Chen v Minister for Immigration and Citizenship

[2008] FMCA 1285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1285

MIGRATION – Application to review decision of Migration Review Tribunal – student visa – where applicant claimed given incorrect advice by the Department of Immigration – where applicant did not meet a criterion for the class of visa in issue.

Migration Act 1958 (Cth), ss.65, 359A

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant: JIAYI CHEN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 529 of 2008

Judgment of: Barnes FM

Hearing date: 26 August 2008

Delivered at: Sydney

Delivered on: 26 August 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 529 of 2008

JIAYI CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal signed on 21 January 2008 and handed down on 15 February 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) Visa.

2. The applicant, a citizen of the People's Republic of China, first entered Australia as the holder of a Subclass 573 student visa in February 2003 and was subsequently granted a number of further student visas.  It is not in dispute that the last substantive visa held by the applicant was a Subclass 573 student visa granted on 25 July 2006 which expired on 3 November 2006.

3. On 3 November 2006 Ms Chen applied for a Class DD Subclass 880, Skilled Independent Overseas Student visa as a dependant of the main applicant and was granted a bridging visa.  However she withdrew her application for a Class DD Visa.  That withdrawal was acknowledged by letter to Ms Chen from the Department dated 24 April 2007 which recorded that her application for that class of visa had been withdrawn and that no further action would be taken on that visa application in relation to her.

4. The letter pointed out that only in very limited circumstances could the applicant lodge another application for a substantive visa while in Australia.  She was referred to the Departmental website for further information.  The letter also advised Ms Chen that it was not possible to re-open the application for a Class DD Visa.  

5. On 17 May 2007 Ms Chen applied for a student visa.  It is that application that is the subject of the delegate's decision and the subsequent Tribunal decision. 

6. The delegate refused the application for a student visa on the basis that the applicant did not meet the criteria prescribed in Schedule 2 to the Migration Regulations for any subclass of visa within Class TU.  In particular the delegate found that she did not satisfy regulation 573.211 because her last substantive visa had ceased on 3 November 2006 and the student visa application was lodged on 17 May 2007.  Thus it was not within 28 days after her last substantive visa ceased to be in effect.

7. The applicant sought review by the Tribunal of the delegate’s decision on 6 June 2007.  The applicant wrote a letter dated 13 June 2007 explaining her circumstances.  She explained that she was no longer in a relationship with the person with whom she had applied for a Class DD Visa.  She had sought the advice of the Department of Immigration on a date that is not mentioned.  It appears however that it was after February 2007.  She also approached the Department on 26 April 2007 and 17 May 2007 explaining that she wished to apply for a student visa. 

8. The applicant complained that she had been given wrong advice by the Department.  She understood that she had been informed on the first two occasions that it would be “fine” for her to apply for a new student visa on her own.  She claimed that subsequently her application was refused and a Departmental officer told her that she had been given “wrong” information by the two officers.  Ms Chen also wrote to the Tribunal by letter dated 25 June 2007 (received 8 November 2007) repeating these claims. 

9. The Tribunal wrote to the applicant on 29 November 2007 putting to her the fact that her application for a student visa was made more than 28 days after the day on which her last substantive visa expired and that hence she may not meet one of the criteria for the class of visa for which she applied.  The applicant responded, repeating her contentions.  She attended a Tribunal hearing. 

10. In its reasons for decision the Tribunal recorded that the applicant had applied for a Class TU Visa, described the criteria for a Subclass 573 visa and stated that the issue in the case was whether the applicant met clause 573.211.

11. The Tribunal summarised the applicant's visa history, the Departmental decision and the applicant's submissions.  It referred to the applicant's oral evidence at the hearing, in which she had reiterated her claims that after she found out her partner had another relationship and withdrew her application for a Class DD Visa she had explained her situation to the Department.  She claimed she was told she could apply for a further student visa once the withdrawal of her skilled visa application was confirmed.  She claimed that her situation was an exceptional circumstance and that the Department should be responsible for its mistakes and consider her student visa without the need for her to satisfy clause 573.211 of Schedule 2 to the Migration Regulations because she was not given the correct information in the first place.  She also explained that she had enrolled in a university course and if she had to go home to reapply for the student visa it would waste a lot of time and money and delay her studies.

