Lee v Minister for Immigration - [2007] FMCA 761

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 761

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether implied power to extend period of visa.

Acts Interpretation Act 1901 (Cth), s.33(1)
Migration Act, 1958 (Cth), ss.5(1), 28, 29(1), 30(2)(a),(b)&(c), 31, 32(c), 47(3), 65, 68(c), 359A
Migration Regulations 1994 (Cth), cl.573.(11)(b), Sch.2; reg.573.211 Sch 2

Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197 CLR 611
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Salemi v Minister for Immigration and Ethnic Affairs (No.2) (1977) 14 ALR 1
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495

Applicant:

OON KOON MATTHEW LEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG47 of 2006

Judgment of:

Lucev FM

Hearing date:

31 October 2006

Date of Last Submission:

31 October 2006

Delivered at:

Perth

Delivered on:

1 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr H.N.H. Christie

Solicitors for the Applicant:

Su & Co.

Counsel for the Respondent:

Mr P.J. Hannan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the First Respondent’s name be amended to “Minister for Immigration & Citizenship”.
That the Applicant have leave to amend the Application in the terms of the amended annexures A and B filed on 10 July 2006.
That the Application be dismissed.
That the Applicant pay the First Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG47 of 2006

OON KOON MATTHEW LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application for visa

On 17 May 2005 Oon Koon Matthew Lee (“the Applicant”) applied for a Student (Temporary) Visa subclass 573.
On 23 June 2005 a delegate of the First Respondent made a decision refusing the application: CB24-28.
The background to the Applicant applying for the abovementioned visa was as follows:
a)on 15 February 2001 he arrived in Australia as the holder of a Student (Temporary) TU560 Visa;
b)on 18 June 2002 he was granted a Student (Temporary) TU573 Visa, which he had applied for on 21 December 2001;
c)on 17 May 2005 he applied for a Student (Temporary) TU573 Visa, and also applied for and was granted a Bridging (General) (Class WE) Visa with a lawful until date of 31 May 2005; and
d)on 26 May 2005 he applied for a Student (Temporary) TU573 Visa, and applied for and was granted a Bridging (General)(Class WE) Visa to remain in Australia until a decision was made on the Student (Temporary) TU573 Visa application: CB 25. [check: 17/26 May discrepancy]
On 18 July 2005 the Applicant applied to the Migration Review Tribunal (“the Tribunal”) to review the Delegate’s Decision, on the basis that the Delegate “in rejecting the application did not fully consider all the facts related to Mr Lee’s application for a Subclass 573 Visa”: CB 29.
On 2 November 2005 the Tribunal invited the Applicant, pursuant to s.359A of the Migration Act, 1958 (Cth) (“Migration Act”) to comment on particulars of information that the Tribunal considered would be the reason, or a part of a reason, for affirming the decision under review. In particular, the Tribunal invited the Applicant to comment, in writing, on the following:
“ - information before the Tribunal indicates that you are not the holder of a substantive visa on the date that you applied for a sub-class 573 Visa on 26 May 2005.
- information before the Tribunal also indicates that your last substantive visa “sub-class 573 visa” ceased to be in effect on 15 March 2005. Your current visa application was made more than 28 days after your last substantive visa ceased to be in effect.”: CB69.
The information which the Applicant was invited to comment upon was said to be relevant because it indicated that the Applicant was unable to satisfy the time of application criteria in Regulation 573.211 of Schedule 2 of the Migration Regulations, 1994 (Cth): CB70.
In relation to the invitation from the Tribunal to comment the Applicant advised as follows:
“Mr Lee was not the holder of a substantive visa on the date that he applied for a sub-class 573 visa on 26 May 2005; and
The current visa application was made more than 28 days after Mr Lee’s last substantive visa ceased to be in effect.”
The Applicant admitted that he applied to renew his subclass 573 visa more than 28 days after it had expired, but submitted to the Tribunal that this was due to “a number of mitigating circumstances”: CB78.
In the Applicant’s submission to the Tribunal the Applicant set out a chronology of events, which includes his position in relation to certain relevant facts. That chronology is set out hereunder:
“25 January 2005 Mr Lee went to the Department of Immigration and Indigenous Affairs (DIMIA) in Perth to try to renew the student visa he was holding. He was told by the DIMIA enquiry counter officer that a Confirmation of enrolment and his health check results would be required for his student visa to be renewed.
The DIMIA enquiry counter officer also advised Mr Lee to wait for his enrolment advice from Curtin University, request for the Confirmation of Enrolment and thereafter, on receiving the Confirmation of Enrolment to proceed to the medical examination prior to submitting his application to renew his student visa.
7 March 2005        Mr Lee received his enrolment notice from Curtin University.
14 March 2005      Mr Lee collected his Confirmation of Enrolment on the first day that it was available.
17 March 2005     Bearing in mind the advice of the DIMIA officer on the sequence of events, Mr Lee went for his medical examination.
31 March 2005      Classes began for the Bachelor of Architecture course at Curtin University. However, Mr Lee was informed by the University that his name was inadvertently omitted from the course register. Mr Lee then had to inform the various departments of his enrolment in each of the course units and update all the relevant lecturers of his attendance.
