Mohammad v Minister for Immigration
[2009] FMCA 434
•11 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOHAMMAD v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 434 |
| MIGRATION – Student visa application – whether application valid – when application became valid – whether application for visa made within 28 days of last substantive visa ceasing to be in effect – whether application filed within time – whether application met criterion for issuance of visa – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.65, 476 Federal Magistrates Act 1999 (Cth), s.75 Migration Regulations 1994 (Cth), Schedule 1, Item 1222, Schedule 2, cl.573.211(3), cl.573.235, Condition 8202 |
| Ahmed & Ors v Minister for Immigration and Citizenship& Anor (2008) 219 FLR 30; [2008] FMCA 811 Akbar v Minister for Immigration and Citizenship [2009] FMCA 279 B v M (2008) 217 FLR 182 Chen v Minister for Immigration and Citizenship [2008] FMCA 1285 Minister for Immigration and Citizenship v Chan & Anor (2008) 104 ALD 361; [2008] FCAFC 155 Richmond v BMW Australia Finance Ltd (No 2) (2009) 254 ALR 76; [2009] FCAFC 25 |
| Applicant: | FAHIM AL FAZAL MOHAMMAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 172 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 7 May 2009 |
| Date of Last Submission: | 7 May 2009 |
| Delivered at: | Perth |
| Delivered on: | 11 May 2009 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the Respondents: | Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
Reasons for Judgment will be published from Chambers at a later date.
The applicant is to pay the first respondent’s costs in the sum of $5,000 by 4:00pm on 2 June 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 172 of 2008
| FAHIM AL FAZAL MOHAMMAD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Hearing – 7 May 2009
When this matter was called on for hearing on 7 May 2009 the applicant, Mr Mohammad, failed to appear. In Mr Mohammad’s absence the Court indicated that it had read the grounds of the application, the reasons for the decision[1] of the Migration Review Tribunal,[2] and the first respondent’s outline of submissions. The Court said that it considered that the Tribunal’s finding that Mr Mohammad’s student visa application, once validly made, was made outside of the 28 day time limit was correct, notwithstanding a factual error as to the cessation date of Mr Mohammad’s last substantive visa, that factual error not altering the legal correctness of the Tribunal’s decision. The Court indicated that, in its view, no jurisdictional error was committed by the Tribunal. The Court further indicated that it would make orders dismissing the application, and would provide reasons for judgment at a later date. That is a course open to this Court, provided the reasons are not unduly delayed.[3] The Court also made costs orders in favour of the first respondent on the day of the hearing, on the application of the first respondent.
[1] “Tribunal Decision” which appearsf at Court Book (“CB”) 120-126.
[2] “Tribunal”.
[3] Federal Magistrates Act 1999 (Cth), s.75. See Richmond v BMW Australia Finance Ltd (No 2) (2009) 254 ALR 76 at 77-78 per Black CJ and 79-80 per Rares J; [2009] FCAFC 25 at paras.7-11 per Black CJ and 19-23 per Rares J (“Richmond”). In Richmond Rares J did not follow, and held to be wrongly decided, the judgment of the Family Court of Australia in B v M (2008) 217 FLR 182 (where there had been a five week delay between judgment being pronounced (ie, interim orders made) and the publication of Reasons for Judgment, a delay which the Family Court held was sufficient to uphold an appeal against the interim orders): Richmond ALR at 79 per Rares J; FCAFC at para 21 per Rares J.
These are the Reasons for Judgment referred to above.
Background facts
Mr Mohammad, is a citizen of Bangladesh who arrived in Australia in 2000. He commenced studying a Bachelor of Engineering (Computer Science) at Edith Cowan University. Mr Mohammad struggled with that course. The university imposed a six-month exclusion on him in December 2002. He successfully challenged the exclusion and subsequently enrolled in a Bachelor of Science (Computer Science).[4]
[4] CB 124.
On 14 February 2006 Mr Mohammad was granted a subclass 573 visa valid until 30 July 2006 and was granted two further Bridging C visas on 31 July 2006 and 25 August 2006 current to 14 June 2007 and then a further subclass 573 visa current to 30 September 2007.[5]
[5] CB 124-125.
Mr Mohammad failed one of two units he was studying in the second semester of 2006 and also failed a supplementary exam. He subsequently enrolled (conditionally) for Semester 1 in 2007 in order to complete the one remaining unit, and was due to commence on 1 March 2007.[6]
[6] CB 125.
