Hossain v Minister for Immigration

Case [2007] FMCA 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION [2007] FMCA 35
MIGRATION – Skilled Independent Overseas Student Visa – review of delegate decision – substantive visa granted – bridging visa ceased to be in effect – visa period ended – applicant unlawful non-citizen – bridging visa not reactivated – subsequent application for another student visa invalid – application dismissed.
Migration Act 1958, ss.5, 13, 14, 66, 67, 68, 73, 82, 474(3), 476, 483A
Migration Regulations 1994, Reg 2.17, Sch 1 Item 1128CA, Sch 2 Cl. 010.511
Migration Reform Bill 1992
Applicant: MOHAMMED FAROQUE HOSSAIN
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number: SYG 537 of 2005
Judgment of: Nicholls FM
Hearing date: 18 September 2006
Date of Last Submission: 18 September 2006
Delivered at: Sydney
Delivered on: 2 February 2007

REPRESENTATION

Counsel for the Applicant: Mr. N. Dobbie
Solicitors for the Applicant: Parish Patience
Counsel for the Respondents: Mr. G. Kennett
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The reference to the respondent’s name be amended to read “Minister for Immigration & Citizenship”.

  2. The application is dismissed.

  3. There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 537 of 2005

MOHAMMED FAROQUE HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

  1. I have before me an application filed on 2 March 2005 seeking review of the decision made on 4 January 2005 by a delegate of the respondent which rejected, as invalid, an application for a Skilled Independent Overseas Student Visa (Class DD Subclass 880) made by


    Mr. Mohammed Faroque Hossain (“the applicant”). 

    Relief Sought

  2. The applicant seeks writs of prohibition, certiorari and mandamus, but central to the claim is a declaration that this decision is null and void. There was no dispute between the parties that the Court has jurisdiction. The Minister accepted that the “determination” made by the delegate was a “decision” in the sense as set out in s.474(3) of the Migration Act 1958 (“the Act”), and therefore a migration decision as defined in s.5(1) of the Act, and that the Court has jurisdiction under s.476. However, the Minister’s position is that orders of certiorari, or prohibition, would not be meaningful, or appropriate, given that the decision was not an act that purported to have any effect on rights, or interests, but was merely an assessment of the existing legal position.

  3. Given my ultimate conclusion on this matter (in finding for the Minister), it is not necessary to determine this issue other than to confirm at this stage that the Court does have jurisdiction to address the central dispute between the parties as to whether the respondent’s delegate was required to consider the application for the visa made by the applicant, or required not to consider this application. Essentially, whether the delegate's determination that the application was invalid should be allowed to stand. 

    Representation

  4. At the hearing of this matter before this Court, Mr. Dobbie appeared for the applicant and…

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Hossain v Minister for Immigration [2007] FMCA 35
Case
[2007] FMCA 35
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CaseChat Overview and Summary

The case of Hossain v Minister for Immigration & Citizenship revolves around the applicant's challenge to the Minister's decision to deem his application for a Skilled Independent Overseas Student visa invalid. The primary issue was whether the applicant had been an unlawful non-citizen within the six months preceding the application, which would disqualify him under the Migration Regulations. This hinged on whether the applicant's earlier student visa had ceased before the new application was lodged. The respondent argued that the applicant's previous visa had expired, rendering him an unlawful non-citizen during the requisite period. The applicant countered that he was not notified of the cessation of his earlier visa, thereby invalidating the Minister's decision.

The Court had to determine whether the applicant's lack of notification about the cessation of his earlier visa should invalidate the Minister's decision. The Court considered the legislative framework, including sections of the Migration Act 1958, and the administrative practices of the Department. It examined the validity of the grant of the earlier student visa and the relevance of notification to its efficacy. The Court noted that a visa is granted by the Minister's decision to record it, regardless of notification to the applicant. Therefore, the applicant's earlier visa was validly granted on 3 June 2004, and its cessation was effective on 31 August 2004. The Court concluded that the applicant's failure to be notified did not affect the validity of the Minister's decision.

The Court dismissed the applicant's application, finding that the Minister's decision to deem the visa application invalid was legally sound. The Court held that the bridging visa was superseded by the substantive visa, and its expiry did not affect the applicant's unlawful non-citizen status. Consequently, the applicant was ineligible for the new visa due to his status at the time of application. The Court did not order costs for either party.

Orders

Orders of the court

1.

The reference to the respondent’s name be amended to read “Minister for Immigration & Citizenship”.

2.

The application is dismissed.

3.

There be no order as to costs.