1 to 31 April 2005 Mr Lee had to handle his enrolment issues wit h the Curtin University and the tight project deadlines.
20 April 2005        Mr Lee received his medical report.
2 May 2005Mr Lee telephoned DIMIA to request for an appointment for lodging the application for renewal of his student visa; and he was given the first available appointment for 9am on 19 May 2005.
16 May 2005         Realising that the renewal of his visa had been delayed for quite some time, Mr Lee telephoned the DIMIA again and conveyed his situation to an officer. The DIMIA officer suggested that he should approach the DIMIA immediately and request for a urgent renewal of the visa.
17 May 2005         Mr Lee went to the Perth office of DIMIA and was told that he had overstayed his visa. He was granted a Bridging Visa E by DIMIA on the same day.
26 May 2005         Mr Lee lodged an application for a Subclass 573 visa with DIMIA.
27 May 2005         Mr Lee’s application for a Subclass 573 visa was rejected by the DIMIA.: CB 78-79
The Applicant also set out what he considered to be the relevant mitigating circumstances. The first of the mitigating circumstances is set out as follows:
“1.Mr Lee was neither told by anybody nor by the DIMIA officers that he has to apply for the renewal of his student visa within 28 days of the expiry of his visa. Mr Lee started the process of renewing his student visa by contacting DIMIA in January 2005, well before the visa expired. He then acted in good faith in accordance to the advice given to him by the DIMIA officer regarding the sequence of actions he had to take to renew his student visa. As can be seen in the attached Statutory Declaration made by Mr Lee, the circumstances leading to the refusal to grant a student visa to him were reasonably beyond his control. The DIMIA decision maker should have taken a more detailed assessment of the facts surrounding Mr Lee’s application for a student visa.”: CB 79
The remaining mitigating circumstances go to:
a)the Applicant’s being a good and genuine student: CB 79;
b)the hardship caused if the visa application is refused and the Applicant is unable to go on to study for the degree of Bachelor of Architecture: CB 80;
c)the time devoted by the Applicant to studying for his degree in Australia, away from his home base of Singapore, and the amount of money spent by the Applicant’s parents in providing for the Applicant’s education in Australia: CB 80; and
d)the additional time required to study for a Bachelor of Architecture if the Applicant is required to enrol in a similar course in Singapore: CB 80.
On 30 November 2005 the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising on his application for review before the Tribunal: CB100-101. The Applicant accepted the Tribunal’s invitation: CB102.
The Applicant submitted a further statutory declaration to the Tribunal, seemingly having been directed to do so by the Tribunal: CB106, with statutory declaration at CB107-109.
On 7 February 2006 the Tribunal handed down its decision, affirming the Delegate’s Decision that the Applicant was not entitled to the grant of a Student (Temporary) Class TU visa: CB114-120. The Tribunal’s reasons for its decision appear at CB115-118.
The Tribunal’s findings are at paras 19-25 of the Tribunal Decision, and are as follows:
“19.At the time the visa application was lodged, Class TU contained a number of subclasses. The only subclass in respect of which any claims have been advanced is subclass 573. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.
20.One necessary criterion for the grant of a subclass 573 visa is Regulation 573.211(1), which must be satisfied at the time of application. It provides that where the application is made in Australia the visa applicant must meet the requirements of subclause 573.211.(2), (3), (4), (5), or (6).
21.The Tribunal finds that at the time of application the review applicant was not the holder of a substantive visa, as his last held substantive visa ceased on 15 March 2005. The review applicant must therefore satisfy subclause 573.211. (3), which reads as follows:
(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 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 the 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 the 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.
(d)    the applicant satisfied Schedule 3 criterion 3005.
22.The review applicant’s last held substantive visa was a subclass 573 visa. That visa ceased to be in effect on 15 March 2005. The review applicant lodged his current visa application on 26 May 2005. Therefore, the Tribunal finds that the review applicant lodged his visa application more than 28 days after his last substantive visa ceased to be in effect.
23.      The Tribunal finds that there is no Gazette Notice specifying any other period in respect of Regulation 573.211(3)(c).
24.      Given that the review applicant did not make his visa application within 28 days after his last substantive visa ceased to be in effect, the Tribunal finds that the review applicant does not satisfy Regulation 573.211.(3)(c). The Tribunal finds that the review applicant cannot satisfy any of the other subclauses in clause 573.211 and accordingly finds that the review applicant fails to meet clause 573.211 of schedule 2 of the Regulations.
25.      The Regulations do not provide the Tribunal with any discretion to consider the circumstances that may have led to the late application. On the basis the findings above, the Tribunal must affirm the decision under review.”: CB117-118.

