Sapkota v Minister for Immigration
[2014] FCCA 1285
•27 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAPKOTA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1285 |
| Catchwords: MIGRATION – Application for judicial review of MRT decision – alleged misconstruction of Migration Regulations 1994 (Cth) – whether reg.2.03(2) interrelates with Schedule 2 of the Regulations in manner contended for by applicant – applicant’s case overlooking that subclass 572 and 573 visas are both Schedule 2 visas – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.2.03(2), Schedule 2, cls.572.211, 572.211(3), Schedule 3, criterion 3005 |
| Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66 Tang v Minister for Immigration and Citizenship and Migration Review Tribunal [2011] FMCA 631 Tang v Minister for Immigration and Citizenship [2011] FCA 1273 |
| Applicant: | SRIJANA GURUNG SAPKOTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1373 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 10 April 2014 |
| Date of Last Submission: | 10 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Poynder |
| Solicitors for the Applicant: | FCG Legal |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1373 of 2013
| SRIJANA GURUNG SAPKOTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By her amended application filed 26 November 2013, the applicant seeks judicial review of the decision of the Migration Review Tribunal dated 24 July 2013 by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.
The sole ground of application now pressed is that the Tribunal misconstrued the Migration Regulations 1994 (Cth) (“the Regulations”) as amended from time to time. The kernel of the matter is put at paragraph 22 of the applicant’s written submissions as follows:
As such, when in 2013 the applicant sought to be granted a visa based on the satisfaction of criterion 573.211(3), the correct question to be asked was whether she had previously been granted a visa on the basis of the satisfaction of criteria in 573.211(3). The applicant had not previously been granted a visa on the basis of the satisfaction of this criterion, and she therefore satisfied Criterion 3005.
It is common cause that the applicant had been granted a number of visas from time to time. Relevantly, for these purposes, on 6 July 2010 the applicant was granted a subclass 572 visa on the basis of satisfaction of the criteria set out in Schedule 3 of the Regulations.
The criteria to be satisfied for a subclass 572 visa in 2010, relevantly read:-
(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; or
…
and
(d) the applicant satisfies Schedule 3 criterion 3005. (see applicant’s written submissions paragraph 13, which are not, as I understand it, the subject of dispute.)
The relevant criteria to be satisfied for the grant of a subclass 573 visa are also set out at paragraph 14 of the applicant’s written submissions and are identical with those for a 572 visa.
Criterion 3005 relevantly provides that:
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
…
Regulation 2.03(2) provides:
(2) If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4 or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion.
It should be noted that in Minister for Immigration and Citizenship v Kaur [2013] FCAFC [66] a Full Court of the Federal Court said at [10], having set out the relevant parts of cl.572.211 of the Regulations, as follows:
[10] The reference to Sch 3 criterion 3005 in cl 572.211(3)(d) is significant. Regulation 2.03(2) provides that if a criterion in Sch 2 refers to a criterion in (inter alia) Sch 3 by number, then that criterion must be satisfied by the applicant “as if it were set out at length in the first-mentioned criterion”. It relevantly provided:
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
…
When criterion 3005 of Sch 3 is interpolated into cl 572.211(3) as required by reg 2.03(2), the reference to “this Schedule” refers to the criterion set out in Sch 2, not the criterion (or criteria) set out elsewhere in Sch 3.
I note, and emphasise, that both subclass 572 and subclass 573 visas are part of Schedule 2 to the Regulations.
Both counsel had much to say about the way in which the Regulations should be construed and about the operative effect- or otherwise- of the Full Court’s decision in Kaur. Without doing any disrespect to the very able and comprehensive submissions made, it seems to me that the answer to this question is a short one.
The Full Court expressly found in Kaur at [12]:
It is important to note that Ms Kaur had previously taken advantage of cl 572.211(3) so that she could be granted a visa on the basis of an application that she had lodged two days after her earlier substantive visa (another Student (Temporary) (Class TU) visa) expired. Criterion 3005 precluded Ms Kaur from taking advantage of the provisions of Sch 2 (including cl 572.211) a second time.
In my opinion, that observation is consistent with the approach taken by Scarlett FM (as he then was) in Tang v Minister for Immigration and Citizenship and Migration Review Tribunal [2011] FMCA 631 and upheld by Tang v Minister for Immigration and Citizenship [2011] FCA 1273 by Collier J.
Since subclass 573 is part of Schedule 2, it follows in my opinion that the Full Court has made it clear that the applicant’s application in this case must fail because she is precluded from making a second such application.
It is true that the applicant has not previously applied under subclass 573 but only under subclass 572 but in my view, this is irrelevant, given that they are both part of Schedule 2.
For what it is worth, I do not accept the submissions of the first respondent that the decision of the Full Court in Kaur should be ignored as either being wrong or not part of the ratio decidendi. It is certainly true that the substantive issues before the Full Court did not concern this particular point. Nonetheless, the observations of the Full Court were clearly made on the basis of due consideration and as such, they would, in my view, be binding upon this Court.
Once again for what it is worth, what, in my respectful view, the Full Court was saying in the passage at [10] upon which the applicant relied, was that when criterion 3005 is interpolated into class 572, the words ‘this Schedule’ refer to the criterion as if it were set out in Schedule 2, not the criterion or criteria set out elsewhere in Schedule 3.
In other words, where there is a reference to Schedule 3, cl.572.211(3)(d) would read:
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.
In the ultimate, in my view, the applicant’s submissions are wide of the mark. The fact that she had not made an application under subclass 573 is irrelevant, given that it is plainly an application made under Schedule 2. The net effect is that the applicant was precluded by subclass 573 from making a further application once she had made an earlier application under Schedule 2, whether under subclasses 573, 572 or otherwise.
It is repeat applications under Schedule 2 that are prohibited by the effect of the Regulations.
As I have already said, this is a short point. In view of the conclusions I have reached, it is inappropriate for me to set out a detailed consideration of the other very skilled arguments that the parties propounded about the decision of the Full Court in Kaur.
It follows that the application will be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 June 2014
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