Dhillon v Minister for Immigration and Border Protection
[2017] FCA 488
•10 May 2017
FEDERAL COURT OF AUSTRALIA
Dhillon v Minister for Immigration and Border Protection [2017] FCA 488
Appeal from: Dhillon v Minister for Immigration & Anor [2016] FCCA 3307 File number: SAD 12 of 2017 Judge: REEVES J Date of judgment: 10 May 2017 Catchwords: MIGRATION – appeal from a decision from the Federal Circuit Court of Australia – where a delegate of the Minister rejected an application for a student visa – where appellant failed to satisfy mandatory requirement for grant of visa – no error established – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Cases cited: Dhillon v Minister for Immigration & Anor [2016] FCCA 3307 Date of hearing: 9 May 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr J Kyranis of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
SAD 12 of 2017 BETWEEN: KULWINDER SINGH DHILLON
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
10 MAY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of and incidental to this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
As at January 2016, subclause 572.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) provided:
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 in a legislative instrument made by the Minister) 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 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) the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and(d) the applicant satisfies Schedule 3 criterion 3005.
Mr Dhillon, the appellant in this appeal, was required to meet the requirements of this subclause (specifically clause (3)(c)(i)) when he applied for a student visa on 14 January 2016. He was unable to do so and his student visa application was rejected because, as the delegate of the Minister recorded in his/her decision dated 21 January 2016:
You lodged an application for a Student Subclass 572 visa on 14 January 2016. At the time of lodgement you were not holding a substantive visa and the last substantive visa held ceased on 30 August 2015, more than 28 days before the date of lodgement.
Therefore you fail to satisfy clause 572.211(3).
Dissatisfied with the delegate’s decision, Mr Dhillon unsuccessfully sought a merits review before the Administrative Appeals Tribunal (the Tribunal). Mr Dhillon’s application was unsuccessful before the Tribunal because, as the Federal Circuit Court judge recorded in his decision ([2016] FCCA 3307 at [13]):
[T]he Tribunal found that the applicant did not hold a substantive visa, at the time of his application. It further found that his last substantive visa had ceased to be in effect on 30 August 2015, which was outside the twenty eight day period. As a consequence, the Tribunal found that the applicant did not satisfy the requirements of clause 572.211 of schedule 2 to the Regulations.
Still dissatisfied, Mr Dhillon sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. The Federal Circuit Court judge was not persuaded that the Tribunal had committed any jurisdictional error in its decision. His Honour summarised his conclusions on the matters raised by Mr Dhillon’s application as follows ([2016] FCCA 3307 at [31]–[33]):
31.... In my view, the Tribunal correctly concluded that the provisions of clause 572.211 of the Regulations applied to the applicant’s case and therefore he had failed to meet an essential requirement for the grant of the relevant visa.
32.In addition, in my view, there is no evidence that the Tribunal behaved in a procedurally unfair way towards the applicant. He was given an opportunity to appear before it and present evidence and arguments. It is of particular moment that he does not challenge the central evidentiary finding, which was that his previous student visa had expired on 30 August 2015, which was outside the 28 day period stipulated.
33.In all these circumstances, I do not consider that the decision can be characterised as an unreasonable one. In particular, the findings of fact on which it was founded were clearly open to the Tribunal. Indeed, if the Tribunal had reached a contrary factual decision, that finding would be open to be characterised as illogical, irrational and unreasonable.
Accordingly, his Honour dismissed the application and ordered Mr Dhillon to pay the Minister’s costs.
Mr Dhillon has now exercised his right of appeal to this Court. Before proceeding to consider the matters raised in his notice of appeal, it is important to record that, on 13 April 2017, a judge of this Court issued a certificate which resulted in Mr Dhillon being offered pro bono counsel to assist him in presenting his appeal. I infer that Mr Dhillon rejected this offer of legal assistance because he did not file any written submissions in support of his grounds of appeal and he elected to represent himself at the hearing of this appeal on 9 May 2017.
Mr Dhillon’s notice of appeal contains five grounds. With the exception of the first sentence of ground one, the first four grounds are identical to his grounds of review before the Federal Circuit Court. They are as follows:
1. I explained Court my stand but the Respected Judge failed to figure out jurdictional error. In paragraph 4 of decision Tribunal states, “The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the applicant did not make his application within 28 days after the day when his last substantive visa ceased to be in effect.”
2.In paragraph 6, “The applicant appeared before the Tribunal via telephone conferencing on 19 May 2016 to give evidence and present arguments. In his evidence he confirmed that he previously held a Student visa subclass 573 that ceased on 30 August 2015. He further confirmed that the current visa application was lodged on 14 January 2016, being more than 28 days after his substantive visa ceased. I explained to the applicant that there is no discretion to exercise to find that the applicant otherwise satisfies the criterion in cl.572.211.
3.In Paragraph 11, On the evidence before the Tribunal, the current visa application was made on 14 January 2016. The applicant’s last substantive visa ceased to be in effect on 30 August 2015. There is no evidence or submissions that the visa was cancelled or the subject of a decision by the Migration Review Tribunal.
4.Department law is flawed so is the judgment. I did not have any visa refused or cancelled nor I have lived any day illegal. I have always been lawful in Australia. It is unfair that we can apply for visa within 28 days of expiry of last substantive visa. If application can be accepted after visa expiry then number of days should not be mattered.
(Errors in original)
The first three grounds above quote from parts of the Tribunal’s decision without identifying why they reflect error on the part of the Tribunal, jurisdictional or otherwise, or more importantly for present purposes, error on the part of the Federal Circuit Court judge. This may be explained by the fact that, from my reading of the detailed reasons for judgment of the Federal Circuit Court judge, no such error is apparent.
The fourth ground above is difficult to understand. On a generous construction, it appears to claim that the delegate failed to take account of Mr Dhillon’s unblemished history as a visa holder in Australia when making his/her decision on his application and that, in those circumstances, applying the 28 day time limit set by subclause (3) above was unfair to him. The difficulty with this proposition is that the 28 day time limit was a mandatory requirement fixed by the Regulations. Thus, if Mr Dhillon did not meet that time limit, the delegate was bound to reject his application and he/she had no discretion to exercise in doing so. This ground does not, therefore, demonstrate any error on the part of the Federal Circuit Court judge, or the Tribunal, or the delegate.
Verbatim, Mr Dhillon’s fifth ground states:
Respected Judge of Federal circuit court stated that “there is no error in the decision”. There is error in the whole process. If one can apply for the visa it means that there is a way that I can get the visa or department would not accept the application and deduct the application money. If an applicant cannot apply then department would not have taken the money and accepted the application. The process itself is flawed and only court can take decision in this regard and help all people who are facing problems due to this error in the law and process.
(Errors in original)
This ground is similarly unintelligible. It appears to advance the fanciful proposition that once the Minister’s department accepted Mr Dhillon’s application and the accompanying fee, the Minister’s delegate was bound to grant the application. This construction is supported by the last sentence of ground four above which appears to make a similar contention. If this is what this ground is meant to convey, it hardly needs to be said that it has no merit.
It follows that none of Mr Dhillon’s five grounds of appeal has any merit. In those circumstances, his appeal will be dismissed and he will be ordered to pay the Minister’s costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 10 May 2017