The application

On 3 March 2006 the Applicant applied to this Court for judicial review of the Tribunal Decision and on 10 July 2006 filed amended annexures to that application (“the Application”).

Grounds of application and orders sought

Essentially, the Applicant says that the actions of the First Respondent’s officer in informing the Applicant that he could not apply for the visa until he had completed his initial course, attained an enrolment certificate for his further course, paid his enrolment fees and undertaken and obtained the results of a medical examination, which steps the Applicant it is argued could not reasonably complete by

15 March 2005 (the expiry date for his original visa) meant that, by necessary implication, the First Respondent had agreed to extend, and did extend, the Applicant’s current visa for a reasonable period, that being a period of three and a half months. Alternatively, the Applicant asserts that the First Respondent is estopped from denying that the Applicant’s visa was extended for a reasonable period after the completion of the Bachelor of Architecture Studies (Architectural Science) course so as to enable the Applicant to complete the requirements necessary for a further visa in order to complete and obtain a Bachelor of Architecture.
Counsel for the Applicant neatly encapsulated his argument as follows:
“So the issue before you today is whether the original visa did, in fact, expire on 15 March, … whether there was a power under the Act for the visa to be extended, whether, in fact, the original visa was extended by the officer on 15 January, or alternatively, whether the Department is estopped from denying that extension occurred.”: Transcript, p.5.
The Applicant asserts that the decision of the First and Second Respondents in failing to find that the visa granted in June 2002 had been extended by implication to 12 June 2005 and that the Applicant accordingly held a substantive visa of the required class at the time he made his application for a further visa on 26 May 2005 was a jurisdictional error and accordingly the decisions made were void and of no effect.
The Applicant claims orders in the nature of writs of certiorari and mandamus, costs and such other orders as the Court considers appropriate.

