Karmacharya v Minister for Immigration

[2014] FCCA 1462

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARMACHARYA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1462

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take a relevant consideration into account.

STATUTES – Migration Regulations 2004 (“Regulations”) – a visa criterion will not apply unless the Regulations state that it does.

Legislation:

Migration Act 1958, ss.31, 474

Migration Regulations 2004, reg.2.03, cl.572.211 of sch.2, cl.3004 of sch.3

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Kaur v Minister for Immigration & Citizenship [2013] FCA 275
Minister for Immigration & Citizenship v Kaur [2013] FCAFC 66

Applicant: PARASH KARMACHARYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1131 of 2013

Judgment of: Judge Cameron

Hearing date: 4 July 2014

Date of Last Submission: 4 July 2014

Delivered at: Sydney

Delivered on: 10 July 2014

REPRESENTATION

Solicitors for the Applicant: Newman & Associates

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1131 of 2013

PARASH KARMACHARYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second 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 21 December 2011. On 5 June 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.570.211 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he had applied for the visa more than twenty-eight days after his last substantive visa had ceased.

2. The applicant then applied to the second respondent (“Tribunal”) for a review of the delegate’s decision.  He attended a hearing before the Tribunal on 2 May 2013 and presented his passport which showed that his last substantive visa, a subclass 572 visa, had ceased on 8 September 2010.  The applicant agreed that he had not applied for another visa until 21 December 2011 but said that he had delayed lodging his application because of a change in the immigration rules on permanent residency which had made him confused and depressed and led him to stop his studies.  He said it was only after he received advice from his family and friends to resume his studies that he re-enrolled in a course.

3. The Tribunal found that the applicant’s last substantive visa had ceased on 8 September 2010 and that he had applied for a new visa on 21 December 2011. On that basis it found that the applicant’s student visa application had not been made within twenty-eight days of the cessation of his last substantive visa and, consequently, that he did not satisfy cl.572.211(3)(c) of sch.2 to the Regulations. The Tribunal noted that it had no discretion to take into account the applicant’s reasons for delaying the lodgment of his application.

4. The applicant has applied to this Court for judicial review of the Tribunal’s decision.

5. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

Relevant legislation

1. The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. Clause 572.211, which the applicant had to satisfy at the time he made his application, relevantly provides:

   572.21 - Criteria to be satisfied at time of application

   572.211

   …

   (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; …

   …

   (c)the application is made within 28 days … after:

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

2. Subclass 570, 571, 573, 574 and 575 visas are also subject to the same requirements found in cl.572.211(3).

3. Criterion 3004 of sch.3 to the Regulations provides:

   If the applicant:

   (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   …

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

   (d)    there are compelling reasons for granting the visa; and

   (e)     the applicant has complied substantially with:

   (i)the conditions that apply or applied to:

   (A)    the lastof any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (B)    any subsequent bridging visa; or

   (ii)    the conditions that apply or applied to:

   (A)    the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

   (B)    any subsequent bridging visa; and

   (f)either:

   (i)in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

   (ii)in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Proceedings in this Court

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

   1.The Migration Review Tribunal disallowed an application for review of the Department’s decision about a student visa for the reason that the application to the Department was made outside a 28 day time limit imposed by the Migration Regulations and, that despite the applicant’s claims, it had no discretion to consider personal factors. However, it appears that the Tribunal overlooked Schedule 3 of the Migration Regulations which contains such a discretion. For this reason the applicant says the Tribunal erred in its jurisdiction and that the decision should be set aside.

2. The applicant submitted that the Tribunal’s statement that it had no discretion in the application of cl.572.211(3)(c) was incorrect because cl.3004 of sch.3 to the Regulations provided it with such a discretion.

3. The applicant had filed written submission which addressed other issues but, at the hearing of this application, advised the Court that he did not rely on those submissions and limited his argument to the cl.3004 issue. It might be noted at this point that in those submissions the applicant observed that the delegate had based her decision on cl.570.211 of the Regulations whereas the Tribunal based its decision on cl.572.211. Nothing turns on this as, as the Minister observed, the applicant’s application for a visa and his application to the Tribunal for review were both expressed in terms of cl.572, not cl.570. The Tribunal conducted the review sought of it and the fact that it considered in detail a provision which was not considered in detail by the delegate was not erroneous.

4. The Tribunal’s decision records that the applicant’s passport, produced at the Tribunal hearing, showed that his last substantive visa had ceased on 8 September 2010 and that the applicant agreed at the Tribunal hearing that he had not applied for another visa until 21 December 2011. It was not suggested in these proceedings that the applicant’s factual concession at the Tribunal hearing had been incorrectly made or that the applicant had held an Australian visa after 8 September 2010. Consequently, the Tribunal did not err by deciding the applicant’s review by reference to cl.572.211(3)(c) of the Regulations.

5. As the Tribunal correctly observed, it had no discretion to take into account the reasons why the applicant was delayed in lodging his application when finding that he had not satisfied cl.572.211(3)(c): Kaur v Minister for Immigration & Citizenship [2013] FCA 275 at [15].

6. Notwithstanding the statement of the law in Kaur v Minister for Immigration & Citizenship, the applicant submitted that cl.3004 of sch.3 to the Regulations provided the Tribunal with a discretion which it had failed even to consider exercising. He submitted that sch.3 was drawn in such a way that it could be understood to apply generally to all visa applications. In my view, however, that is not correct.

7. Schedule 3 of the Regulations contains five clauses, each of which sets out criteria for the grant of visas. Section 31(3) of the Act provides that the Regulations made may prescribe criteria for a visa or visas of a specified class. Regulation 2.03 relevantly states:

   2.03  Criteria applicable to classes of visas

   (1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulation 2.03A, 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)if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

   …

   (2)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. 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. The relevant operation of the Regulations was discussed in Minister for Immigration & Citizenship v Kaur [2013] FCAFC 66 at [9] and [10].

9. 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.

10. 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).

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 July 2014