Khoja v Minister for Immigration

[2005] FMCA 274

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KHOJA v MINISTER FOR IMMIGRATION [2005] FMCA 274

MIGRATION – Application seeking review of a decision of the MRT affirming decision of delegate to refuse a Student (Temporary) (Class TU) Visa – application dismissed.

Migration Act 1958

Applicant: LAILA AHEMED KHOJA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1400 of 2003

Delivered on: 11 January 2005

Delivered at: Sydney

Hearing date: 11 January 2005

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Mr. A. Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $3600 pursuant to Rule 21.02(2)(a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1400 of 2003

LAILA AHEMED KHOJA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application filed in this Court on 22 July 2003 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 30 June 2003 affirming the decision of a delegate of the respondent Minister made on 8 November 2001 to refuse a Student (Temporary) (Class TU) visa to the applicant.

2. The background to this case is set out in the respondent's written outline of submissions filed with the Court and forwarded to the applicant on 6 January and received and filed in Chambers on

   
   

   10 January 2005.  In particular, I refer to paragraphs 2 to 11 and I adopt these paragraphs for the purposes of this judgment.

3. The grounds of the application are that the:

   “Migration Review Tribunal's decision was errored and not fair. There are a couple of reasons for this I wish to highlight, I am willing to do so during the hearing.”

4. The application to this Court is not particularised. In that regard I note that the applicant attended a directions hearing in this matter on 8 October 2003 at which time the Court made orders that the applicant could file and serve any additional evidence and any amended application by 31 March 2004.  At the applicant's subsequent request this was extended to 31 May 2004. To date the applicant has not taken up this opportunity. Nor has the applicant filed and served any written submissions as required by Order 4 made by the Court at that earlier time.

5. At the hearing before me today the applicant was unrepresented. 

   
   

   I explained to the applicant the nature of the proceedings before me today and the difference between the role of the Tribunal and the role of the Court.  Essentially, the applicant put to me that her complaint is that when she attended at the respondent’s Department on 2 October 2001 she was not told nor advised of the consequences of failing to provide the required material to support her application within a particular time frame and that what she was looking for from the Tribunal was a humanitarian response to what she considered to be a failure by the “Departmental officer”, and later she put it higher as a duty of the “Departmental officer”, to advise her of the relevant time limit that applied in her case.

6. In the matter before me today however it is the Tribunal's decision and the Tribunal's actions that are central to the review before me.  In that regard, I note that the Tribunal wrote to the applicant, see Court Book 33 and 34, on 4 October 2002 care of her then migration agent with a copy sent to the applicant personally at the residential address provided in her application to the Tribunal.  The letter was an invitation for the applicant to comment on information that would be the reason for affirming the decision under review.  In particular, the Tribunal sought comment on:

   “(1)      Your last held substantive visa ceased on 4 October 2001.

   (2)      You made your Student visa application on 5 November 2001.

   (3)       You did not make your Student visa application within 28 days after you last held a substantive visa.

   This information is relevant to the review because:

   (1)    As you did not hold a substantive visa when you made your Student visa application, you must satisfy subclause 573.211(3) of Schedule 2 to the Regulations.

   (2)    You do not satisfy paragraph 573.511(3)(c) of Schedule 2 to the Regulations because you did not make your visa application within 28 days after your last substantive visa         ceased.

   (3)    If you do not satisfy paragraph 573.211(3)(c) of Schedule 2 to the Regulations the Tribunal must make a negative decision on your review application.”

7. The applicant's adviser responded by facsimile letter dated 11 November

   2002 and attached a statutory declaration made by the applicant.  In that submission the essence of the applicant's argument is that on

   
   

   2 October 2001 she went to the Department of Immigration and handed over a completed visa application form and the application fee.  At that time, the substantive visa which she held was still in effect.  She claimed before the Tribunal that two Departmental officers looked at her application and returned this form and the fee to her stating that they could not accept the application without confirmation of enrolment from her education provider.  It was not until 4 November 2001 that she was able to obtain this confirmation and she submitted this with her application form and fee on 5 November 2001.  On this occasion the Department accepted her application.  In this regard, see CB 50.6.

8. In making its decision the Tribunal said:

   “The Tribunal is satisfied that the Departmental officer handed the application back to the visa applicant on the basis that it was not a valid application without satisfactory evidence that the applicant was enrolled in a registered full-time course of study or training. According to the visa applicant, the Departmental officer advised her to return with confirmation of enrolment from her education provider, which she did on 5 November 2001.” [CB 51.2]

   The Tribunal was subsequently, at CB 53.9:

   “not satisfied that the visa applicant made her visa application on 2 October 2001, as she did not have satisfactory evidence that she was enrolled in a registered full-time course of study or training or had been offered a place in a registered full-time course of study or training, requirements of items 1222(3)(i) and (ii) in making a valid application.” [sic: items 1222(3)(c)(i) and (ii)].

