Kaur v Minister for Immigration
[2016] FCCA 862
•15 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 862 |
| Catchwords: MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) |
| Cases cited: Mann & Anor v Minister for Immigration [2011] FMCA 667 Mohammed v Minister for Immigration and Border Protection [2014] FCCA 139 |
| First Applicant: | SUKHDEEP KAUR |
| Second Applicant: | HARJINDER SINGH |
| Third Applicant: | KHUSHJOT KAUR |
| Fourth Applicant: | SEHAJOT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 447 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 1 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| Counsel for the First Respondent: | Mr Day |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to the “Administrative Appeals Tribunal”.
The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 447 of 2015
| SUKHDEEP KAUR |
First Applicant
| HARJINDER SINGH |
Second Applicant
| KHUSHJOT KAUR |
Third Applicant
| SEHAJOT KAUR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision of the Migration Review Tribunal (as at it then was) (‘the Tribunal’) dated 9 February 2015. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the First Applicant a Student (Temporary) (Class TU) visa.
This is a show cause hearing, Registrar Allaway ordering on 10 June 2015, amongst other orders and by consent, that:-
“4. The application be listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) at 2.15 pm on 1 April 2016 before Judge Hartnett.”
The grounds of application annexed to the application filed 10 June 2015 are as follows:-
“I want a dispute over the conduct of the immigration department and the Migration Review Tribunal in regard to my subclass 573 visa application. My student visa subclass 573 visa application was first refused by the immigration department and then later, by the MRT department. I do not agree with the decisions from both departments. I want to challenge the decision in the federal circuit court.
My student visa application was refused by the immigration department on 8th July 2014. Immigration department had concerns in regards to the clause 573.211 in schedule 2 of the regulations which I didn’t meet.
On 25th July 2014, I lodged a review application with MRT department. I was invited to the hearing in MRT department on 9th February 2015 which I attended. I was given an unfavourable decision on my review application due to the same reasons that immigration department refused my application.
Now I am going to apply for this judicial review. I am going to explain these circumstances in the following paragraphs.
My previous student visa subclass 572 is going to expire on 15th March 2014. I lodged a new application for the visa extension on 14th March 2014. On 17th March 2014, immigration department tried to deduct the student visa fee from my education agent’s credit card. Due to the banking error in the processing of my credit card, the payment didn’t go through. After few days, I got a notification of an invalid application. After my education agent contacted the bank administration, she came to know that there were sufficient funds in the credit card but the transaction didn’t go through due to online system failure. Immediately, I lodged another application for student visa extension on 25th March 2014. As I didn’t meet schedule 3 criterions 3005 this time, my application was refused by the DIBP on 8th July 2014.
Now, my concern is that it was not my fault that the system was down at the time immigration department tried to deduct student visa fee from my education agent’s credit card. It was electronic errors which led to the default of the credit card payment while processing the immigration fee for my student visa application. In general circumstances, immigration department do call the applicant if such situation arises. My mobile was fully available and reachable but I didn’t get any call from the immigration department. I do believe the immigration department made an error by not in assessing my student visa renewal application fairly.
I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Migration Review Tribunal.
Sincerely
Sukhdeep Kaur”
The Applicants’ grounds are no grounds at all for judicial review of the decision of the Tribunal. There is no particularisation, and there is no ground alleging jurisdictional error on the part of the Tribunal.
The First Respondent by response dated 18 March 2015 opposes the order sought by the Applicant, namely, an order that the decision of the Tribunal or Minister be quashed, and seeks dismissal of the application on the basis that no arguable case for the relief sought is raised. The response document notes in ground 2 of opposition that:-
“The ground of the application expresses dissatisfaction with the MRT decision. The reasons for this are set out in an attached statement which sets out the factual background to the visa application and the MRT’s decision. The first respondent notes that the factual claims made in the statement are different to those advanced before the MRT. The first respondent contends that the MRT cannot be found to have erred in not considering factual claims which were not before it, and contends that the application seeks impermissible merits review of the MRT’s decision.”
The First Applicant noted in her general grounds of application that she was not satisfied with the decision of the Tribunal and of the Department of Immigration and Border Protection (‘the Department’).
Background
The First Applicant is a female citizen of India born on 16 November 1983. She first arrived in Australia in March 2008. There are three other Applicants to this application, being the First Applicant’s husband and their two children, both being minors. They each applied as secondary applicants.
The First Applicant lodged an application for a Student (Temporary) (Class TU) visa (‘the visa’) on 25 March 2014. At the time of lodgement she was not holding a substantive visa. She was previously granted a visa on the basis of Sch.3 criteria on 21 July 2010. The delegate found that as a consequence of these matters the First Applicant failed to satisfy cl.573.211(3)(d) in Sch.2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate considered the First Applicant against the other subclasses within Student (Temporary) (Class TU) and found the Applicant did not satisfy the primary criteria for any of these subclasses because she:-
a)was not enrolled in or had not been offered a place in a principal course of study that had been specified by a gazette notice as a type of course for any of subclasses 570, 571, 572, 574, 575, 576 and 580; and
b)did not have the support of the AusAID Minister or the Defence Minister for the grant of the visa.