Mr Mohammad says that on 28 February 2007 his father suffered a heart attack in Bangladesh and due to this news he was unable to attend any lectures or tutorials. He therefore sat an examination at the end of the semester in June 2007 without any preparation, failed the examination and was excluded from the university.[7]
[7] CB 125.
Although Mr Mohammad was aware that he was required to lodge an application to appeal his exclusion from the university by 15 August 2007, he says that due to the difficulty in obtaining information regarding his father’s condition from Bangladesh, he did not lodge his appeal to the university until 28 August 2007.[8]
[8] CB 125.
On 31 August 2007 Mr Mohammad applied for a further student visa.[9]
[9] “student visa”.
On 24 December 2007 a delegate of the first respondent[10] refused to grant Mr Mohammad a student visa.
[10] “delegate”
The delegate found that Mr Mohammad did not satisfy cl.573.235 of the Migration Regulations 1994 (Cth)[11] because he had not complied substantially with Condition 8202 of his Subclass 573 Higher Education Sector visa and he had failed to meet course requirements.[12]
[11] “Migration Regulations”.
[12] CB 121.
On 22 January 2008 Mr Mohammad applied to the Tribunal for review of the delegate’s decision.[13] Mr Mohammad attended a hearing before the Tribunal on 10 September 2008.[14]
[13] CB 78-84.
[14] CB 107.
Tribunal Decision
On 25 September 2008 the Tribunal Decision was delivered. It dealt first with the validity of Mr Mohammad’s student visa application, as follows:
For a visa application to be validly made it must satisfy Item 1222 of Schedule 1 of the Migration Regulations, which contains the requirements for the making of a valid application for a Student (Temporary) (Class TU) visa. These requirements state that a valid application made on a form 157E must be accompanied by satisfactory evidence that the applicant is enrolled in a registered full-time course of study, or has been offered a place in a registered full-time course of study.
In the visa application under review, the applicant failed to provide evidence of enrolment as outlined in Item 1222.
At the hearing conducted on 10 September 2008, the applicant advised the Tribunal that his education provider had subsequently allowed him to resume studies and he provided the Tribunal with a copy of his Confirmation of Enrolment for a Bachelor of Science with course dates listed as 01/07/2008 to 31/12/2008 as evidence of his current enrolment.
In consideration of this evidence and the decision in Mon Tat Chan (FCAFC155),[15] the Tribunal finds that the evidence provided to the Tribunal completes the outstanding requirements of the initial application which means that the application became a valid application on presentation of this evidence at the hearing on 10 September 2008.
The Tribunal finds that the delegate made a decision on the merits of the application without realising that the visa application was not a valid application at that time. As a result, the primary decision is not valid. Despite the fact that the decision was made on an invalid application and was therefore not valid, nonetheless it is an MRT-reviewable decision for the purposes of s.338.[16]
[15] The case is referred to with full citation at fn.24 below
[16] CB 121.
The Tribunal thus accepted that a valid student visa application had then been made as at 10 September 2008, and that the decision of the delegate was reviewable by the Tribunal,[17] to consider whether other relevant criteria had been satisfied by the application.[18]
[17] CB 121.
[18] CB 121.
This led the Tribunal to consider cl.573.211(3) of the Migration Regulations which provides 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 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.
The Tribunal identified the issue to be determined in the present case as follows:
The relevant issue in the present case is whether the visa application was made within 28 days after the day when the visa applicant’s last substantive visa ceased to be in effect in satisfaction of 573.211(3)(c).[19]
[19] CB 124.
The Tribunal found the applicant did not meet the requirements of cl.573.211(3)(c) of the Migration Regulations. The Tribunal said:
… the applicant was required to have lodged the current visa application within 28 days of the latter of either: the day when the last substantive visa ceased to be in effect; or if the visa was cancelled and the Migration [R]eview 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 Act. On the evidence before it, the Tribunal finds that the current visa application became a valid application on 10 September 2008.
The Tribunal also finds from the evidence available … that the applicant’s last substantive visa ceased to be in effect on 30 July 2006.
On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect.[20]
[20] CB 125.
The Tribunal also concluded that Mr Mohammad did not meet the prescribed criteria of any of the other applicable subclasses under the Migration Regulations.[21]
[21] CB 126.
