SHRESHTA v Minister for Immigration
[2005] FMCA 1626
•15 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHRESHTA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1626 |
| MIGRATION – VISA – Student Visa – application for review of decision of MRT affirming a finding that Applicant not entitled to Student (Temporary) (Class TU) visa – Migration Review Tribunal – Migration Act 1958 (Cth) s.351 requires the Migration Review Tribunal in carrying out its function to provide a mechanism of review that is fair, just, economical and informal and quick – where Tribunal did not hear an application to set aside the cancellation of a student visa until after the visa had already expired – MRT is required to act according to substantial justice and the merits of the case – failure to hear an application for review in time to grant effective relief may be a jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 353, 359A, 475A
Migration Amendment Regulations 2004 (No. 8), Reg. 4, Schedule 8 Part 2
Federal Magistrates Court Rules 2001, R.11.02
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Kioa v West (1985) 159 CLR 550
Annetts v McCann (1990) 170 CLR 596
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096
| Applicant: | KSHITIZ SHRESHTA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 1192 of 2005 |
| Delivered on: | 15 November 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 August 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Slattery |
| Counsel for the Respondent: | Ms Kaur-Bains |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Leave to join Migration Review Tribunal as Second Respondent.
That the Application is granted.
That there be an order in the nature of certiorari to quash the decision of the Migration Review Tribunal made on 18 April 2005.
That the First Respondent pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1192 of 2005
| KSHITIZ SHRESHTA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision made by the Migration Review Tribunal made on 18th April 2005 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs that the Applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.
By his Amended Application, the Applicant seeks:
a)an order in the nature of certiorari to quash the Tribunal’s decision;
b)an order in the nature of mandamus requiring the Tribunal to review the delegate’s decision according to law; and
c)an order for costs.
Background
The Applicant is a citizen of Nepal who was granted a subclass 560 Student Visa on 24th October 2000. The visa was due to expire on 6th June 2003, but a delegate of the Minister cancelled the visa on 21st February 2003, for breach of condition 8105, that relates to limitations on working. As a result of the cancellation of his visa, the Applicant was transferred to Villawood Immigration and Detention Centre that same day.
On 24th February 2003 the Applicant applied to the Migration Review Tribunal for review of that decision. The following day he applied for a Bridging E visa on the basis of his application to the Tribunal for review.
On 28th February the Applicant was granted a Bridging E visa and was released from detention. The conditions of that visa included a $10,000.00 security and condition 8101 (no work).
The Applicant attended a hearing of the Tribunal on 9th July 2003 and gave oral evidence. He told the Tribunal that there were extenuating circumstances and that he had not intentionally breached his working condition. He stated that he was sometimes called upon to work longer hours than he was allowed to and would have lost his job if he had not done the work required. He said that he had two semesters left to complete his course but was not studying at the time because he did not have permission to do so on his Bridging visa.
The Tribunal wrote to the Applicant on 21st August 2003, advising that the Tribunal had a discretion in deciding whether his visa should be cancelled. The Tribunal invited the Applicant to provide further information relevant to the review and to comment on the application on file.
The Applicant replied to that letter on 28th August 2003. He provided a further statement and letters from the Human Resources Manager at his employer and from the University at which he was a student.
The first Tribunal decision
The Tribunal made its decision on 14th November 2003. In the decision, the Tribunal found that the Applicant had breached condition 8105 of the student visa and that the ground for cancellation had therefore been made out. The Tribunal went on to find that the cancellation had occurred prior to the operation of the mandatory cancellation scheme for student visas, and so proceeded to consider whether it was the correct and preferable decision that the visa be cancelled.
The Tribunal found, on the basis of the evidence, that the additional hours worked represented occasional breaches rather than a regular pattern. The Tribunal noted that there was no evidence that the Applicant had breached any other conditions or aspects of migration law.
The Tribunal accepted the Applicant’s evidence that at the time of the cancellation of his student visa he was already close to completing his course. The Tribunal also accepted the Applicant’s evidence about the serious effect that the cancellation would have on his ability to obtain a tertiary qualification and therefore on his career prospects and on his family.
The Tribunal then stated:
Although the ground for cancellation has been made out the Tribunal finds that, after consideration of all the circumstances of this case, the correct and preferable decision is that the applicant’s visa not be cancelled.
Accordingly the appropriate course of action is to set aside the decision to cancel the subclass 560 visa held by him. The Tribunal notes that unfortunately this visa expired on 6 June 2003.[1]
[1] MRT decision 14 November 2003, paragraphs 47 and 48
The decision of the Tribunal was to set aside the decision under review to cancel the review Applicant’s Student (Temporary) (Class TU) visa and substitute a decision that the visa not be cancelled.
The Minister did not apply for review of the Tribunal’s decision.
