KUMAR v Minister for Immigration

[2013] FCCA 911

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 911

Catchwords:
MIGRATION – Judicial review of decision of the Migration Review Tribunal– Application seeking an extension of time – s.477 of Migration Act 1958 (Cth) – significant delay in filing of application – reasonable explanation not given –insufficient merit on the grounds of the proposed substantive application – time not extended to the Applicant – Application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.417, 477.
Migration Regulations 1994 (Cth), Sch.2, cl.572.211

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 279

Applicant: AMIT KUMAR

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 502 of 2013

Judgment of: Judge Hartnett

Hearing date: 18 July 2013

Delivered at: Melbourne

Delivered on: 18 July 2013

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Whittemore

Solicitors for the Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The Application filed 17 April 2013 for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) be refused.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 502 of 2013

AMIT KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced upon the Applicant filing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 2 October 2012.  In that decision the Tribunal affirmed the decision under review before it, which was to not grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa.

2. The grounds of the substantive application as set out in the Application filed 17 April 2013 provide no particulars, nor any legal ground of review.  In Orders made by Registrar Caporale on 5 June 2013 the Applicant was ordered on or before 3 July 2013 to file and serve any amended application including any additional grounds of review with complete particulars of each ground and any affidavits.  The Applicant has not filed and served any such documents in accordance with that order.

3. The matter before the Court this day is the application for an extension of time made by the Applicant as set out in the Application filed 17 April 2013.  The ground for the application for an extension of time is stated by the Applicant as follows:-

   “1.    We applied for ministerial intervention which was unsuccessfull (sic)”.

4. The First Respondent filed a response to the application on 1 May 2013 and sought dismissal of the Applicant’s application for an extension of time to file the application together with a dismissal of the substantive application.  The response sets out the following grounds and particulars in defence of the application:

   “1.    The Court has no jurisdiction to review the Migration Review Tribunal decision dated 2 October 2012.  Subsection 477(1) of the Migration Act 1958 (Cth) applies and the application in this Court was not filed within 35 days of the date of the Tribunal decision.

   2.  The application for judicial review does not provide any particulars or any legal ground of review.

   3.  The applicant has requested an extension of time in his application but has not provided an affidavit explaining the delay or why an extension should be granted pursuant to Rule 44.05(2)(c) of the Federal Magistrates Court Rules 2001 (Cth).

   4.  The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal dated 2 October 2012.

   5.  The application should be dismissed in the exercise of the Court’s discretion because of the applicant’s unexplained and unwarrantable delay in bringing the application.

   6.  The Court has no jurisdiction to review the delegate’s decision made on 19 March 2013 as ss 476(2) of the Migration Act 1958 (Cth)(Act) applies.”

History

1. The Applicant was born on 5 May 1988 and he is now aged 25 years.  He is a citizen of India who made application for a Student (Temporary) (Class TU) Subclass 572 visa which was lodged in Melbourne on 4 October 2011.  A decision was made by a delegate of the Department of Immigration and Citizenship (as it then was) (‘the delegate’) to refuse to grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa on 10 October 2011.  The Applicant applied to the Tribunal for review of that decision on 27 October 2011. 

2. By letter dated 23 August 2012 to the authorised recipient of the Applicant, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review at a hearing on 1 October 2012.  At that hearing, the Applicant appeared and was represented by his registered migration agent.  He provided the Tribunal with a written submission at the commencement of the hearing.