In summary, it can be seen that the Tribunal:
a)found that the delegate's decision was invalid, but nevertheless found that the delegate’s decision was an MRT-reviewable decision;
b)set out the relevant criteria in the Migration Regulations and identified the relevant issue in the matter as being whether the student visa application was made within 28 days after the day when Mr Mohammad’s last substantive visa ceased to be in effect in satisfaction of clause 573.211(3)(c) of the Migration Regulations; and
c)found that Mr Mohammad’s last substantive visa ceased to be in effect on 30 July 2006. Given that the student visa application became a valid application on 10 September 2008, the Tribunal found that the student visa application was not made within the 28 days after the last substantive visa ceased to be in effect.
Grounds of application
The grounds of the application are stated as follows:
1.The second respondent's decision was in excess of jurisdiction in that the review was not a "proper, genuine and realistic" review.
2.The second respondent erred in its interpretation of requirements of cl.573.211 of schedule 2 to the Migration Regulations 1994.
3.Specifically the second respondent erred in finding that the applicant did not satisfy cl.573.235 of the Migration Regulations because the applicant was not enrolled in Semester 2, 2006.
4.More particularly the second respondent did not give sufficient weight to the fact that:
(a)the applicant has substantially complied with the conditions with respect to his enrolment;
(b)the applicant had suffered the stress of finding out about his father's medical condition and the cultural difficulties he faced made it explicable in such context that he did not avail himself of the opportunity to appeal the questionable decision to exclude him from the University, where his circumstances would have been given a most sympathetic hearing had he chosen to appeal; and
(c)no sufficient weight was given to the fact, that in such extenuating circumstances, he filed his appeal 3 days after the period to file an appeal had expired, and not sufficient weight given to the fact that such delay would have been condoned by the University.
5.The second respondent further misconstrued that the applicant did not hold a substantive visa while on evidence found that the current visa application became a valid application on 10 September 2008 hence erred in its interpretation of the law.
Issue
The issue in these proceedings is whether the Tribunal committed jurisdictional error, and, in particular, whether it did so in relation to the manner in which it dealt with what it described as the “relevant issue” as set out above.[22]
Consideration
[22] See para.15 above.
Ground 1
The first ground cannot succeed alone. An unparticularised assertion that the Tribunal did not undertake a proper, genuine and realistic review can generally only be determined in the light of the success or otherwise of other grounds, and even then it does not necessarily mean that the Tribunal did not undertake a proper, genuine and realistic review.[23] In this case the Tribunal, as the first (and as it transpired only) consideration, sought to determine whether the requirements of cl.573.211(3)(c) of the Migration Regulations were satisfied by Mr Mohammad. Whether the Tribunal’s review was proper, genuine and realistic depends, at least initially, on the manner in which it dealt with that issue, which is the subject of the remaining grounds of appeal. As the remaining grounds of appeal have been unsuccessful, this ground is also unsuccessful.
[23] Ahmed & Ors v Minister for Immigration and Citizenship & Anor (2008) 219 FLR 30 at 40 per Lucev FM; [2008] FMCA 811 at para.28 per Lucev FM; Akbar v Minister for Immigration and Citizenship [2009] FMCA 279 at para.52 per Lucev FM.
Grounds 2
The Tribunal’s interpretation of the relevant provisions of cl.573.211, namely cl.573.211(3)(c)(i), was that it required the student visa application to be made within 28 days of the day when the last substantive visa ceased to be in effect. That is an interpretation which is indubitably correct.[24]
[24] Minister for Immigration and Citizenship v Chan & Anor (2008) 104 ALD 361; [2008] FCAFC 155 at ALD 362 per Moore J, FCAFC at para.4 per Moore J; ALD 364 per Marshall J; FCAFC at para.13 per Marshall J; and ALD 365 per Lander J; FCAFC at para 19 per Lander J (“Chan”); Chen v Minister for Immigration [2008] FMCA 1285 at para.45 per Barnes FM (“Chen”). The Court notes that special leave to appeal Chan to the High Court was refused: [2009] HCA Trans 29.
Ground 3
Ground 3 cannot succeed because there was no such finding by the Tribunal.
