MASKEY v Minister for Immigration

[2017] FCCA 3202

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASKEY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3202

Catchwords:
MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant Student visa – application for Student visa made more than 28 days after the last substantive visa held by the applicant ceased to have effect – whether Tribunal had discretion to extend the 28 day period – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), sch.1, pt.3

Migration Regulations 1994 (Cth), sch.2, cl. 573.211(3)(c)(i)

Cases cited:

Jiayi Chen v Minister for Immigration (2008) 104 ALD 59

Kaur v Minister for Immigration and Citizenship  [2013] FCA 275

Applicant: SASHIM MASKEY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2658 of 2016

Judgment of: Judge Manousaridis

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms J Strugnell of MinterEllison

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2658 of 2016

SASHIM MASKEY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant, a citizen of Nepal, seeks judicial review of a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) class TU visa (Student visa).

2. The background to the application is as follows. The applicant applied for the Student visa on 28 October 2015. To have been entitled to the grant of the Student visa the applicant had to satisfy the criteria provided for by, among other things, cl.573 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). 

3. Relevant to the case before me is the criterion that applies to a person who does not hold a substantive visa but who once held a substantive visa or substantive visas, which had not been cancelled. For the applicant in these circumstances cl.573.211(3)(c)(i) of Schedule 2 to the Regulations applies and provides that an application for a Student visa must be made “within 28 days (or within such period specified in a legislative instrument made by the Minister) after: … the day when that last substantive visa ceased to be in effect”.  No legislative instrument that is relevant to this case has been made by the Minister. 

4. At the time the applicant applied for the Student visa, he did not hold a substantive visa. He did, however, once hold a Student visa, but that visa ceased to have effect on 30 August 2015. Thus cl.573.211(3)(c)(i) of Schedule 2 to the Regulations applied to the applicant. That meant that to satisfy cl.573.211(3)(c)(i) of Schedule 2 to the Regulations the applicant was required to apply for the Student visa by 27 September 2015. The applicant, however, failed to do so. He applied for the Student visa on 28 October 2015. The delegate therefore refused to grant the applicant the Student visa, because the applicant applied for it more than 28 days after the last day on which the applicant last held a substantive visa.

5. The applicant applied to the Tribunal for review of the delegate’s decision. According to the Tribunal’s reasons for decision, the applicant appeared before it, and the Tribunal explained to the applicant the requirements of cl.573.211(3)(c)(i) of Schedule 2 to the Regulations, that the applicant’s previous visa ceased on 30 August 2015 and that the applicant did not apply for a further Student visa until 28 October 2015. The Tribunal informed the applicant it had no discretion in the matter if it were to find that the applicant had applied for the Student visa more than 28 days after the day on which his last Student visa ceased to be in effect.

6. When he was before the Tribunal the applicant submitted to it that he was currently studying a Bachelor of Business and that he was a genuine student.  The applicant explained why he failed to apply for the Student visa within the 28-day period as required by the Regulations.  Those reasons are recorded in the Tribunal’s reasons for decision.  The Tribunal noted that the applicant said that he became confused, and he thought his Student visa expired on 21 November 2015 but the confusion lay in the fact that that was the date on which his passport was due to expire.  The Tribunal further records that the applicant said “the embassy told him it would take three months to obtain a new passport”, and that he realised it was quicker to travel back to Nepal and apply for the renewal of his Student visa there. The applicant also said he returned to Nepal because an earthquake had caused damage to his property there.  Further details of what the applicant said are provided in the Tribunal’s reasons, and it is unnecessary for me to set those out. 

7. When the Tribunal came to make its decision, it identified that the issue before it was whether the applicant satisfied cl.573.211(3)(c)(i) of Schedule 2 to the Regulations. Its conclusions are set out in paragraphs 14 and 15 of its reasons and are as follows:

   14. On the evidence before the Tribunal, the current visa application was made on 28 October 2015.  The applicant’s last substantive visa ceased to be in effect on 30 August 2015. 

   15. It finds the applicant applied for the visa more than 28 days after the expiry of his previous Student visa.  The Tribunal has considered all the information raised by the applicant.  It accepts his reasons as to why he did not apply within 28 days, however, it has no discretion in this matter. 

8. I then turn to the grounds of application contained in the application the applicant filed in this Court.  There are three paragraphs, and they are as follows (errors in original): 

   1. I have valid reasons about why I didn’t submit student visa application on time.  Those reasons were ignored by Department of Immigration and AAT. 

