Kumar v Minister for Immigration - [2015] FCCA 2573

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2573

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – calculation of time – whether the applicant met the relevant criterion under the Migration Regulations 1994 – whether the applicant held a substantive visa at the time of application – whether s.36(2) of the Acts Interpretation Act 1901 applies – no jurisdictional error – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36(2)

Migration Act 1958 (Cth), ss.4, 46, 476

Migration Regulations 1994 cl.572.211

Mathai v Kwee [2005] FCA 932
Roskell v Snelgrove (2008) 246 ALR 175
Zangzinchai v Milanta (1994) 125 ALR 265

Applicant:

YOGESH KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 66 of 2015

Judgment of:

Judge Street

Hearing date:

14 September 2015

Date of Last Submission:

14 September 2015

Delivered at:

Sydney

Delivered on:

14 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Blades

Solicitors for the Respondents:

Mr A Gerrard

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 66 of 2015

YOGESH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Tribunal made on 29 January 2015. The grounds of the amended application are as follows:
1. The Tribunal made a jurisdictional error by failing to apply s 36(2) of the Acts Interpretation Act 2001 (Cth) in its consideration of the applicant’s application for a Student (Temporary) (Class TU) (Subclass 572) visa.
Particulars
i. The applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa by application dated 10 January 2014 which was received by the first respondent’s department on Monday 13 January 2014.
ii. At the time of completing the written visa application, the applicant was the holder of a Subclass 485 (Temporary Graduate) visa which was due to expire on Sunday 12 January 2014.
iii. Clause 572.211(2)(d)(iia) required the applicant to be the holder of a Subclass 485 (Temporary Graduate) visa at the time of application.
iv. The Tribunal found at [30] that the applicant did not satisfy cl.572.211 of the Migration Regulations 1994 because the applicant’s last substantive visa had expired on 12 January 2014 and the new application was not lodged until 13 January 2014.
v. The Tribunal failed to apply s 36(2) of the Acts Interpretation Act 2001 (Cth) to the applicant’s application, by which provision the applicant was permitted to lodged his application for the Student (Temporary) (Class TU) (Subclass 572) visa on Monday 13 January 2014 in order to satisfy the ‘time of application’ criterion that the applicant be the holder of a Subclass 485 (Temporary Graduate) visa.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2573
Decision Date: 14 September 2015

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kumar against a decision of the Tribunal, which affirmed the delegate's refusal to grant Mr Kumar and Mrs Arora Student (Temporary) (Class TU) visas. The primary issue was whether Mr Kumar's visa application satisfied criterion 572.211, which requires an application to be made before the expiration of the applicant's last substantive visa. The Tribunal found that Mr Kumar's last substantive visa expired on 12 January 2014, and his new application was lodged on 13 January 2014, thus failing to meet this criterion.

The legal issues before the court were whether the Tribunal erred in its interpretation and application of criterion 572.211, and whether section 36 of the *Acts Interpretation Act 1901* (Cth) operated to extend the time for lodging the visa application. Specifically, the court had to consider if the *Migration Act 1958* (Cth) "requires or allows a thing to be done" within the meaning of section 36(2) of the *Acts Interpretation Act*, and if so, whether the lodgement date of 13 January 2014, being the day after the expiry of the substantive visa, was permissible.

The court considered submissions that section 36 of the *Acts Interpretation Act* should be given a beneficial interpretation as a remedial provision. This section provides that if the last day for doing something falls on a Saturday, Sunday, or holiday, it may be done on the next non-weekend or non-holiday. The applicant argued that the *Migration Act* requires or allows a visa application to be made, and that the expiry date of a visa should be treated as the last day for making such an application. The court noted the explanatory memorandum for the amendment to section 36, which indicated it was intended to modernise and clarify time calculations, not to substantively change existing policy, and to capture situations where a place for doing something might be closed. The court also had regard to the object of the *Migration Act* and the requirements for a valid visa application under section 46.

The Tribunal's decision was affirmed. The court found that the Tribunal correctly interpreted criterion 572.211 as requiring the application to be lodged *before* the expiry of the last substantive visa. The court determined that section 36 of the *Acts Interpretation Act* did not apply to extend the time for lodging the visa application in this instance, as the expiry date of the substantive visa was not a Saturday, Sunday, or holiday, and the *Migration Act* did not "require or allow" the application to be made on the day after expiry in the manner contemplated by section 36(2). Consequently, Mr Kumar did not satisfy the criterion, and as Mrs Arora's application was dependent on his, her application also failed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal relevantly held:29. To satisfy criterion 572.211, a visa application must be made before the expiration of the applicant's last substantive visa. 30. Because in this case Mr Kumar's last substantive visa had expired on 12 January 2014 and the new application was not lodged until 13 January 2014 the application does not satisfy criterion 572.2 11. CONCLUSIONS31. On the basis of the above, the Tribunal finds that Mr Kumar does not satisfy cl.572.211(3), and therefore, does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations. 32. With the exception of Subclass 580 the other subclasses within the Class TU visa class have a requirement for applicants in Australia who do not hold a substantive visa at the time of visa application that is the same as cl.572.211(3). For reasons given above, the Tribunal also finds that Mr Kumar does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests Mr Kumar meets the prescribed criteria for that subclass. 33. The application of the second-named visa applicant. Mrs Priyanka Arora was dependent on that of the primary applicant, Mr Kumar and was made on no other basis. Having found that Mr Kumar does not meet the essential criteria referred to above. the second-named applicant Mrs Priyanka Arora's application must also be affirmed. It was in those circumstances the Tribunal affirmed the decision of the delegate not to grant the applicant’s Student (Temporary) (Class TU) visas. Mr Blades as counsel for the applicant relies upon s.36(2) of the Acts Interpretation Act that provides as follows: (2) If:(a) an Act requires or allows a thing to be done; and(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. Mr Blades of counsel also relies upon the example given in respect of the amendment, which is as follows:Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April. Mr Blades of counsel also relies upon the explanatory memorandum in respect of the amendment to the Acts Interpretation Act1901 (Cth) which relevantly provides:Item 93 – Section 36224. Section 36, which deals with how time periods are to be calculated, is being modernised by use of a table to show how different scenarios are to be interpreted in Commonwealth Acts and provides examples for each of the items in the table. It is intended to capture a broader range of situations that are likely to arise from time to time – such as where an Act specifies a period for doing something and the place for doing the thing is closed on the first or last day of doing that thing.225. The rationale for the amendment is to make section 36 more user friendly. It does not substantively change the existing policy. Mr Blades of counsel says that the Acts Interpretation Act is a remedial provision to be given a beneficial interpretation. In determining whether or not the Migration Act requires or allows a thing to be done within the meaning of the provision of the Acts Interpretation Act, it is necessary take into account the object of the Migration Act as identified in s.4 and the work being done by s.46, which refers to an application for a visa being valid if, and only if, relevantly, it satisfies the requirements prescribed under s.46.

Ratio Decidendi

Legal Principle Established

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