Kaur v Minister for Immigration and Citizenship [2010] FCA 1319 (26 November 2010)

Last Updated: 30 November 2010

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Citizenship [2010] FCA 1319

Citation:		Kaur v Minister for Immigration and Citizenship [2010] FCA 1319
Appeal from:		Kaur v Minister for Immigration [2010] FMCA 634
Parties:		JASVIR KAUR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number(s):		NSD 1197 of 2010
Judge:		JACOBSON J
Date of judgment:		26 November 2010
Catchwords:		MIGRATION – Student (Temporary) (Class TU) subclass 572 and 573 visas – application for review of decision of Federal Magistrate upholding decision of delegate of Minister to grant subclass 573 visa and upholding decision of Tribunal to affirm decision of another delegate to refuse to grant a subclass 572 visa – whether delegate gave consideration to selection of visa expiry date
Legislation:		Migration Act 1958 (Cth) ss 4, 5, 30, 31, 41, 66, 68, 82, 351 Migration Regulations 1994 (Cth) regs 2.02, 2.03, 2.05, Schedule 1, Schedule 2
Cases cited:		Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 cited
Date of hearing:	26 November 2010
Date of last submissions:	26 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Appellant:	Mr PD Reynolds
Solicitor for the Appellant:	Parish Patience Immigration Lawyers
Counsel for the Appellant:	Mr J Smith
Solicitor for the Appellant:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1197 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JASVIR KAUR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	26 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1197 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JASVIR KAUR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	JACOBSON J
DATE:	26 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION AND OVERVIEW

1. This is an appeal from orders made by Barnes FM on 27 August 2010. Her Honour dismissed an application for review of two decisions. The first was a decision of a delegate of the Minister for Immigration and Citizenship (“delegate”), dated 28 June 2006, to grant the appellant a subclass 573 visa until 6 June 2008. The second was a decision of the Migration Review Tribunal (“the Tribunal”), made on 17 September 2009, to affirm a decision of a delegate made on 26 September 2008 to refuse to grant the appellant a subclass 572 visa.
2. The essential issue which arises on the appeal is whether the Federal Magistrate erred in finding that the appellant failed to establish that the delegate did not or did not appropriately consider the question of the date on which the appellant’s visa expired.
3. This issue arose because, as explained later, the appellant, who had previously held a subclass 573 visa, applied to the Minister on 1 September 2010 for a subclass 572 visa, to enable her to continue her studies in Australia.
4. It was a criterion for the grant of that visa that the application be made within 28 days after the day on which the appellant’s last substantive visa ceased to be in effect. This arose from the provisions of the Migration Regulations 1994 (Cth) (“the Regulations”), Schedule 2, item 572.211(3)(c)(i) to which I will refer in more detail later.
5. The delegate, and on review the Tribunal, found that the appellant’s last substantive visa had ceased to be in effect on 6 June 2008 and, accordingly, refused to grant the appellant a subclass 572 visa.
6. The evidence before the Federal Magistrate demonstrated that the appellant had believed that her last substantive visa ceased to be in effect on 31 August 2008. That belief was based on a label in the appellant’s passport, which showed the expiry date as 31 August 2008.
7. However, the appellant, as I have said, whilst in Australia, applied for another visa to change her course of studies. She was notified that the visa granted pursuant to that application was valid until 6 June 2008, but the terms of the letter set out at Appeal Book page 197, are, as will be discussed in more detail later, in terms which are somewhat confusing.
8. The appellant argued before the Federal Magistrate that in granting the appellant her last substantive visa, the delegate had erred in imposing an expiry date of 6 June 2008. The substance of the argument was that the delegate had fallen into jurisdictional error by failing to consider the date on which the visa expired or had failed to give appropriate consideration to it.

LEGISLATIVE FRAMEWORK

9. The stated object of the Migration Act 1958 (Cth) (“the Act”) includes the regulation, in the national interest, of the coming into, and presence in, Australia of non-citizens. This is referred to in s 4(1) of the Act.
10. The central means by which this object is achieved is an elaborate and interconnected set of statutory provisions dealing with visas. These are set out in Part 2, Division 3 of the Act. A visa may be a visa to remain in Australia during a specified period: see s 30(2)(a) of the Act.
11. Section 31 of the Act provides that there are to be prescribed classes of visas. Section 31(3) states that the regulations may prescribe the criteria for a visa or visas of a specified class.
12. Section 41 provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
13. Section 66(1) of the Act states that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. However, there is no relevant provision in s 66 of the Act for the Minister or the Minister's delegate to give reasons.
14. Section 68(1) of the Act states relevantly that a visa has effect as soon as it is granted. Section 68(3) provides that a visa can only be in effect during the visa period for the visa. The term "visa period" is a defined term. The definition is set out in s 5(1) of the Act and provides that the “visa period” is the period beginning when the visa is granted, and ending, relevantly, when the visa ceases to be in effect.
15. Section 82(2) of the Act states that a substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect. Section 82(7) provides that a visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
16. Regulation 2.01 of the Regulations provides that for the purpose of s 31 of the Act, the prescribed classes of visas are relevantly such classes as are set out in the respective items in Schedule 1.
17. Regulation 2.02 provides for subclasses of visas. Regulation 2.02(1) states that:

Schedule 2 is divided into Parts, each identified by the word “Subclass” followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass.

