SINGH v Minister for Immigration
[2011] FMCA 832
•27 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 832 |
| MIGRATION – Application for student visa – application for further visa received one day after last substantive visa expired – whether the Acts Interpretation Act operates to extend the time thereby validating application – whether circumstances suggest actionable estoppel – no basis for relief in estoppel – no jurisdictional error. |
| Acts Interpretation Act 1901 (Cth), ss.29, 29(1), 36(2) Evidence Act 1995 (Cth), s.160 Migration Act 1958 (Cth), s.46 Migration Regulations 1994 (Cth) |
| Lee v Minister for Immigration and Citizenship & Anor [2007] FMCA 1554 Minister for Immigration and Ethnic Affairs v Sabri Polat (1995) 57 FCR 98 Zangzinchai v Millanta (1994) 125 ALR 265; (1994) 53 FCR 35 |
| First Applicant: | MANPREET SINGH |
| Second Applicant: | GURPREET KAUR NARRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 416 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 10 October 2011 |
| Date of Last Submission: | 10 October 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 27 October 2011 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Sharma Lawyers |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Unless either party makes application for any other order within seven (7) days the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 416 of 2011
| MANPREET SINGH |
First Applicant
| GURPREET KAUR NARRAN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant (the applicant) is a citizen of India who arrived in Australia on 29 May 2008 as the holder of a Sub-Class 572 Student Visa valid until 29 July 2009. The applicant was then granted a Sub-Class 573 Visa on 18 August 2009 which ceased on 25 October 2009. On 26 October 2009 the applicant applied to the Department for a Student (Temporary) (Class U) Visa with the second applicant being included in this application as a member of the applicant’s family unit. The delegate refused the application to grant a Sub-Class 572 Visa by decision dated 22 November 2009 on the basis that the applicant did not satisfy criterion 3005 in Schedule 3 of the Migration Regulations 1994 (Cth) (The Regulations). The delegate found that the applicant did not satisfy Clause 572.211(3) of Schedule 2 to the Regulations. The delegate was also not satisfied that the applicant met the criteria for the grant of any other sub-class of visa in the Student (Temporary) (Class TU) Visa. His application for a review of the delegate’s decision was rejected by the second respondent Tribunal on
23 November 2009. He now seeks judicial review of the Tribunal’s decision.
Background
As was explained in the Tribunal’s reasons the applicant’s difficulties arose because of the manner in which he sought to process his application. It is not in contest that the applicant attended at the office of the Minister for Immigration and Citizenship at Brisbane on
22 October 2009 in an attempt to resolve difficulties he was having with lodging his application online. It was accepted by the Tribunal that on that occasion the applicant was informed by an officer of the Department that changes were made to his file and he would be able to lodge his application electronically. It is further accepted that he then went to a nearby internet café to try and lodge his application but was unsuccessful in doing so and returned to the office for a second time when he spoke again to the same officer.
On that occasion the officer informed him to complete a paper based application and handed him an application form which he told the applicant could be posted. It is accepted that the applicant advised the case officer that his visa was about to expire but was assured by the case officer that his records had been updated so that there was no problem and that in respect of the payment of the fees, such could be effected by money order. The applicant took the form home, filled it in and posted it the next day being 23 October 2009 (that is before his visa had expired) together with a money order and confirmation of enrolment form. It was further accepted by the Tribunal that the application form was received by the Department on 26 October 2009. However by the date of receipt of the application the applicant’s visa had expired.[1]
[1] Tribunal decision paragraphs [30] to [34] inclusive.
In determining the application the Tribunal found that the applicant’s last substantive visa ceased on 25 October 2009 and that he had not applied to the Department for a further Student Visa until 26 October 2009. On that basis the Tribunal concluded that the applicant did not satisfy a time of application requirement that he was the holder of a substantive visa that particular time. It noted that the applicant was not entitled to rely upon the Schedule 3 provisions because the applicant had previously been granted a visa using Schedule 3 and on that basis did not satisfy criterion 3005 which requires that a visa or entry permit had not previously been granted to the applicant on the basis of the satisfaction of any criteria set out in Schedule 3 to the Regulations. That criteria is one which is required to be satisfied in respect of time of application Clause 572.211(3). In any other instance it is a time of application requirement that the applicant be the holder of a substantive visa of a particular type at the time the visa application is made.
In reviewing the application the Tribunal considered when the applicant’s last substantive visa ceased to be in effect. It resolved that it ceased on 25 October 2009. It further found that he did not apply for a visa until the application was received on 26 October 2009.
In examining that issue the Tribunal gave consideration to:
1.The question of when and by what means an application is made; and
2.Whether provisions of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) would aid the applicant.
The Tribunal concluded that an application is made when it satisfies the statutory requirements for a valid application, they being the matters set out in s.46 of the Act, Rule 2.07 of the Regulations and Item 1222 of Schedule 1. In summary, applications must be made using the approved form; accompanied by the visa application charge; and accompanied by satisfactory evidence that the applicant is enrolled or has been offered a place in a registered full time course of study.
In this regard the Tribunal concluded that the Department only received the completed application form, prescribed fee and accompanying documents on 26 October 2009 and that the evidence led only to that conclusion. It follows that the Tribunal concluded that the applicant did not lodge a valid application with the Department before his substantive visa ceased on 25 October 2009.
The applicant also submitted before the Tribunal that the application should be deemed to have been lodged on 23 October 2009 (that being the date on which the application was posted) by operation of s.29 of the Acts Interpretation Act. However the Tribunal rejected that argument on the basis that s.29(1) of the Acts Interpretation Act deals with the circumstance where “an Act authorises or acquires any document to be served by post”. The Migration Act1958 (Cth) makes no such provision. Likewise s.160 of the Evidence Act 1995 (Cth) does not come to the aid of the applicant because s.160 imports the postal rule only in the context of contracts. Migration applications are not an instance of contract. Accordingly the Tribunal did not accept the applicant’s submissions on that point.
