Kaur v Minister for Immigration and Citizenship
[2013] FCA 275
•28 March 2013
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Citizenship [2013] FCA 275
Citation: Kaur v Minister for Immigration and Citizenship [2013] FCA 275 Appeal from: Prabhjot Kaur v Minister for Immigration & Anor [2012] FMCA 1179 Parties: PRABHJOT KAUR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 2066 of 2012 Judge: COWDROY J Date of judgment: 28 March 2013 Catchwords: MIGRATION: visa – student visa – application requirements for student visa – application for student visa made outside 28 day period prescribed by the Migration Regulations 1994 (Cth) for the making of an application for a further visa – no discretion to extend time for application for student visa
MIGRATION: visa – obligations of departmental officers of the Minister for Immigration and Citizenship – whether departmental officers should have accepted application for student visa when application was doomed to fail – no obligation on such officers to make any decision as to success or failure of visa application
Legislation: Migration Regulations 1994 (Cth), cl 572.211 Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jiayi Chen v Minister for Immigration(2008) 104 ALD 59
Kaur v Minister for Immigration and Citizenship[2012] FMCA 1179Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Solicitor for the Appellant: Litigant in person Solicitor for the First Respondent: Ms S Given
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2066 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: PRABHJOT KAUR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
28 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2066 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: PRABHJOT KAUR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
28 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of Federal Magistrate Raphael dated 30 November 2012 dismissing an application for judicial review of a decision by the second respondent, the Migration Review Tribunal (‘the Tribunal’).
The appellant is an Indian citizen who came to Australia as a student to study hairdressing. The appellant, who was born on 8 April 1972, holds a current Indian passport No. F6724228. On 10 September 2008 she was granted a subclass 573 visa, which ceased on 15 March 2011. On 7 March 2011 the appellant had applied for a Skilled (Provisional) (Class VC) visa, and in the interim was granted bridging visas on 11 May 2011, 4 April 2012 and 24 July 2012. On 23 March 2012 the appellant sent an email to the Department of Immigration and Citizenship (‘the Department’) withdrawing the Skilled (Provisional) (Class VC) visa application.
On 3 April 2012 the appellant applied for a Student (Temporary) (Class TU) visa (‘student visa’) with the intention of studying an Advanced Diploma of Management HR. A delegate of the first respondent made a decision to refuse the application for the student visa on 1 May 2012 upon the ground that the appellant did not satisfy cl 572.211(2) of the Migration Regulations 1994 (Cth) (‘the Regulations’). Such clause relevantly requires that an application for a student visa be made within 28 days since the last substantive visa ceased to be in effect. As stated in the chronology at [2] above, the appellant’s last substantive visa expired on 15 March 2011.
The appellant then sought a review of that decision in the Tribunal. By its decision dated 28 June 2012, the Tribunal dismissed the appellant’s application and affirmed that the appellant did not meet the criteria of cl 572.211(3)(c), for the reason stated by the delegate.
Before the Tribunal, the appellant claimed that she was provided erroneous advice by a departmental officer in relation to lodging her student visa application. The Tribunal found that it had no discretion under the Regulations to consider compelling or compassionate factors relating to the circumstances of her making her application.
The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court which, as stated earlier, was dismissed.
As observed at [12] of the Federal Magistrate’s decision, the grounds of the appellant’s application were discursive: see Kaur v Minister for Immigration and Citizenship [2012] FMCA 1179 (‘FMC Decision’). In essence, the appellant argued that the Department did not give her complete information after she had sought advice from it. Specifically, the appellant alleged that the Department failed to advise her (together, ‘the failure to advise’):
1.that her application for a student visa was invalid;
2.that a bridging visa is not a substantive visa;
3.of the implications that the withdrawal of her application for a Skilled (Provisional) (Class VC) visa would have on any future visa applications.
The appellant also claimed that she was not afforded procedural fairness either from the Department or from the Tribunal. The basis of such claim insofar as it was alleged against the Department appeared to be grounded in the appellant’s arguments relating to the failure to advise. The appellant’s allegation that the Tribunal did not afford her procedural fairness, although not clear, was made due to the Tribunal’s failure to exercise any discretion in her favour.