Background

Background to the litigation

Mr. Kennett sought to read into evidence the affidavit of Marica Pasalic of 15 September 2006, an employee of the Minister’s Department, with annexures “A” to “D”. Mr. Dobbie objected to paragraph 6.2 of the affidavit to the extent that it refers to annexure “D” which is a printed extract from the respondent's Department's electronic database showing the list of visas held by the applicant. Mr. Dobbie objected to the affidavit in that it referred to the column headed visa status as being a reference to when the relevant visas had “ceased”. The objection was contingent in the sense that if the Court were to reject the applicant’s submission, then a reasonable inference could be drawn that the visas so listed in this document did cease on the dates indicated in the column headed “Visa Status”. I noted the objection and allowed the affidavit and annexures into evidence subject to the contingency. Background The application for a Skilled Independent Overseas Student (Class DD (Subclass 880)) visa lodged with the respondent’s Department on 16 December 2004 is reproduced at CB 6 to CB 7. It was accompanied by a submission from the applicant's solicitors reproduced at CB 1 to CB 5. By letter dated 4 January 2005 (CB 14 to CB 16) the Minister's delegate notified the applicant’s solicitor that she had determined that the application for this visa was invalid because it did not meet the criterion prescribed in Schedule 1, Item 1128CA to the Migration Regulations 1994 (“the Regulations”). The delegate's letter (at CB 14.6) makes reference to Schedule 1, Item 1128CA(3)(h). I accept that this is a reference to Schedule 1, Item 1128CA(3)(h) to the Regulations which sets out criteria relevant to the grant of such a visa. At (h) the requirement is:“(h) Applicant must not have been an unlawful non‑citizen at any time in the 6 months immediately before making the application.” The delegate then explains the determination as to the validity of the application in the following terms (at CB 15.3):“The applicant and each member of the family unit must not have been an unlawful non-citizen at any time in the 6 months immediately before making the application. Our records show that yours and Mrs Hosene Ara Parveen's (the applicant's spouse) student visas ceased on 31 August 2004. On 27 September 2004 you were both granted Bridging E visas until 28 October 2004. You therefore do not meet this requirement as you have both been unlawful non-citizens within the last 6 months.” The documentation and the application to which it related was returned to the applicant's solicitors as the application “was not validly lodged”. From the material before the Court the following background matters can be ascertained and, from the submissions of both parties, are not contentious:(1)The applicant applied for a student visa on 5 March 2004.(2)On 5 March 2004, he was granted a bridging visa A, associated with, and resulting from, his application for a student visa (see annexure “A” to the affidavit of Mr. Billah, and also see annexure “A” to the affidavit of Ms. Pasalic).(3)On 3 June 2004, the applicant was granted the student visa for which he had applied in March 2004 (see CB 17, and annexure “B” to the affidavit of Ms. Pasalic).(4)That visa was valid until 31 August 2004 (see CB 15.3, and see also annexure “B” to the affidavit of Ms. Pasalic which shows that the visa “ceased” and that this status took effect on 31 August 2004). (5)The respondent's Department did not tell the applicant, in a timely fashion, that he had been granted the student visa for which he had applied on 5 March 2004. It would appear and it is common ground between the parties, that the applicant was only notified that this visa had been granted after the period for which the visa had “ceased” (see paragraph 6 of the applicant's affidavit that he was not informed the visa had been granted until his solicitor informed him on 14 September 2004).(6)On 24 September 2004, the applicant lodged an application for another student visa. At the same time he also applied for a bridging visa E in association with that application (see annexure A to the applicant's affidavit).(7)On 27 September 2004, the applicant was granted a bridging visa E for which he had applied on 24 September 2004 in connection to the application for the student visa made on that day (see CB 15 where the Minister's delegate acknowledges that the applicant was granted a bridging visa E on 27 September 2004. Also see annexure “C” to the affidavit of Ms. Pasalic).(8)On 28 October 2004, the applicant was granted a student visa for which he had applied for on 24 September 2004 (see the applicant's affidavit at paragraphs 7 and 8 and annexure B to that affidavit (see also annexure “D” to the affidavit of Ms. Pasalic).(9)On 16 December 2004 the applicant applied for yet another student visa, the subject of the delegate’s decision.

