Kaur v Minister for Immigration & Anor

[2010] FMCA 634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 634

MIGRATION – Application to review a decision of a delegate of the First Respondent to grant a student visa valid until a particular date and to review a decision of the Migration Review Tribunal to affirm a later decision of a delegate to refuse to grant a student visa – whether necessary in the interests of the administration of justice to extend the time for making judicial review application – whether delegate erred in specifying the date until which the visa would remain in effect – whether Tribunal misconstrued and misapplied the law.

Migration Act 1958 (Cth), ss.29, 47, 54, 55, 65, 66, 68, 69, 70, 71, 82, 280, 338, 351, 417, 476, 476A, 477
Migration Legislation Amendment Act (No. 1)2009 (Cth), Item 7(2) of Schedule 2
Migration Regulations 1994 (Cth), cll.572.211, 572.231, 572.511, 573.2, 573.3, 573.7, 573.211, 573,231, 573.511 of Schedule 2

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 395
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 205 ALR 198; [2004] FCA 21
Fisher v Minister for Immigration and Citizenship and Another(2007) 162 FCR 299; [2007] FCA 591
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Lafu v Minister for Immigration & Citizenship & Another (2009) 112 ALD 1; [2009] FCAFC 140
M211 of 2003 v Refugee Review Tribunal and Another (2004) 212 ALR 520; [2004] FCAFC 293
Metera v Administrative Appeals Tribunal and Another (2008) 105 ALD 18; [2008] FCA 1627
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v SZMDS (2010) 84 ALJR 369; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67
SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35
SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478
SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816
SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683
SZJYR v Minister for Immigration and Citizenship [2010] FCA 135
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
Tickner and Others v Chapman and Others (1995) 57 FCR 451
VQANv Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541
Yu v Minister for Immigration & Anor [2009] FMCA 1161

Applicant: JASVIR KAUR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 219 of 2010

Judgment of: Barnes FM

Hearing date: 12 July 2010

Delivered at: Sydney

Delivered on: 27 August 2010

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr G T Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The time for making the application provided for by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 5 February 2010.

2. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 219 of 2010

JASVIR KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of two decisions and for an extension of time in which to make such application.  The first decision is described in the application of 5 February 2010 as “[a] purported decision of a delegate of the First Respondent made on or about 28 June 2006 to grant the Applicant a Subclass 573 visa until 6 June 2008” (the delegate’s decision).  The second decision is a decision of the second respondent (the Migration Review Tribunal) made on 17 September 2009 to affirm a subsequent decision of a delegate of the first respondent dated 1 September 2008 not to grant the applicant a Student visa (the Tribunal’s decision). 

2. The applicant, Ms Kaur, arrived in Australia on 21 July 2005.  She held a Student (Temporary) (Class TU) (Subclass 573) visa granted on 5 July 2005 which, as was stated on the visa label in her passport, was to expire on 31 August 2008.  On 8 August 2005 Ms Kaur lodged a completed Form 157P with the then Department of Immigration and Multicultural and Indigenous Affairs.  This was an application for a student visa with permission to work in respect of a Bachelor of Business (Accounting) degree that was to commence at the Central Queensland University, Sydney campus on 25 July 2005 with a course end date of 6 July 2008.  On 26 September 2005 a delegate of the first respondent granted Ms Kaur a Subclass 573 Student visa with permission to work.  That visa was also valid until 31 August 2008 as stated on a further visa label in Ms Kaur’s passport.  No issue is taken with that decision. 

3. However the visa granted on 26 September 2005 was subject to condition 8206 which required the visa holder to “remain with the education provider with which [he or she] originally enrolled for the first 12 months of the course.” 

4. On 19 April 2006 Ms Kaur lodged a Form 157C application for a student visa with permission to change education provider.  She provided details of an intended Diploma of Accounting course to be conducted by Sydney School of Business and Technology with a start date of 6 April 2006 and a course end date of 6 April 2008. 

5. On 28 June 2006 a delegate of the first respondent granted the applicant a Subclass 573 Student visa with permission to change education provider.  The applicant seeks review of this decision in these proceedings.  In a letter dated 28 June 2006 advising of the grant of the visa, the delegate informed Ms Kaur that her visa was valid until 6 June 2008, that she was no longer subject to condition 8206 and listed the conditions which applied to the visa. 

6. Under the heading “Visa Information” the letter of 28 June 2006 stated the following:

   Your visa is valid until 06 June 2008. 

7. Somewhat confusingly it continued: 

   If you applied for your visa on a paper application form, you may already have a visa label in your passport.  Please examine your visa label closely and note carefully the expiry date of your visa.  If your passport has not yet been endorsed with a visa label, please follow the instructions at the end of this letter. 

8. Notwithstanding that Ms Kaur had applied for the visa on a paper application form, no fresh visa label was placed in her passport.  The reference to following “the instructions at the end of this letter” if there was no visa label in the passport is not clear.  After referring to visa conditions (which if there was a visa label in the passport would be shown by four-digit numbers) the letter continued:

   If you do not have a visa label in your passport (because you applied over the Internet), you may check your visa conditions by referring to the list of your visa conditions attached to this letter, or by checking your visa status on the Department’s website [details provided]. 

9. The letter listed applicable visa conditions.  The copy letter in the Court Book says nothing about how or whether a passport is to be endorsed with a fresh visa label. 

10. Ms Kaur gave unchallenged affidavit evidence that she read the Department’s letter of 28 June 2006.  She was aware the letter stated her visa was valid until 6 June 2008.  She was “very confused because it was not consistent with the date on [the] visa label” in her passport.  Her friends and flatmates who were also overseas students advised her that the date on the visa label in her passport was the “official visa expiry date” and if it changed the Department would call her and endorse her passport with a visa label with the new date.  She did not receive any communication from the Department to attend its office and have the visa label date “changed”. 

11. In these circumstances “it did not occur” to Ms Kaur that she needed to apply for judicial review of the delegate’s decision.  She “thought the date in the letter was a mistake”. 

12. Nonetheless, in April 2008 she approached a migration agent for advice on her visa expiry date as she wanted to make sure she applied for a visa extension in time.  I note that this was before the visa expiration date of 6 June 2008.  However, Ms Kaur’s evidence is that the agent told her that the visa expiry date in the Departmental letter was a “printing mistake”, that the date in her passport visa label was correct and that her visa did not expire until 31 August 2008.  According to Ms Kaur the agent told her not to “worry about it”.  She understood she had until 31 August 2008 to apply for a visa extension and agreed to return to the agent in early August 2008. 

13. Ms Kaur signed a retainer agreement, paid a fee to the agent, signed an appointment of migration agent form and a Form 157A Student visa application on 23 August 2008.  She left the papers with the receptionist (who told her the agent was too busy to see her) and was advised they would submit her documents. 

14. About a week later the agent advised Ms Kaur that her visa had already expired.  On 1 September 2008 the agent lodged the Form 157A visa application in which Ms Kaur applied for a Student visa in respect of a Certificate III in Hospitality (Commercial Cookery) course at Evolutions Systems for Training & Development Pty Ltd with a commencement date of 29 January 2008 and an end date of 14 December 2008. 

