SHAIR v Minister for Immigration

[2018] FCCA 357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 357

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s factual error amounted to jurisdictional error – whether to exercise discretion to refuse relief on the basis of futility – jurisdictional error – relief refused – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36

Migration Act 1958 (Cth), ss.5, 31, 46, 77, 82

Migration Regulations 1994 (Cth), cls.573.2, 573.21, 573.22, 573.211, 1222 of sch.1, pt.573 of sch.2, criterion 3005 of sch.3, reg.2.12C

Cases cited:

Chitrakar v Minister for Immigration & Border Protection [2017] FCA 533
Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309; [2017] FCAFC 51
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Mohammed v Minister for Immigration & Border Protection (2015) 231 FCR 243; [2015] FCA 184
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

Applicant: FALAK SHAIR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2628 of 2016

Judgment of: Judge Smith

Hearing date: 10 October 2017 & 1 February 2018

Date of Last Submission: 1 February 2018

Delivered at: Sydney

Delivered on: 9 March 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S Burnett, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2628 of 2016

FALAK SHAIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who came to Australia to undertake tertiary studies. He has held a number of student visas which have entitled him to remain in Australia to undertake those studies. The last of those visas expired on 24 September 2015. On 30 September 2015, the applicant applied for a further student visa. There is an issue as to whether that application was in fact made on 24 September 2015 or the later date which was explained by an error made by the applicant in respect of the visa application charge.

2. The application was refused by a decision made by a delegate of the Minister for Immigration on 13 November 2015. The reason for the refusal was that the criteria for the grant of the student visa allowed an applicant only one opportunity to be granted a substantive visa if, at the time of the application, he or she did not hold a substantive visa. The delegate found that, at the time of the application the applicant did not hold a substantive visa, and that he had previously been granted a visa even though, at that time, he had not held a substantive visa.

3. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. On 31 August 2016, the Tribunal affirmed the delegate’s decision. The reasons for that decision were essentially the same as those of the delegate. The reasons are unexceptionable except for the fact that they include several important factual matters which did not relate to the applicant. The applicant now seeks judicial review of the Tribunal’s decision. He argues first, that the factual errors made by the Tribunal were serious mistakes and, secondly, that the error made by him in connection with his visa application was so insignificant that it ought not to be counted against him.

4. The Minister argues, first, that the Tribunal’s decision was not affected by the errors apparent in its reasons, and secondly, that even if the errors amount to jurisdictional error, the Court should refuse relief on the ground that relief would be futile.

5. It is convenient to deal first with the issue of the date of the visa application. If, as suggested by the applicant that was 24 September 2015, the other issues fall away and the applicant must succeed.

The date of the visa application

1. In order to understand the importance of the date of the visa application, it is necessary to set out the relevant statutory context.

2. The Migration Act1958 (Cth) empowers the Minister to grant a non-citizen a visa to remain in Australia. Section 31 of the Act provides for prescribed classes of visas and authorises the making of regulations prescribing criteria for a visa or visas of a specified class. A non-citizen who wants a visa must apply for a visa of a particular class.

3. The applicant applied for a Student (Temporary) (Class TU) visa. At that time, that class of visa had a number of different subclasses. The particular subclass relevant to a visa applicant depended, broadly speaking, on the type of course in which he or she was enrolled. The subclass relevant to the applicant was subclass 573 – Higher Education Sector.

4. The criteria for the grant of a subclass 573 visa were contained in pt.573 of sch.2 to the Migration Regulations 1994 (Cth). That part was divided into a number of clauses. The first set of clauses (cl.573.2) contained the primary criteria: that is, those that were to be satisfied by the primary visa applicant, in this case, the applicant. They were, in turn, divided into two categories, cls.573.21 and 573.22 which bore the sub-headings “Criteria to be satisfied at time of application” and “Criteria to be satisfied at time of decision”.

5. Clause 573.211(1), which came under the first category, provided:

   If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

6. In order to meet the requirements of sub-cls.573.211(2), (4) or (6) a visa applicant had to be the holder of certain classes or subclasses of visa.

7. A “holder”, in relation to a visa, means, subject to s.77 of the Act, the person to whom it was granted or a person included in it: s.5. Section 77 provides that a non-citizen holds a visa at all times during the visa period for the visa. The visa period in relation to a visa, means the period beginning when the visa is granted; and ending in the case of a visa other than a bridging visa, when the visa ceases to be in effect: s.5. Relevantly, a visa granted until a particular date ceases to be in effect on that date: s.82(5).

8. As will be seen, the applicant’s last visa was granted until 24 September 2015 and so ceased on that day. That means that the visa was still in effect on 24 September 2015: s.36(1) of the Acts Interpretation Act 1901 (Cth).

