Dhillon v Minister for Immigration

[2015] FCCA 3306

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHILLON & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3306

Catchwords:
MIGRATION – Application for judicial review – application for student visa – applicant did not meet statutory requirements – no jurisdictional error in Tribunal’s determination.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

First Applicant: SARPREET SINGH DHILLON

Second Applicant: GURJOT KAUR DHILLON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2499 of 2014

Judgment of: Judge McGuire

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Melbourne

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Priest

Solicitors for the Applicant: Spark Helmore

Solicitors for the Respondents: In Person

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application filed on 10 December 2014 be dismissed.

3. The Applicants pay the First Respondent’s costs set in a quantum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2499 of 2014

SARPREET SINGH DHILLON

First Applicant

GURJOT KAUR DHILLON

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The second applicant is the husband of the first applicant and proceeds by way of being a family member. 

2. The applicants seek judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) made 12 November 2014 affirming a decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”). 

Background

1. The applicants are from India. 

2. The first applicant first came to Australia on 19 July 2012 as the holder of a Subclass 485 Temporary Graduate visa.  That visa expired on 11 July 2013.  She then lodged an application for a student visa on 16 January 2014.  That application was refused by the Minister’s delegate on 20 January 2014. 

3. The applicants made an application to this Court for judicial review on 11 December 2014.

4. The applicants appear in person.  They did not require an interpreter.  They had not provided written submissions in accordance with the Registrar’s directions. 

5. I have had the benefit of the first respondent’s written submissions.

6. The applicants’ application raises two grounds of complaint, being:

   (1) The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s 359A of the Migration Act 1958.

   Particulars

   (a) The Applicant applied for a review on or about 6 February 2014.  As there was no consistency in processing time of the review applications, there was no way that the applicant knew of the likely timeframe to have a hearing allocated by the Second Respondent. 

   (b) The Applicant appeared for the hearing without evidence of her Cl.572.211 substantive Visa because she was not aware it was a reason the Tribunal was considering to refuse her application. 

   (c) The Applicant given notice was able to show that she had a valid Temporary Graduate subclass 485 visa. 

   (2) The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in refusing the application request for an adjournment or additional time to obtain more documentation.  The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013). 

   Particulars

   (a) The applicant relies on the particulars in grounds 1.

7. The second applicant made oral submissions on behalf of both applicants.

Tribunal’s Decision

1. An application for a visa of the type sought by the first applicant must meet the requirements specified in the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (“the Regulations”). If the application is made in Australia then the applicant is to meet the requirements in clause 572.211 of schedule 2 of the Regulations. That subclause at (2)(a) lists a number of visa types or classes. There was no evidence before the Tribunal that the first applicant held any such visa type or class.

2. Subparagraph (3) provides: 

   (3) 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

   (ii) a special purpose visa;  or

   (iii) a Subclass 303 (Emergency (Temporary Visa Applicant)) visa;  or

   (iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country;  or

   (v) a subclass 497 (Graduate – Skilled) visa;  and

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

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

   (ii) if the last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision of the Minister’s decision not to revoke the cancellation …

3. The Tribunal found that the first applicant’s last substantive visa had expired on 11 July 2013 and that her visa application had not been lodged until 16 January 2014, thereby being well outside the 28 day time limit as required by cl.472.211(3), and that she did not therefore meet the requirements of cl.572.211 of schedule 2.[1]

   [1] Migration Review Tribunal, 13 November 2014, at 28

The Application to this Court

1. It eventuated that the only oral submission of any force put to this Court was an assertion that the first applicant had held a bridging visa at the time of her application for a visa lodged 16 January 2014.  The applicants had evidence of such a visa at Court and that evidence was accepted as an exhibit in these proceedings on the basis that this was not a fact disputed by the first respondent.

2. It is clear that the applicants were under the misapprehension that the holding of a bridging visa satisfied the requirements of cl.572.211. Given that they are clearly mistaken in this assumption there is no merit to this ground of their application.

3. No oral submissions were made before me in respect of ground 2 of the application.  There is no evidence in the Tribunal’s reasons of any adjournment application being sought either prior to or at the Tribunal hearing.  The applicants do not particularise any “relevant” considerations which the Tribunal failed to take into account in respect of any adjournment sought.  The applicants, in fact, did not assert in their submissions to this Court that they made any application for an adjournment.  As such, I find no merit in ground 2 of the application. 

4. In conclusion, there being no merit to either ground in the application, the application will be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 21 December 2015