within 28 days of previous substantive visa ceasing (CB 95 at [11]), which is what occurred in respect of that applicant.

7. The third issue to be determined by the Tribunal was whether the applicant had previously been granted a visa on the basis of the satisfaction of Schedule 3 criteria. The Minister contends that as the applicant had previously been granted a visa on the basis of her satisfaction of criterion 3005, she no longer met the requirements of that criterion. The Tribunal was therefore correct to conclude the applicant did not satisfy cl.573.211(3)(d) at [15].

8. The Minister submits no arguable case for relief has been raised by the applicant and the application should be dismissed with costs.

Applicant’s Oral Submissions

1. At the show cause hearing the applicant sought to take issue with the merits of the Tribunal’s decision and complained the decision was unfair.  The applicant also raised concerns that the security situation in her country of citizenship, Kenya, had recently deteriorated and it would be dangerous for her to return home.

2. The applicant indicated she had read a copy of the Minister’s written submissions, but indicated she had no oral response in respect of those.

Consideration

1. I have read the Tribunal’s Decision Record and the Court Book prepared by the Minister. In my view, the Minister’s submissions reproduced at [13]-[20] above accurately address the application’s grounds. These grounds raise no error on the part of the Tribunal and should be dismissed.

2. The approach taken by the Tribunal in respect of the applicant’s visa application reveals no error. The Tribunal was bound by the legislative framework addressed at [8]-[12] above to refuse to grant the applicant the visa sought. I note the applicant, on her visa application form (CB 1-23), has indicated she was seeking a subclass 574 visa, however, it is clear the actual subclass of visa being sought was a 573 visa.

3. In respect of the applicant’s oral submissions, these either simply invite impermissible merits review (see [14] above) or raise claims that were not before the Tribunal and are outside the scope of any judicial review function of this Court.

4. Consequently, the application should be dismissed with costs as it raises no arguable case for relief.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  27 June 2014