9. In order to be the holder of a visa at the time of the application, the applicant had to have made a valid application for a visa by 24 September 2015: Mohammed v Minister for Immigration & Border Protection (2015) 231 FCR 243; [2015] FCA 184; Chitrakar v Minister for Immigration & Border Protection [2017] FCA 533. In order to make a valid application, the applicant had to do a number of things including paying the visa application charge that the Regulations required to be paid at the time when the application was made: sub-s.46(1)(ba). The statutory scheme relevant to this was described by Perry J in Mohammed at [19] to [28] and need not be repeated here.

10. Sub-regulation 2.12C(1)(a) of the Regulations relevantly required the applicant to pay, at the time of the application, the first instalment which consisted of the base application charge and a subsequent temporary application charge. The amount of the first of these was $550: sub-cl.1222(2)(a)(x) of sch.1 to the Regulations. The amount of the second was $700: reg.2.12C(6).

11. In his application, the applicant underpaid the first instalment by $10: he recorded (and paid) the base application charge as $540. This underpayment was brought to the applicant’s attention and he paid the correct amount on 30 September 2015. The scheme of the Act and Regulations meant that the applicant did not make a valid application until that date and so, at the time of the application the applicant was not the holder of any visa and could not satisfy the requirements of sub-cls.573.211(2), (4) or (6) of the Regulations.

12. The applicant claims that this mistake was trivial and it ought not to give rise to the harsh consequence that he was not entitled to the grant of the visa. It may readily be accepted that the applicant’s underpayment was neither deliberate nor substantial. However, it was significant. That significance is one ascribed by the legislation, namely, that the time of the application did not arise until full payment of the first instalment, that is, on 30 September 2015.

The remaining factual background

1. Unlike cls.573.211(2), (4) and (6) of the Regulations, cl.573.211(3) did apply if the applicant was not the holder of a substantive visa. That clause provided:

   (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 in a legislative instrument made by the Minister) after:

   (i)     the day when that last substantive visa ceased to be in effect; or

   …

   (d)    the applicant satisfies Schedule 3 criterion 3005.

   (Emphasis added)

2. Schedule 3 criterion 3005 provided:

   3005A 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.

   (Emphasis added)

3. The question then, was whether a visa had previously been granted to the applicant on the basis of the satisfaction of criterion 3005.

4. On 12 November 2012, the applicant was granted a Student (Class TU) (subclass 573) visa which ceased on 23 July 2014. On 24 July 2014, he applied for a further student visa. For the reasons I have explained, he was not the holder of a visa at the time of that application and had to satisfy criterion 3005: sub-cl.573.211(3)(d). The visa was granted on 18 August 2014. The records of the Department of Immigration concerning the grant of that visa were in evidence and include the following statement:

   lodged within 28 days of last TU573 ceasing – 1st use of schedule 3 (Previously became unlawful but visa granted offshore)

5. Even without that statement it is easy to deduce that the visa was granted by satisfaction of criterion 3005: as the applicant was not the holder of a visa at the time of application, there was no other way he could have satisfied the relevant criteria.

6. The visa granted on 18 August 2014 ceased on 24 September 2015.

7. On 13 November 2015 a delegate of the Minister made a decision to refuse to grant the applicant a visa because he had already had the benefit of criterion 3005 and so did not satisfy cl.573.211(3) of the Regulations.

8. The applicant applied to the Tribunal for review of the delegate’s decision. After a hearing conducted by the Tribunal on 18 August 2016 the Tribunal made a decision on 31 August 2016 to affirm the delegate’s decision.

9. The Tribunal noted that the issue in the application was whether the applicant satisfied sub-cl.573.211(3)(d) of the Regulations. Its critical reasoning as to why the applicant did not satisfy that provision was as follows:

   12.The applicant previously applied for a visa as an unlawful non-citizen in March 2015 and the provisions of Schedule 3 were utilized to grant him a substantive visa. The Tribunal finds that a visa was previously granted to the applicant on the basis of the satisfaction of the criteria set out in Schedule 3 to the Regulations.

   13.The current visa application was made on 30 September 2015, when the applicant did not hold a substantive visa, his last held substantive visa had ceased on 24 September 2015.

   14.The applicant was previously granted a Student visa on the basis of Schedule 3 criterion 3005, he cannot be granted a Student visa on that basis a second time. The requirements of cl.573.211(3)(d), requiring that an applicant satisfies Schedule 3 criterion 3005, are not met. There is no evidence before the Tribunal to suggest that the applicant meets any of the alternative subclauses for cl.573.211.

   15.The Tribunal has no discretion and no option other than to affirm the decision under review.

