LI v Minister for Immigration - [2015] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2494

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 476

Migration Regulations 1994 (Cth), reg.2.03

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Sapkota v Minister for Immigration & Anor [2014] FCCA 1285
Sapkota v Minister for Immigration and Border Protection and Another (2014) 226 FCR 455; [2014] FCAFC 160
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
Tang v Minister for Immigration and Citizenship [2011] FCA 1273

Applicant:

DAOYUAN LI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3363 of 2014

Judgment of:

Judge Barnes

Hearing date:

2 September 2015

Delivered at:

Sydney

Delivered on:

2 September 2015

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3363 of 2014

DAOYUAN LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This an application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the First Respondent not to grant the Applicant a student visa.
The Applicant applied for a student visa on 31 March 2014 to undergo studies in a Master of Professional Accounting. In a statement accompanying his visa application he acknowledged that his previous student visa had expired on 15 March 2014 and gave reasons for the delay in his application. He also provided documents in support of his application.
The delegate refused to grant the visa on the basis that the Applicant did not satisfy the criterion in cl.573.211(3) in Schedule 2 to the Migration Regulations 1994 (Cth) because he lodged his application after his substantive visa ceased. The delegate had regard to criterion 3005 in Schedule 3 to the Regulations (referred to in cl.573.211(3)(d)) which allows an applicant only one opportunity to be granted a substantive visa if not the holder of a substantive visa. However the delegate found that the applicant had previously been granted a visa after becoming an unlawful non-citizen on this basis and thus could not satisfy criterion 3005 in Schedule 3 and cl.573.211(3) in Schedule 2.
The Applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing. He provided additional documents (in particular in relation to enrolment and English language test results) to the Tribunal.
On 6 November 2014 the Tribunal affirmed the delegate’s decision. In its reasons for decision the Tribunal recorded that the delegate had refused the visa on the basis that the Applicant did not satisfy the requirements of cl.573.211 because he did not meet criterion 3005 in Schedule 3.
The issue for the Tribunal was said to be whether the Applicant satisfied cl.573.211. The Tribunal found that to meet cl.573.211(3)(d) the Applicant must satisfy criterion 3005 in Schedule 3. It referred to Sapkota v Minister for Immigration & Anor [2014] FCCA 1285 in support of the proposition that an applicant will not satisfy criterion 3005 if previously granted a visa on the basis of satisfaction of any Schedule 2 criteria (and see reg.2.03(2) of the Migration Regulations and the decision of the Full Court of the Federal Court dismissing the appeal from Sapkota in Sapkota v Minister for Immigration and Border Protection and Another (2014) 226 FCR 455; [2014] FCAFC 160).
The Tribunal found that the departmental records indicated (and the Applicant had acknowledged at the Tribunal hearing) that on a previous occasion he had applied for a student visa after his last held student visa had expired and had on that occasion relied on the Schedule 3 criterion in cl.3005 for the grant of the visa. The Tribunal concluded that accordingly the Applicant did not satisfy criterion 3005 and the requirements of cl.573.211(3)(d) in relation to his present application and that as the other subclasses within Class TU Student visa had a comparable requirement the Applicant also did not meet such requirements. The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this Court on 3 December 2014. In an attachment to his application the Applicant listed what were described as “Orders sought” and “Grounds”. In fact the orders sought can also be seen as an expression of the Applicant’s disagreement or concern in relation to the Tribunal decision.
The criterion in issue in this case (cl.573.211) relevantly required the Applicant to be the holder of a specified class or subclass of visa or to meet cl.573.211(3) which was as follows:
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 factor 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 in a legislative instrument made by the Minister) 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 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and
(d) the applicant satisfies Schedule 3 criterion 3005.
Schedule 3 criterion 3005 is as follows:
A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a) this Schedule; or
(b) Schedule 6 of the Migration (1993) Regulations; or
(c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.
The first issue raised by the Applicant was an assertion that the Department and the Tribunal “did not consider that I have genuine intention to apply for student visa onshore”.
First, the Court has no jurisdiction to review the delegate’s decision (see s.476(2)(a) of the Migration Act 1958 (Cth)). Secondly, the Tribunal decision was not based on whether or not the Applicant’s intention to apply for a visa was genuine. Rather it turned on whether the Applicant had previously relied on the provisions that enabled him to apply for such a visa while no longer the holder of a substantive visa. No jurisdictional error is established on this basis.
The second issue raised in the application was a contention that the Tribunal did not consider the fact that the Applicant had “compelling reasons not to apply for onshore student visa within the time limit”. He claimed that he had provided sufficient evidence to support his application, but that the Department and the Tribunal “did not give a good consideration of my situation was out of my control”. The Applicant repeated these claims in oral submissions.
It is the case that the Applicant acknowledged to the delegate that his application was made after his current student visa had expired. He explained that he had been considering changing his study plan, that it took a few weeks to enrol in a new degree and a new university and that he made his application after he received his new Certificate of Enrolment.