Power to extend visa

The first issue for determination is whether there is power to extend the visa.
The Applicant concedes that if there is no power to extend the visa the other arguments put forward by the Applicant can not succeed.
Sections 28-32 of the Migration Act provide as follows:
“28 Interpretation
In this Division:
specified period includes the period until a specified date.
29 Visas
(1)      Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:
(a)      travel to and enter Australia;
(b)      remain in Australia.
(2)      Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a)      travel to and enter Australia during a prescribed or specified period; and
(b)      if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.
(3)      Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a)      travel to and enter Australia during a prescribed or specified period; and
(b)      if, and only if, the holder travels to and enters during that period:
(i)       remain in it during a prescribed or specified period or indefinitely; and
(ii)      if the holder leaves Australia during a prescribed or specified period, travel to and re‑enter it during a prescribed or specified period.
(4)      Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.
30 Kinds of visas
(1)      A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2)      A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a)      during a specified period; or
(b)      until a specified event happens; or
(c)       while the holder has a specified status.
31 Classes of visas
(1)      There are to be prescribed classes of visas.
(2)      As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.
(3)      The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).
(4)      The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5)      A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
32 Special category visas
(1)      There is a class of temporary visas to be known as special category visas.
(2)      A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a)      a non‑citizen:
(i)       who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and
(ii)      is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or
(b)      a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c)       a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.”
It appears to be common ground that:
a)the visa is a temporary visa under s.30(2)(b) of the Migration Act;
b)there is no express power under the Migration Act to extend a visa; and
c)under cl.573(11)(b) of Schedule 2 to the Migration Regulations the visa remains in effect until a date specified by the First Respondent.
The Applicant argues that the First Respondent, through the advice of a departmental officer on 25 January 2005, when informed that the Applicant had not yet completed the initial course, and would not complete it until sometime after the final examination was sat on 25 February 2005, and, presumably, a further period for the papers to be marked and an assessment to issue, extended the date of the expiry of the visa to a date to enable the Applicant to complete all the requirements that the officer imposed: Applicant’s submissions, para 22. The Applicant argues that there does not appear to be any restriction on the First Respondent’s officer extending the term of the visa to a further date or for a reasonable period, particularly in circumstances where one degree (Bachelor of Applied Science (Architectural Studies)) is a prerequisite for entry into the Bachelor of Architecture course. The Applicant submits that:
“Indeed it would appear to be only that Curtin University set up a Bachelor of Architecture as 2 degrees rather than a single 5 year degree, which prevented the Applicant from obtaining and holding a 5 year visa to cover the whole of his intended course of study namely to obtain Bachelor of Architecture.”

