Karki v Minister for Immigration

[2015] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARKI v MINISTER FOR IMMIGRATION [2015] FCCA 910

Catchwords:
MIGRATION – Student visa – invalid application.

Legislation:

Migration Act 1958, s.46
Migration Regulations 1994, item 1222 of sch.1

Applicant: BAL KRISHNA KARKI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2812 of 2013

Judgment of: Judge Cameron

Hearing dates: 6 and 10 February 2015

Date of Last Submission: 10 February 2015

Delivered at: Sydney

Delivered on: 10 February 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr D. A. Hughes

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2812 of 2013

BAL KRISHNA KARKI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, who is a citizen of Nepal, applied for a Student (Temporary) (Class TU) visa on 23 October 2013 using form 157A. In his application form he indicated that he intended to undertake a Master of Business Administration course and, although he indicated that he had attached evidence of his enrolment, no such evidence was provided with the application. By letter dated 25 October 2013 a delegate of the respondent (“Minister”) advised the applicant that his application was invalid on the basis that it did not satisfy item 1222(3) of sch.1 to the Migration Regulations 1994 (“Regulations”) because he had not provided evidence of enrolment in a registered full-time course of study. The applicant has applied to this Court for judicial review of the decision that his visa application was invalid.

2. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Section 46 of the Migration Act 1958 (“Act”) relevantly provides:

   (1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   (a)it is for a visa of a class specified in the application; and

   (b)it satisfies the criteria and requirements prescribed under this section; …

   …

   (3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

   (4)Without limiting subsection (3), the regulations may also prescribe:

   (a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

   (b)how an application for a visa of a specified class must be made; and

   (c)where an application for a visa of a specified class must be made; and

   (d)where an applicant must be when an application for a visa of a specified class is made.

2. Item 1222 of sch.1 to the Regulations sets out the requirements for a valid application for a Student (Temporary) (Class TU) visa. At the time the applicant made his application it relevantly provided:

   1222.    Student (Temporary) (Class TU)

   ...

   (3)     Other:

   …

   (c)If the application is made on form 157A or 157E and the applicant seeks to satisfy the primary criteria, the application is accompanied by satisfactory evidence that:

   (i)     the applicant is enrolled in a registered full‑timecourse of study:

   (A)of a type that has been gazetted under regulation 1.40A; and

   (B)the provider of which is not a suspended education provider; or

   (ii)     the applicant has been offered a place in a registered full‑timecourse of study:

   (A)of a type that has been gazetted under regulation 1.40A; and

   (B)the provider of which is not a suspended education provider; …

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The applicant was holding student visa subclass TU572 and dependent to the applicant’s wife.

   2.I sent my application to Department of Immigration and Border Protection.

   3.I have received my application back from them as ‘invalid’.

   4.My application has been sent back as invalid, but my visa has already expired.

   5.My application has been sent back as invalid, but they have not returned my application fee.

   6.That the decision is not in accordance with the immigration rules that the decision is not in accordance with the law (other than the immigration rules) that discretion should have been exercised in a different way to how it was legally exercised by the initial decision maker.

2. The first five grounds of the application did not identify any basis upon which the Court might conclude that the delegate’s decision that the application was invalid was erroneous.  They were really little more than a narration of some facts associated, or arguably associated, with the visa application.  They did not appear to seek, or if they did seek they failed, to identify any legal error which the delegate may have committed in concluding that the visa application was invalid. 

3. The final ground of the application did seek to identify such a matter but it did not explain why the delegate’s decision was erroneous.  In my view, the delegate’s decision was not erroneous because item 1222 stipulated as a precondition for a valid visa application that an applicant provide satisfactory evidence of being enrolled in a registered full-time course of study or of having been offered a place in a registered full-time course of study.  The applicant conceded in his address to the Court that he had not provided the Department with any evidence of such matters when he lodged his visa application.  In those circumstances, the delegate’s decision that the applicant did not meet the relevant criterion for the existence of a valid application was correct. 

4. The final ground of the application also alleged that the delegate had a discretion which should have been exercised in a particular way. However, the delegate had no discretion in the matter because the Regulations make it clear that an application will only be valid in the circumstances described and the Act makes it clear that the Minister may not consider an application which is not valid.

Conclusion

1. Error on the part of the delegate has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 16 April 2015