15. On 26 September 2008 a delegate of the Minister refused to grant Ms Kaur a Student (Temporary) (Class TU) visa, finding that she did not satisfy the criteria for a Subclass 572 visa, in particular cl.572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), in essence because her last substantive visa had ceased on 6 June 2008. Ms Kaur’s application was lodged on 1 September 2008 which was found to be more than 28 days after her last substantive visa ceased to be in effect (see cl.572.211(3)(c)). The delegate also found that the applicant did not satisfy the primary criteria for any of the other subclasses of Student visa. In particular, the proposed course of study was not of the type specified for other subclasses of Student visa (see for example cl.573.231).

The Tribunal Decision

1. Acting on her agent’s advice, on 21 October 2008 Ms Kaur sought review by the Tribunal of the decision of 26 September 2008.  She was not advised that she could or should seek judicial review of the 2006 delegate’s decision granting her a visa expiring on 6 June 2008.  Initially the same migration agent acted for Ms Kaur in connection with the Tribunal review.  However, after a “heated exchange” between Ms Kaur and a staff member, the agent terminated the retainer. 

2. Ms Kaur sent a written submission to the Tribunal stating that when she came to Australia the Subclass 572 visa she was given was valid up to 31 August 2008, that she changed her course and was given another visa but that she “wasn’t aware of that and [she] wasn’t aware of that they cancel my previous visa and this visa is valid only [until] 06/06/2008”.  She stated that she had consulted her migration agent in April 2008 and that he had advised her that the expiry date that was in her passport (31 August 2008) was “right”.  Hence she had applied for the visa “extension” on 1 September 2008. 

3. In September 2008 Ms Kaur engaged a solicitor who is a migration agent.  She attended a Tribunal hearing at which she confirmed that her original agent had advised her that the visa label in her passport (not the 2006 Departmental letter) had the correct visa expiry date.  She provided evidence of her successful study in Australia in the Diploma of Accounting and the Certificate III  in Hospitality (Commercial Cookery) courses. 

4. In its reasons for decision the Tribunal found on the basis of information in the Department’s movement records that Ms Kaur’s last substantive visa ceased to be in effect on 6 June 2008. The Tribunal thus found that as the visa application of 1 September 2008 was not made within 28 days after the applicant’s last substantive visa had ceased to be in effect she did not satisfy the requirements of cl.572.211(3)(c) of Schedule 2 to the Regulations.

5. In making this finding the Tribunal recognised that Ms Kaur’s record as a student in Australia had been “satisfactory”.  It was also “prepared to accept that there may have been some degree of confusion over her visa status and the date on which her visa was to cease and that the advice she received may have reflected this confusion.”  However it stated that it had “no discretion in this matter and [was] “unable to make any other finding on the information before it”. 

6. In addition, the Tribunal found that Ms Kaur did not meet the requirements for any of the other subclasses within the Class TU visa class (which for the most part also contained a requirement in the same terms as cl.572.211(3)). Hence it affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

7. On the advice of her new agent, on 16 October 2009 Ms Kaur applied to the Minister to substitute for a decision of the Tribunal a more favourable decision under s.351 of the Migration Act 1958 (Cth) (the Act). On 22 January 2010 the application to the Minister was refused. Ms Kaur instructed her solicitor to commence these proceedings. It was not until shortly prior to filing the application of 5 February 2010 that she “became aware of the step of applying for judicial review of the 2006 [delegate’s] decision”. 

The application

1. The ground in the application of 5 February 2010 in relation to the delegate’s decision contains two paragraphs.  Subparagraph 1(a) (which would have been relevant if Ms Kaur had applied for the 2006 visa on a Form 157P or 157P (Internet)) was not pressed. 

2. In subparagraphs 1(b) – 1(e) it was contended that the decision of the delegate of the first respondent made on or about 28 June 2006 to grant the applicant a Subclass 573 visa was affected by jurisdictional error in that to the extent that clause 573.511(b) of Schedule 2 to the Regulations was applicable:

   (b)… the delegate failed [to] have regard to a relevant consideration, being:

   (i)     the appropriateness of the expiry date of 6 June 2008 being the end date of the visa purportedly granted by it;

   (ii)    the Departmental Policy regarding the selection of an appropriate expiry date, being PAM3 at clause 135.8 which stated that students should be granted a visa corresponding to the expected date of completion of the course (ie as described on the official confirmation of enrolment) plus 1 month;

   (c)     the delegate’s decision as to the end date of the visa being 6 June 2008 was arbitrary or capricious;

   (d)    the delegate otherwise misconstrued and/or misapplied criterion 573.511;

   (e)     it was otherwise beyond the delegate’s power to grant any such visa to the Applicant. 

3. There is no dispute that the delegate’s decision is a decision that the court may review under s.476 of the Act, as a decision to grant a visa is not reviewable by the Tribunal (see s.476(2)(a) and s.338 of the Act).

4. The ground relied on in relation to the decision of the Tribunal (which is referred to as dated on or about 18 September 2009 but which in fact bears the date 17 September 2009) refers to a decision to affirm a decision of a delegate to “refuse the Applicant a Subclass 573 visa”.  The delegate’s decision that was the subject of the review by the Tribunal was the decision of 26 September 2008.  However the main subclass in issue in that decision and in the Tribunal’s decision was Subclass 572, whereas the applicant’s last held Student visa had been a Subclass 573 visa (the visa granted in 2006).  In essence, a Subclass 573 visa is for study in the higher education sector, while a Subclass 572 visa is for study in the vocational education and training sector (see clauses 572.231 and 573.231).  As the nature of the courses the applicant sought to enrol in changed, so did the most appropriate subclass of visa.  The subclasses of visa in issue were clarified in oral submissions. 

5. That part of the ground in relation to the Tribunal’s decision that refers to a visa application under Form 157P or Form 157P (Internet) (paragraph 2(a)) was not pressed. 

6. As clarified by counsel for the applicant in oral submissions, it was contended that the Tribunal’s decision to affirm the 2008 decision of a delegate of the first respondent to refuse the applicant a Student visa was affected by jurisdictional error in that to the extent that the application for the last visa granted to the applicant was made on a form other than a Form 157P or Form 157P (Internet) (so that cl.573.511(b) was applicable), the Tribunal had misconstrued and misapplied the applicable law when it found that the applicant did not satisfy the criterion in cl.572.211(3)(c) in Schedule 2 to the Regulations in relation to the 2008 visa application and that it was not open to it to have so found.

7. Clause 573.511 (the clause which is relevant in relation to the Subclass 573 Student visa granted to Ms Kaur in 2006) is headed “When visa is in effect” and provides that the visa is a “[t]emporary visa permitting the holder to travel to, enter and remain in Australia:

   (a) if the application is made on form 157P or 157P (Internet)-- until the date on which the visa held by the applicant at the time of application would have ceased to be in effect; and

   (b) otherwise-- until a date specified by the Minister. “

8. In light of this provision the applicant contended that the Tribunal had misconstrued and misapplied the applicable law when it considered the criterion in cl.572.211(3) in relation to the 2008 visa application. Under cl.572.211(1), if an application is made in Australia the applicant must meet the requirements of one of subcll.(2), (3), (4) or (6). It is not in dispute that at the time of the visa application on 1 September 2008 the applicant was not the holder of a substantive visa of the type described in any of cll.572.211(2), (4) or (6). Hence it was necessary for the Tribunal to consider whether the requirements of cl.572.211(3) were met. At the relevant time that clause was as follows:

   (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, or a dependant 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 by Gazette Notice) 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 Migration Review 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 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

   (d)    the applicant satisfies Schedule 3 criterion 3005.