3. The Applicant first entered Australia on 2 February 2007 as the holder of a Student (Temporary) (Class TU) Subclass 573 visa granted on 2 January 2007 and valid until 19 February 2007. The Applicant was granted a further Student (Temporary) (Class TU) Subclass 573 visa on 19 February 2007 which was valid until 15 March 2011. On 4 October 2011, the Applicant applied for a Student (Temporary) (Class TU) Subclass 572 visa. On 10 October 2011, the delegate decided to refuse to grant the visa. The delegate found that the Applicant’s last substantive visa ceased on 15 March 2011, and that the Applicant had applied for a Student (Temporary) (Class TU) Subclass 572 visa on 4 October 2011, while the Applicant was not a holder of a substantive visa. The delegate found that the application was made more than 28 days after the Applicant’s last substantive visa had ceased. The delegate was not satisfied that the Applicant had met cl.572.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

4. At the hearing before the Tribunal, the Tribunal explained to the Applicant the requirements of cl.572.211 of Schedule 2 of the Regulations. That clause is as set out herein:-

   “(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 subclause if the applicant is:

   (a)     the holder of a visa of one of the following classes:

   (i)   Border (Temporary) (Class TA);

   (ii)   Business (Temporary) (Class TB);

   (iii)   Cultural/Social (Temporary) (Class TE);

   (iv)   Educational (Temporary) (Class TH);

   (v)   Electronic Travel Authority (Class UD);

   (vi)   Expatriate (Temporary) (Class TJ);

   (vii)   Family Relationship (Temporary) (Class TL);

   (viii)   Interdependency (Temporary) (Class TM);

   (ix)   Long Stay (Visitor) (Class TN);

   (ixa)   Maritime Crew (Temporary) (Class ZM);

   (x)   Medical Practitioner (Temporary) (Class UE);

   (xi)   Retirement (Temporary) (Class TQ);

   (xii)   Short Stay (Visitor) (Class TR);

   (xiii)   Student (Temporary) (Class TU);

   (xiiia)   Superyacht Crew (Temporary) (Class UW);

   (xiv)   Supported Dependant (Temporary) (Class TW);

   (xv)   Temporary Business Entry (Class UC);

   (xva)   Tourist (Class TR);

   (xvb)   Visitor (Class TV);

   (xvi)   Working Holiday (Temporary) (Class TZ);

   (b)     the holder, as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or

   (c)     the holder of a special purpose visa; or

   (d)     the holder of a visa of one of the following subclasses:

   (i)   Subclass 303 (Emergency (Temporary Visa Applicant));

   (ii)   Subclass 427 (Domestic Worker (Temporary) — Executive);

   (iia)   Subclass 485 (Skilled — Graduate);

   (iii)   Subclass 497 (Graduate — Skilled).

   (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, 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; 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.

   (4)   An applicant meets the requirements of this subclause if:

   (a)     the applicant is the holder of a Subclass 560, 562 or 572 visa that is subject to condition 8101; and

   (b)     the application was made on form 157P or 157P (Internet); and

   (c)     the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.

   (6)   An applicant meets the requirements of this subclause if:

   (a)     the applicant is the holder of a Subclass 570, 571, 573, 574, 575 or 576 visa; and

   (b)     the application was made on form 157A or 157A (Internet); and

   (c)     the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and

   (d)     the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.”

5. The Tribunal noted that the Applicant’s previous substantive visa expired on 15 March 2011 and the Applicant applied for a Student (Temporary) (Class TU) Subclass 572 visa on 4 October 2011 which was more than 28 days after the expiry of the previous student visa.  The Tribunal explained to the Applicant that it had no power to waive the provision or consider the reasons for the late lodgement of the application.  The Tribunal informed the Applicant that he did not appear to meet one of the requirements for the grant of the visa.

6. The Applicant explained to the Tribunal his reasons for the delay in making the visa application.  He explained that due to some problems he had, he had been unable to complete his Diploma of Hospitality at Northern Melbourne Institute of TAFE College (‘NMIT’). NMIT cancelled his enrolment, and he then enrolled at Australian Vocational Education And Training Academy College in January 2010.  He returned to India for six weeks in February 2010, and when he returned he did not continue his study.  He worked from March 2010 to March 2011 when his visa expired.  He explained that he did not have his passport in his possession as he had left it at a friend’s house and he was unaware that his visa had expired until he was questioned about it by his parents.