   (Emphasis added)

10. If it were not for the reference to March 2015 in [12] (emphasised above), this reasoning would be unimpeachable. The grounds in the applicant’s application for judicial review to this Court only took issue with the decision at the highest level of generality. However, when the matter was first heard, the applicant stated that, contrary to the assertion by the Tribunal, he had never applied for a visa in March 2015. As that was not entirely obvious from the material before the Court at the time and the possible seriousness of the consequences of the applicant’s assertion being correct, the hearing was adjourned in order for the factual issue to be explored.

11. When the hearing was resumed the evidence revealed, and the Minister conceded, that the reference to March 2015 at [12] of the Tribunal’s reasons was incorrect and that the applicant’s visa history was as set out at [21]-[23] above.

12. The real issue then became whether the Tribunal’s error amounts to jurisdictional error and, if so, whether relief ought to be refused in the exercise of discretion. In order to address those issues it is first necessary to set out in full the further errors made by the Tribunal as well as to note the matters that the Tribunal correctly recorded in its statement of reasons.

The Tribunal’s factual errors and their consequences

1. After referring in its statement of reasons to the date on which the Tribunal had conducted its hearing, the Tribunal stated the following:

   6.The Tribunal discussed the applicant’s visa application. The applicant confirmed his visa was refused because his last substantive visa ceased on 24 September 2015 which was 6 days before his visa application was received on 30 September 2015.

   7.The applicant said that he had previously applied for a visa after his last substantive visa ceased. He was granted a student visa on the basis of having satisfied Schedule 3 criterion 3005 previously. He said that his education provider, the Holmes Institute, did not provide him with Certificate of Enrolment when requested to do so on 9 March 2015 and issued the Certificate of Enrolment on 16 March 2015. Additionally, he did not fill out the correct application form until 19 March 2015 and subsequently sent the correct application to the Department on 23 March 2015.

2. The Tribunal went on at [9], to explain that the applicant had stated that he had submitted “his application to the Department on time but had erred in relation to payment”. That statement, as well as the statement in [6], was accurate and not contested by the applicant. However, everything stated by the Tribunal in [7] was entirely incorrect and is the only basis that appears in the Tribunal’s reasons for the reference in [12] to March 2015.

3. Overall then, the Tribunal’s statement of reasons reveals that it was addressing the correct applicant and application in some parts of its reasons, but that in other parts the Tribunal was doing something entirely unconnected with the applicant.

4. The critical question, as correctly understood by the Tribunal, was whether the applicant had previously been granted a visa on the basis of the satisfaction of either criterion set out in sch.3 to the Regulations. The Tribunal’s conclusion that the visa had been granted to the applicant on that basis related to a visa application which the applicant had never made. Thus the very foundation of the Tribunal’s decision was no more than an illusion.

5. Although, at least on the surface, the error by the Tribunal was factual, the extent of the error and its significance to the decision reveals a more substantial and, in my view, jurisdictional error. At the very least, the Tribunal failed to listen to an essential aspect of the applicant’s evidence and denied him a fair hearing. The error could also be described as a failure to “review” the delegate’s decision. It is not necessary to survey the many authorities concerning jurisdictional error arising from findings of fact to explain this conclusion. It suffices to adopt the analysis applied by the Full Court of the Federal Court in Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309; [2017] FCAFC 51, a case concerning the ingredients involved in crumbing chicken schnitzel.

6. I should add that, while it is difficult to know precisely why the Tribunal made such a fundamental error in respect of the facts before it, it must always be remembered that the Tribunal deals with very many cases, many of which have very similar issues and indeed very similar factual circumstances. That fact however, only highlights the need for great care in determining each application on its own merits, regardless of the difficulties imposed by the nature and extent of the workload.

7. In this case I am satisfied that the Tribunal did not properly fulfil the task required of it by the Act. The question then, is whether constitutional relief ought to be granted to the applicant in light of that failure.

Discretion to refuse relief

1. In R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33, Latham CJ, Rich, Dixon, McTiernan and Webb JJ addressed the discretionary refusal of mandamus and said, at 400:

   For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. …

2. In SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26, a case in which relief was sought in respect of a decision under the Act, the plurality noted, at [28], that some guidance could be taken from that passage. Their Honours went on to find that no useful result could result from the grant of relief in that case. They explained at [29]:

   The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. …

   (Citations omitted)

3. In my view, the same reasoning applies to this case. There is no question about the following matters: first, the applicant was granted a visa in August 2014 on the basis that he satisfied one of the sch.3 criteria; secondly, that visa ceased on 24 September 2015; and thirdly, the applicant made a valid application for a further student visa on 30 September 2015.

4. The consequence of the second and third of those matters is that the applicant had to satisfy the sch.3 criteria. The consequence of the first is that he could not.

Conclusion

1. For those reasons there would be no utility in granting the applicant relief and his application will be dismissed.  

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 9 March 2018