18. The criteria for the grant of those classes of visas are referred to in reg 2.03.
19. Regulation 2.05 deals with the conditions applicable to classes of visas.
20. Item 1222 of Schedule 1 of the Regulations provides for the class of visa known as Student (Temporary) (Class TU). Item 1222(1) – (3) of Schedule 1 specifies the formal matters relevant to such a visa, including the form of application, the cost and various other matters. Item 1222(4) refers to the establishment of subclasses of Student (Temporary) (Class TU) visas. These include in particular, subclass 572 applicable to Vocational Education and Training Sector visas, and item 573, which apply to the subclass known as the Higher Education Sector.
21. Two items in relation to subclass 572 and subclass 573 are relevant to the present application. The first is sub-item 572.211(3)(b)(i) and (c)(i). I will set out those items as follows:

(3) An applicant meets the requirements of this subclause if:
...
(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
...

22. The relevant sub-item in relation to subclass 573 is 573.511 which relevantly provided as follows:

Temporary visa permitting the holder to travel to, enter and remain in Australia:
(a) if the application is made on form 157P or 157P (Internet) – until the date on which the visa held by the applicant at the time of application would have ceased to be in effect; and
(b) otherwise – until a date specified by the Minister.

THE FACTS

23. The department maintained a record entitled "Movement Details" for the appellant. That document shows that the appellant arrived in Australia on 21 July 2005 under a visa granted to her on 5 July 2005 in India. The visa was in subclass 573 and ceased on 26 September 2005.
24. Prior to the expiry of the visa, the appellant applied to the Minister for a Student (Temporary) (Class TU) visa with permission to work. On 26 September 2005, a delegate of the Minister advised the appellant that the subclass 573 Higher Education Sector student visa with permission to work had been granted. The decision of the delegate was recorded in the letter which, as I have said, was dated 26 September 2005, and states that the visa was valid until 31 August 2008.
25. Details of the visa, including the visa grant number, were recorded in the record of Movement Details. Also, the expiry date was endorsed on the appellant's passport in a visa label which showed that the visa was granted on 26 September 2008 and that it expired on 31 August 2008.
26. The delegate's letter stated that the visa was subject to a number of conditions including condition 8206. The effect of this condition was that the appellant could not change her enrolment for a course at a different education provider for the first 12 months of her course.

The second delegate’s decision

27. On 19 April 2006, the appellant applied for a student visa that would allow her to change her enrolment. Her application was not made on either form 157P or 157P (Internet). The course she proposed to take commenced on 6 April 2006, and was to end on 6 April 2008. By contrast, the course in which the appellant was originally enrolled was due to end on 6 July 2008.
28. On 28 June 2006, a delegate of the Minister wrote to the appellant to notify her that she had been granted a subclass 573 Higher Education Sector student visa with permission to change her education provider. This decision has been referred to in argument as “the second delegate's decision”. It is the critical decision in this matter.
29. The letter of 28 June 2006 contained the following which appeared under the subheading "Visa Information":

Your visa is valid until 06 June 2008.

If you applied for your visa on a paper application form, you may already have a visa label in your passport. Please examine your visa label closely and note carefully the expiry date of your visa. If your passport has not yet been endorsed with a visa label, please follow the instructions at the end of this letter. [Bold in original]

30. The letter went on to state that the appellant was no longer subject to condition 8206, which, as I have said, meant that she was permitted to change education providers. There was information in the last paragraph of the letter dealing with Visa Information, which directed the appellant as to how she may check her visa status if she did not have a visa label in her passport.
31. Details of the delegate’s decision of 28 June 2006 were recorded in the Movement Details document, to which I have referred. The Movement Details document shows the date on which the visa was granted, the grant identification number, the category of the visa and, importantly, the notation that the visa was to cease on 6 June 2008.

