KAUR v Minister for Immigration

[2013] FCCA 1491

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1491

Catchwords:
MIGRATION – Migration Review Tribunal – jurisdictional error conceded by Minister – whether remittal would be futile.

Legislation:
Migration Regulations 1994 cls.572.211, 572.222, 572.223

Cases cited:
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 215 ALR 162; (2005) 79 ALJR 1009; [2005] HCA 24
Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 11 ALN N80; (1986) 67 ALR 21; (1986) 60 ALJR 662; (1986) 4 MVR 542; (1986) Aust Torts Reports 80-054; [1986] HCA 54
Tran v Minister for Immigration (2006) 154 FCR 536; (2006) 235 ALR 78; [2006] FCA 1229
Wang v Minister for Immigration [2007] FCA 488

Applicant: TARANJIT KAUR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 354 of 2013

Judgment of: Judge Riley

Hearing date: 19 September 2013

Date of last submission: 19 September 2013

Delivered at: Melbourne

Delivered on: 19 September 2013

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The decision of the Migration Review Tribunal dated 13 February 2013 in matter number 1203772 be set aside.

2. The matter be remitted to the Migration Review Tribunal for redetermination according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $515.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 354 of 2013

TARANJIT KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal. 

2. The applicant applied for a student TU visa. The delegate of the Minister refused that application on the basis that the applicant did not satisfy the time of application criteria. Those criteria are set out in cl. 572.211 of Schedule 2 of the Migration Regulations 1994.  Under subclause (1), the applicant had to satisfy the requirements of subclause (2), (3), (4) or (6). 

3. Subclause (2) required her to be the holder of any one of a list of substantive visas at the time of application.  The delegate found that the applicant did not hold a substantive visa at the time of application.  The delegate found that the relevant application was lodged on 7 March 2012 and that the applicant’s last substantive visa was a student visa, which ceased on 4 May 2011. 

4. Under subclause (3) of cl.572.211, the applicant could have met the time of application requirements of the visa if her last substantive visa was a student visa and she made her application within 28 days after the last substantive visa ceased to be in effect.  The delegate found that the applicant had not lodged the application for the visa presently under consideration within 28 days of her last visa ceasing to be in effect.  As mentioned previously, the delegate found that the relevant application was lodged on 7 March 2012 and that the applicant’s last substantive visa was a student visa, which ceased on 4 May 2011.

5. Under subclauses (4) and (6) of cl.572.211, the applicant could have met the time of application requirements of the relevant visa if she was the holder of one of various types of visas.  She was apparently not the holder at the time of application of any of those types of visas.

6. As the applicant was not found by the delegate to meet the time of application criteria, the delegate refused the application. 

7. The Tribunal then reviewed the matter.  For reasons which are unknown, the Tribunal said at paragraph 6 of its reasons for decision:

   The issue before the delegate was whether the applicant met the criterion in cl.572.211.  However, the issue before the Tribunal is whether, at the time of decision, the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that meets the requirements of the Regulations.

8. The Tribunal went on to find that the applicant did not have a current offer of enrolment.  The Tribunal said at paragraph 10 of its reasons:

   The applicant has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. The confirmation of enrolment provided by the applicant with the visa application to the Department was in respect of a course with a start date of 15 March 2012 and an end date of 15 March 2013. The confirmation of enrolment was created on 3 May 2012 and indicates prepaid course fees of $1000 out of total course fees of $6000. It is not, in the Tribunal’s view, evidence of current enrolment. There is no evidence before the Tribunal that the applicant ever commenced that course or is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations.

9. The Minister has today, as a model litigant, drawn the court’s attention to the document at CB23, which is, in fact, a confirmation of enrolment indicating that the applicant was enrolled in a course that was to start on 15 March 2012 and conclude on 15 March 2013.

10. The Minister suggests that the Tribunal misunderstood the requirements of the time of decision criteria and perhaps conflated the requirements in cls.572.222 and 572.223, the latter dealing with whether an applicant is a genuine student. 

11. Be that as it may, the Minister concedes that the Tribunal has made a jurisdictional error in its decision in this case.  If the Tribunal had relied on the same criterion and findings as the delegate, there would probably have been no issue in this case.  However, as the matter stands, it is conceded that there has been a jurisdictional error.

12. The Minister then submits that, as a matter of discretion, the court should not remit the matter to the Tribunal for further hearing.  The Minister submits that all the evidence is one way to the effect that the applicant is incapable of satisfying the time of application criteria. 