Extension of time

1. The applicant accepted that an extension of time under s.477 of the Act was required in relation to review of both the delegate’s decision of 28 June 2006 and the Tribunal’s decision of 17 September 2009. 

2. Section 477 of the Act is relevantly as follows:

   (1)    An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)    The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

   (a)    an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)    the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   …

3. In the application filed on 5 February 2010 an application for an extension of time in relation to each decision was made in writing specifying why the applicant considered it necessary in the interests of the administration of justice to make the order, thus satisfying s.477(2)(a) of the Act.

4. As pointed out by counsel for the first respondent, the manner in which s.477 applies is to be determined in light of the amendments in the Migration Legislation Amendment Act (No. 1) 2009 (Cth), (the Amending Act). Item 7(2) of Schedule 2 to the Amending Act relevantly provides that if an application “relates to a migration decision made before the commencement of this Schedule” the court should for the purposes of applying s.477 “treat the date of the migration decision as the date of that commencement”. In this case review is sought of the delegate’s decision of 28 June 2006. However Schedule 2 to the Amending Act commenced on 15 March 2009. Hence the application to this court in relation to the delegate’s decision would have been within time had it been filed within 35 days of 15 March 2009. It was filed on 5 February 2010. Thus it is for the period of approximately nine and a half months from the expiration of 35 days after 15 March 2009 (that is from 19 April 2009 according to counsel for the applicant) until the filing of the application on 5 February 2010 that an extension of time is required in relation to the application for review of the delegate’s decision. The application in relation to the Tribunal’s decision should have been filed by 22 October 2009 (35 days after the date of that decision). The extension of time sought in relation to the application to review the Tribunal decision is for a period of approximately three and a half months.

5. Under s.477(2) the court may extend the 35 day period as it considers “appropriate” if satisfied “it is necessary in the interests of the administration of justice to make [such an] order.” 

6. While the period of time in issue in relation to the delegate’s decision runs from the end of the period fixed under the transitional provisions, in the particular circumstances of this case earlier events are relevant to explain that delay of nine and a half months.  Ms Kaur referred to her lack of awareness that a visa had been granted expiring on 6 June 2008 until early 2008; the fact that she then sought, relied on and followed the advice of her migration agent between early 2008 and August 2008 not knowing judicial review could be sought; and that from August 2008 to 18 September 2009, again acting on advice, she had lodged a further visa application and then sought review of the refusal by the Tribunal.  In these circumstances it was claimed that she could not be expected to know judicial remedies could be pursued in relation to the 2006 delegate’s decision and that her choice of a non-judicial remedy ought not to be held against her.  There was said to be no prejudice to the Minister in allowing the ground of review to be raised.  In written submissions it was also claimed that the grounds of review had good prospects of success (in particular having regard to cl.573.511(a) of Schedule 2 to the Regulations) and that as the validity of the delegate’s decision was “inextricably linked” with the validity of the Tribunal’s reasoning and decision it was “appropriate that the two decisions be dealt with together”. 

7. In relation to the Tribunal’s decision the applicant submitted that the approximately three and a half month delay was not unconscionable and was at the lower end of delay in such cases.  It was explained that the applicant had pursued an application for Ministerial relief; submitted that there was no prejudice to the Minister and that the grounds raised were of merit.  Counsel for Ms Kaur acknowledged that the application to the Minister was not a complete answer to the question of delay but submitted that it demonstrated that the applicant was pursuing the matter in this period. 

8. Counsel for the first respondent submitted that it was not necessary in the interests of justice to grant an extension of time to review the decision of the delegate or appropriate to make such an order having regard to the applicant’s knowledge, her prior conduct and the merits of the application to review that decision. 

9. In addition, it was submitted that insofar as the applicant relied on the fact that she had applied for a Subclass 572 visa and had sought Tribunal review of the refusal, there was no reason why she could not at the same time have sought judicial review of the 2006 delegate’s decision fixing a visa cessation date of 6 June 2008 if she took issue with the legality of that step. It was also submitted that this section did not explain the effluxion of time after the Tribunal decision. The first respondent submitted that the fact that the applicant chose to apply to the Minister under s.351 of the Act, rather than immediately apply for review of the Tribunal decision and the earlier 2006 delegate’s decision, afforded no reasonable excuse for the delay. It was submitted that the preponderance of authority supported such a view, albeit there were some decisions contrary to the weight of authority.

10. The first respondent contended that the substantive argument sought to be raised by the applicant with respect to the decisions was not one that had good prospects of success and that there was no reasonable prospect of the applicant’s argument succeeding (in particular having regard to the inapplicability of cl.573.511(a) of Schedule 2 of the Regulations in the circumstances of this case as the 2006 visa application was not made on Form 157P or 157P(Internet)). 

11. In addition, the first respondent contended that insofar as the applicant argued that the validity of the delegate’s decision was inextricably linked with the validity of the Tribunal’s reasoning and decision, the fact that the Tribunal’s decision came to depend on the cessation date decided in the delegate’s 2006 decision did not aid the applicant, given that the fixing of that date could not be impugned. 

12. The notion in “the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s.477(2), being:

    1. The extent of the delay and the reason for the delay.
    2. Whether there is any merit in the application.
    3. Whether there is any prejudice to the respondents.
    4. The impact on the applicant.
    5. The interests of the public at large.
    6. The Court’s discretion itself.

13. In Fisher v Minister for Immigration and Citizenship and Another [2007] FCA 591, Stone J suggested (at [35]) that the concept “...in the interests of the administration of justice” in s.477(2)(b) “...would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success”.  (Also see Metera v Administrative Appeals Tribunal and Another(2008) 105 ALD 18; [2008] FCA 1627 at [22]).

14. In SZNZI v Minister for Immigration & Anor [2010] FMCA 57 Smith FM stated in relation to the court’s discretion under s.477 of the Act (at [11]):

    The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40] – [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.

15. In my view, in determining whether it is in the interests of the administration of justice to extend the time under s.477 of the Act, it is necessary to have regard to all of the relevant circumstances.  The factors referred to in SZMFJ provide a convenient starting point. The other provisions of the Migration Act provide the framework in which the interests of the administration of justice are to be considered (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [41] in relation to the fact that under s.476A(3)(a) of the Act an appeal may not be brought to the Federal Court from a judgment of this court that makes an order or refuses to make an order under subsection 477(2) of the Act).

Delay

1. In relation to the 2006 delegate’s decision, Ms Kaur sought and relied on the advice of her migration agent.  I accept her unchallenged evidence that she sought such advice prior to the expiration date advised by the delegate in the letter of 28 June 2006.  Ms Kaur’s evidence is that she was under the impression that the person she consulted was an immigration lawyer and that she consulted him on or about 5 April 2008 on the basis that if the visa expiry date in the delegate’s letter of 28 June 2006 was correct she would make an immediate application for a visa extension.  The migration agent told her that her letter from the Department was a “printing mistake” and that her passport visa label was correct, so that her visa expired on 31 August 2008 and she did not have to worry about it.  On that basis the applicant went away, assuming that she had “plenty of time” (until 31 August 2008), to apply for a visa extension.  She told the migration agent that she would come back to organise this in August 2008.  She did so. 