Application for a further Student Visa
The Applicant then applied for a Student (Temporary) Visa (Subclass 570-576) in order to complete his degree. The application was received by the Department of Immigration and Multicultural and Indigenous Affairs on 9th December 2003.
On 5th February 2004 the Department wrote to the Applicant, informing him that a decision was taken that day to refuse to grant the visa. The delegate gave these reasons:
“4.3 Reasons
The Applicant’s last substantive visa expired on 6 June 2003. The Applicant lodged this application on 9 December 2003 at the Sydney City Office.
As the Applicant was not the holder of a substantive visa at the time of application I find that the Applicant does not meet Regulation 573.211 (2), (4), (5) or (6).
At the time of application the Applicant did not hold a substantive visa and his last substantive visa had expired more than 28 days previously. Based on this fact I find that the Applicant does not meet the requirements of Regulation 573.211 (3) (C).
Based on the reasons given above, I find that the Applicant does not meet Regulation 573.211 (1) as the applicant does not satisfy the requirements of Regulation 573.211 (2), (3), (4), (5) or (6).”
Put simply, the problem faced by the Applicant was that he had not lodged his application for a student visa within 28 days of the expiry of his former student visa. Whilst he lodged his application within 28 days of the decision of the Migration Review Tribunal on 14th November 2003, his visa had already expired on 6th June 2003.
The second application to the Migration Review Tribunal
The Applicant then applied to the Migration Review Tribunal for a review of the delegate’s decision not to grant him a student visa. The Tribunal received his application on 27th February 2004.
On 28th July 2004 the Tribunal wrote to the Applicant, in a letter headed “Invitation to Comment on Information”. This letter was written to comply with s. 359A of the Migration Act 1958. The letter spelled out the difficulty which the Applicant faced in this way:
“You are invited to comment, in writing, on the following information:
1. Your previous student visa ceased on 6 June 2003. This was your last held substantive visa.
2. You made your Student visa application on 9 December 2003.
This information is relevant to the review because:
1. As you did not hold a substantive visa when you made your Student visa application, you must satisfy subclause 573.211(3) of Schedule 2 to the Regulations.
2. You do not satisfy paragraph 573.211(3) of Schedule 2 to the Regulations because you did not make your visa application within 28 days after your last substantive visa ceased.
3. If you do not satisfy paragraph 573.211(3) (c) of Schedule 2 to the Regulations the Tribunal must make a negative decision on your review application.”
The Applicant replied by means of a letter dated 6th October 2004. In that letter, the Applicant set out that:
·He obtained a Bridging visa on 28th February 2003;
·A condition of the visa was that “the holder must not engage in studies or training”.
·His student visa expired on 6th June 2003.
·He did not have a substantive visa to apply for an extension of his student visa on 6th June 2003 until after the decision of the MRT on 14th November 2003.
·He applied for his student visa on 9th December 2003, which was as soon as he could after having been notified of the favorable decision of the MRT made on 14th November 2003.
·He submitted that the expiry date of the visa should not apply whilst his application for review of the cancellation decision was before the MRT.
On 28th October 2004 the Tribunal invited the Applicant to attend a hearing and give evidence on 7th February 2005. The Tribunal later postponed that hearing until 15th March. The Applicant attended at the hearing and gave evidence that he had finished his Bachelor’s degree and was enrolled in a Master’s degree that is due to finish in 2006.
The second Tribunal decision
The Tribunal made its decision on 18th April 2005. The relevant passages of the Tribunal’s Findings and Reasons are as follows:
“8. At the time the visa application was lodged, Class TU contained a number of subclasses. The visa applicant sought a Subclass 573 visa. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses and the Tribunal finds so.
9. The Tribunal is satisfied that the visa applicant’s last held substantive visa was a Subclass 560 visa. During the period of the review of the cancellation of that visa, the visa ceased on 6 June 2003. The visa applicant lodged the application for the Subclass 573 visa on 9 December 2003. The visa applicant therefore made the Subclass 573 visa application the subject (sic) more than 28 days after his Subclass 560 visa expired.
10. Accordingly, the Tribunal finds that the visa applicant does not meet paragraph 573.211 (3) (c). He does not meet subclause 573.211 (3).
11. The Tribunal is further satisfied that the visa applicant does not meet subclauses 573.211 (2), 573.211 (4), 573.211 (5) and 573.211 (6).
12. As the Tribunal has found that 77the visa applicant does not meet any of the subclauses contained in clause 573.211 he does not meet clause 573.211.
13. The Tribunal must affirm the decision under review.
14. In reaching this decision the Tribunal is aware that legislation is now in place that allows a visa applicant, who has had the cancellation of his or her visa set aside, and where the expiration date of the student visa has passed, to lodge an application for a further student visa within 28 days of the decision to set aside the cancellation. This legislation is not retrospective and is not therefore of assistance to the visa applicant. It is regrettable that the visa applicant will not be able to complete his Masters degree through no fault of his own.”[2]
[2] Court Book pages 56 and 57
With those rueful comments, the Tribunal affirmed the decision under review, finding that the Applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.
