Mohammed v Minister for Immigration
[2014] FCCA 139
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMMED v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 139 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant attempting unsuccessfully to lodge visa application online – paper application lodged the following day but too late to qualify for the visa – when the visa application was “made” considered. |
| Legislation: Migration Act 1958 (Cth), s.351 Migration Regulations 1994 (Cth) |
| Angus Fire Armour Aust PL v Collector of Customs [1988] FCA 339 Mann & Anor v Minister for Immigration [2011] FMCA 667 Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66 |
| Applicant: | YOUNUS MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1453 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr DLA Piper |
ORDERS
The name of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application filed on 27 June 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1453 of 2013
| YOUNUS MOHAMMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 27 May 2013. The Tribunal affirmed a decision of a delegate of the Tribunal not to grant the applicant a Student (Temporary) (Class TU) visa. The relevant facts relating to this matter are somewhat unfortunate and are summarised in the Minister’s outline of legal submissions, which I adopt.
Mr Mohammed is a male citizen of India born on 21 August 1984.[1] He first arrived in Australia on 24 April 2008 as the holder of a Student (Class TU) subclass 572 visa which ceased on 9 May 2008.
[1] Court Book (CB) 19.
Since then, Mr Mohammed had been granted a number of student and bridging visas, the history of which, is extensive.[2]
[2] On 9 May 2008, Mr Mohammed was granted a further student subclass 572 visa which ceased on 23 June 2009. On 16 June 2009, Mr Mohammed was granted a Bridging A visa which ceased on 23 June 2009. On 23 June 2009, Mr Mohammed was granted a student (subclass 572) visa which ceased on 22 June 2011. On 25 February 2011, Mr Mohammed was granted a Bridging E visa which ceased on 7 February 2012. On 7 February 2012, Mr Mohammed was granted a student (subclass 572) visa which ceased on 23 May 2012 (Mr Mohammed 's last substantive visa) and on 25 May 2012 Mr Mohammed was granted a Bridging C visa.
Relevantly, the delegate's cancellation of Mr Mohammed's student visa (granted on 23 June 2009) was set aside by the Tribunal on 23 December 2011.
Consequently, a further student visa applied for on 25 January 2012 was granted on 7 February 2012, which included satisfaction of clause 3005 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations). This visa ceased on 23 May 2012.
Mr Mohammed applied for a Student (Temporary) (Class TU) visa on 24 May 2012.[3] The application was refused on 29 May 2012, on the basis that he did not satisfy the requirements of clause 573.211 of Schedule 2 to the Regulations.[4] Specifically as Mr Mohammed did not hold a substantive visa at the time of application he relied on satisfying Schedule 3 to the Regulations. However, as this criterion had been previously relied upon to grant Mr Mohammed a visa on 7 February 2012, he ultimately did not satisfy clause 573.211.
[3] CB 1-18.
[4] CB 26-33.
Mr Mohammed applied to the Tribunal for review of the original decision on 18 June 2012.[5]
[5] CB 34-44.
On 22 January 2013, the Tribunal wrote to Mr Mohammed inviting him to comment on or respond to information that would be the reason, or a part of the reason, for affirming the decision under review.[6]
[6] CB 55-56.
The Tribunal noted that at the time of application Mr Mohammed did not hold a substantive visa and, further, Mr Mohammed had been granted a previous student visa on the basis of satisfying criterion 3005. Mr Mohammed had until 1 March 2013 to comment on or respond to this information.[7]
[7] On 27 February 2013, the Tribunal received an extension of time request, which it acceded to giving Mr Mohammed until 2 April 2013 to provide the requested information (CB 57 and CB 65).
On 28 March 2013, Mr Mohammed's representative wrote to the Tribunal stating, among other things, that Mr Mohammed had attempted on 23 May 2012 to lodge his application for another student visa online. However, due to a “department system error” he was unable to lodge the application. Consequently it was submitted that the “Doctrine of Substantial Compliance” should apply.[8]
[8] This correspondence included supporting documentation from Bibudh Luitel of Abcube Academic Solutions indicating that Mr Mohammed “… had tried to lodge the application two times but both of the time it did not proceed to the second page and the online system said the visa has already been lodged” (CB 68-83).
Mr Mohammed gave oral evidence before the Tribunal on 15 May 2013.[9]
[9] CB 91-93.