Events subsequent to the second delegate’s decision

32. The events which occurred between 28 June 2006 and June 2008 are referred to in the decision of the Federal Magistrate at [10] – [12]. It is unnecessary to repeat them, save to say that the Federal Magistrate observed at [12] of her reasons for judgment that the appellant understood that she had until 31 August 2008 to apply for a visa extension and that she agreed to return to her migration agent for advice in early August 2008.
33. On 1 September 2008, the appellant applied for a further student visa. This was a visa in subclass 572. On 26 September 2008 a delegate of the Minister notified the appellant that she had been refused a visa, because her application had not been made within 28 days after the last substantive visa had ceased to be in effect.

THE TRIBUNAL’S DECISION

34. The appellant then applied to the Migration Review Tribunal for a review of the delegate’s decision of 26 September 2008. The Tribunal stated at [19] of its findings and reasons that on the evidence before it the tribunal found that the visa application was made in Australia and, accordingly, the applicant was required to satisfy item 572.211.
35. The Tribunal found that the appellant met the requirements of items 572.211(3)(a) and 572.211(3)(b).
36. The Tribunal then turned to consider the question of whether the appellant met the terms of item 572.211(3)(c). The Tribunal’s reasons on this question were recorded at [21] – [23] of its reasons for judgment dated 17 September 2009. I will set out those paragraphs in full as follows:

21. To meet cl.572.211(3)(c), the applicant was required to have lodged the current visa application within 28 days of the latter of either: the day when the last visa ceased to be in effect; or if the visa was cancelled and the Migration Review Tribunal set aside the decision to cancel or not revoke the cancellation, the day when the applicant was taken to be notified of that decision under ss.368C, 368D and 379C of the Act. The visa application on the Departmental file was receipted on 1 September 2008 and on the basis of this information the Tribunal finds that the current visa application was made on that date.

22. The Tribunal also finds, on the basis of information in the Department’s movement records, that the applicant’s last substantive visa ceased to be in effect on 6 June 2008.

23. On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the Tribunal finds the applicant does not meet cl.572.211(3)(c).

THE FEDERAL MAGISTRATE’S DECISION

37. The appellant’s application for review to the Federal Magistrates Court was made out of time, but the learned Federal Magistrate considered that it was appropriate to make an order extending the time within which to apply for relief in respect of the second delegate’s decision and the Tribunal’s decision.
38. The appellant attacked the decision of the second delegate, only insofar as it specified the date on which the visa ceased to have effect. I have referred earlier to the substance of the argument, which was pressed on behalf of the appellant before the Federal Magistrate.
39. The Federal Magistrate found at [96] that the appellant had not established that the delegate failed to consider the issue of the date on which the visa was to cease.
40. Her Honour said at [97] that there was no evidence to support the contention that the delegate did not consider whether the date of 6 June 2008 was an appropriate expiry date.
41. The substance of her Honour’s reasons are set out at [98] as follows:

98. Thus, in the absence of an obligation to give reasons for the grant of a visa and having regard to the date that was in fact specified, it has not been established that there was a failure to have regard to the appropriateness of the expiry date or to Departmental policy requiring selection of an expiry date which suggested an appropriate date would be one month after completion of the course for which the visa was obtained. As pointed out by counsel for the first respondent, there was good reason in this case to fix a visa expiry date earlier than 31 August 2008. The previous course in which the applicant had been enrolled had an end date of 6 July 2008, for which there was a visa expiry date of 31 August 2008. The issue came before the delegate in 2006 in the context of an application for a visa which permitted a change to education providers. It was based on a proposed change of the applicant’s course of study to a course which was to finish on 6 April 2008 instead of 6 July 2008. The expiry date of 6 June 2008 that was fixed by the delegate for the 2006 visa was for a date two months after the completion of the proposed course of study. This was more generous than the one month after completion of the course suggested by policy (see PAM3 cl 135.8).

42. The appellant also sought to attack the decision of the delegate on the ground that it was arbitrary or capricious. The Federal Magistrate rejected that argument at [100]. Her Honour stated that the date chosen was well within the bounds of what might reasonably and logically have been considered to be an appropriate cessation date. She referred to the recent decision of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
43. Her Honour also dismissed a submission that the delegate otherwise misconstrued and/or misapplied the criterion stated in item 573.511. Her Honour’s reasons were set out at [101]. This ground of attack failed, essentially for the reasons set out at [98] of the Federal Magistrate’s reasons for judgment. So too did an attack upon the exercise of power of the delegate to grant the visa with an expiry date of 6 June 2008.
44. Her Honour also dismissed the attack which was made on the decision of the tribunal.
45. The substance of her Honour’s reasons were set out at [119] as follows:

119. In these circumstances, in the absence of any demonstrated invalidity in the delegate’s fixing of the expiry date on any basis contended for by the applicant, the Tribunal’s exercise of power could not have been affected by any inquiry as to whether the date of 6 June 2008 was validly specified by the delegate in the decision to grant the last substantive visa held by the applicant at the time she made the 2008 visa application. Even if the expiry date was a question of law and the Tribunal should have considered the validity of the specification of the last visa expiry date, failure to do so was not an error that affected the Tribunal’s exercise or purported exercise of power because there is no basis for finding that the fixing of the 6 June 2008 date was invalid. Hence no jurisdictional error on the part of the Tribunal in the sense considered in Craig v South Australia (1995) 184 CLR 163 ; [1995] HCA 58 has been made out.