2. The applicant followed the migration agent’s advice and this resulted in an application being signed by her on 23 August 2008 (which was not lodged by the migration agent until 1 September 2008). I accept that Ms Kaur’s actions at this time were the result of acting on the advice given by her migration agent. I note that there are restrictions on those who can give immigration assistance (see s.280 of the Act). It was reasonable for the applicant to seek the assistance of a registered migration agent (who may or may not also have been a legal practitioner) in circumstances where her concern was renewal of a Student visa. The applicant followed the advice she received at the time. She could not reasonably be expected to have done otherwise or to know that judicial review could or should be sought in respect of the delegate’s decision of 28 June 2006 granting her a visa.

3. I have borne in mind that the applicant admitted that she was aware that the Department letter of 28 June 2006 stated that the visa was valid until 6 June 2008 while the expiry date on her passport visa label stated 31 August 2008.  There is no evidence before the court as to whether there was any procedure for a new visa label to be obtained or, if there was, that the applicant was told of this by the Department. 

4. Had Ms Kaur done no more than discuss this issue with “overseas student friends and flatmates” that would not have been a reasonable explanation.  However prior to the expiration of her visa on 6 June 2008 she approached a migration agent and on his reassurance that the letter from the Department was a mistake, that her passport visa label was correct and that the expiry date for her visa was 31 August 2008 she proceeded on the basis that she did not need to make a further visa application until August 2008.  She relied on her migration agent.  He did not lodge her visa application until 1 September 2008, but that would have been within 28 days of expiration of her visa had her visa expiration date in fact been 31 August 2008 as he had advised her. 

5. It is the case that the delegate’s subsequent decision of 26 September 2008 (in relation to the visa application lodged on the advice of the migration agent) stated that Ms Kaur’s last substantive visa ceased on 6 June 2008, although I note that the decision record of 26 September 2008 is not clear in all respects, insofar as it referred to reg.573.211 although the application was primarily assessed in relation to Subclass 572.  In any event, Ms Kaur’s knowledge of the fact that the Department had taken the view that the last substantive visa held by her had ceased on 6 June 2008 and that this was a reason why she did not satisfy the criteria for a Subclass 572 visa (relevantly cl.572.211) does not meant that she was aware of the availability of judicial review in relation to the earlier 2006 delegate’s decision which had granted her the visa that expired on 6 June 2008, given the absence of any advice about the availability of judicial review of a delegate’s decision to grant a visa from her migration agent or from the Department. 

6. While the applicant may from that time have been expected to seek further advice, I am satisfied that in pursuing administrative remedies available to her through the Tribunal in relation to the decision of 1 September 2008 (in accordance with the Department’s advice about the Migration Review Tribunal review process in that decision record) she was following her migration agent’s advice in circumstances where she could not be expected to know that judicial remedies could be pursued in relation to the 2006 decision of a delegate of the first respondent granting her a visa.  Indeed, had the applicant succeeded in her application for review by the Tribunal (and been found to have met the criteria for a student visa), there would have been no need to resort to judicial review of the 2006 delegate’s decision. 

7. Counsel for the first respondent submitted that the applicant could have sought judicial review of the delegate’s decision fixing the cessation date for her last substantive visa after receiving the delegate’s decision of 26 September 2008.  However I am of the view that it was reasonable for Ms Kaur to rely on the advice of her migration agent that the appropriate action was to seek review of the refusal of a Student visa by the Tribunal.  Judicial review of a delegate’s decision granting a visa is not common. 

8. In the particular and unusual circumstances of this case (where the delegate’s decision in issue was a decision to grant a visa) I am of the view that the applicant has provided a reasonable explanation for the delay in seeking judicial review of the 2006 delegate’s decision prior to the time of notification of the Tribunal’s decision of 17 September 2009. 

9. The Tribunal notified the applicant on 18 September 2009 of its decision to affirm the delegate’s 2008 decision not to grant her the visa for which she had applied.  The Tribunal’s decision was clearly based on the finding that the last substantive visa held by the applicant had expired on 6 June 2008.  The applicant did not apply to this court for review of either the 2006 delegate’s decision or the Tribunal decision until 5 February 2010. 

10. Neither the post Tribunal decision delay of four and a half months in relation to the application to review the delegate’s decision or the three and a half months beyond the 35 day time limit in relation to the Tribunal’s decision was excessive.  That period should be seen in light of the relationship between the delegate’s decision and the Tribunal’s decision given Ms Kaur’s attempts to obtain a student visa and the steps she then took acting on the advice of her subsequent migration agent (who was appointed as her representative on 8 September 2009). 

11. On 16 October 2009 the applicant applied for favourable consideration by the Minister under s.351 of the Act. The issue that arises is whether, in the particular circumstances of this case, the fact that the applicant chose this course, rather than immediately applying for judicial review of the delegate’s decision and the Tribunal’s decision indicated an acceptance of either or both of the decisions the subject of this application. More generally, the issue is whether there is a reasonable explanation for that part of the delay. The Minister’s response was received on 22 January 2010. These proceedings were commenced on 5 February 2010 and there is no suggestion that the time between 22 January 2010 and 5 February 2010 was excessive.

12. The first respondent’s written submissions referred to a number of authorities in relation to whether the fact that an applicant chose to ask the Minister to substitute a more favourable decision for a Tribunal decision afforded a reasonable excuse for delay or indicated acceptance of the decision.  While these cases provide guidance on relevant factors, none of them involved judicial review of a delegate’s decision to grant a visa. 

13. In Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 an applicant had unsuccessfully sought judicial review and then made an application to the Minister under s.417 of the Act. In considering a subsequent judicial review application von Doussa J found that the delay in question was significantly more than a year and that there was nothing exceptional about the case that would justify an extension of time. His Honour was of the view that the fact that the applicant had made a s.417 application to the Minister after an appeal to the Federal Court had been dismissed (rather than seeking special leave to appeal to the High Court) indicated an acceptance of the decision of the Refugee Review Tribunal and a decision on the part of the applicant to take another course, so that “[h]aving taken that other course, in my opinion he must live with the consequence of the delay that occurred” (at [9]).  His Honour suggested that the fact that the delay was not adequately explained would be sufficient to refuse an application for an extension of time, but found it appropriate to look also at the likely prospects of success of the application if the time were extended, finding that the proposed application would have no realistic prospects of success.  In contrast there has been no prior judicial review in this case and the delay in question is not of the order considered by von Doussa J. 