Mr Mohammed stated that he obtained his Confirmation of Enrolment on 23 May 2012 at about 4.00pm. At around 5.00pm, he attempted, unsuccessfully, to lodge his application online. Consequently, on 24 May 2012, he attended a departmental office to make a personal application at which time he paid for the visa application.[10]
[10] [30]-[34] at CB 104.
The Tribunal handed down its decision on 27 May 2013.[11]
[11] CB 98-107.
The decision of the Tribunal
The issue before the Tribunal was whether Mr Mohammed met the requirements of clause 573.211.
The Tribunal found that at the time of making his visa application, Mr Mohammed was not the holder of a substantive visa and, therefore did not satisfy clause 573.211(2),(4) or (6).[12]
[12] See [38] at CB 105 and [51]-[52] at CB 107.
Consequently, the Tribunal considered whether Mr Mohammed satisfied clause 573.211(3).
The Tribunal found that Mr Mohammed satisfied clause 573.211(3)(b)(i) on the basis that the last substantive visa held by him was a student visa.[13] Further, Mr Mohammed was found to have satisfied clause 573.211(3)(c) on the basis that he had applied for his student visa one day after the cessation of his last student visa.[14] However, Mr Mohammed did not satisfy clause 573.211(3)(d) as he had previously been granted a visa by satisfying the criteria set out at Schedule 3 to the Regulations.[15]
[13] See [39] at CB 105.
[14] See [41]-[44] at CB 105 and [50] at CB 106.
[15] See [45] at CB 105 - [46] at CB 106.
Therefore, the Tribunal found that Mr Mohammed did not met the requirements of clause 573.211 and, ultimately, affirmed the decision under review.
Consideration
The circumstances of the case are unfortunate because, on Mr Mohammed’s account, he was prevented from qualifying for the visa he sought because of circumstances beyond his control. Simply put, he attempted to lodge his visa application online on 23 May 2012 but because of some system error, he was unable to do so. He was thus forced to attend the Minister’s Department in person the following day and lodge his visa application at that time. The passage of time was critical because he ceased to hold a substantive visa on 23 May and after that date was unable to satisfy the criteria for the class of visa he sought.
The Minister’s submissions traverse the applicable legislation. Criteria 573.211 must be satisfied at the time of application. Relevantly, clause 573.211 states (emphasis added):
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) An applicant meets the requirements of this subclause if the applicant is:
(a) the holder of a visa of one of the following classes or subclasses :
…
(xiii) Student (Temporary) (Class TU);
…
(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
…
(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;
…
(d) the applicant satisfies Schedule 3 criterion 3005.
Schedule 3 criterion 3005 relevantly states (emphasis added):
3005 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.
Mr Mohammed relies upon his judicial review application filed on 27 June 2013. I also have before me his affidavit which accompanied that application. I received the body of the affidavit as a submission and the documents attached to it, including correspondence from his former lawyers, as evidence.
I also have before me as evidence the Court Book filed on 25 July 2013.
Mr Mohammed submits with some force that he has been the victim of a circumstance beyond his control and, more particularly, a circumstance which may have been within the control of the Minister’s Department. The Minister’s Department increasingly fosters its online system as the preferred means of lodging visa applications. From time to time there are problems with the online system which may prevent a visa application being lodged. The question is whether those problems, when encountered, should be taken into account in considering when a visa application is lodged. As in this case the time of lodgement of a visa application may be critical to the success of that visa application.
Mr Mohammed submits that the Tribunal should have accepted that he lodged his visa application when he attempted to do so online on 23 May 2012, rather than the following day when he did so in person. The Minister submits that the Tribunal’s decision was correct in law. I agree with those submissions.
At [49] of the Tribunal’s decision record[16] , the Tribunal correctly set out the requirements for a valid student visa application:
a)the Tribunal noted that to make a valid application, an application had to be made using the approved form,[17] the applicable visa application charge was paid,[18] and be accompanied by, among other things, satisfactory evidence that Mr Mohammed was enrolled or had been offered a place in a registered full-time course of study;[19]
b)the Tribunal found at [50][20] that Mr Mohammed made a valid application when he lodged his application at the Registry of the Department on 24 May 2012. The Tribunal found that it was only on this day that Mr Mohammed had complied with the provisions of the Migration Act 1958 (Cth) and the Regulations. Specifically, the Tribunal noted that it was then that Mr Mohammed had paid the applicable visa application charge.[21]
[16] CB 106.