7. The Tribunal found that the visa application was made in Australia and accordingly the Applicant was required to satisfy cl.572.211 of Schedule 2 of the Regulations. The Tribunal was satisfied that the last substantive visa held by the Applicant ceased on 15 March 2011. The Tribunal found that at the time the Applicant made application for a Student (Temporary) (Class TU) Subclass 572 visa on 4 October 2011, he did not hold a substantive visa and therefore he was not the holder of a substantive visa of the type described in cl.572.211(2), (4) or (6) of Schedule 2 of the Regulations. The Tribunal found that the Applicant did not meet those provisions.

8. As the Applicant was not a holder of a substantive visa at the time of his application for a visa, he met the requirements of cl.572.211(3)(a) of Schedule 2 of the Regulations. As the Applicant’s last held substantive visa was a student visa, he met the requirements of cl.572.211(3)(b) of Schedule 2 of the Regulations. As such, the issue was whether the Applicant met the remaining requirements of clause 572.211(3) of Schedule 2 of the Regulations. The Tribunal noted that cl.572.211(3)(c) of Schedule 2 of the Regulations relevantly provided that where the Applicant was not a holder of a substantive visa at the time of the application, and the last substantive visa held by the Applicant was a student visa, the Applicant was required to have lodged the current visa application within 28 days of the latter, of either the day when the last visa ceased to be in effect or, if the visa was cancelled and the Tribunal set aside the decision to cancel or not revoke the cancellation, the day when the Applicant was taken to be notified of that decision under ss.368C, 368D and 379C of the Migration Act 1958 (Cth) (‘the Act’). There was nothing before the Tribunal to indicate that at the time of the application, the Applicant’s student visa had been cancelled and that the cancellation was set aside by the Tribunal. The Tribunal was not satisfied that the Applicant met cl.572.211(3)(c)(ii) of Schedule 2 of the Regulations.

9. The Tribunal thus found the Applicant did not meet cl.572.211(3)(c) of Schedule 2 of the Regulations and thus had not met the requirements of cl.572.211 of Schedule 2 of the Regulations.

10. 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) of Schedule 2 of the Regulations. Thus, the Tribunal also found that the Applicant did not meet the requirements of those subclasses. In respect of a Subclass 580 (Student Guardian) visa, there was no material before the Tribunal to suggest the Applicant met the prescribed criteria for that subclass. Accordingly, the Tribunal affirmed the decision not to grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa.

11. At the hearing of this matter, the Applicant made no submissions to the Court that satisfied it that it was necessary in the interests of the administration of justice to make the order extending time for the application to be made to this Court. The Applicant simply said that he thought his visa expired next year. Section 477 of the Act provides a period of 35 days from the date of the migration decision in which this application should be filed in the Court.

12. The application was filed, in fact, approximately 162 days out of time.  This is an extensive delay for which no reasonable explanation was given by the Applicant.  The only reason given by the Applicant in his filed application was that he had sought ministerial intervention which ultimately was unsuccessful.  As was said in PlaintiffM90/2009 v Minister of Immigration and Citizenship & Anor [2009] HCATrans 279 by Crennan J:-

    “The plaintiff’s decision to seek ministerial intervention rather than commence legal proceedings within time is not a sufficient reason to justify the plaintiff’s delay in bringing the present application to this Court. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Sithamparapillai [2004] HCATrans 364 Justice Hayne in an ex tempore judgment said:

    “Resort to the alternative path provided by sections 48B and 417 of the Act entailed, so the applicants contended, that there be no continuing legal proceedings extant. Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegation which now it is sought to pursue. That of itself would be reason enough to conclude that the proceedings brought should stand dismissed.”

13. When turning also to a consideration of the merits of the application itself, the application is without any such merit.  The decision is not attended by any error let alone jurisdictional error.  The Tribunal simply had no discretion to extend the time as sought by the Applicant in the hearing before it. 

14. The application for an extension of time will be dismissed and costs shall follow the event.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.

Associate: 

Date:  30 July 2013