14. Daniel v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2004) 205 ALR 198; [2004] FCA 21 and a case of the same name reported at [2004] FCA 395 were also referred to by counsel for the first respondent. In the first of those decisions Goldberg J considered whether an applicant should be granted an extension or an enlargement of time in which to apply for an order nisi for the writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal. His Honour considered the delay in making the application, found that the explanation for the delay was unsatisfactory and that the fact that the applicant had written to the Minister requesting him to exercise his power under s.417 of the Act was indicative of a decision by the applicant to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. Goldberg J found that this course of action should be characterised as an indication that the applicant was prepared to accept that the Tribunal decision was correct and that he did not intend to challenge that decision further in the court. His Honour was also satisfied that the substantive grounds sought to be made out by the applicant could not be sustained. In those circumstances Goldberg J did not consider that there were sufficient exceptional circumstances to warrant allowing the extension of time. His Honour stated at [12]:

    The first matter to consider is whether the applicant should be granted an extension or an enlargement of time within which to apply for an order nisi for the issue of writs of certiorari and mandamus.  The proper approach to take to such applications and the relevant factors and principles to take into account were considered by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6. Those factors include the reason for the delay, the length of the delay, whether any decision was made at any point of time to accept the decision of the Tribunal, whether any party may be prejudiced if the extension is not granted and, ultimately, the applicant’s prospects of success in obtaining an order absolute for the issue of the writs. It is also necessary to take into account the basic and fundamental principle that the Court should seek to achieve justice between the parties and that there should be an end to litigation. In Re Commonwealth; Ex parte Marks, above McHugh J said (at 496):

    In all but very exceptional cases, they [the time provisions] should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

1. His Honour continued at [15]:

   Adopting the observation of McHugh J in Re Commonwealth; Ex parte Marks above I do not consider that there are any or sufficient exceptional circumstances which warrant allowing the extension of time. The basic submission propounded by the applicant as to the reason for the delay was his decision to seek a more favourable outcome from the minister on humanitarian grounds, pursuant to s 417 of the Act. The applicant submitted that he acted reasonably in the circumstances in attempting to obtain a more favourable decision. However, I do not consider that the pursuit of such a decision constitutes a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the tribunal’s decision was not to be the subject of challenge.

2. In the later Daniel decision, Weinberg J considered an application for leave to appeal from the judgment of Goldberg J.  Weinberg J pointed to the fact that there was a need for exceptional circumstances to be demonstrated before time would be extended where there was a lengthy delay. 

3. The circumstances in this case are not comparable to those considered in Daniel.  The delay is not of the same length and the circumstances (particular in relation to the delegate’s decision) are out of the ordinary.  Even if an application to the Minister does not of itself constitute special circumstances, what is relevant in this instance is whether and the extent to which a reasonable explanation has been provided for the delay after the Tribunal decision. 

4. M211 of 2003 v Refugee Review Tribunal and Another (2004) 212 ALR 520; [2004] FCAFC 293 was an appeal from a decision of a judge of the Federal Court who had refused to extend the time then prescribed for seeking an order nisi for certiorari and had refused the application for an order nisi for prohibition on the ground that the applicant did not have an arguable case.  The Full Court of the Federal Court referred to the approach taken in Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 and referred to the absence of any “real explanation” for the delay in seeking relief (at [21]) as well as to the fact that in Daniel Goldberg J had stated that a s.417 application in that case did not constitute a sufficient special circumstances to warrant excusing the delay and allowing the extension of time. The court concluded at [36] that the “appellant’s grounds of review having no real prospects of success, the primary judge correctly refused the extension of time.” 

5. In M211 of 2003 what was in issue was a delay of over two and half years (longer than the 17 months delay that had been considered in Ex parte Marks). In addition, the appellant was said to have offered no real explanation for his delay in seeking relief. The appellant was unrepresented and the court found that his prospects of success on appeal if an extension of time were to be granted were very poor. In this case, the applicant has proffered an explanation. While the applicant made a s.351 application, she explained that she did so on the advice of her adviser. In addition, judicial review in relation to a delegate’s decision granting a visa could not be said to be an obvious avenue of relief.

6. In SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683 Collier J considered the relevance of a seven year delay to a refusal by the Federal Magistrates Court to exercise the discretion to grant relief to an applicant. Her Honour found no error in that respect. In contrast, this is an application for an extension of time under s.477 and the delay in question is not exceptional.

7. In SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 Besanko J considered an application for an extension of time within which to appeal, concluding that while the explanation for delay in that case was not satisfactory, that in itself should not lead him to refuse the application. However the proposed appeal had no prospects of success and in those circumstances His Honour found that the application for an extension of time should be refused. As this case indicates, the nature of the explanation for the delay and the length of the delay should be seen in light of all the circumstances of the particular case, including in the context of a s.477 application whether the matters identified in the application arguably raise a matter of jurisdictional error. In this case, in contrast to the situation in SZJYR, the grounds are properly drafted and particularised and, as discussed below, identify the asserted jurisdictional error. 

8. In contrast to the approach taken in such cases, in SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816 Graham J found that a Federal Magistrate had erred in concluding that an applicant had elected to accept the correctness of a Tribunal decision by making an application under s.417 of the Act. In that case it had been conceded that the Tribunal had made a jurisdictional error, but relief was refused by the Federal Magistrates Court having regard to the delay in proceeding. This case suggests that an application to the Minister is not necessarily an indication that an applicant has decided to accept a Tribunal decision. It should not be looked at in isolation, but rather as part of all the circumstances, including the grounds relied on by the applicant.

9. Similarly, in SZFGO v Minister for Immigration & Citizenship [2008] FCA 1478 Edmonds J considered an application for an extension of time to file and serve a notice of appeal from a decision of this court. The application was over two years outside the then applicable time limit. The applicants’ explanation was that they had sought Ministerial intervention on humanitarian grounds under s.417 in the interim. In submissions the Minister had referred to the observations of Goldberg J in Daniel in contending that an extension of time should be refused.  However Edmonds J stated at [17]:

   I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour.  But if I am wrong, then, with respect, I cannot agree with it.  The Minister submitted that a Full Federal Court approved Goldberg J’s approach in M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293; (2004) 212 ALR 520 at [16] – [24] and cited other cases where this Court has held that a request under s 417 of the Act indicates acceptance of the Tribunal’s decision and does not provide an adequate explanation for delay … Although the Full Court [of the Federal Court in M211 of 2003] did not expressly endorse the observations cited above in Daniel, it concluded at [36]:

   ‘Although the primary judge did not dismiss the application for prohibition on the ground of the appellant’s lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.’

10. Edmonds J also referred to the approach taken in SZGNO and considered the reasons of the Federal Magistrate which had pointed the applicants in the direction of pursing a s.417 application. His Honour was mindful of the fact that the applicants were self-represented and may not have obtained legal advice in pursuing one course over another instead of pursuing both courses simultaneously.

11. His Honour found that in the case before him there was no evidence before the court that in electing to pursue Ministerial intervention under s.417 the applicants had chosen to abandon their rights of appeal, such as by the filing of a notice of discontinuance. Reference was made to the fact that they had received notification of the final outcome of their s.417 application by letter dated 2 April 2008 and had filed the application for an extension of time on 29 April 2008. His Honour expressed the view that by pursuing the s.417 application the applicants should not be considered as abandoning their rights of appeal in respect of the Tribunal’s decision.

12. This case also supports the view that each case should be assessed on its own circumstances.  Relevantly, I note that Edmonds J took such an approach notwithstanding that his Honour went on to find that the grounds relied on by the applicants must fail and on that basis concluded that the discretion to grant an extension of time to file and serve a notice of appeal should not be exercised because even if such an extension were granted the applicants would have no reasonable prosects of success on appeal.  In this case, unless an extension of time is granted, there will be no judicial review available to Ms Kaur at all. 

13. In my view, in the particular circumstances of this case the application to the Minister under s.351 should not be seen as indicating that the applicant had chosen to abandon her right to seek judicial review of either or both of the decisions in issue, bearing in mind that she acted on legal advice and the promptness with which the present proceedings were commenced after the unfavourable Ministerial response.

14. In addition, the delay was not lengthy.  What occurred after the Tribunal decision must be seen in light of the unusual circumstances of the present case.  This is not a case in which there is lengthy unexplained delay such as to warrant refusal of an extension of time of itself.  I consider it appropriate to have regard to other relevant factors. 

