Rakkireddy v Minister for Immigration
[2015] FCCA 843
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAKKIREDDY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 843 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – application for a Student (Temporary) (Class TU) Subclass 572 visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5 Migration Regulations 1994 (Cth), Schedule 2, cl.572.211, 572.221; Schedule 3, cl.3005; Schedule 8, cl. 8101 |
| Mohammed v Minister for Immigration and Border Protection & Anor [2014] FCCA 139 Sapkota v Minister for Immigration and Border Protection [2014] FCAFC 160 |
| Applicant: | ASHWIN REDDY RAKKIREDDY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 334 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 12 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the respondents: | Mr McDermott |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The Application filed 26 February 2014 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 334 of 2014
| ASHWIN REDDY RAKKIREDDY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Before the Court is an application for judicial review, that Application being filed on 26 February 2014. The decision to be reviewed is that of the Migration Review Tribunal (‘the Tribunal’) dated 7 February 2014. In that decision, the Tribunal affirmed a decision of the delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) Subclass 572 visa (‘Student Subclass 572 visa’).
The grounds of the application are as follows:-
“1. In decision record 7, 8, 9 points submitted proof to the tribunal. The tribunal also consider the point 7, 8, 9 may be incase (sic) eligible
2. I have been Applied (sic) my visa on the time but the Immigration department web server was down.
3. I am not happy with tribunal decision, Applying for judicial review for legitimate decision.”
The order as sought by the Applicant is that the decision of the Tribunal or Minister for Immigration and Border Protection (‘the Minister’) be quashed.
The First Respondent seeks that the application be dismissed and the Applicant pay the First Respondent’s costs of the proceedings, arguing that the decision under review is not affected by jurisdictional error.
I have before me, in addition to the Applicant’s Application, an Affidavit sworn by him on 26 February 2014 and Submissions filed 8 January 2015. I have also Submissions filed by the First Respondent on 29 January 2015. Also in evidence is the material contained in the Court Book which has been filed.
The Applicant is a citizen of India. In his Application (dated 7 September 2013) for a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa, lodged with the Department of Immigration and Citizenship (‘the Department’) on 9 September 2013, the Applicant stated in paragraph 28 of that Application, Part A, that he was the holder of a previous visa, being a Student Subclass 572 visa, which had been granted in Melbourne on 19 January 2012. Evidence was tendered in the proceeding of correspondence from the Department, and more particularly from Mr Christopher Mitchell, delegate of the Minister, dated 19 January 2012, wherein the Applicant was advised that he had been granted a Student Subclass 572 visa, valid until 7 September 2013.
By letter dated 11 September 2013, to the Applicant from the Department, the Applicant was advised that his Application for a Student Subclass 572 visa lodged at Melbourne on 9 September 2013 had been refused. The Decision Record dated 7 February 2014 (‘the Decision Record’) was attached to that correspondence, as were details as to the review rights of the Applicant.
The Decision Record of a delegate of the First Respondent noted that under migration law, a visa cannot be granted unless the Applicant meets the legal requirements that are specified in the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant was advised that he did not meet the legal requirement in cl.572.211 in Schedule 2 of the Regulations on the date of the Minister’s decision. This was because the Applicant lodged his application for the visa on 9 September 2013. At the time of lodgement, he was not holding a substantive visa. He was previously granted a visa on the basis of Schedule 3 of the Regulations criteria, it was said, on 26 July 2011. Therefore, he failed to satisfy cl.572.211(3)(d) in Schedule 2 of the Regulations. The delegate of the Minister also found the Applicant was ineligible for any of the other visa subclasses in Class (TU). I note the Minister’s decision referred to the grant of the earlier visa on 26 July 2011 and not 19 January 2012.
Whatever the date of granting of the earlier visa, on the evidence before me, there is no evidence contrary to its expiration date being 7 September 2013. That expiry date is a matter which is agreed between the parties. Indeed, the Applicant says that he attempted to extend his student visa on the same date that it expired, being 7 September 2013, but that he was unable to do so because of some technical issue on the Department’s website. In correspondence forwarded by him to the Department (undated) he requested to be able to submit the application on 9 September. The Applicant in fact did not deliver his application for the visa to an office of the Department until 9 September 2013, after he ceased to hold a substantive visa.
On 23 September 2013, the Applicant applied for a review of the Minister’s decision to the Tribunal.
On 17 December 2013, the Tribunal invited the Applicant to appear at a hearing on 6 February 2014 to give evidence and support arguments. The Applicant attended the hearing and submitted a number of supporting documents on the hearing date.
On 7 February 2014, the Tribunal affirmed the Minister’s decision not to grant the Applicant a Student Subclass 572 visa.
