Karki v Minister for Immigration

[2016] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARKI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2449

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether condition that application for Student (Temporary) (Class TU) (Subclass 570) be made 28 days after the day when that last substantive visa ceased to be in effect was subject to criterion 3004 of Schedule 3 to the Migration Regulations 1994 (Cth) – condition not subject to criterion.

Legislation:

Acts Interpretation Act 1901 (Cth), s.13(2)(d)
Legislative Instruments Act 2003 (Cth), s.13(1)(a)
Migration Regulations 1994 (Cth), reg.1.02, 2.03, 2.03(1), 2.03(2)
Migration Regulations 1994 (Cth), Schedule 2, cl.570.211(3), 570.211(3)(c)
Migration Regulations 1994 (Cth), Schedule 3, criterion 3004

Cases cited:

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594

Karmacharya v Minister for Immigration & Anor [2014] FCCA 1462

Applicant: BAL KRISHNA KARKI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2684 of 2015

Judgment of: Judge Manousaridis

Hearing date: 15 September 2016

Delivered at: Sydney

Delivered on: 23 September 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Newman of Newman & Associates

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

3. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2684 of 2015

BAL KRISHNA KARKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Student (Temporary) (Class TU) (Subclass 570) visa (570 visa).

Background

1. The applicant, a national of Nepal, applied for a 570 visa on 16 April 2015. That application was made after the applicant’s last substantive visa, a student visa, ceased to be in effect on 15 December 2010. On 13 May 2015 a delegate of the Minister refused that application because the applicant did not satisfy cl.570.211(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The applicant then applied to the Tribunal for review of the delegate’s decision.

Before the Tribunal

1. The issue the Tribunal considered it had to determine was whether the applicant met the criterion prescribed by cl.570.211(3) of Schedule 2 to the Regulations. That subclause, at the time of the Tribunal’s decision, 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; 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.

2. The applicant appeared before the Tribunal at a hearing on 3 September 2015. The applicant confirmed that his last visa ceased in December 2010 and offered an explanation for the late lodgement of his application for the 570 visa. He said he “had several problems with his wife”, that he had “consulted a migration agent”, and that he had obtained a confirmation of enrolment and wishes to continue his studies.[1]

   [1] CB63, [11]

Tribunal decision

1. The Tribunal affirmed the delegate’s decision because the applicant did not meet cl.570.211(3)(c) of Schedule 2 to the Regulations; and the applicant did not meet cl.570.211(3)(c) because the applicant’s application for the 570 visa was not made within 28 days after the last substantive visa ceased to be in effect. While the Tribunal referred to the applicant’s explanation for the delay, it found it had no discretion in relation to the matter.

Grounds of application

1. The applicant’s application for review contains two grounds. The first is as follows:

   The applicant sought a Student (Temporary) Class (TU) visa on 16/4/2105, his last substantive visa having expired in 2010. When asked for his explanation for the delay he cited marital problems which the Tribunal said or implied were not relevant.

2. The second ground is as follows:

   The Tribunal erred in its jurisdiction and in law when it found that cl.570.211(3)(b) of the Migration Regulations 1994 barred it from exercising discretion (it might otherwise have had) but by so doing overlooked Schedule 3 cl 3004 which invests the Tribunal with discretion to examine the circumstances allegedly precluding the applicant from applying for a subsequent visa.

3. The two grounds are related. They both challenge the Tribunal’s decision that it had no discretion to overcome the applicant’s failure to lodge an application for the 570 visa within 28 days after the day when the applicant’s last substantive visa ceased to be in effect.

4. The applicant submits the Tribunal did have a discretion, and the discretion is to be found in criterion 3004 of Schedule 3 to the Regulations. The Minister, on the other hand, submits that criterion 3004 did not apply to 570 visas. The question, then, is whether criterion 3004 applies to applications for 570 visas.

5. The starting point is to identify the nature and purpose of Schedule 3 to the Regulations. Schedule 3 contains a list of criteria. A criterion contained in Schedule 3 is a “Schedule 3 criterion”, as that expression is defined in reg.1.02 of the Regulations. Each criterion in Schedule 3 is preceded by a number; and, under reg.1.02, “a reference to a Schedule 3 criterion by number is a reference to the criterion set out in the clause so numbered in that Schedule”.