Additionally the applicant’s arguments under s.36(2) of the Acts Interpretation Act dealing with the reckoning of time also failed. Following Lee v Minister for Immigration and Citizenship & Anor [2007] FMCA 1554 and Zangzinchai v Millanta (1994) 125 ALR 265; (1994) 53 FCR 35 the Tribunal concluded that s.36(2) did not apply because the relevant date sought to be reckoned was the date upon which the then extant visa expired and that was not a date “for doing of anything” and this was equally so in the case before it. On that basis it also refused the applicant’s application.
Finally the Tribunal considered the applicant’s claims that he had been delayed in the lodging of the visa application “due to circumstances beyond his control” but found it had no discretion to take into account the reasons for why the applicant was delayed in lodging his applications.
Grounds for Review
The applicant seeks judicial review of the Tribunal’s determination on the grounds of:
1.[The Tribunal] made a jurisdictional error by failing to correctly apply the relevant regulation 572.211 in relation to the calculation of the period within which an application must be made for a Student Visa;
Particulars
a)the applicant had applied for a student visa within the time specified in Regulation 572.211
2.The [Minister and the Tribunal] committed jurisdictional error in failing to properly apply s.36(2) of the Acts Interpretation Act (Cth).
In essence the applicant contends that the Tribunal erred in its application of clause 572.211 by failing to apply s.36(2) of the Acts Interpretation Act to the circumstances before it.
Ground 1
The applicant’s submissions are premised upon the question of whether the application for a Student Visa was made within the time prescribed by clause 572.122 of Schedule 2 of the Regulations. This clause provides for the criteria to be satisfied at the time of application. As at 26 October 2009 the applicant was not the holder of a relevant visa. Accordingly only sub-clause 3 applied. Of the requirements of sub-clause 3 he satisfied all except the requirements of sub-clause 3(d)
That sub-clause provided:
“3(…
(d) The applicant satisfies schedule 3 criterion 3005.”
Schedule 3 criterion 3005 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…”
In this case the applicant had previously been granted a visa on the basis of Schedule 3 criteria 3005 because he had previously lodged a Student Visa application out of time and thus had previously made use of the Schedule 3 provisions.
It followed that despite the applicant’s written submissions in his outline that he was entitled to be considered in accordance with clause 572.211(3) this was not so. Clause 572.211(3) applies to a visa applicant, not the holder of a relevant visa at the time of application but only if the applicant also satisfies Schedule 3 clause 3005 at that time. Here the applicant did not so satisfy that criterion.
The applicant’s arguments concerning Ground 1 were misconceived because it sought to apply the operation of clause 572.211(c) which was not relevant in this instance. The cases relied upon by the respondent cannot be materially distinguished in this instance having regard to the issue before the Court. In fact in my finding, those authorities expressly bind the approach this court must take in this instance.
The applicant here was simply unable to apply as an applicant who was not the holder of a relevant visa as I have explained above. He was otherwise an applicant who did not hold a visa at the time of application. It follows he did not satisfy the criteria provided by clause 572.211. The Acts Interpretation Act does not come to his aid to extend the time for making application for the reasons identified in Zangzinchai v Milanta (supra) and Lee v Minister for Immigration & Anor (supra) (14 September 2007) as followed by the Tribunal.
No error is demonstrated on this ground.
Ground 2
The second ground advanced by the applicant simply restates in a different form the propositions advanced by him on ground 1 and accordingly ground 2 also fails.
Estoppel
An additional matter not raised in the application but agitated at the hearing concerns estoppel.
As discussed in the background section above it is plain that the applicant in reliance upon representations made to him by a departmental officer whom the Tribunal appears to have accepted was fully informed of the applicant’s circumstances. Although the Tribunal made no finding I am prepared to conclude from the facts as accepted by the Tribunal that had the applicant not been given the advice and assurances the Tribunal found he was given, he would have manually submitted a compliant application on 23 October rather than posted as he was advised to do.
Arguably the circumstances suggest some actionable estoppel on the part of the applicant to deny the first respondent and from accepting the applicant had lodged his application.
However here the applicant agreed with the Department’s suggestion that he submit his then incomplete application by post (the applicant at the time did not have the necessary cash to pay the application fee).
It follows that it could not be said he was seeking to give effect to an assumption on which he acted and as such there is no foundation for estoppel; see Minister for Immigration and Ethnic Affairs v Sabri Polat (1995) 57 FCR 98 at [105].
However, and more fundamentally, a court may not relieve against non-compliance with the requirements of a statute. “It is because the general principles of estoppel are limited, in public law, by the ultra vires doctrine. No principle of estoppel can excuse an administrator from performing his or her statutory obligations or permit the administrator to act ultra vires.” See Minister for Immigration Ethnic Affairs v Sabri Polat (supra) at [105].
It follows the applicant has no basis for relief on estoppel.
Summary
At the time of making application for a visa the applicant was not the holder of a relevant visa. By reason of his personal circumstances he was not eligible to apply as a non-visa holder. The Tribunal’s determination that it could not extend the time for the lodging of his visa application by operation of the Acts Interpretation Act was correct and no basis has been demonstrated by the applicant to warrant review of the Tribunal’s decision.
Orders
Application dismissed.
Unless either party makes application for any other order within seven (7) days the applicant pay the respondent’s costs fixed in the sum of $5,865.00.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 27 October 2011
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