However the difficulty that faces the Applicant in respect of this ground is that in circumstances where an applicant does not meet the requirements of cl.573.211 the Tribunal has no discretion to allow it to take into account reasons why the applicant was late in lodging his visa application (see Tang v Minister for Immigration and Citizenship [2011] FCA 1273). Thus, in such circumstances no jurisdictional error is established by virtue of any failure by the Tribunal to address specifically an applicant’s claimed reasons for delay or the evidence provided in support of the application. As discussed further below no jurisdictional error has been established in relation to the Tribunal’s finding that the Applicant did not meet the requirements of cl.573.211.
The Applicant also claimed that he should have been granted a student visa and allowed to study in Australia. This ground does not identify any arguable jurisdictional error. If the Applicant seeks merits review, merits review is not available in this Court. Insofar as the Applicant may be seen as contending that the Court should have regard to his circumstances and the explanation for his delay in applying for the visa, it is not open to the Court to have regard to such matters in proceedings of this nature.
The first “ground” in the application is a statement that the Applicant is a Chinese citizen with a genuine intention to apply for a student visa and that he could not lodge his student visa due to a situation beyond his control. However, as discussed further below, having regard to the basis for the Tribunal decision in circumstances where the Applicant acknowledged that he had made a prior student visa application after his substantive visa ceased, these matters fail to establish jurisdictional error.
Ground two is a claim that the Applicant had provided the Tribunal with a “detailed explanation and evidence for [his] special situation” in the Tribunal hearing. It appears to be intended to be contended that the Tribunal should have considered such matters in its reasons for decision. However it was not necessary for the Tribunal to address such matters, having regard to the criterion that it found that the Applicant failed to meet.
Once the Tribunal found that the Applicant was not the holder of a substantive visa at the time of his application and that he had previously relied on criterion 3005 for the grant of his last student visa, it was bound to find that he did not satisfy cl.573.211(3)(d), which was a primary criterion for the grant of subclass 573 visa. In Sapkota the Full Court of the Federal Court confirmed, as had been held at first instance, that a visa applicant does not meet the requirements of cl.573.211(3) where he or she has previously relied on criterion 3005 and that criterion 3005 precludes such an applicant from taking advantage of the provisions of Schedule 2 a second time.
Insofar as either of grounds one or two may be seen as a contention that the Tribunal should in some way have waived the requirements of criterion 3005 because of the Applicant’s particular circumstances, the Tribunal had no such discretion.
The last ground in the application is that the Tribunal member did not show any concern for the “compelling reasons” the Applicant provided at the Tribunal hearing and that the Applicant had not been “fairly treated”. There is no transcript of the Tribunal hearing in evidence. There is nothing in the material before the Court to support any contention as to a lack of procedural fairness or indeed as to any asserted failure to comply with s.360 of the Act. The Applicant was invited to and attended a Tribunal hearing. The invitation to the Tribunal hearing on its face met the requirements of the Migration Act in relation to its content and the period of notice provided to the Applicant.
More generally, insofar as this may be seen as a contention that the Applicant was not on notice of any dispositive issue, it is clear by reason of the delegate’s decision that the Applicant was on notice of the determinative issue on review by the Tribunal, being whether he met the requirements of cl.573.211 and criterion 3005. The Tribunal decision record also indicates that these issues were discussed with the Applicant at the Tribunal hearing.
Further the Tribunal recorded that the Applicant acknowledged that he had on a previous occasion applied for a student visa after his last held substantive visa had expired and had on that occasion relied on criterion 3005 of Schedule 3. There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with the obligation to put the dispositive issues to the Applicant in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63.
Moreover, while the Tribunal stated that the fact that the Applicant had previously applied for a student visa after his last held substantive visa had expired was indicated in departmental records, this fact was also stated in the delegate’s decision. Insofar as any issue may have arisen in relation to the potential operation of s.359A of the Act, the Applicant provided the Tribunal with a copy of the delegate’s decision which included this information. Hence the exception in s.359A(4)(b) would apply (see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241).
None of the “orders” sought or grounds in the application establish jurisdictional error on the part of the Tribunal.
In oral submissions today the Applicant reiterated matters addressed in the Application. Insofar as he contended that the decisions in Sapkota and Tang were not similar to or the same as his case, the principles in Sapkota in relation to the interrelationship between the requirements of cl.573.211(3)(d) and criterion 3005 are relevant given the criteria in issue in this case.
In Tang the Federal Court made the point that the Tribunal had no discretion to take into account or grant a visa on the basis of consideration of the Applicant’s reasons for delay in circumstances where he failed to meet a provision equivalent to the requirement in cl.573.211. While the criterion in issue in Tang was cl.572.211, it is the equivalent of cl.573.211 (in relation to a Subclass 572 visa) and the reasoning is in point in the circumstances of this case.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount sought is reasonable and appropriate having regard to the nature of this and other similar matters. It is also appropriate to make an order changing the name of the Second Respondent.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 11 September 2015