The Federal Magistrate found that it is not for officers of the Department to make decision on applications either prior to or on immediate receipt of them, as the decision as to the success or failure of an application is one for the delegate: see FMC Decision at [15]. The Federal Magistrate found that the Tribunal was not able to exercise any discretion in determining whether the appellant met the criteria for the visa and that it was required to refuse the visa where the appellant did not meet the criteria: see FMC Decision at [16]. Accordingly, the claims of the appellant were rejected.
NOTICE OF APPEAL
The appellant thereafter appealed to this Court, and raised the following grounds in her Notice of Appeal:
1.Hon . Federal Magistrate Raphael failed to hold that the Migration Review Tribunal made jurisdictional error of law when it misconstruid the facts [sic].
2.MRT [the Tribunal] was pre-determined to make judgement without accepting any further oral and written evidence submitted by the applicant [sic].
3.MRT breached the rules of procedural fairness when the it did not account the communication between the applicant and the First Respondent [sic].
FINDINGS
The appellant appeared unrepresented but assisted by an interpreter. The appellant also provided both written and oral submissions. The appellant submitted orally that the main issues for determination were whether the application which she lodged for her student visa on 3 April 2012 was a valid application and secondly whether it was reasonable for a fee to have been charged when she made such application when, at that time, the application was doomed to fail.
Save for the appellant’s submission that the fee for the student visa application was unreasonable, the appellant’s arguments were substantially the same as those made before the Federal Magistrate. Indeed, the only alleged error of the Federal Magistrate referred to in the appellant’s written submissions was that the Federal Magistrate failed to find that the decision of the Tribunal was infected by jurisdictional error.
The argument that the Tribunal was pre-determined to make judgment contained in ground 2 of the Notice of Appeal was not ventilated by the appellant at the hearing. To the extent that such argument alleges bias on the part of the Tribunal, it must be dismissed. A mere claim of bias against a decision-maker is not sufficient; ‘there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
It should be noted that the record of the Tribunal hearing shows that the critical issue before it, namely whether the appellant’s application for a student visa was lodged within the prescribed time limit, was clearly raised with the appellant.
The Court need only make two further observations on this appeal. First, on the basis of the chronology of events which is unchallenged, by the time the appellant made the application for a student visa, more than 12 months had elapsed since the cessation of her substantive visa. In accordance with cl 572.211(3)(c) of the Regulations, the application was well out of time. The Regulations do not afford any discretion for processing applications filed outside of the 28 day period. At [16] of the FMC Decision, the Federal Magistrate relied on the decision of Jiayi Chen v Minister for Immigration(2008) 104 ALD 59 in which Barnes FM said at [31]-[32]:
Hence in so far as the applicant contends that the tribunal erred in failing to exercise a discretion based on her claims about being misled or on the basis that her late application was due to exceptional circumstances, that does not establish jurisdictional error. Such matters were not matters which it was open to the tribunal to take into account in determining whether the applicant met the requirement in issue in relation to the time of application for the student visa.
In other words, as the first respondent submitted the reasons the applicant gave for lodging her student visa application outside the prescribed 28-day period had no bearing on the tribunal decision. The tribunal was required by law to refuse the grant of the visa if the applicant did not meet the mandatory criteria prescribed in the Migration Regulations for the class of the visa in issue.
This was the finding of the Tribunal and of the Federal Magistrate and the Court finds no error in those findings.
Secondly, the appellant’s complaint that she should not have been charged a fee for an application that was doomed to fail may be disposed of for the same reason that the Federal Magistrate dismissed her argument that the Department should have advised the appellant as to the invalidity of her student visa application at the time of filing. It is not for officers of the Department to make decision on applications either prior to or on immediate receipt of them, as the decision as to the success of an application is one for the delegate: see FMC Decision at [16].
The Court finds no error with this reasoning, and therefore the appellant’s argument as to the student visa application fee must also fail. Accordingly, it follows that this appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 28 March 2013
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