15. The respondent’s submissions (discussed further below) do not go so far as to establish that the grounds relied on in relation to the decisions are not arguable, albeit jurisdictional error is not in fact made out.  I note that in VQANv Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 Heerey J suggested that the longer the unexplained delay the stronger the argument on the merits would need to be to grant an extension of time. The reverse should apply if the delay is not excessive. In my view there are circumstances in which it is preferable to grant an extension of time and dismiss an application on its merits. This is such a case.

16. Having regard to all the circumstances, including the length of the relevant delay and the explanation provided by the applicant as discussed above, I am satisfied that in the novel and unusual circumstances of this case it is necessary in the interests of the administration of justice to grant the applicant the extension of time sought in relation to the delegate’s decision and the Tribunal’s decision. I have borne in mind that as the case was argued completely before me, it cannot be said that there is any prejudice to the respondents by being put to the burden and costs of additional litigation. The question of an extension of time was not determined as a preliminary issue. There is nothing in the evidence before the court to suggest that the passage of time has had any impact on the first respondent’s ability to put evidence before the court about events at the relevant time. On the other hand, rejection of the application for an extension of time would have a significant impact upon the applicant. At present she is the holder of a bridging visa and does not hold a Student visa which would enable her to complete her education in Australia, notwithstanding that her record to date has, as the Tribunal conceded, been satisfactory and notwithstanding that her unchallenged affidavit evidence is that at all times she followed the advice of her migration agent or lawyer in the steps she took. I consider that this is of some significance in relation to an area of law in which the provisions applicable are of some complexity and in which there would be no possibility of access to the Federal Court’s appellate jurisdiction were an extension of time not to be granted (see s.476A(3)(a) of the Act). While this was not a matter referred to by either party, in my view it is in the interests of the public at large that novel issues such as those raised in this application should be determined and, if appropriate, considered by a superior court on appeal.

17. Given the explanation that the applicant has provided for the relevant delay in this case, I do not consider that this is a case in which the interests of the public in the avoidance of delay and protraction of legal proceedings is of the significance that it might be in a case in which there was not a reasonable explanation for a lengthy delay. 

18. I am satisfied that it is in the interests of the administration of justice to grant an extension of time under s.477 of the Act up to and including the date on which the application was made (5 February 2010). 

19. However, for the reasons given below, I am of the view that the grounds relied on by Ms Kaur in relation to each of the delegate’s and the Tribunal’s decisions are not made out and that the application should be dismissed on that basis. 

The delegate’s decision

1. I note first that the parts of the grounds that refer to cl.573.511(a) of Schedule 2 to the Regulations are not pressed.  Had the visa application lodged on 19 April 2006 been made on Form 157P or 157P(Internet) any visa granted would have been in effect until the date on which the visa held by the applicant at the time of the application would have ceased to be in effect (that is until 31 August 2008).  Indeed, it would seem that the migration agent’s advice to this effect would have been correct had Ms Kaur’s 2006 visa application been made on a Form 157P or 157P (Internet).  However it was conceded that the 2006 visa application was not made on such a form.  Thus, unfortunately for the applicant, cl.573.511(a) was not applicable. 

2. Under cl.573.511(b) the visa granted in 2006 was to be in effect “until a date specified by the Minister”.  Counsel for the applicant acknowledged that as the 2006 visa application was made on Form 157C the delegate had power to specify a date under cl.573.511(b) of Schedule 2 to the Regulations, but contended that the delegate fell into jurisdictional error in the exercise of her discretion in selecting an expiry date. 

Relevant considerations

1. First, it was submitted that the delegate had failed to take into account relevant considerations being the appropriateness of 6 June 2008 as the visa expiry date and Departmental Policy regarding the selection of an appropriate visa expiry date. 

2. As set out above, the delegate’s decision of 28 June 2006 was to grant a Subclass 573 student visa to the applicant.  The only reference to any consideration of the expiry date of the visa in the material before the court is the statement “[y]our visa is valid until 06 June 2008” in the letter of 28 June 2006 advising Ms Kaur that she had been granted a Subclass 573 Higher Education Sector Student visa with permission to change education provider.  There was no decision record attached to this letter. 

3. It was submitted that there was no evidence that the delegate who granted the visa on 28 June 2006 gave any consideration to the appropriateness of the expiry date and contended that the court should infer that no such consideration was given, as one would have expected something resembling reasoning as to how the discretion was exercised if this issue had been genuinely considered (such as a reference to the fact that the selection of 6 June 2008 would have the effect of curtailing the applicant’s right to reside in Australia by almost three months).  There was said to be nothing on the face of the record that would indicate that there was any basis at all for the expiry date as opposed to the selection of an entirely random date. 

4. Reliance was placed on NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 (at [212]) in which Madgwick J was said to have drawn such an inference in the context of the delegate’s “fleeting, uncritical references” to relevant matters and Lafu v Minister for Immigration and Citizenship and Another (2009) 112 ALD 1; [2009] FCAFC 140 in which the Full Court of the Federal Court reaffirmed the proposition that consideration of a factor required an “active intellectual process” (and see Tickner and Others v Chapman and Others (1995) 57 FCR 451 per Black CJ at 462).

5. The first respondent contended that the applicant’s challenge to the delegate’s decision was not made out for a number of reasons. It was said that cl.573.511(b) enabled a date to be set for expiry of a visa that was not necessarily the date on which the visa that was held by the applicant at the time of the application would have ceased to be in effect. Further, it was contended that there was no evidence before the court to support the contention that the delegate did not consider whether the date of 6 June 2008 was appropriate. Because the decision was a decision to grant a visa and not a refusal, s.66 of the Act did not require reasons to be given. It was submitted that even if there was an implied obligation on the delegate to consider what expiry date was appropriate, there was no foundation for any argument that the delegate failed to consider that issue in this case, particularly because of the absence of any obligation to give reasons for deciding any particular date.

6. It was said to be beside the point that the previously held visa would have expired on 31 August 2008, as there was nothing to require the delegate to specify a date under cl.573.211(b) that was no earlier than the date that would have been fixed had paragraph (a) of clause 573.511 applied.  There was also said to be good reason in this case to specify a cessation date earlier than 31 August 2008 having regard to when the proposed course of study would finish. 

7. First, it is clear that the previous visa held by Ms Kaur ceased to be in effect when the visa granted on 28 June 2006 came into effect. While no reference was made in submissions to what the Act prescribes in relation to when visas cease to be in effect, s.82(2) provides that a substantive visa held by a non-citizen (such as the earlier Subclass 573 Student visa granted to Ms Kaur on 26 September 2005) would cease to be in effect when another substantive visa came into effect.

8. Further, the delegate had the power to specify the date the 2006 visa would cease to be in effect.  Paragraph (b) of cl.573.511 enabled a date to be specified which was not necessarily the date on which the visa held by the applicant at the time of the application would have ceased to be in effect had there not been a further visa granted.  That is clear from the distinction between paragraph (a) of cl.573.511 which provides that if the application is made on Form 157P or Form 157P (Internet) the visa is to be in effect until the date on which the visa held by the applicant at the time of the application would have ceased to be in effect and the language of paragraph (b) which provides for “a date to be specified by the Minister” in all other cases. 