12. In its findings and reasons the Tribunal first addressed the requirements of clause 573.211 of Schedule 2 to the Migration Regulations.  It found that the last student visa the applicant held ceased on 3 November 2006 and that she had applied for the student visa in issue in May 2007.  It found that she did not meet the requirements of subclauses 573.211(2), (4) or (6) as she was not the holder of a substantive visa of the type described in those provisions at the time of the application for a student visa in May 2007.  As she was not the holder of a substantive visa at the time of application, the Tribunal found that she met the requirements of para. 573.211(3)(a) and that as such, the issue was whether she met the remaining requirements of subclause 573.211(3).

13. However, in the next two paragraphs of its decision the Tribunal referred not to subclause 573.211(3), but rather, to subclause 572.211(3), which is the equivalent identically-worded provision in relation to a different subclass of the Class TU visa.  The Tribunal correctly stated that subclause 572.211(3) requires that where the applicant is not the holder of a substantive visa at the time of application and the last substantive visa held by the applicant was a student visa, the application must be made within 28 days after the last substantive visa ceased to be in effect. 

14. The Tribunal found that more than 28 days had elapsed from 3 November 2006 when the applicant's last substantive visa ceased to be in effect until 17 May 2007 when the visa application was made.

15. The Tribunal found that the applicant did not meet para. 572.211(3)(c) which contains the 28 days requirement and that hence she was unable to meet subclause 572.211(3).

16. The Tribunal continued that it found that the applicant did not meet subclause 572.211(2) because she was not, at the time of application, a holder of a visa prescribed in that clause.  It also found that she did not meet subclauses 572.211(4), (5) or (6) because her application for a visa was made on Form 157A and not on the form said to be prescribed in those provisions and also because she was not the holder of a prescribed type of visa at the time of application.

17. The Tribunal continued:

    For the same reasons, the Tribunal also finds that the applicant is unable to meet the equivalent provisions in other student visa subclasses such as cl 570.211, cl 571.211, cl 573.211, cl 574.211, cl 575.211, cl 576.211 and cl 580.211. 

18. The Tribunal referred to the applicant’s claims about her circumstances and the reason she was forced to withdraw her permanent visa application and reapply for a student visa, her claim that she was misled by the Department of Immigration and that the late application was due to circumstances beyond her control.  However, while acknowledging those submissions the Tribunal stated that it had no discretion with respect to those matters.

19. The Tribunal concluded “on the basis of the above” that the applicant did not satisfy subclause 573.211(3) and therefore that she did not meet the requirements of clause 573.211 of Schedule 2 to the Regulations.

20. It found that, except for Subclass 580, the other subclasses within the Class TU visa class had a requirement the same as subclause 573.211(3) for applicants in Australia who did not hold a substantive visa at the time of visa application.  For the reasons given it also found that the applicant did not meet the requirements of those subclasses.  There was no material to suggest that the applicant met the prescribed criteria for Subclass 580.  The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

21. The applicant sought review of the Tribunal decision by application filed in this Court on 5 March 2008.  The application states that it is an application for review of the Tribunal decision.  However the grounds of application record the applicant's complaints about the Department.  They are:

    1.  In March 07, I enquiry with case officer Bronwyn about my student visa application.  She gave me wrong information that I can apply student visa. 

    2.  On 26/04/07, I enquiry with case officer Dan Morgan about my application he gave me wrong information again.

22. Ms Chen claimed in her application that the fact that her student application was refused was unfair to her, that her application was refused because she was given the wrong information and that this wasted her time and money.  She reiterated those claims in an accompanying affidavit.

23. The applicant filed written submissions on 23 May 2008 which detailed her concerns about events between November 2006 and May 2007 and what she claimed occurred when she attended the Department of Immigration from February 2007 onwards.

24. Ms Chen claimed that during the Tribunal hearing the Tribunal member had said that she understood what had happened to her but that the Tribunal had no discretion.  However she submitted that her situation constituted exceptional circumstances and that she had been treated unfairly as she relied on what she was told by Departmental officers.  She suggested that the actions of the officers had been negligent, that she should not be responsible for such actions and the loss and interruption it had caused her and that for these reasons the Court should consider her student visa application without satisfying clause 572.211 because the officer did not give her the correct information in the first place.

25. These matters are clearly of some concern to the applicant, but the concern that she expresses about advice she said she was given by the Department of Immigration does not establish jurisdictional error on the part of the Tribunal. 

26. Contrary to Ms Chen's contention, the Court is not in a position to grant her a visa.  Nor is it in a position to take into account what she suggests are “exceptional circumstances” in determining whether or not the Tribunal made a jurisdictional error.