Further, the delegate found the Applicant did not satisfy the secondary criteria for the grant of any subclass of student visa within Student (Temporary) (Class TU) because she was not a member of the family unit of a person who:-
a)was the holder of a subclass of student visa within Student (Temporary) (Class TU); or
b)satisfies or has satisfied the primary criteria for the grant of a subclass of student visa within Student (Temporary) (Class TU); and
c)had the support of the AusAID Minister or the Defence Minister for the grant of the visa.
The Applicant’s claims for the visa were set out in a statement and documentation accompanying the application. The application was refused by the delegate on 8 July 2014.
The Applicants made application to the Tribunal for merits review of the decision of the delegate on 25 July 2014. By correspondence of 9 December 2014 the Tribunal invited the Applicants to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In addition to appearing before the Tribunal the First Applicant made further written claims which were set out in an additional statement provided by her migration agent requesting that the Tribunal consider the following circumstances:-
a)The First Applicant’s student visa extension application was lodged out of time by her previous migration agent in 2010. This resulted in her obtaining a visa under criterion 3005 of Sch.3 to the Regulations on 21 July 2010.
b)The First Applicant’s application dated 14 March 2014 was refused due to an “online system failure” that led to the default of her credit card payment while the Department was processing her application.
c)The Department’s failure to process the First Applicant’s credit card payment resulted in her being notified on 17 March 2014 that the application was refused and required her to lodge another application on 25 March 2014.
The Applicants appeared before the Tribunal on 9 February 2015 and were represented in relation to the review by their registered migration agent, though he did not attend the hearing. The Applicants provided the Tribunal with a copy of the delegate’s decision. The First Applicant gave oral evidence before the Tribunal on 9 February 2015.
The Decision of the Tribunal
The Tribunal correctly stated that the issue before it was whether the First Applicant satisfied cl.573.211. Given that the visa application was made in Australia and there was evidence before the Tribunal that the Applicant did not hold a substantive visa of a type specified in the Sch.3 criteria, the Applicant was required to meet the requirements of sub-cl.573.211(3) of Sch. 2 to the Regulations.
The First Applicant acknowledged before the Tribunal that she had previously been granted a visa pursuant to the terms of criterion 3005 as set out in Sch.3 to the Regulations. The Tribunal explained that it could not consider any compelling or compassionate circumstances that did not exist in respect to issues arising out of cl.573.211(3)(d), that being the subclause which the Tribunal was required to find the Applicant did not satisfy.
Further, the Tribunal found the First Applicant did not satisfy any of the requirements for any other Student (Temporary) (Class TU) visa subclasses and none of the secondary applicants met the criteria for the grant of a student visa.
By correspondence of 10 February 2015 the Tribunal notified the Applicants of its decision to affirm the decisions under review. A copy of the Tribunal’s statement of decision and reasons and a fact sheet were enclosed in that correspondence.
Consideration
The Applicant did not file any amended application nor written submissions in the proceedings. The First Respondent did file submissions dated 23 March 2016 and on which the First Respondent relies. Earlier orders of the Court had provided for the Applicant to file and serve by 15 July 2015 any amended application and file and serve written submissions 14 days prior to the hearing.
The First Applicant is a litigant in person and was, nevertheless, given an opportunity to make oral submissions to the Court on the hearing of the matter. The First Applicant was assisted by an interpreter in the proceedings. The First Applicant submitted that she would add nothing further to the material that was already before the Court as contained in her application and in the Court Book, which was filed on 2 April 2015. I note its contents are evidence in the proceedings.
As noted to the First Applicant on the hearing of the proceedings, insofar as her complaint is about the decision of the First Respondent’s delegate, that decision is not capable of review by the Court.
At the time the visa application was lodged by the Applicants the Student (Temporary) (Class TU) visa contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course and the subclasses for which the type of course is specified by the Minister under reg.1.40A of the Regulations (see cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Sch.2 to the Regulations). The relevant subclass was subclass 573.
The relevant criteria for grant of a subclass 573 visa are set out in part 573 of Sch.2 to the Regulations. Relevantly to the present case, they include cl.573.211. In essence, for visa applications made in Australia it requires the applicant to be a holder of a substantive visa, or to have made the visa application within 28 days of the last substantive visa ceasing.
The delegate had refused the visa on the basis that the First Applicant did not satisfy the requirements of cl.573.211 because the First Applicant had previously been granted a visa on the basis of Sch.3 criteria on 21 July 2010. Therefore, she did not satisfy cl.573.211(3)(d).