9. The Minister (or a delegate) has power to grant a visa to a non-citizen to travel to and remain in Australia under s.29 of the Act. Under s.47 the Minister is to consider a valid application for a visa. That requirement continues until the application is withdrawn or the Minister grants or refuses to grant the visa. There is no suggestion in this case that the visa application was not a valid application for a visa.

10. Subdivision AB of Division 3 of Part 2 of the Act is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Under s.54 the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. Under s.55, until the Minister has made a decision whether to grant or refuse the grant of a visa, he or she must have regard to any additional relevant information provided by the applicant. Section 65 provides that if, after considering a valid application for a visa the Minister is satisfied that the specified criteria have been satisfied and of certain other prerequisites (not relevant to the present circumstances) he or she is to grant the visa. It is perhaps worth noting that cl.573.511 is not a criterion for a visa.

1. Under s.66, 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. Regulation 2.16 provides relevantly that the Minister must notify the applicant of a grant of a visa in one of a number of ways. Importantly, in the case of a substantive visa, such as the student visa granted to Ms Kaur in 2006, the specified methods are “telling the applicant orally that the visa has been granted”; or “notifying the applicant by one of the methods specified in s.494B of the Act”; or “giving the applicant evidence of the visa”. In contrast, s.66(2) requires (in most circumstances) that a notification of a decision to refuse a visa application give written reasons why a criterion for the grant of the visa was not satisfied or a provision of the Act or Regulations prevented the grant of the visa.

2. There is no suggestion that the delegate failed to give Ms Kaur evidence of the visa including a statement of the period for which the visa was in effect in the manner required under the Act and Regulations (see ss.70 and 71, Division 2.4 of Part 2 of the Regulations and cl.573.7 of Schedule 2 to the Regulations). No reliance was placed by either party on s.68(3) (which provides that a visa can only be in effect during the visa period for the visa) or s.69 (about the effect of compliance or non-compliance with subdivisions AA or AB of Division 3 of Part 2 of the Act).

3. As counsel for the first respondent submitted, the decision in 2006 was to grant a visa and not a refusal. Section 66 of the Act did not require reasons for the grant of the visa to be given, let alone reasons for selection of an expiry date (and see in any event s.66(4)). Nothing else in the Act is pointed to for the applicant which imposes any duty upon the delegate to give reasons for selecting any particular expiry date.

4. Insofar as there was said to be a failure by the delegate to have regard to a relevant consideration, there is a distinction between a failure to have regard to a relevant consideration in the sense of an integer of an applicant’s claims and a failure to give consideration to, or take into account, a factor in the sense of engagement in an “active intellectual process” in relation to that factor as considered in Tickner v Chapman and Lafu and as relevant in the context of ss.54 and 55 of the Act.

5. In any event, while the applicant’s last visa expiry date was presumably before the delegate in 2006, there is no evidence that the applicant made any submissions to the delegate about a suitable expiry date for the further visa.  It has not been established that the delegate failed to have regard to all the information in the visa application or to any additional relevant information provided by the applicant.  It has not been established that the Act expressly or impliedly required that the delegate give reasons in relation to “the appropriateness” of a particular expiry date such that a failure to address this issue in notifying the applicant of a decision to grant a visa valid until a specified date demonstrates a failure to have regard to a relevant consideration (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 39; [1986] HCA 40 per Mason J;). In this context it is relevant to note the “informal” methods for notification of grant of a visa under s.66 and reg.2.16.

6. Even if there is an implied obligation on the delegate to consider what visa expiry date is appropriate arising from the power in cl.573.511(b), the obligation to specify an expiry date and the fact that the information before the delegate would include the expiry date of any earlier visa, it has not been established that the delegate failed to consider that issue in this case. 

7. There is no evidence to support the contention that the delegate did not consider whether the date of 6 June 2008 was an appropriate expiry date.  Not only is there no obligation to give reasons for specifying any particular date, but also there is nothing in the Act or Regulations to require a delegate to fix a date no earlier than the date that would have been fixed if paragraph (a) of cl.573.511 applied.  It could easily have been specified in the Regulations if cl.573.511(b) was intended only to authorise the same date as the expiry date of the last held visa or a later date to be set.  The power in cl.573.511(b) has not been so fettered. 

8. Thus, in the absence of an obligation to give reasons for the grant of a visa and having regard to the date that was in fact specified, it has not been established that there was a failure to have regard to the appropriateness of the expiry date or to Departmental policy requiring selection of an expiry date which suggested an appropriate date would be one month after completion of the course for which the visa was obtained.  As pointed out by counsel for the first respondent, there was good reason in this case to fix a visa expiry date earlier than 31 August 2008.  The previous course in which the applicant had been enrolled had an end date of 6 July 2008, for which there was a visa expiry date of 31 August 2008.  The issue came before the delegate in 2006 in the context of an application for a visa which permitted a change to education providers.  It was based on a proposed change of the applicant’s course of study to a course which was to finish on 6 April 2008 instead of 6 July 2008.  The expiry date of 6 June 2008 that was fixed by the delegate for the 2006 visa was for a date two months after the completion of the proposed course of study.  This was more generous than the one month after completion of the course suggested by policy (see PAM3 cl.135.8). 

9. In all the circumstances, it has not been established that the delegate failed to have regard to a relevant consideration in a manner constituting jurisdictional error. 

Whether decision arbitrary or capricious

1. Having regard to the fact that the course for which the visa was granted in 2006 was to finish some three months earlier than the course of study for which the earlier visa had been granted, it has not been established that the delegate’s decision as to the expiry date was arbitrary or capricious.  The date chosen was well within the bounds of what might reasonably and logically have been considered to be an appropriate cessation date in those circumstances (see Minister for Immigration and Citizenship v SZMDS (2010) 84 ALJR 369; [2010] HCA 16 per Heydon J and per Crennan and Bell JJ).

Whether the delegate otherwise misconstrued and/or misapplied criterion 573.511 

1. Clause 573.511 is not a criterion to be met for the grant of a Subclass 573 visa (cf the primary criteria in cl.573.2 and the secondary criteria in cl.573.3).  Rather, it states when a visa which is granted is in effect.  In any event, for the reasons given above, it has not been established that the delegate misconstrued and/or misapplied cl.573.511 by selecting an expiry date of 6 June 2008 or an expiry date other than the date on which the last held visa would expire under cl.573.511(b). 

Whether it was otherwise beyond the power of the delegate to grant any such visa to the applicant

1. Similarly, it has not been established that it was beyond the delegate’s power to grant such a visa to the applicant.  It was open to the delegate to grant a visa with the expiry date of 6 June 2008. 

2. Ground one is not made out.  No jurisdictional error has been established in relation to the delegate’s decision. 

The Tribunal’s decision

1. The applicant also sought review of the decision of the Tribunal dated 17 September 2009 and given to the applicant through her adviser on 18 September 2009 to affirm the decision of the delegate of the first respondent not to grant her a Student (Temporary) (Class TU) visa. 

2. It is clear that the criteria applicable to a Subclass 572 visa were primarily in issue in the Tribunal decision.  However insofar as the ground relates to the time the earlier Subclass 573 student visa was in effect, cl.573.511 is relevant. 

3. As clarified in submissions, the ground relied on (given that the part of the ground based on the visa application having been made on a Form 157P or Form 157P (Internet) was not pursued) is that to the extent that cl.573.511(b) was applicable (in relation to the date on which the applicant’s last substantive visa expired) the Tribunal misconstrued and misapplied the applicable law when it found that the applicant did not satisfy criterion 572.211(3)(c) to Schedule 2 of the Regulations in relation to the 2008 application and that it was not open to it to so have found. 