27. The application may be taken as asserting that the Tribunal fell into jurisdictional error in failing to hold that in the circumstances of her case, the applicant should be taken to have satisfied clause 573.211 of Schedule 2 to the Migration Regulations.

28. However clause 573.211 of Schedule 2 to the Migration Regulations in particular subclause 573.211(3), does not contain within it a provision that allows for the exercise of a discretion or for the decision-maker to have regard to exceptional circumstances in relation to the requirement about the time of the application or otherwise relevantly to the applicant’s claimed circumstances.  Subclause 573.211(3) is as follows: 

    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

    …

    and 

    (c) he 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; or

    (ii)     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:

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

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

    (d)     the applicant satisfies Schedule 3 criterion 3005.  

29. It is not in dispute that the applicant failed to lodge her student visa application within 28 days of the expiry of her last substantive visa, that is the student visa that expired on 3 November 2006. 

30. Section 65 of the Migration Act 1958 (Cth) requires decision-makers (and this applies both to the Minister and the Tribunal) to be satisfied of certain matters before granting a visa, in particular that the criteria for the visa in issue have been satisfied. If the decision maker is not so satisfied then a visa must be refused. Section 65 does not confer a power to be exercised as a discretion (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 118 to 199 per Gummow J).

31. Hence insofar as the applicant contends that the Tribunal erred in failing to exercise a discretion based on her claims about being misled or on the basis that her late application was due to exceptional circumstances, that does not establish jurisdictional error.  Such matters were not matters which it was open to the Tribunal to take into account in determining whether the applicant met the requirement in issue in relation to the time of application for the student visa. 

32. In other words, as the first respondent submitted 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.

33. 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.

34. There are a number of other issues apparent in the circumstances of this case.  First, as was noted by the first respondent in relation to the applicant's complaints about what occurred, the applicant's last substantive student visa expired on 3 November 2006.  Hence by the time, on her own account, she approached the Department, 28 days from the time of expiry of the last substantive visa had already passed.  Any incorrect advice, while undoubtedly regrettable, could not change the fact that she could not at the time she approached the Department meet the criteria for a student visa. 

35. It is neither appropriate nor necessary on the evidence before the Court to make a determination about whether the applicant was in fact given incorrect information or the scope of the information that she was given by the Department.  The solicitor for the first respondent pointed out that the effect of the advice given to the applicant would have been that she could lodge a valid application and that insofar as that went it was correct.  No doubt technically this is so.  It would of course be regrettable if the applicant was given either wrong or misleading advice or given advice which she misunderstood and acted on.  However that is not something for which this Court can provide a remedy.

36. Insofar as the applicant's contention is that she should have been told that her application was doomed to fail (as by the time she approached the Department she could not satisfy the 28 day requirement in clause 573.211), that is an understandable concern, notwithstanding that it is for an applicant to ensure that her application satisfies the prescribed criteria. However, again, it is not something which this Court can resolve in the manner sought by Ms Chen.  The Court has limited jurisdiction.  Her concerns, even taken at their highest, do not assist to establish jurisdictional error on the part of the Tribunal.  The Court is not able to provide her with the remedy which she seeks, which is the grant of a student visa notwithstanding that she acknowledges that she did not satisfy clause 573.211.

37. The Tribunal findings and reasons require consideration for another reason which I raised with the solicitor for the first respondent and which was addressed in oral submissions.  It is necessary to consider whether the Tribunal correctly addressed the applicable provisions of Schedule 2 to the Migration Regulations.  The Tribunal recognised that the issue in the case before it was in essence whether the applicant met clause 573.211 (Subclass 573 being the only subclass of Class TU in respect of which she had advanced any claims).  While the Tribunal commenced by considering the application of Subclass 573, finding that the applicant not being the holder of a substantive visa was within para. 573.211(3)(a) and acknowledging that the issue was whether the applicant met the remaining requirements of subclause 573.211(3), it thereafter addressed clause 572.211(3) which is one of the criteria for a subclass 572 visa.

38. However, subclause 572.211(3) is, and at the relevant time was, in identical terms to subclause 573.211(3).  While specifically addressing subclause 572.211(3) the Tribunal made findings about the criterion applicable to both Subclass 572 and 573, that is whether the application was made within 28 days after the last substantive visa ceased to be in effect.  It found that more than 28 days had elapsed from that time. 