Whilst it is no doubt disappointing to the Applicant, and an unfortunate set of circumstances, this Court must order that the judicial review application of the Applicant be dismissed for the reasons which follow.
Legal Framework
The Applicant applied for a Student Subclass 572 visa. It was refused on the basis that he did not satisfy the requirements of cl.572.211 of Schedule 2 of the Regulations.
Clause 572.221 of Schedule 2 of the Regulations, a time of application criterion, provides that if a visa application is made in Australia, the visa applicant must meet the requirements of cls.572.211 (2), (3), (4) or (6) of the Regulations.
Clause 572.211 (2), (3), (4) or (6) of Schedule 2 of the Regulations is as follows:-
“(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:
(i) Border (Temporary) (Class TA);
(iii) Cultural/Social (Temporary) (Class TE);
(iv) Educational (Temporary) (Class TH);
(v) Electronic Travel Authority (Class UD);
(ixa) Maritime Crew (Temporary) (Class ZM);
(x) Medical Practitioner (Temporary) (Class UE);
(xi) Retirement (Temporary) (Class TQ);
(xiii) Student (Temporary) (Class TU);
(xiiia) Superyacht Crew (Temporary) (Class UW);
(xv) Temporary Business Entry (Class UC);
(xva) Subclass 400 (Temporary Work (Short Stay Activity));
(xvb) Tourist (Class TR);
(xvc) Visitor (Class TV);
(xvi) Working Holiday (Temporary) (Class TZ);
(xvii) Temporary Work (Long Stay Activity) (Class GB);
(xviii) Training and Research (Class GC);
(xviiia) Subclass 403 (Temporary Work (International Relations)) other than a visa in the Domestic Worker (Diplomatic or Consular) stream;
(xix) Temporary Work (Entertainment) (Class GE);
(xx) Special Program (Temporary) (Class TE);
(xxi) Subclass 600 (Visitor); or
(b) the holder, as the spouse, de facto partner or a dependent relative of a diplomatic or consular representative of a foreign country, of a Diplomatic (Temporary) (Class TF) visa; or
(c) the holder of a special purpose visa; or
(d) the holder of a visa of one of the following subclasses:
(i) Subclass 303 (Emergency (Temporary Visa Applicant));
(ii) Subclass 427 (Domestic Worker (Temporary)—Executive);
(iia) Subclass 485 (Temporary Graduate);
(iii) Subclass 497 (Graduate—Skilled).
(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, de facto 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.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 560, 562 or 572 visa that is subject to condition 8101; and
(b) the application was made on form 157P or 157P (Internet); and
(c) the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 570, 571, 573, 574, 575 or 576 visa; and
(b) the application was made on form 157A or 157A (Internet); and
(c) the applicant gives to the Minister evidence of an offer of a place with an education provider of a course of study other than the education provider of a course of study for which the visa held was granted; and
(d) the Minister is satisfied that there are exceptional circumstances justifying the change in enrolment.”
Criterion 3005 of Schedule 3 to the Regulations 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.”
Finally, it is convenient to set out the relevant terms of Schedule 8 Visa Conditions, criterion 8101 of the Regulations, as follows:-
“The holder must not engage in work in Australia.”
As correctly submitted by Counsel for the First Respondent:-
a)subclause 572.221(2) mandates that the visa applicant be the holder of one of the enumerated classes or subclasses of visa mentioned in cl.572.211(2)(a). That subparagraph was not available to the Applicant because although he had previously held a cl.572.211 (2)(a)(viii) visa, that visa had expired on 7 September and, thus, at the time of the lodgement of his application in Australia, the earlier visa had expired;
b)subclause (3) of cl.572.211 of Schedule 2 of the Regulations was also not available to the Applicant because although the Applicant met the requirements of subclause (3)(a), (b)(i) and (c)(i), the Applicant was unable to satisfy the additional requirement of subparagraph (d) that the Applicant satisfy Schedule 3 criterion 3005 of the Regulations. The Applicant was unable to satisfy that criterion because he had previously been granted a visa on the basis of the criteria set out in subparagraph (a) of this Schedule; and
c)subclause (4) of cl.572.211 of Schedule 2 of the Regulations was not able to be satisfied because subparagraph (a) could not be met by the Applicant because his earlier visa was not subject to condition 8101. The requirements of subclause (6) could also not be met by the Applicant because he was not a holder of any of the subclass visas set out therein in subparagraph (a).
The Tribunal’s Decision
The Tribunal identified that the issue on the review for its determination was whether the Applicant met the time of application criterion in cl.572.221 of Schedule 2 of the Regulations. The Tribunal asked the Applicant at the hearing whether he agreed that he did not lodge his visa application until 9 September 2013. The Applicant agreed. The Tribunal also asked the Applicant if he had previously been granted a visa on the basis of the 28 day period (Schedule 3 of the Regulations) criteria. He agreed.