Clause 573.211 of Sch.2 to the Regulations is as follows:-
“(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) An applicant meets the requirements of this subclause if the applicant is:
(a) the holder of a visa of one of the following classes or subclasses :
(i) Border (Temporary) (Class TA);
(iii) Cultural/Social (Temporary) (Class TE);
(iv) Educational (Temporary) (Class TH);
(v) Electronic Travel Authority (Class UD);
(ixa) Maritime Crew (Temporary) (Class ZM);
(x) Medical Practitioner (Temporary) (Class UE);
(xi) Retirement (Temporary) (Class TQ);
(xiii) Student (Temporary) (Class TU);
(xiiia) Superyacht Crew (Temporary) (Class UW);
(xv) Temporary Business Entry (Class UC);
(xva) Subclass 400 (Temporary Work (Short Stay Activity));
(xvb) Tourist (Class TR);
(xvc) Visitor (Class TV);
(xvi) Working Holiday (Temporary) (Class TZ);
(xvii) Temporary Work (Long Stay Activity) (Class GB);
(xviii) Training and Research (Class GC);
(xviiia) Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
(xix) Temporary Work (Entertainment) (Class GE);
(xx) Special Program (Temporary) (Class TE);
(xxi) Subclass 600 (Visitor); or
(b) the holder, as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or
(c) the holder of a special purpose visa; or
(d) the holder of a visa of one of the following subclasses:
(i) Subclass 303 (Emergency (Temporary Visa Applicant));
(ii) Subclass 427 (Domestic Worker (Temporary)--Executive);
(iia) Subclass 485 (Temporary Graduate);
(iii) Subclass 497 (Graduate--Skilled).
(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; 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; or
(v) a Subclass 497 (Graduate--Skilled) visa; 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.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of:
(i) a Subclass 560, 562 or 573 visa that is subject to condition 8101; or
(ii) a Subclass 574 visa that is subject to condition 8101 and was granted on the basis that the applicant proposed to commence, or had commenced, as a principal course, a course of study for the award of a masters degree by coursework; and
(b) the application was made on form 157P or 157P (Internet); and
(c) the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 570, 571, 572, 574, 575 or 576 visa; and
(b) the application was made on form 157A or 157A (Internet); and
(c) the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and
(d) the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.”
The Schedule 3 criterion 3005 is in the following terms:-
“A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a) this Schedule; or
(b) Schedule 6 of the Migration (1993) Regulations; or
(c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.
Note: Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.”
The effect of criterion 3005(a) is that a visa must not have been previously granted to the Applicant on the basis of the satisfaction of any of the criteria set out in Sch.3 to the Regulations. That is, an applicant can only rely once on the provisions set out in sub-cl.573.211(3)(d) and criterion 3005(a) of the Regulations. As the First Applicant did not satisfy sub-cl.573.211(2)(d), the other Applicants claims were refused on the basis of cl.573.322(b).
The Tribunal accurately applied the law as summarised above in assessing the Applicant’s application as at 25 March 2014 against sub-cl.573.211(3)(d) of Sch.2 to the Regulations and criterion 3005(a) of Sch.3 to the Regulations. The correct application of that law was a refusal of the application of the First Applicant on 25 March 2014, and as a consequence the other Applicants.
The First Applicant did not make a substantive visa application before her previous visa expired on 15 March 2014. The application lodged on 14 March 2014 was invalid. The Tribunal only had jurisdiction to review the application made on 25 March 2014 as it was the application pertaining to the delegate’s decision of which the First Applicant sought review to the Tribunal.
The First Applicant had previously been granted a substantive visa under criterion 3005 of Sch.3 to the Regulations on 21 July 2010. That was because she did not hold a substantive visa when she lodged an application for a Student (Temporary) (Class TU) visa on 17 June 2010 as her previously Student (Temporary) (Class TU) subclass 572 visa had ceased on 13 June 2010. There was no scope within the Migration Act 1958 (Cth) (‘the Act’) or Regulations for the Tribunal to apply a discretion and consider the circumstances under which the breach occurred.
Otherwise as the First Respondent submits with respect to the ‘credit card’ claim made by the First Applicant, that argument is not made out. The application made on 14 March 2014 was invalid because the applicable visa application charge was not paid by the Applicant and the application was therefore not complete. The First Respondent’s submissions are further, accurately:-
a)to make a valid student visa application, it must be made using the approved form, the applicable visa application charge must be paid and the application must be accompanied by inter alia satisfactory evidence that the applicant was enrolled or had been offered a place in a registered full-time course of study;
b)it is the responsibility of the applicant to file an “objectively valid application on time”[1]
c)even when circumstances are beyond an applicant’s control; for instance when a Department fault or system error occurs (which is not conceded to be the case here), it cannot be said that an application is received if it is not completed.[2]
[1] Mann & Anor v Minister for Immigration [2011] FMCA 667, [24].
[2] Mann & Anor v Minister for Immigration [2011] FMCA 667; Mohammed v Minister for Immigration and Border Protection [2014] FCCA 139, [29].
The application has no prospects of success and it is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Costs shall follow the event.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 15 April 2016
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