39. Having made that finding the Tribunal found that the applicant therefore did not meet para. 572.211(3)(c) or generally subclause 572.211(3).  It went on to address other criteria for a Subclass 572 visa.  Relevantly, however, it also then found for the same reasons that the applicant was unable to meet the equivalent provisions in other Student visa subclasses (which include Subclass 573) and concluded “on the basis of the above” (which I take to be a reference to the whole of the decision and certainly to the findings and reasons part of the decision) that the applicant did not satisfy subclause 573.211(3) and hence did not meet the requirements of clause 573.211 of Schedule 2 to the Migration Regulations. 

40. The Tribunal observed that the subclasses within the Class TU visa class other than Subclass 580 had a requirement the same as subclause 573.211(3) and found the applicant did not meet the requirements of those subclasses for the reasons given.

1. While the Tribunal addressed subclause 572.211(3) in the body of its findings and reasons instead of subclause 573.211(3), it was appropriate for the Tribunal to determine whether the applicant met any of the subclasses of the class of visa for which she applied, not only those she sought to rely on. 

2. What is in issue is whether the fact that the determination of whether her application was made within 28 days of her last substantive visa application was made in the context of addressing Subclass 572 amounts to a jurisdictional error. 

3. The solicitor for the first respondent submitted that the mistake was no more than a typographical error, having regard to the Tribunal reasons as a whole, but that in any event if there was an error, it could not have made any difference as the applicant did not meet the criteria in subclause 573.211(3) as the Tribunal concluded.

4. The Tribunal reasons should be read as a whole and with an eye not to finely attuned error as considered in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 and many subsequent cases. It is well established that not every factual error on the part of a Tribunal will constitute jurisdictional error. On balance, having regard to the whole of the Tribunal decision, notwithstanding the reference to subclause 572.211(3), I am not satisfied that the Tribunal has made a jurisdictional error. That is so for a number of reasons.

5. First, the Tribunal correctly identified the provisions of the subclass in respect of which the applicant advanced claims as Subclass 573 and the issue as whether she met clause 573.211.  While it addressed subclause 572.211(3), it made a factual finding that more than 28 days had elapsed from 3 November 2006 when the applicant's last substantive visa ceased to be in effect to 17 May 2007 when the application for a visa was made.  That is a requirement of para. 573.211(3)(c)(i) as well as para. 572.211(3)(c)(i).  In addition to finding that Ms Chen did not meet para. 572.211(3)(c) the Tribunal found for the same reason that she was unable to meet the equivalent provisions in the other student visa subclasses, including Subclass 573 which (as I have said) contains the identically worded requirement in subclause 573.211(3) including paragraph (c).

6. Hence while the Tribunal findings at one point addressed the provisions of a subclass other than the main subclass in issue, the Tribunal in fact made the necessary findings and addressed the substance of the requirements in issue in relation to Subclass 573.  The Tribunal found that the applicant did not satisfy subclause 573.211(3) and therefore that she did not meet the requirements of clause 573.211 of Schedule 2 to the Migration Regulations.

7. For the sake of completeness I note that if I am wrong and in fact this is an error that should be regarded as a jurisdictional error, I would exercise my discretion not to grant relief, consistent with the approach considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, on the basis that remittal to the Tribunal would be futile. It is clear that the applicant did not meet the requirement in subclause 573.211(3) which is in the same terms as the subclause referred to in part of the findings and reasons.

8. Hence the application should be dismissed. 

9. I recognise that the combination of circumstances in relation to the background to this application, the processing of the application and indeed the Tribunal decision cannot but leave the applicant discontented, but reiterate that the Court has no discretion in the sense in which she seeks that it exercise a discretion. 

10. The Tribunal, as it correctly stated, did not have a discretion to grant her a visa on the basis of what she claimed were exceptional circumstances or circumstances beyond her control or on the basis of her claims that she was misled by the Department of Immigration.  It could not dispense with the need to comply with an applicable criterion.  Nor can this Court. 

RECORDED  :  NOT TRANSCRIBED

1. The applicant has been unsuccessful and the first respondent seeks costs in the sum of $4,000. I note the sum of $5,000 is provided as a starting point in the Federal Magistrates Court Rules. I consider that the amount sought is appropriate having regard to the nature of this and other similar matters. While I understand the applicant's concerns in relation to the circumstances in which she has found herself, they are not such as to warrant a departure from the general principle that an unsuccessful applicant should meet the costs of the respondent.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 September 2008