Kaur v Minister for Immigration - [2010] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION

[2010] FMCA 85

MIGRATION – Application to review decision of delegate – Student (Temporary) (Class TU) visa – request for information – no information provided in prescribed time – no power to extend time.

Migration Act 1958 (Cth), ss.54(3), 56, 66, 338(2), 359B(4), 494A(1), 494B, 494C(4), 494C(5)

Applicant:

KARUNDEEP KAUR

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

BRG 357 of 2009

Judgment of:

Jarrett FM

Hearing date:

7 October 2009

Date of Last Submission:

30 October 2009

Delivered at:

Brisbane

Delivered on:

12 February 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Sharma

Solicitors for the Applicant:

Sharma Lawyers

Counsel for the Respondent:

Ms Wheatley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application for review filed on 29 May, 2009 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of six thousand dollars ($6,000.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 357 of 2009

KARUNDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

By her application filed on 23 July, 2009 Ms Kaur seeks the issue of constitutional writs to quash a decision of the delegate of the Minister made on 6 May, 2009 to refuse to grant a Student (Temporary) (Class TU) visa to her. She wishes for her visa application to be re-determined according to law.
The Minister opposes the relief sought by Ms Kaur.
Ms Kaur relies upon three grounds to support her application, namely:
a)The delegate of the respondent committed jurisdictional error in that she failed to comply with legal requirement to give required time to the applicant to respond to the issues/queries raised by her in her letter of 20 March 2009.
Particulars: The delegate failed to give 28 days to the applicant to provide her response to the issues raised in the delegate's letter of 20 March 2009 which was received by the applicant's agent on 4 May 2009.
b)The delegate committed jurisdictional error in that she did not comply with the principles of natural justice.
Particulars: The delegate refused to give extension of time to the applicant to respond to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 85
Decision Date: 12 February 2010

CaseChat Overview and Summary

Kaur brought a case against the Minister for Immigration in relation to a visa application. Kaur alleged that she was not provided with sufficient information regarding the refusal of her visa, and that this refusal was not in line with the Minister’s usual practice of granting extensions of time. The central legal issue in this case was whether the Minister was required to provide reasons for the refusal of a visa beyond those already given under the Migration Act and Regulations. Kaur argued that the delay in receiving the request for further information, the lack of an extension of time to respond, and the failure to grant an extension contrary to the Minister’s general practice were all grounds for review.

The court found that under section 56 of the Act, the Minister could invite the applicant to provide further information in support of her application, and that this invitation could be in written form. The court further found that if the Minister used email to transmit such a document, the applicant was deemed to have received it at the end of the day on which the document was transmitted. Given these findings, the court held that Kaur’s first argument failed, as she was taken to have received the request for further information on the date it was sent. The court also found that the other grounds of complaint did not constitute valid reasons for review under the Act.

The court dismissed Kaur's application for review and ordered that she pay the respondent's costs in the sum of six thousand dollars.

Orders

Orders of the court

The application for review filed on 29 May, 2009 be dismissed.

The applicant pay the respondent’s costs fixed in the sum of six thousand dollars ($6,000.00).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Relevantly, s.66 of the Act provides:66 Notification of decision(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. (2) Notification of a decision to refuse an application for a visa must:(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa— specify that provision; and(c) unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and(iv) where the application for review can be made.(3) This subsection applies to an application for a visa if:(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa. It was submitted that the combined effect of s.338(2) of the Act and reg. 572.411 of the Regulations was that s.66(3) was engaged and therefore, no reasons for the refusal of the visa, beyond specification of the criterion not met, needed to be given. Mr Sharma did not submit that such an interpretation was wrong or that there was an obligation to given reasons for the refusal to grant the visa beyond those already given. Ms Kaur’s complaint is in three parts, namely:a)The email of 20 March, 2009 requesting the provision of further information was not received by Mr Sharma until 4 May, 2009;b)No extension of time was granted within which she could respond to the request for information; andc)The failure to grant the extension was inconsistent with the Minister’s general practice and policy whereby extensions are normally granted. Ms Kaur’s arguments in respect of her first ground must fail for the following reasons. By s.56 of the Act, the Minister could invite the applicant to provide further information in support of her application. The invitation may have been oral or written[3]. In this case, the Minister’s delegate chose to issue the invitation in writing. In such a circumstance, the invitation is clearly a document. By operation of s.494A(1) of the Act, where the Minister is not otherwise required to give a document to a person using one of the ways set out in s.494B, or in some other prescribed way, the Minister may give a document to a person by any method that he or she considers appropriate. That might include a method provided for by s.494B, even though the use of that method is not prescribed. Section 494C of the Act applies where the Minister uses one of the methods prescribed by s.494B to give a document to a person. It applies even if the Minister uses that method in circumstances where its use is not otherwise prescribed by the Act or Regulations[4]. If the Minister gives a document to a person by transmitting the document by e-mail the person is taken to have received the document at the end of the day on which the document is transmitted[5].

Ratio Decidendi

Legal Principle Established

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