The amended application
The ground of the Application is that the Tribunal[3] made a jurisdictional error of law by way of a constructive failure to exercise jurisdiction in the following ways:
a)misunderstanding the nature of its jurisdiction;
b)misconceiving its duty;
c)failing to consider the requirements of procedural fairness; and
d)failing to provide procedural and/or substantive protection to the legitimate expectations of the Applicant in relation to his application.
[3] Referred to in the Amended Application for some reason as the “Refugee Review Tribunal”
The Amended Application provided particulars in sub-paragraphs (a) to (g) which contained a considerable amount of repetition but can be summarized in this way:
·It was a legitimate expectation of the Applicant that his student visa would be renewed on its merits and not for failure to comply with the time period for reapplication provided by the Regulations; and
·It was a legitimate expectation of the Applicant that procedures would be in place to provide procedural fairness, so that he would not be barred from applying for a visa because of a lapse of time that had occurred whilst he was awaiting a decision of the MRT until time he could not apply for a visa.
The applicant’s submissions
The Applicant’s counsel, Mr Slattery, made oral submissions to this effect and also provided written submissions in which he cited the following principles:
a)An administrative decision maker, subject to the Constitutional writs, empowered with the force of law to impact adversely upon the well-being of a person, must consider the requirements of procedural fairness in order to ensure the legality of a decision that does such (Kioa v West (1985) 159 CLR 550); Annetts v McCann (1990) 170 CLR 596; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57).
b)Legitimate expectations can indicate what procedural fairness requires. An administrative decision maker must consider the legitimate expectations of a person subject to their decision in determining the pre-existence and requirements of procedural fairness (FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (supra); Attorney General (NSW) v Quin (1990) 170 CLR 1; Annetts v McCann (supra); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (supra); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1).
The respondent’s submissions
Counsel for the Respondent Minister, Ms Kaur-Bains, filed an outline of submissions and a supplementary outline of submissions.
She referred the Court to the provisions of subclause 573.211 (1) of the Migration Regulations. At the time the application for a visa was lodged on 9th December 2003 subclause 573.211 provided that at the time the application for visa is made the Applicant must meet the requirements of subclause (3). The Applicant meets the requirements of subclause (3) if he or she is not the holder of a substantive visa and the last substantive visa held was a student visa and the application is made within 28 days after the last substantive visa ceased to be in effect.
The regulations were amended by Migration Amendment Regulations 2004 (No. 8) which commenced on 23rd December 2004. The relevant amendment appears in Schedule 8 Part 2, which deals with Amendments relating to applications for visas after MRT decisions. In Schedule 2 of that part, under the heading “[15] Further amendments – Schedule 2” paragraph 573.211 (3) (c) inter alia is amended so as to provide that the relevant time limit for making an application is varied in this way:
“(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; …”
The transitional provisions in Regulation 4 provide:
“(11) The amendments made by item [5] of Part 1 of Schedule 8 and Part 2 of Schedule 8 apply in relation to an application for a visa made on or after the day on which Schedule 8 commences.”
Schedule 8 commenced on 23rd December 2004. The Respondent submitted that the amendments made by the regulations did not apply to the Applicant’s case because the application for a visa was made on 9th December 2003 and the amendments altering the time limits did not commence until 23rd December. The Applicant was therefore required to have made the application for a visa within 28 days after the last substantive visa ceased to be in effect.
The Respondent submitted that no jurisdictional error was disclosed in the (second) Tribunal’s decision because the Tribunal could not at law the amendments to the Regulations to the Applicant’s case.
Those submissions were submitted before the Applicant’s submissions became available. The Respondent provided a supplementary outline of submissions in reply to the Applicant’s reliance on the principle that depending on the facts the existence of a legitimate expectation may bear upon the practical content of the obligation to extend procedural fairness (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [34]).
Counsel for the Respondent submits that the Applicant must first establish that the conduct of the Respondent resulted in that expectation. Unlike the situation in Lam (supra) where a representation by an officer of the Department of Immigration and Multicultural and Indigenous Affairs was held by the High Court to have given rise to an expectation, there is no assertion by the applicant that any such representation was made or that the Applicant held the particular expectation at the relevant time.
Further, the Respondent submits that even if the relevant could establish that he held the relevant expectation that expectation must be legitimate. The scheme of the Migration Act 1958 precludes the MRT from disregarding the criterion in subclause 573.211 (3) (c). The MRT was required to apply the law. For the Applicant to succeed, the Court would have to compel the MRT not to apply the law (see Attorney General (NSW) v Quin (1990) 170 CLR 1 at 23-4).