[17] Item 1222(1) of Schedule 1 to the Regulations.
[18] Item 1222(2) of Schedule 1 to the Regulations.
[19] Item 1222(3) of Schedule 1 to the Regulations.
[20] CB 106.
[21] See also [34] at CB 104.
I further accept that the circumstances in this case are indistinguishable from those dealt with by Judge Raphael in Mann & Anor v Minister for Immigration[22] discussed in the Minister’s submissions at [19], which I agree with[23].
[22] [2011] FMCA 667
[23] See also Minister for Immigration v Kaur [2013] FCAFC 66 at [38] per curiam.
In Mann the first named applicant attempted to submit her visa application online on the date that her substantive (student) visa ceased. However, the applicant was unable to submit the application due to a fault in the system. Consequently, the applicant attended an office of the Department the following day to lodge her application form. It was not in dispute that the paper application was a valid application. Judge Raphael dismissed the application on the basis that it was the applicant's responsibility to have filed an “objectively valid application on time” and it was only when the paper application was filed that a valid application had been made.[24] Judge Raphael noted that it was an unfortunate situation, however, the law was clear of what constituted a valid application.[25]
[24] At [24].
[25] At [25].
Before the Tribunal Mr Mohammed’s representatives relied on two decisions by the Tribunal which supported a different outcome. The first of those decisions was Case Number 1104413[26]. The second was Case Number 1011108[27]. Both of those decisions were made by the same Tribunal member in Melbourne. In both cases the Tribunal reasoned that the applicant should be taken to have lodged their visa application online when they attempted to do so, but were prevented from completing their application because of some problem with the system. In both cases the Tribunal relied upon the principles discussed in Angus Fire Armour Aust PL v Collector of Customs[28]which concerned when an application is lodged at a registry of the Administrative Appeals Tribunal. I accept from that case that if an application is received in the sense of physical possession being taken, then it may be taken to have been lodged even if it is subsequently lost or not dealt with. Hypothetically, an analogy might be drawn from that situation to one where an online application is completed but for some reason not processed or otherwise acted upon. The circumstances are different, however, where no complete and valid online application is made. In my view it cannot be said that an online application is received in the sense of the Department taking physical possession of it if it is never completed.
[26] [2012] MRTA 2023
[27] [2011] MRTA 511
[28] [1988] FCA 339
As I have already noted, the Tribunal, at [49] of its reasons, set out the requirements for a valid application[29]:
The Tribunal finds that an application is made when it is validly made, that is when it satisfied all the statutory requirements for a valid application. The requirements for a valid visa application are set out in s.46 of the Act, r.2.07 of the Regulations, and the relevant part of Schedule 1 to the Regulations. Item 2222 of Schedule 1 prescribes specific requirements for a valid application for a Student (Temporary) visa (Class TU). Under Item 1222, applications must be made using the approved form as specified in subitem 1222 (1) and applicants must have paid the applicable visa application charge specified in subitem 1222(2). Subitem 1222(3) sets out a number of “Other” requirements that must also be met. For applicants who seek to satisfy the primary criteria and make the application on form 157A or 157E, one of these requirements is that the application must be accompanied by satisfactory evidence that the applicant is enrolled or has been offered a place in a registered full-time course of study of a type specified in a Gazette Notice under r.1.40A(1) and the provider of which is not a suspended education provider.
[29] CB 106
The Tribunal was correct, in my view, in deciding those requirements were not met until the paper application was presented to the Department on 24 May 2012. The consequence is an unfortunate one for Mr Mohammed. He lost an opportunity. I do not rule out the possibility that he may have some claim against the Commonwealth for its apparent system error, causing him to lose that opportunity. Further, the Minister has the statutory power to make a more favourable decision than that of the Tribunal[30]. The Court has no influence over the exercise of that power. However, I observe that the power is a significant one in order to alleviate injustice in circumstances where no relevant discretion is reposed in the Minister’s delegate or the Tribunal.
[30] Migration Act, s.351
I will order that the application filed on 27 June 2013 be dismissed.
I will direct that the title of the Minister be amended to the Minister for Immigration and Border Protection.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,400. Mr Mohammed doubted his capacity to pay but I am satisfied that costs of not less than $4,400 have been reasonably and properly incurred on behalf of the Minister, when consider on a party and party basis.
I will order that Mr Mohammed pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 February 2014
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