In any event the issue does not arise because the criteria to be satisfied at the time of the application (that is, the criteria under cl.573.211(3)(c) of the Migration Regulations) were not satisfied, and they are a precondition to satisfaction of the requirement under cl.573.235, which is required to be satisfied at the time a decision is made. Satisfaction of this criteria does not negate the failure to satisfy the criteria required to be satisfied under cl.573.211(3)(c) of the Migration Regulations at the time of the application. This ground fails.
Ground 4
Mr Mohammad’s contention that the Tribunal erred in failing to give sufficient weight to the applicant's extenuating circumstances in relation to the late application does not establish jurisdictional error. These matters set out in this ground were not matters which were open to the Tribunal to take into account in determining whether Mr Mohammad met the requirement in issue in relation to the time of application for the student visa. That is, the reasons Mr Mohammad gave for lodging his 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 Mr Mohammad did not meet the mandatory criteria for the visa in question.[25] This ground also fails.
[25] Chen at paras.45-50 per Barnes FM.
Grounds 5
There is a clear error of fact in the Tribunal Decision. The Tribunal states that the applicant's last substantive visa ceased to be in effect on 30 July 2006.[26] In fact, the applicant was granted a further substantive visa which ceased to be in effect on 30 September 2007. This does not constitute an error going to jurisdiction because:
a)a fair reading of the whole of the Tribunal Decision shows that the Tribunal was clearly aware of the subsequent visa as it specifically refers to it;[27]
b)in any event, the error would not have affected the result as Mr Mohammad clearly filed his application more than 28 days after his last substantive visa ceased to be in effect contrary to clause 573.211(3)(c) of the Migration Regulations.
[26] CB 125.
[27] CB 125: “On 14 June 2007 he was issued a subclass 573 visa current until 30 September 2007.”
The Tribunal correctly applied Chan in relation to when the visa application was completed and became a valid application. Evidence of Mr Mohammad’s enrolment was required to be submitted and until that evidence was submitted the application was invalid. Chan makes it clear that the application would only have become a valid application on the date that all of the evidence was submitted:
[A]n invalid application cannot be rendered valid nunc pro tunc to the date it was lodged because to do so would be inconsistent with the whole scheme of the Act. The Minister is not entitled to consider an invalid application. If an invalid application is submitted it must remain unconsidered until such time as if it ever becomes valid. If an applicant lodged an incomplete application which was not valid and later lodged the documents or paid the fees which would make it valid, the applicant would, in the meantime, when his or her other substantive visa had become invalid, have become an unlawful non-citizen. In those circumstances, the Minister would be precluded from considering the application and the applicant who had lodged the invalid application would become an unlawful non-citizen and be subject to removal under the provisions of s198.
The application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations which would make the application valid.[28]
[28] Chan ALD at 371-372 per Lander J; FCAFC at paras.54-55 per Lander J (with whom Marshall J agreed : ALD at 364; FCAFC at para.10).
Unfortunately for Mr Mohammad that also resulted in the student visa application being completed outside the 28 day limit.
The fact that there was a valid application for a student visa, or an application which became valid, as at 10 September 2008, does not constitute the holding of a substantive visa. This ground confuses the holding of a substantive visa and the making of a valid application. In this case the Tribunal correctly found (and indeed it does not appear to have ever been disputed) that Mr Mohammad only had a substantive visa until 30 September 2007. The validity, or otherwise, of the student visa application was not relevant to whether Mr Mohammad held a substantive visa. This ground therefore fails
Conclusion and Orders
Section 65 of the Migration Act requires decision-makers to be satisfied of certain matters before granting a visa, in particular that the criteria for the visa in issue have been satisfied. If the decision-maker is not so satisfied then a visa must be refused.
The requirement in clause 573.211(3)(c) of the Migration Regulations is a mandatory criteria. The question before the Tribunal therefore was whether Mr Mohammad made an application within 28 days of his last substantive visa ceasing to be in effect. In this case he did not.
The Tribunal’s finding that the application, once validly made, was made outside of the 28 day limit was correct, notwithstanding the Tribunal’s factual error as to the cessation date of Mr Mohammad’s last substantive visa. That factual error did not alter the legal correctness of the Tribunal’s Decision. Mr Mohammad has failed to establish jurisdictional error by the Tribunal. The Tribunal approached its task correctly. The Tribunal Decision does not demonstrate jurisdictional error. The application must therefore be dismissed.
Orders as indicated in para.1 were made on 7 May 2009.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 11 May 2009
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