6. By itself, Schedule 3 does not have any operation; such operation as it does have is derived from reg.2.03 of the Regulations. First, there is reg.2.03(1) of the Regulations, which provides as follows:

   For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:

   (a)the primary criteria set out in a relevant Part of Schedule 2; or

   (b)of a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria

7. Next, there is reg.2.03(2) of the Regulations, which provides:

   If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first mentioned criterion.

8. It will be seen, therefore, that any one or more of the criteria set out in Schedule 3 have effect only to the extent that a criterion in Schedule 2 to the Regulations refers to a criterion in Schedule 3 by number. Thus, whether or not the criteria for the granting of 570 visa includes criterion 3004 depends on whether such criteria refers to criterion 3004. This is the conclusion Judge Cameron arrived at in Karmacharya v Minister for Immigration & Anor:[2]

   A criterion will not apply to the grant of a visa unless the Regulations state that it does. As far as sch.3 is concerned, the only statement in the Regulations that it applies in any circumstances is the one found in reg.2.03(2) which has the effect that none of the clauses of sch.3 will be engaged except to the extent that sch.2 criteria expressly incorporate them as criteria for the grant of a visa.

   [2] [2014] FCCA 1462 at [17]

9. The applicant, however, submits that Karmacharya is incorrect. The applicant relies on the heading of Schedule 3, namely, “Additional criteria applicable to unlawful non-citizens and certain bridging visa holders”. He submits that the effect of the heading is that Schedule 3 of the Regulations applies to all unlawful non-citizens who apply for a visa. I do not accept that submission.

10. First, the heading of Schedule 3 does not form part of the Regulations. That follows from s.13(2)(d) of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) which, because of s.13(1)(a) of the Legislative Instruments Act 2003 (Cth), applies to delegated legislation such as the Regulations. Paragraph (d) of s.13(2) of the Interpretation Act provides that “any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act” are parts of an Act. That section, however, does not provide that the heading of a schedule forms part of an Act.

11. Second, if the heading of Schedule 3 forms part of the Regulations, the heading may be taken into account in construing the regulations within it and the Regulations generally. The scope that may be given to the heading, however, is limited. A heading “cannot control the permissible scope of the substantive provisions” of the Act or regulations, and “cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions”.[3] The same would apply even if the heading did not form part of the Regulations but instead was material which could be referred as an aid to construction. Thus, the heading to Schedule 3, if it does form part of the Regulations or is otherwise available as an aid to construction, cannot control the permissible scope of reg.2.03. As I have already concluded, reg.2.03 is clear that the criteria specified in Schedule 3 can only apply if a criterion in Schedule 2 to the Regulations refers to that criterion by number.

    [3] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 at [12] (Mason CJ, Deane, Dawson and Gaudron JJ)

12. As the Minister submits, Parts 570 to 575 of Schedule 2 to the Regulations, being the subclasses of visa that fall within the Class TU, do not refer to criterion 3004. It follows that the Tribunal was not required or, more precisely, was not permitted, to consider criterion 3004 of Schedule 3. In other words it had no discretion to consider criterion 3004. Ground 2 of the application, therefore, must fail. So too must ground 1, because the applicant has not identified any basis, other than criterion 3004, that required the Tribunal to take into account the applicant’s explanation for not having applied for a substantive visa within the required time.

13. The facts of this case are not materially distinguishable from the facts considered by Judge Cameron in Karmacharya; and the following conclusions reached by his Honour in that case apply to the case before me:[4]

    Clause 572 of sch.2 to the Regulations makes no reference to cl.3004 of sch.3 and thus cl.3004 did not set out a criterion for the grant of a subclass 572 visa.

    Consequently, the Tribunal did not enjoy the discretion which the applicant alleged it had and therefore did not err when it stated that it did not have a discretion to take into account, when deciding the review, why the applicant had not lodged his visa application within the twenty-eight day time period provided by cl.572.211(3)(c).

[4] [2014] FCCA 1462 at [18]-[19]

Disposition

1. I propose, therefore, to dismiss the application. At the hearing, the parties agreed that costs should follow the event. The Minister submitted that costs should be set in the amount of $5,800. I propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $5,800.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 23 September 2016