4. Clause 572.211(3)(c)(i) as it stood at the relevant time was a criterion to be satisfied at the time of visa application. It provided that an applicant met the requirements of that subclause if he or she was not the holder of a substantive visa at the time of the application and the last substantive visa held by the applicant was a Student visa (as it was in this case) and:

   (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…

5. Hence Ms Kaur’s 2008 visa application had to be made within 28 days after the day when her last substantive visa (the Subclass 573 visa granted in 2006) ceased to be in effect. Counsel for the applicant contended that the day on which the applicant’s last substantive visa (the Subclass 573 visa) ceased to be in effect was a legal question about the construction of cl.573.511 and that cl.572.211(3)(c)(i) required the Tribunal to determine the day on which the applicant’s last substantive visa ceased to be in effect for the purposes of reviewing the delegate’s 2008 decision not to grant the applicant a Student visa.

6. It was contended that the day the last substantive visa ceased to be in effect was a legal question as a consequence of cl.573.511.  Counsel for the applicant pointed to the fact that in some circumstances (where paragraph (a) applied) that clause mandated an expiry date irrespective of the date assigned by the delegate.  It was submitted that in other circumstances the expiry date of a particular visa may be invalid because of a miscarriage in the exercise of the discretion.  On this basis it was submitted that it was not possible for the Tribunal to determine the day on which the applicant’s last substantive visa ceased to be in effect without considering the legal provision that went to that question, being cl.573.511.  This was said to be particularly so where, as in this case, the material before the Tribunal was said to squarely raise the validity of the expiry date of the previous visa, as the applicant had informed the Tribunal that when she applied to change her course she was unaware that her visa granted on 26 September 2005 expiring on 31 August 2008 was (or would be) cancelled or cease to be in effect and would be substituted with a visa valid only to 6 June 2008. 

7. It was said to be evident from the Tribunal’s reasoning however that it approached the question of the day on which the applicant’s last substantive visa ceased to be in effect as a question of fact and simply looked to what was in the Department’s movement records and took this as a conclusive answer.  The applicant submitted that the Tribunal had made an error of law in that it failed to apply the law to the facts or had asked itself the wrong question because it did not understand that the day on which the applicant’s last substantive visa ceased to be in effect was a legal question that could only be answered after “consideration of the validity of that expiry date in view of cl.573.511”. 

8. Counsel for the applicant submitted that the court should reject any submission that the Tribunal had implicitly considered cl.573.511 on the basis that if it had considered it one would expect to see in the reasoning an attempt to determine whether paragraph (a) or (b) was the applicable provision and, as a corollary, there would be some evidence as to the Tribunal attempting to determine whether the applicant had completed a Form 157P or Form 157P (Internet) or some other visa application form. 

9. Counsel for the first respondent submitted that the applicant’s argument appeared to proceed on the assumption that the Tribunal was obliged to consider in its reasons whether the expiry date of the last substantive visa held by the applicant (6 June 2008) had been validly fixed.  It was submitted that even if one assumed (although this was not conceded) that the Tribunal should have considered that question and ought to have explained in its decision record the reasoning process that it adopted, there was simply no proper basis for any finding that the delegate’s fixing of the 6 June 2008 date in 2006 was invalid.  Hence it was said to be clear that the Tribunal’s decision could not have been affected by any inquiry as to whether that date was validly fixed by the delegate in 2006. 

10. It was also pointed out that if the applicant had relied to her detriment upon bad and negligent advice from her migration agent that would not suffice to amount to jurisdictional error (see SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35 at [53]).

11. In its reasons for decision the Tribunal referred to the requirements of cl.572.211(3)(b). It found that the applicant’s Subclass 572 visa application on the Department file was made on 1 September 2008 and continued:

    The Tribunal also finds, on the basis of information in the Department’s movement records, that the applicant’s last substantive visa ceased to be in effect on 6 June 2008. 

12. It appears that this is a reference to a “Movement Details” form dated 24 October 2008 that recorded that the applicant’s Subclass 573 visa granted to Ms Kaur on 28 June 2006 ceased on 6 June 2008. 

13. There was no reference by the Tribunal to cl.573.511.  Insofar as the applicant contended that the material before the Tribunal squarely raised the validity of the expiry date of her previous visa, the applicant’s claim that without her knowledge the Department had issued her with a Subclass 573 visa valid to 6 June 2008 and “cancelled” her previous visa was addressed by the Tribunal, which accepted that there may have been some degree of confusion over the applicant’s visa status and the date on which her visa was to cease and that the advice she received may have reflected this confusion. 

14. However this claim by the applicant was not of itself such as to raise an issue as to a possible invalidity in the delegate’s specification of an expiry date of 6 June 2008 in granting a visa in 2006 such that that issue had to be expressly addressed in the Tribunal’s reasons in relation to the delegate’s 2008 decision (and see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 in relation to the failure to state reasons).

15. As counsel for the applicant pointed out the proper application of the applicable law is not the same as the failure to have regard to a claim. However, assuming (as the first respondent did in written submissions) that the Tribunal was obliged to consider whether the expiry date was validly fixed (and here to consider cl.573.511 in considering whether the applicant met cl.572.211(3)(b) and in so doing to address the question of whether in 2006 the delegate had validly specified the expiry date of 6 June 2008), as discussed above there is in this case no basis for finding that that delegate’s decision was invalid to the extent that it purported to specify that date. This is not a case in which cl.573.511(a) operated (or should have operated) to fix the expiry date as the date until which the visa held at the time of application would have ceased to be in effect (as was the case in a matter referred to by counsel for the applicant which was remitted by this court by consent on the basis of a concession by the first respondent that the Tribunal had committed a jurisdictional error by failing to appreciate and apply cl.572.511 to conclude that the time for the application to apply for a visa was 28 days from the date that it ceased to be in effect under cl.572.511(a)). In that case the applicant had used Form 157P or 157P (Internet) to make the visa application. In this case the applicant made the 2006 visa application on a Form 157C. Hence, under cl.573.211(b) the delegate had the power in 2006 to specify a date other than the date on which the last visa held by Ms Kaur would have ceased to be in effect as the expiry date.

16. In these circumstances, in the absence of any demonstrated invalidity in the delegate’s fixing of the expiry date on any basis contended for by the applicant, the Tribunal’s exercise of power could not have been affected by any inquiry as to whether the date of 6 June 2008 was validly specified by the delegate in the decision to grant the last substantive visa held by the applicant at the time she made the 2008 visa application.  Even if the expiry date was a question of law and the Tribunal should have considered the validity of the specification of the last visa expiry date, failure to do so was not an error that affected the Tribunal’s exercise or purported exercise of power because there is no basis for finding that the fixing of the 6 June 2008 date was invalid.  Hence no jurisdictional error on the part of the Tribunal in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 has been made out.

17. For the sake of completeness, I note that even if the failure by the Tribunal to refer to the validity of the expiry date and cl.573.511 were to be characterised as a jurisdictional error, as there was no invalidity in the delegate’s 2006 specification of the Subclass 573 visa expiry date, any such error by the Tribunal could not have affected its decision and I would in the exercise of my discretion decline to grant relief. 

18. Hence the application should be dismissed. 

I certify that the preceding one-hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  27 August 2010