   2. My evidence about the delay to lodge valid application was not properly examined by Department of Immigration and AAT. 

   3. AAT didn’t use its power to quash the decision taken by DIBP. 

9. At the hearing before me the applicant, who is not legally represented, explained the reasons why he did not apply for the Student visa within the 28-day period prescribed by cl.573.211(3)(c)(i) of Schedule 2 to the Regulations. In broad terms the applicant repeated what the Tribunal records the applicant said to it. There is nothing to suggest that what the applicant said to me was not true, and, indeed, what the applicant said to the Tribunal was accepted by it. The applicant asked whether there was some way in which the time could be extended. I explained to the applicant that the Minister was relying on law which was to the effect that the Tribunal did not have the discretion to extend the 28-day period, as the Tribunal itself said. Although I have sympathy for the applicant, unless the applicant could point to me some law which says the Tribunal did have a discretion to extend the 28-day time limit, I could not conclude that the Tribunal was wrong.

10. So that leads me to consider the merits of the grounds relied upon by the applicant. The first point to note is that as a matter of fact the submission by the applicant that the Tribunal did not consider the applicant’s reasons is not entirely correct. The Tribunal certainly recorded the applicant’s reasons for not having applied for a Student visa on time and it accepted those reasons. The Tribunal, however, was of the view that those reasons were not relevant, because it was of the view that it had no discretion to extend the 28-day period as prescribed by cl.573.211(3)(c)(i) of Schedule 2 to the Regulations.

11. The grounds on which the applicant relies, and the submissions the applicant made to me, otherwise assume it was open to the Tribunal to grant the applicant a Student visa, even though the applicant applied for it more than 28 days after the day on which his last substantive visa ceased to have effect. In other words, the applicant’s grounds and his submissions assume the Tribunal, contrary to what it decided, had a discretion to extend the 28-day period. These assumptions, however, are not correct. The Tribunal does not have and did not have any discretion to extend the 28-day period prescribed by cl.573.211(3)(c)(i) of Schedule 2 to the Regulations. This reflects the decision of Cowdroy J in Kaurv Minister for Immigration and Citizenship.[1] At paragraph 15 of his Honour’s reasons, Cowdroy J said: 

    The Regulations do not afford any discretion for processing applications filed outside of the 28 day period.

    [1] [2013] FCA 275

12. In the same paragraph, Cowdroy J set out with approval a passage from the judgment of Barnes FM (as her Honour then was) in Jiayi Chen v Minister for Immigration[2] which was as follows: 

    Hence in so far as the applicant contends that the tribunal erred in failing to exercise a discretion based on her claims about being misled or on the basis that her late application was due to exceptional circumstances, that does not establish jurisdictional error.  Such matters were not matters which it was open to the tribunal, to take into account in determining whether the applicant met the requirement in issue in relation to the time of application for the student visa. 

    In other words, as the first respondent submitted the reasons the applicant gave for lodging her student visa application outside the prescribed 28-day period had no bearing on the tribunal decision.  The tribunal was required by law to refuse the grant of the visa if the applicant did not meet the mandatory criteria prescribed in the Migration Regulations for the class of the visa in issue.

    [2] (2008) 104 ALD 59

13. Those observations apply to the circumstances of this case, however understandable and unfortunate are the reasons why the applicant failed to lodge his application for a Student visa within the prescribed time are, the mandatory requirement that an application for a Student visa must be made within 28 days from the day on which the applicant last held a substantive visa render those reasons, and any sympathy those reasons might engender, irrelevant. It follows therefore that the Tribunal in the case before me made no jurisdictional error by concluding it has no discretion to extend the 28-day period prescribed by clause 573.211(3)(c)(i) of Schedule 2 to the Regulations and therefore in concluding that this criterion, which attached to the application of a Student visa, could not be met. It must follow therefore that this application will be dismissed.

14. After I delivered the above reasons, I invited submissions as to costs. The Minister applied for an order for costs and also applied for an order that the cost be assessed in the amount of $5,600. The applicant raised questions about how these costs could be paid. I informed the applicant that the usual consequence of a party losing litigation is that the losing party pays the other side’s costs. In the circumstances of this case there is no reason why the usual order as to costs should not be made. As to the amount of costs sought, it is less than that prescribed in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). In all the circumstances I am satisfied that $5,600 is a reasonable amount for which costs should be assessed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 December 2017