   The Tribunal found that the application was made on 5 November 2001 and that this was more than 28 days after her sub-class 560 visa had expired.  It was on this basis that the Tribunal found that the applicant had not satisfied paragraph 573.211(3)(c) of Schedule 2 to the Migration Regulations and therefore affirmed the decision to refuse the student visa.

9. In relation to what constitutes a valid application in the circumstances of this case:

   -Section 46 of the Migration Act provides for the validity requirements for an application for a visa. Relevantly, s. 46(1)(b) provides:

   “46(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   (a)         …….

   (b)         it satisfies the criteria and requirements prescribed under this section; and…”

   -Section 46(2)(b) provides:

   “(2) subject to sub-section (2A), an application for a visa is valid if:

   (a)…

   (b)under the regulations, the application is taken to have been validly made.”

   -The section also provides for circumstances in which an application for a visa is invalid. I should note that there is nothing before me to show that sub-section 46(2A) of the Act is relevant to this case.

   -Migration Regulation 2.07 provides:

   “(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

   (a)        the approved form (if any) to be completed by an applicant  

   (b)     the visa application charge (if any) payable in relation to an application;

   (c)     other matters relating to the application.”

   -Schedule 1 to the Migration Regulations sets out the specific ways in which an application for a visa of a particular class is made. To be valid an application must be made as set out in the Schedule.  If not, then the application is not valid and pursuant to s 47(3) of the Act, the Minister is not to consider it.

10. In the case before me the applicant purported to apply for a class TU Student visa on 2 October 2001.  The Tribunal found that while this class of visa contained a number of sub-classes, the applicant had made claims with respect to sub-class 573 and that there was no evidence to suggest that the applicant met key criteria for the other sub-classes  [CB 50]. On this point there is no evidence before me to show that the Tribunal was wrong in making this finding. 

11. Item 1222 of Schedule 1 to the Migration Regulations sets out the requirements for a valid application for this class of visa.  Relevantly, item 12223(c) requires that an application that is made on form 157A as it was in this case, see CB 1, then the application is to be accompanied by satisfactory evidence that is set out in 12223(c) as per:

    (i)the applicant is enrolled in a registered full-time course of study

    (ii)the applicant, has been offered a place in a registered full time course of study

    (iii)AUSAID student, and

    (iv)Applicant seeking to remain while thesis being marked

12. In the case before me there is no dispute that the applicant did not have satisfactory evidence of enrolment in a registered full-time course of study or that she had not been offered a place in such a course of study when she went to the Department on 2 October 2001.  Nor for that matter is there any evidence before me to show that she would satisfy the requirements of item 12223(c)(iii) or (iv). In these circumstances, the Tribunal therefore was entitled to find that this application was not a valid application and therefore could not be considered.

13. The Tribunal found that the valid application was made on 5 November 2001 and that this was made more than 28 days after the applicant's substantive visa had expired, and that this put this application outside the time limit for the making of such applications as required by paragraph 573.2113(c) of Schedule 2 to the Migration Regulations.  This finding also is supported by the evidence before the Tribunal and there was nothing before me to show that the Tribunal erred in making this finding.

14. However, the applicant's argument before me today went further in degree than what was put by her migration adviser and by her, before the Tribunal.  I note that in this regard the Tribunal did deal with the matters before it as put by the applicant, including matters put by her then migration adviser. That is, the Tribunal dealt with the applicant's case and dealt with it in a manner that was consistent with what the applicant herself had put to the Tribunal. I have already said I could find no error in the way that the Tribunal pursued its task in that regard.

15. The applicant, however, put before me today an additional matter. That is that the Departmental officer had a duty to advise the applicant on 2 October 2001 of the time limit that applied in her case and that the Tribunal failed to take into account, according to the applicant, this gross negligence of the Departmental officer and that this failure amounts to an error on the part of the Tribunal. In this regard, I note that firstly there is no evidence before me today other than statements from the Bar table as to what was said or not said in the discussion between the applicant and the Departmental representatives on 2 October 2001, other than the relevant findings made by the Tribunal. Secondly, even if such “evidence” had been presented I am unable to find that there was any duty on the part of the Departmental officer to provide advice. It is for the applicant to satisfy relevant decision makers. There is no evidence before me today that she was knowingly misled or even that the action was negligent. In any event, there is nothing before me to show that there was anything before the Tribunal that would have caused the Tribunal to have changed its decision [in relation to the application of 5 November 2001] because of the matter as alleged by the applicant before me today.  The applicant sought from the Tribunal what she described to me as a humanitarian response but I note again that the Tribunal dealt with the case as presented by the applicant and applied relevant statutory requirements. In this context I can see no failure on the part of the Tribunal to look at any other matters that may have arisen relevantly from the material before it.  The Tribunal dealt with the valid application made on 5 November 2001, made findings in relation to that application and the findings are supported by the evidence before the Tribunal and there is nothing before me to show that the Tribunal erred in its finding and accordingly the application must be dismissed.

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  10 March 2005