Again, section 65 of the Migration Act requires the decision maker to be satisfied of certain matters before being permitted to grant the visa. If the decision maker is not so satisfied, then he or she must refuse the visa. “Section 65 does not confer a power to be exercised as a discretion” (per Whitlam J in McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [9]).
Subclause 573.211(1) provided that the Applicant had to meet the criterion in subclause 3, that if the Applicant was not the holder of a substantive visa the application had to be made within 28 days after the last substantive visa had ceased to be in effect. Upon review, the MRT is bound to exercise all the powers and discretions that are conferred by the Migration Act and the Migration Regulations so the MRT was required at law to refuse the visa because a mandatory criterion laid down by the Regulations and required to be applied by s. 65 of the Act was not satisfied. The Respondent submits that the MRT had no power to do otherwise.
Joinder of the Migration Review Tribunal
In the Respondent’s first submission, filed on 5th August 2005, the Respondent submitted that in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the High Court held that when the Federal Court is exercising the jurisdiction vested in it by s. 39B of the Judiciary Act 1903 (Cth) with respect to matters in which a writ of mandamus or prohibition is sought against the Tribunal, the Tribunal is a necessary party to the proceeding. The same situation must apply when the Federal Magistrates Court is exercising the same jurisdiction under s. 483A of the Act.
If follows that the Migration Review Tribunal should be joined as a Second Respondent. I believe that this submission is correct and I propose to grant leave to join the Migration Review Tribunal under Rule 11.02.
Conclusions
It appears that the Applicant was placed in a “Catch 22” situation, to use the term coined by the author Joseph Heller. His student visa was cancelled on 21st February 2003. Had the visa not have been cancelled, it would have expired on 6th June 2003. He applied for a review of that decision on 24th February 2003 and applied for a Bridging visa that same day. The Tribunal received the application for review on 27th February 2003.
The Applicant obtained a Bridging visa on 28th February 2003. The visa had the condition that the holder must not engage in studies or training.
The Tribunal did not hear the Applicant’s application for review of the decision to cancel his visa until 9th July 2003, more than a month after the visa would have expired. The Tribunal not did make its decision until 14th November 2003.
The Applicant was placed in an impossible position. Under the regulations as they stood at the time, as he did not have a substantive visa, he had to apply for a new visa within 28 days of the expiry date, i.e. within 28 days of 6th June 2003. Had he done so, his application would have been refused for two reasons. First, his Bridging visa did not permit him to engage in studies or training. Second, at no time between 6th June and 4th July 2003 (28 days from 6th June) did he hold a substantive student visa. His visa was cancelled on 21st February.
If the Applicant had applied for a student visa within 28 days from 28th February 2003, he would not have been successful because of the condition on his Bridging visa that he was not to engage in studies or training.
It was impossible for the Applicant to succeed. By the time the MRT granted his application and set aside the decision to cancel the Applicant’s student visa on 14th November 2003, it was too late. The visa had already expired before its cancellation was set aside. Even if the Applicant had immediately applied for a new visa, he would have been out of time.
The Migration Review Tribunal effectively handed the Applicant a worthless victory by setting aside the cancellation of an expired visa too late to allow the Applicant even to apply for a new one. In my view this a jurisdictional error, as it represents a breach of section 353 of the Migration Act. Section 353 places these obligations on the Migration Review Tribunal:
353 (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case
In my view the Tribunal had an obligation to hear the Applicant’s case whilst it was still possible to put the Applicant back in the same position that he was in before the cancellation of his visa. The Tribunal had received his application by the 27th February. It had an obligation to expedite the hearing of the application so that a decision could be made by 6th June 2003, when the visa would otherwise have expires. It may well be that the significance of this date was overlooked.
It is difficult to see any jurisdictional error in the second Tribunal decision. The Tribunal could not have decided otherwise. The damage had already been done.
It is also difficult to see why the Department of Immigration and Multicultural and Indigenous Affairs has taken such an intransigent view of this case. The result for the Applicant was manifestly unjust, and the amendment to the Migration Regulations which came into force on 16th December 2004 was clearly intended to remedy anomalous situations such as this.
It is disappointing to see public money being expended on legal fees in defending an injustice.
In my view this is an appropriate case for the Minister to consider whether it may be in the public interest to substitute for the second decision of the Tribunal another decision, being a decision that is more favourable to the Applicant, even though the Tribunal did not have the power to make that other decision. The Minister has the power to substitute a more favourable decision under section 351 of the Act.
There is nothing in the legislation that provides that a decision by the Minister under s. 351 can only be made at the request of an applicant for a visa. The Minister has the power to make such a decision of her own motion on the recommendation of her Department.
There is no benefit in making any order in the way of mandamus, but I propose to make an order in the nature of certiorari. I believe that the First Respondent should pay the Applicant’s costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 November 2005
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