13. I attempted during the course of the hearing to clarify with the applicant, who was unrepresented, what she maintains are the facts of this case.  The applicant appeared to not entirely understand what I was saying.  She produced to the court a document that is marked as MFI-1.  It is a formal statement that she has made to the Department of Immigration and Citizenship, on departmental letterhead.  It deals with various issues concerning possibly fraudulent conduct on the part of a purported migration agent.

14. It may be that that statement and the circumstances described in it have little to do with the current visa application.  However, it does seem that the applicant’s migration history is quite complex and there is some evidence before the court that indicates that the applicant has not been well served by at least one of her advisors. 

15. There is also before the court an affidavit from Ben Petrie, a solicitor, which sets out what appears to be the solicitor’s instructions about certain visas held by the applicant.  As this is a final hearing, it is not strictly appropriate for evidence to be furnished on instructions rather than on the deponent’s own knowledge.  Having said that, the affidavit indicates facts which accord with the delegate’s findings.

16. In these circumstances, the Minister urges the court not to remit the matter to the Tribunal for further hearing on the grounds that it would be futile to do so.  The Minister submits that, although this court is not permitted to make findings of fact or even review findings of fact in its normal judicial review functions, when the court is asked to exercise a discretion, the court is able to make any relevant findings of fact. 

17. I accept that on the material that is before me, it does appear to be very improbable that a Tribunal reconsidering this matter would come to any different conclusion to that arrived at by the Tribunal in this case. 

18. However, I note the authority of Tran v Minister for Immigration (2006) 154 FCR 536; (2006) 235 ALR 78; [2006] FCA 1229, which concerned a futility argument. At [78], Rares J said that, in the circumstances of that case, it was theoretically possible, although improbable, that the Tribunal on remittal would come to a different decision. Notwithstanding the improbability in that case, his Honour did not consider that it was appropriate to withhold relief, because there remained a theoretical possibility of a different result. His Honour referred the leading cases of Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 11 ALN N80; (1986) 67 ALR 21; (1986) 60 ALJR 662; (1986) 4 MVR 542; (1986) Aust Torts Reports 80-054; [1986] HCA 54 and also the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 215 ALR 162; (2005) 79 ALJR 1009; [2005] HCA 24.

19. The Minister referred to the decision of Besanko J in Wang v Minister for Immigration [2007] FCA 488 where it was held that a discretion refusing relief on the grounds of futility had not been improperly exercised. His Honour said, at [32]:

    In my opinion, there is no reason to interfere with the Magistrate’s conclusion that, at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant’s student visa. In my opinion, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 ("Aala") and SAAP are authority for the proposition that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Aala per Gaudron and Gummow JJ at 109 [58]; SAAP per McHugh J at 109 [58].

20. In the present case, I do not consider that it could be said that the Tribunal was bound to refuse the application.  That is because the Tribunal did not make findings of the relevant facts that would inevitably result in a refusal.

21. It does not seem to me to be appropriate for this court to embark on a hearing to determine whether, for example, the applicant did or did not hold a certain type of visa at a certain time.  That is quintessentially the type of question that the Tribunal ought to determine.  (The delegate’s findings obviously do not have the same standing, for present purposes, as findings by the Tribunal would have had.)

22. On the evidence before me, it does seem improbable that there will be a different outcome on remittal. However, it does remain at least a theoretical possibility that the applicant will be able to find some evidence that she was able to satisfy the time of application criteria.  The complexity of her migration history gives some weight to that as a theoretical possibility.  I am also concerned that the affidavit relied on by the Minister in this case, at a final hearing, was on instructions rather than by a person who was able to state the facts from his or her own knowledge.  All in all, I do not consider this to be an appropriate case to withhold relief. 

23. After the reasons set out above were delivered, counsel for Minister emphasised that Tran would be distinguishable if it turned on time of decision criteria.  I do not accept that submission.  The difficulty in this case is that the Tribunal did not make any findings addressing the time of application criteria, and its findings concerning the time of decision criteria were conceded by the Minister to contain jurisdictional error.  The result is that the futility argument depends on this court making findings of fact that would normally be made by the Tribunal.  That seems to me, in general, but also in the particular circumstances of this case, to be inappropriate. 

24. Consequently, there will be orders remitting the matter to the Tribunal for redetermination according to law.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate: 

Date:  7 October 2013