Evidence

Evidence Before The Court

At the commencement of the hearing, the Court had before it:(1)A Court Book (“CB”) filed on 15 April 2005.(2)A Supplementary Court Book (“SCB”) filed on 15 September 2006.(3)The applicant's outline of submissions filed on 15 September 2006.(4)The respondent's written submissions of 18 September 2006.Evidence The applicant had filed three affidavits. At the hearing before the Court, Mr. Dobbie:(1)Did not seek to read the affidavit of Nicholas Alexander McNally, solicitor, of 2 March 2005.(2)Sought to read the affidavit of Motasim Billah, a clerk in the employ of the applicant's solicitors, made on 15 September 2006 with annexure. Mr. Kennett raised the issue of relevance, but said that the Court would not be able to rule on that without hearing the case. I understood Mr. Kennett's objection to be made in a formal way. I considered the attachment to the affidavit, in particular page 3, which contained a copy of the relevant visa label as relevant to the applicant's argument before the Court, and admitted the affidavit and its annexure, for the purposes of the Court being able to properly consider the applicant’s case. (3)Sought to read the affidavit of Mohammed Faroque Hossain Bhouyan (the applicant) made on 15 September 2006. The affidavit in essence is the applicant's account of events surrounding, and leading up to, the determination that his application for the overseas student visa was invalid. Mr. Kennett objected to:(i)Paragraph 3 of the affidavit to the extent that it purports to be evidence of the reasons why the respondent's Department took, or did not take, certain action. Mr. Kennett's position was that this was not something that the applicant was in a position to give evidence about. I admitted paragraph 3 into evidence, except for (in upholding Mr. Kennett's objection) the following words, “… so the visa could not be granted straight away”. (ii)Mr. Kennett also objected to paragraph 5, given its very general nature, that it was lacking in detail both as to the “many occasions” that the applicant says he contacted the respondent's Department, and about what exactly was said to him. Ultimately, Mr. Dobbie said that given that paragraph 6 of the affidavit was not objected to, and that this was the critical part of the evidence that he wanted to put before the Court, in that the applicant was not informed that another visa for which he had applied had been granted to him, then he took no “objection” to Mr. Kennett's objection. In all, I upheld Mr. Kennett's objection in relation to paragraph 5. But clearly, paragraph 6 is the critical and relevant part to the applicant’s case (for reasons which will become obvious below). Mr. Kennett sought to read into evidence the affidavit of Marica Pasalic of 15 September 2006, an employee of the Minister’s Department, with annexures “A” to “D”. Mr. Dobbie objected to paragraph 6.2 of the affidavit to the extent that it refers to annexure “D” which is a printed extract from the respondent's Department's electronic database showing the list of visas held by the applicant. Mr. Dobbie objected to the affidavit in that it referred to the column headed visa status as being a reference to when the relevant visas had “ceased”. The objection was contingent in the sense that if the Court were to reject the applicant’s submission, then a reasonable inference could be drawn that the visas so listed in this document did cease on the dates indicated in the column headed “Visa Status”. I noted the objection and allowed the affidavit and annexures into evidence subject to the contingency. Background

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In short, therefore, the respondent's argument is that if the substantive visa has been granted and comes into effect, the bridging visa is then overtaken and at that point ceases to be relevant. The substantive visa is equated with what flows from the “primary decision”. In those circumstances, it does not matter when the bridging visa is stated to end, because the bridging visa in any event no longer provides the authority to stay in Australia. Further, on the wording used on this particular visa label, it does not operate to resurrect the visa that had already ceased to have effect. In a “nutshell”, Mr. Kennett's position requires the terms of the grant of the bridging visa to be read in the context of the role of the bridging visa as a whole, and in the context of the broader terminology of the Act and the Regulations. The context relevantly is that a bridging visa A is granted in association with an application for a substantive visa. If the substantive decision is negative, then it becomes critical in those circumstances to know how much longer after that decision the applicant has to leave the country, or to seek review. But if the substantive decision is positive, then the bridging visa ceases to have any operation under s.82(3), and more broadly ceases to have any importance because a substantive visa is in place. This is the context in which he invited the Court to consider the applicant's argument. Consideration First, and by way of preliminary observation, I should note that the relevant bridging visa A was granted on 5 March 2004 (the same day on which the applicant made his application for a substantive student visa). That is, the bridging visa sprang out of the circumstances attendant on the application for the student visa. On the material before the Court now, and if for no other reason, as made plain on the label evidencing the visa, the visa was specified to come into effect on 5 March 2004 pursuant to s.68(2)(a) of the Act. This is so, given that in any event the visa would have come into effect pursuant to s.68(1) of the Act. That is, on the day of its being granted. Second the applicant was granted the (substantive) student visa for which he applied on 5 March 2004, on 3 June 2004. He was not notified at that time, nor indeed until some time later, of the granting of that visa. However, in my view this does not affect the efficacy or validity of the grant. Section 67 of the Act provides: “Way Visa GrantedA visa is granted by the Minister causing a record of it to be made.”The evidence before the Court is that such a record was made (see the affidavit of Ms. Pasalic of 15 September 2006 – in particular annexure “B”). Further, I also note the provisions of s.66(4) of the Act, that failure to give notification of a decision, that is, a decision to grant or refuse to grant a visa does not affect the validity of the decision. In my view, therefore, the substantive student visa for which the applicant had applied for on 5 March 2004 was granted on 3 June 2004, and its validity was not affected by the failure to notify the applicant of its grant.