Lamichhane v Minister for Immigration - [2013] FCCA 1172

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMICHHANE v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1172

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where applicant applied for a student visa TU 572 – where application lodged two days after commencement of course – where applicant provided certificate of enrolment at time of application – where applicant unable to commence course without visa – where applicant’s enrolment cancelled prior to decision of delegate due to non-commencement of course – where delegate refused application because applicant did not hold a valid confirmation of enrolment for study – where applicant neither requested urgent consideration of application nor took steps to obtain a current certificate of enrolment – where delegate’s decision made six months after application lodged – where Tribunal invited applicant to appear and to provide a certificate of enrolment – where no new certificate provided to Tribunal – whether delay in processing of application by delegate vitiated decision of Tribunal – whether Tribunal misinterpreted Regulation 572.222 of the Migration Regulations 1994 (Cth) – where provision of certificate of enrolment required at time of decision – whether there is a temporal element to the certificate of enrolment.

Legislation:

Migration Regulations 1994 (Cth), regs.572.22, 572.222 and 572.223(1)

Aomatsu v Minister for Immigration & Anor [2005] FCAFC 139
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Commissioner for Railways (NSW) v Agalianos [1955] 92 CLR 390
Project Blue Sky v ABA (1998) 194 CLR 355
Octavia v Minister for Immigration & Anor [2011] 245 FLR 345
Singh v Minister for Immigration & Anor [2009] 236 FLR 384

Applicant:

AMAN LAMICHHANE

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 473 of 2013

Judgment of:

Judge Raphael

Hearing date:

14 August 2013

Date of Last Submission:

14 August 2013

Delivered at:

Sydney

Delivered on:

23 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr L Boccabella

Solicitors for the Applicant:

M S Nair & Co

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 473 of 2013

AMAN LAMICHHANE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 18 January 2012 Mr Lamichhane applied for a student visa TU 572 in order to undertake an Advance Diploma of Tourism at Clarendon Business College Pty Limited. At the time Mr Lamichhane was legally in Australian on a Bridging E visa following the cancellation of an earlier sub class 572 visa on 18 May 2011. Sub Class 572 is a visa in the vocational education and training sector and is governed by the provisions of Schedule 2 of the Migration Regulations 1994[1]. These provide for criteria to be satisfied at the time of decision (reg.572.21) and criteria to be satisfied at the time of application reg.572.22. The relevant Regulations for…

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: [2013] FCCA 1172
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Lamichhane sought judicial review of a decision by the Minister for Immigration to refuse his application for a student visa (subclass 572). Mr Lamichhane was in Australia on a Bridging E visa at the time of his application, following the cancellation of a previous student visa. The visa application was for an Advance Diploma of Tourism.

The court was required to determine whether the Minister had erred in refusing the visa application. Specifically, the legal issues concerned the interpretation and application of the Migration Regulations 1994, particularly those relating to the criteria for a student visa at the time of application and at the time of decision. The central question revolved around the definition and evidentiary requirements for a "certificate of enrolment" as stipulated in the Regulations.

The court considered the definitions of "certificate of enrolment" and "electronic confirmation of enrolment" within Regulation 1.03 of the Migration Regulations 1994. The applicant had provided an electronic confirmation of enrolment (COE) rather than a paper copy sent by the education provider. The court noted that Regulation 572.222(1) required the applicant to provide a "certificate of enrolment," which is defined as a paper copy of an electronic confirmation of enrolment. The court reasoned that the applicant had not satisfied this specific evidentiary requirement as defined by the Regulations.

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

On 18 January 2012 Mr Lamichhane applied for a student visa TU 572 in order to undertake an Advance Diploma of Tourism at Clarendon Business College Pty Limited. At the time Mr Lamichhane was legally in Australian on a Bridging E visa following the cancellation of an earlier sub class 572 visa on 18 May 2011. Sub Class 572 is a visa in the vocational education and training sector and is governed by the provisions of Schedule 2 of the Migration Regulations 1994[1]. These provide for criteria to be satisfied at the time of decision (reg.572.21) and criteria to be satisfied at the time of application reg.572.22. The relevant Regulations for the purposes of this application are Regulations 572.22, 572.222 and 572.223(1):[1] “Regulations”“572.22--Criteria to be satisfied at time of decision 572.221 (1) Unless, at the time of application, the applicant met the requirements of subclause 572.211(4), the applicant satisfies the criteria in clauses 572.222 to 572.234. 572.222 (1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course). (2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course. (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course. 572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and (b) the applicant meets the requirements of subclause (2).” A “certificate of enrolment”[2] is defined in the Regulations at Regulation 1.03 as meaning:“certificate of enrolment" , means a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant.”[2] “COE” Electronic confirmation of enrolment is defined in the same Regulation as meaning:"electronic confirmation of enrolment" , in relation to an applicant for a student visa, means confirmation that: (a) states that the applicant is enrolled in a registered course; and (b) is sent by an education provider, through a computer system under the control of the Education Minister, to: (i) a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia; or (ii) an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for a student visa; or (iii) any office of Immigration in Australia.”

Ratio Decidendi

Legal Principle Established

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