The Tribunal then noted the Applicant’s evidence about his unsuccessful attempts to electronically lodge his visa application prior to 7 September 2013; that being the date on which the Applicant’s last substantive visa had expired, and as agreed to by him.
In paragraph 16 of the Decision Record, the Tribunal found that the circumstances which the Applicant claims to have experienced were indistinguishable from those considered by the Federal Circuit Court of Australia in Mohammed v Minister for Immigration and Border Protection & Anor.[1] The Tribunal referred to that decision wherein the Court stated at paragraphs 27 to 32:-
“27. 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 ([2011] FMCA 667) discussed in the Minister’s submissions at [19], which I agree with (See also Minister for Immigration v Kaur [2013] FCAFC 66 at [38] per curiam.).
28. 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. (At [24].) Judge Raphael noted that it was an unfortunate situation, however, the law was clear of what constituted a valid application. (At [25].)
29. 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 ([2012] MRTA 2023). The second was Case Number 1011108 ([2011] MRTA 511). 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 ([1988] FCA 339) 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.
30. As I have already noted, the Tribunal, at [49] of its reasons, set out the requirements for a valid application (CB 106):
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.
[1] [2014] FCCA 139.
31. 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 (Migration Act, s.351). 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.
32. I will order that the application filed on 27 June 2013 be dismissed.”
The Tribunal concluded that an online application cannot be said to be received by the Department in the sense of the Department taking physical possession of it, if it is never completed.
On the evidence before the Tribunal, the Applicant’s visa application was made on 9 September 2013. The Tribunal concluded that the visa application was made within 28 days after the last substantive visa ceased to be in effect on 7 September 2013, and on that basis the Applicant met the requirements of cl.572.211(3)(c) in Schedule 2 of the Regulations. The remaining issue for the Tribunal’s determination was whether the Applicant met criterion 3005 in Schedule 3 of the Regulations. Based on the Applicant’s concession, the Tribunal concluded that the Applicant did not satisfy criterion 3005 as he previously had been granted a visa in satisfaction of the criteria contained in Schedule 3 of the Regulations. The Applicant therefore did not meet the requirements of cl.572.211(3)(d), and therefore did not meet the requirements of cl.572.211 of Schedule 2 to the Regulations. The Tribunal noted the Applicant would not be able to satisfy the equivalent criteria which exists for each visa subclass in class TU, and that the Applicant could not therefore meet the requirements for any of the subclasses of visa in (Class TU).
Consideration
Put simply, the Applicant’s case, although fairly indecipherable from the stated grounds of his application, is that he attempted to lodge his visa application online prior to the expiration of his then current visa, but because of a technical systems error, he was unable to do so. He was thus forced to attend the Department in person some two days following, and physically lodge his visa application at that time. That passage of time was critical to his application before the Tribunal. Should those problems be taken into account in considering when a visa application in these circumstances is lodged?
In the case of Mohammed v Minister for Immigration and Border Protection & Anor,[2] the Court noted at paragraph 25 of its Decision Record that Mr Mohammed submitted 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. That submission was rejected by the Tribunal then presiding. The Minister submits the Tribunal’s decision was correct in law. I agree with those submissions.
[2] [2014] FCCA 139.
The Tribunal here determined that the Department did not receive the visa application until the paper application was received at an office of the Department.
As submitted by Counsel for the First Respondent, whilst it is most unfortunate that the Department’s online visa application system was not operating at the relevant time when the Applicant attempted to apply, that does not have any bearing on the fact of the timing of the visa application having been made and, more importantly, does not demonstrate jurisdictional error on the part of the Tribunal in its decision. The Tribunal fulfilled its statutory obligations under Part 5 Division 5 of the Act in the conduct of the review, and its findings of fact were open to it on the available evidence before it. There was nothing else the Tribunal could have done.
The Tribunal’s findings that the Applicant had also been granted a visa pursuant to criteria in Schedule 3 of the Regulations, and its conclusion that the Applicant, therefore, did not satisfy criterion 3005 is correct. In Sapkota v Minister for Immigration and Border Protection Kenny, Greenwood, Tracey, Perram and Robertson JJ said: -
“[27] In our opinion, cl 3005 is not satisfied where a visa has previously been granted to a visa applicant on the basis of the satisfaction of that Sch 3 criterion that has been picked up by a Sch 2 criterion. In those circumstances a visa applicant does not meet the requirements of cl 573.211(3) as the applicant, here the appellant, has not satisfied para (d) of that subclause.”[3]
[3] [2014] FCAFC 160 at [27].
As no jurisdictional error attends the decision of the Tribunal, the application will be dismissed and costs shall follow the event.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 9 April 2015
0
4
3