KAUR v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 1179
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1179 |
| MIGRATION – Review of decision of MRT not to grant a Student (Temporary Class TU) Visa – where applicant had not applied within 28 days of expiry of last substantive via. |
| Migration Regulations 1994, r.572.211 |
| Jaiyi Chen v Minister for Immigration & Anor [2008] FMCA 1285 |
| Applicant: | PRABHJOT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1599 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 November 2012 |
| Date of Last Submission: | 30 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1599 of 2012
| PRABHJOT KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter, Ms Kaur, came to this country to study for a diploma in hairdressing. She was granted a subclass 573 visa on 10 September 2008. This ceased on 15 March 2011. She was successful in her course but she found it difficult to obtain employment as a hairdresser and, when she did, had an unfortunate workplace injury which required her to make a claim under the Workers Compensation Act 1987 (NSW).
On 7 March 2011 she had applied for a Skilled (Provisional) (Class VC) visa based upon her hairdressing qualifications. She was granted bridging visas on 11 May 2011, 4 April 2012 and 24 July 2012. Between March and April 2012 Ms Kaur decided that she did not wish to continue with her application for the Skilled (Provisional) (Class VC) visa and wished to continue with her studies in order to obtain an Advanced Diploma of Management HR. She sent an email to DIAC advising them of this. [CB 66 - 67]
Her email was responded to in the following form:
“Dear Ms Kaur
Please note that if you wish to withdraw this application, as you are the only applicant you can e-mail this mailbox with your request.
As for further visa information you will need to contact our office regarding your study and requirements. I am sorry I am not able to advise you of these requirements.
Kind regards
Debbie.”
Ms Kaur accepts that on 23 March 2012 she sent an email to Department of Immigration to withdraw the skilled provisional visa. [CB 65] On 3 April 2012 she applied for a Student (Temporary) (Class TU) visa. It is this application that is the subject matter of these proceedings.
The application, having been received by the Department, was placed before a delegate for consideration. Notwithstanding the warning given to her on 5 April 2012 that there would be a significant delay in processing her student visa application [CB 69] the delegate moved speedily to deal with this one. The delegate of the Minister, called Jennifer, made her decision on 1 May 2012. That decision made reference to the relevant Regulation under which the visa application was made, in this case, Regulation 572.211 of the Migration Regulations 1994. That regulation required:
“(1)If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).”
I do not believe there is any dispute that Ms Kaur does not meet the requirements of (2), (4) or (6) but, in any event, that was a finding made by Jennifer [CB 30] where she says:
“The criteria in the subclass 572 visa regulations that you did not satisfy are set out at the end of this decision record.”
The one criteria that the applicant might have been able to meet was the criteria found at 572.211(3), that is:
“(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) …
(iv) …
(v) …
(c) the application is made within 28 days (or within such period specified by Gazette notice) after:
(i) the day when that last substantive visa ceased to be in effect; or
(ii) …”
Ms Kaur held a substantive visa but it had expired on 15 March 2011. The application for a new student visa was lodged on 3 April 2012 a year and about two weeks later. It was not lodged within 28 days of the day that the last substantive visa ceased to be in effect. For that reason Jennifer declined to grant the visa.
Ms Kaur then sought review of that decision from the Migration Review Tribunal. She attended a hearing before the Tribunal which discussed her application with her.
“[15]The Tribunal put to the applicant that the delegate’s decision record, a copy of which she has provided to the Tribunal, indicates that the visa application the subject of this review, was lodged on 3 April 2012. She agreed with this. The Tribunal also put to her that the delegate’s decision indicates that her last substantive visa ceased on 15 March 2011, which would mean that the current visa application was lodged more than 28 days after her last substantive visa ceased, and that this would mean that an essential criteria for grant of the visa cannot be met and she would not be eligible for grant of the visa applied for. She responded that she does not agree with this and she asked for advice from the department and was told she held a bridging visa. …
[16]… The Tribunal asked the applicant if, since 15 March 2011, she has held an Australian visa other than a bridging visa (noting that a bridging visa granted on 11 March 2011 as evidenced in her passport). She responded that she has not.” [CB 85]
At [18] the Tribunal noted that the legislation did not permit the Tribunal any discretion to consider compelling or compassionate circumstances impacting on the timing of the applicant’s application. In its Findings and Reasons [21 - 23] the Tribunal noted that the applicant had not got a substantive visa after the expiry of her existing one on 15 March 2011 and that she was, therefore, not the holder of a substantive visa of the type described in 572.211(2)(iv) or (vi).
The Tribunal found that based upon her oral evidence and the details set out in her passport and in the delegate’s decision record the last substantive visa held by the applicant was a student visa which met the requirements of 572.211(3)(b) but she had not lodged the application for the current visa within 28 days of the day when the last visa ceased to be in effect. In those circumstances the Tribunal found that the applicant did not meet clause 572.211(3)(c) and affirmed the decision not to grant the Student (Temporary) (Class TU) visa.
On 23 July 2012 the applicant applied for review of that decision by this Court. On 16 October 2012 she filed an amended application. The alleged grounds of application are discursive. The nearest the applicant gets to making an allegation of jurisdictional error is when she says:
“The Department never told her that her application for Student Visa would be invalid and she cannot lodge any application for a substantial visa after ceasing of her previous visa.
The applicant was totally unaware about the difference between Bridging Visa and substantial visa. She understood she has a visa and she can lodge any other visa. The applicant claims she did not get procedural fairness from the Department and the Tribunal. The Tribunal never mentioned about the application about whether it is valid or invalid in plain language.”
The applicant appeared before me today and what I understood from her was that she believed that she had not been treated appropriately by the Department when it accepted her application for the visa without telling her that it may not be granted. She also complained that when she had written to the Department informing them that she wished to withdraw from the skilled migration visa and substitute for it a student visa that she was not told that she would have difficulties because she had not held a substantive visa for a period of approximately one year. She felt that the Department had wronged her by accepting her money for the application and requiring her to attend a medical examination.
Whilst one can sympathise with Ms Kaur’s concerns insofar as they relate to the decision of the delegate she cannot raise these matters in relation to the decision of the Tribunal. She knew by the time she went to the Tribunal that her application was all but doomed. And to the extent that she spent money and time going to the Tribunal this was a matter of choice for her.
As regards her complaints about what occurred prior to the decision of the delegate I accept Mr Temby’s submissions that it is not for officers of the Department receiving applications to make decisions upon them. The decision as to whether an application can succeed is one for the delegate. The most that an officer of the Department receiving an application could possibly do is to indicate whether or not it appeared to be a valid application insofar as that term is understood within the legislation. An application is not invalid merely because it has little or no chance of success.
To the extent that Ms Kaur’s complaints are that the Tribunal should have exercised some form of discretion in her favour as a result of what she claims was the wrongful or unsatisfactory actions of the Department these matters were considered by Barnes FM, in Jiayi Chen v Minister for Immigration & Anor [2008] FMCA 1285 where her Honour notes at [31]:
“[31]Hence insofar 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.
[32]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.”
The same findings must pertain here.
It follows from the above that I am unable to assist the applicant in providing her with a review of this decision. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 11 December 2012
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