The latter part of this argument proceeds on a false premise. The fact of the matter is that the Bachelor of Architecture is not part of a combined single degree, and that there are two degrees, separate and distinct, the Bachelor of Applied Studies (Architectural Studies) being a prerequisite degree to entry into the Bachelor of Architecture course, and that the Bachelor of Architecture can only be obtained upon completion of the Bachelor of Applied Studies (Architectural Studies).
The Applicant relies on s.33(1) of the Acts Interpretation Act, 1901 (Cth) (“Interpretation Act”) which provides as follows:
“Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”
The Applicant argues that s.33(1) indicates, strongly, that the grant of a visa can be revisited at any time, particularly to take into account changed circumstances such as those involving change finishing times for courses or where a course is extended or reduced to finish at a different time: Applicant’s submissions, para 24-25.
The Applicant argues that because there is no statutory provision for extension of a visa, the information provided to the Applicant by the First Respondent’s officer constituted an extension of the visa for a reasonable time so as to allow the matters referred to in the information given by the First Respondent’s officer to the Applicant to occur.
That the First Respondent is exercising a conferred power for the purposes of s.33(1) of the Interpretation Act is clear from the terms of s.29(1) of the Migration Act which provides that “Minister may grant … permission, to be known as a visa”. By reason of s.33(1) of the Interpretation Act that power is to be exercised:
a)unless the contrary intention appears; and
b)from time to time as occasion requires.
This does not however deal with the question of whether there is an implied power to extend a visa, once granted.
An examination of the Migration Act makes it clear that there is no power to extend the Applicant’s visa, express or implied.
Only one class of visa is extendable, that being a temporary safe haven visa, explained in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCA 257 at 263 per Katz J; [2000] FCA 1575 at para 26 per Katz J:
“The Act provides for the grant of visas either to travel to and enter Australia or to remain in Australia or both (subs 29(1) of the Act). Visas to remain in Australia (whether also visas to travel to and enter Australia) may be visas to remain until a specified date (par 30(2)(a) and s 28 of the Act). Such visas cease to be in effect on the specified date (subs 82(7) of the Act). The period beginning when a visa is granted and ending when the visa ceases to be in effect is called the "visa period" (subs 5(1) of the Act, definition of "visa period"). Subsection 68(3) of the Act provides that "[a] visa can only be in effect during the visa period for the visa" (my emphasis). No provision is made generally in the Act for the extension of the visa period of a visa to remain in Australia. The only exception to that omission is in the case of that class of visas called temporary safe haven visas. Uniquely in the case of that class of visa, subs 37A(2) of the Act provides, "The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice”.”
Parliament has legislated specifically for extension of a visa – for one class only. Express reference to extension in relation to one class only indicates that other classes are excluded: Salemi v Minister for Immigration and Ethnic Affairs (No.2) (1977) 14 ALR 1 (“Salemi”). In Salemi different procedures for deportation ere prescribed under the Migration Act, some requiring a hearing and others not. The proper inference to be drawn was that no hearing was required when the procedures did not prescribe a hearing a prior to deportation, because hearings ere specifically prescribed where required. So here no power to extend a visa can be implied where that power is otherwise expressly provided for in the Migration Act.
Section 30(2) of the Migration Act also supports the argument that there is no power to extend a visa, and particularly this visa. If it was intended to allow the Applicant to stay for the duration of his studies, it might be that a visa might be granted (assuming for present purposes appropriate prescriptive regulation) until a specified event happens: s.30(2)(b), Migration Act, for example, graduation from a particular degree course; or, while the visa holder has a specified status: s.30(2)(c), Migration Act, for example, student. Those provisions indicate that Parliament has legislated in a manner which might specifically allow the Applicant’s circumstances to be dealt with. The inference is that in prescribing for a temporary visa of the kind prescribed in s.30(2)(b) and (c) of the Migration Act, which can encompass the Applicant’s circumstances, the implication of a power to extend a visa in the Applicants circumstances is precluded: Salemi.
A visa under s.30(2)(a), which the Applicant’s visa was, is patently for “a specified period”. The “visa period”: see s.5(1), Migration Act, means that a visa has a prescribed and finite life, and is “only” in effect during the visa period: s.68(3), Migration Act. No discretion vests in any delegate of the First Respondent to do other wise than grant or reject a visa for a specified period, and whether a visa is granted or rejected depends upon whether there is a valid application meeting the criteria in c. 573.211 of Schedule 2 of the Migration Regulations: Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197 CLR 611 at 617 per Gleeson CJ and McHugh J, at 647 per Gummow J; [1977] HCA XXX at para 8 pr Gleeson CJ and McHugh J, at para 119 per Gummow J. An application which is invalid, in that it fails to meet the relevant criteria, is not an application which can be considered: ss.47(3) and 65, Migration Act: Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at 499 per Spender J, and 508 per Gyles J [2000] FCA 906 at paras 19-21 per Spender J, and para 69 per Gyles J. In these circumstances the Applicant’s visa could only ever be for a specified period, and the express provisions and direct terms of the Migration Act and Migration Regulations do not permit an implied power to extend a visa.
Section 33(1) of Interpretation Act does not apply in these circumstances. All that s.33(1) does is to make it clear that the power (in this case to grant a visa for a finite period) may be performed from time to time. It does not and can not convert a power to grant a visa into a power to extend a visa. For that reason the Applicant’s argument fails and the Application must be dismissed.
Even if, contrary to the Court’s view set out above, s.33(1) of the Interpretation Act does apply, the matters referred to in paras X-Y of this judgment sufficiently establish a contrary intention such that any power (whatever it may be) is not exercisable in the Applicant’s circumstances.

Conclusion

The Application will be dismissed, and the Applicant is to pay the First Respondent’s costs. The Court will hear the parties as to the quantum of costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: M Hewitt

Date: 1 June 2007