Kumar v Minister for Immigration
[2015] FCCA 2573
•14 September 2015
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.
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.
CONCLUSIONS
31. 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 36
224. 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.
The regulations prescribed the criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Mr Blades of counsel also relies upon the heading to cl.572.211, which heading is as follows:
572.21 – Criteria to be satisfied at time of application.
Mr Blades of counsel drew attention to the dissenting decision of Burchett J in Zangzinchai v Milanta (1994) 125 ALR 265, materially at [271]:
On the face of the provision, the use of the expression “or allowed by an Act” makes it clear that s.36(2) applies where, according to the true construction of an Act, a period is allowed for the doing of something; it is not necessary to find a provision prescribing in terms that something shall be done within a particular period –
…
[277] I think the direction pointed by the cases is that of applying s.36(2) where the effect of an Act is to prescribe or allow “anything” to be done on a Sunday, etcetera, whether or not that effect arises out of a direct and precise prescription.
Mr Blades of counsel contends that the requirements of cl.572.211(2) are, in substance or effect, requiring or allowing a thing to be done within s.36(2). Clause 572.211 of the regulations relevantly provides:
Criteria to be satisfied at time of application
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) An applicant meets the requirements of this subclass if the applicant is:
…
(d) the holder of one of the following subclasses
…
(iia) Subclass 485 (Temporary Graduate)
(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 Application) visa; or
(iv) a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country; or
(v) a Subclass 497 (Graduate – Skilled) visa;
Mr Blades of counsel also sought to rely upon examples where s.36(2) had been applied in the context of bankruptcy decisions, being Roskell v Snelgrove (2008) 246 ALR 175, relevantly at [47], and Mathai v Kwee [2005] FCA 932, relevantly at [107]. I accept the contention that the Acts Interpretation Act has been amended since the decision in Zangzinchai v Milanta, supra and that the amendment should be given a broad remedial construction whereby if the effect of the provisions in issue is to prescribe or allow something to be done on a particular day, then it may well be that s.36(2) has work to do.
The problem in the present case is that cl.572.211(2) does not, in express terms or in its effect, prescribe or allow anything to be done on a particular day. In my opinion, cl.572.211(2) identifies a state of affairs that must exist as part of the criteria for the making of a valid application and, accordingly, s.36(2) of the Acts Interpretation Act has no application. In my opinion, that state of affairs or state of things for the purpose of a valid application, is a real distinction from a provision that, in its terms or in its effect, requires or allows a thing to be done.
In my opinion, the distinction is supported by the decision of the majority in Zangzinchai v Milanta at [268]:
The effect of the relevant provisions of the Migration Act and the Migration Regulations to which we have referred above, was that an entry permit might be limited in duration, both as to the period in which it was valid and as the time the holder might remain in Australia. These regulations did not provide for the doing of anything. Nor did they prescribe or allow a time for the doing of anything. Rather, during the currency of a temporary entry eprmit, or during the period in which the holder might remain in Australia, whichever was the shorter, the holder was authorised to be in Australia. Once the shorter of those periods had expired, the holder became an illegal entrant, assuming for the purposes of the argument that no other entry permit had been granted. In other words, Beaumont J said, regs 24 and 27 affected status. They did not prescribe or allow a time for the doing of anything. The consequence of being an illegal entrant was that a person had to satisfy different regulatory criteria to be eligible for the grant of a further entry permit.
I accept the first respondent’s submission that I am bound by the principle identified by the majority in Zangzinchai v Milanta in respect of the application of s.36(2). I accept the first respondent’s submission that it is of moment that the explanatory memorandum does note in relation to the amendment:
It does not substantially change the existing policy.
In my opinion, being the holder of one of the following subclasses of visa as specified in cl.572.211, is not a provision that requires or allows a thing to be done within the meaning of s.36(2) of the Acts Interpretation Act. Whilst I accept the argument that the regulation, as a matter of interpretation, includes the heading “Criteria to be satisfied at time of application”, I do not regard that heading as giving rise to a time for the doing or allowing of a thing to be done. Rather, it is identifying a state of affairs that must exist at the time of the application. Accordingly, I find that there is no jurisdictional error as alleged in the amended application. The amended application is dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 September 2015
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