THE PRESENT APPLICATION

46. The first ground upon which the appellant seeks to attack the decision of the Federal Magistrate is recorded at [20] of the written submissions of the appellant’s counsel, Mr Reynolds.
47. These submissions seek to re-agitate the grounds of review upon which the appellant failed before the Federal Magistrate. It is unnecessary to deal with this in any detail. It seems to me that her Honour was correct for the reasons set out at [98] of her reasons for judgment.
48. However, in the appeal, Mr Reynolds seeks to put the first ground of appeal on a slightly different basis from that on which he argued before the Federal Magistrate. Mr Reynolds submitted that when the second delegate’s letter is read as a whole, the effect of it is that either the delegate did not specify a date on which the visa ceased to have effect, or that it specified two different dates. In either event this would, on Mr Reynolds’ submissions, constitute a failure to exercise the power to specify the expiry date of the visa.
49. Mr Reynolds’ argument focused in particular upon the inter-relationship between the two paragraphs of the letter of 28 June 2006 which I have set out above. The substance of his submission was that the words appearing in the second paragraph of the quoted passage of the letter which stated, relevantly:

Please examine your visa label closely and note carefully the expiry date of your visa

constituted a reference to the expiry date of 31 August 2008 as recorded in the visa label in the appellant’s passport. Mr Reynolds pointed, in particular, to the sentence which included the words:

you may already have a visa label in your passport.

50. Mr Reynolds submitted that these words amounted to the specification of a different date from the date stated in the previous paragraph of the letter which stated, quite simply, that the visa was valid until 6 June 2008.
51. Mr Reynolds submitted that when the two paragraphs are read together, it must be inferred that the delegate either failed to consider the expiry date or selected two inconsistent dates.
52. Counsel for the Minister, Mr Smith, submitted that it was not open to Mr Reynolds to pursue this argument on appeal because the matter was run in a different way before the Federal Magistrate. Mr Smith submitted that if this argument had been presented in the Federal Magistrates Court he may have wished to call evidence in order to answer the alternative way in which the case is now pursued.

DISCUSSION

53. There is some force in Mr Smith’s submission, but I have come to the view that it is open to Mr Reynolds to run this argument on appeal. Nevertheless, I reject the submission.
54. In my opinion, the delegate’s letter shows that the delegate did select and specify the expiry date of 6 June 2008. She did so in plain words in the first paragraph of the letter appearing below the subheading “Visa Information”. What follows in the next paragraph is merely a request to the appellant to examine her visa label. I do not think that anything turns on the question of whether this refers to the visa label (if any) for the visa issued on 28 June 2006 or to the visa label which was endorsed in the appellant’s passport and which specified an expiry date of 31 August 2008.
55. In my opinion, the words on which Mr Reynolds relies do not constitute the selection of a date. Rather, they amount to a request or advice to the appellant to examine the label and note the expiry date of her visa.
56. Nothing was said in the second paragraph of the relevant passage to suggest that this in any way varied the plain words of the sentence stating that the visa was valid until 6 June 2008. Properly and fairly read, the second delegate’s letter specified only one expiry date for the visa. There was no selection of another date, nor was there any inconsistency between the first and second paragraphs of the letter.
57. Mr Reynolds accepted that if I were to determine this point adversely to him, the remaining grounds of appeal must also fail. It follows that I reject the ground based on irrationality or illogicality.
58. I also reject the ground that the Tribunal failed to ask the correct question. The substance of that point was that Mr Reynolds submitted that the question of what date was specified by the Minister is a question of law.
59. In my opinion it is a question of mixed fact and law. I see no error in the reasons of the Tribunal in the paragraphs that I have set out above. It is clear that the Tribunal asked itself the right question by considering the relevant items in Schedule 2 of the Regulations. Ultimately the question of the date specified by the Minister must be a question of fact.
60. Mr Reynolds submitted that the Tribunal misdirected itself by determining the date on which the appellant’s visa ceased to be in effect by reference to the Department’s Movement Record. He submitted that if the Tribunal had asked itself the correct question, it would have had regard to the letter from the second delegate of 28 June 2006.
61. However, even if that is correct, the view which I have taken as to the meaning of that letter has the effect, as Mr Reynolds acknowledged in argument, that this ground must also fail.
62. It follows that the appeal must fail. However, in my view the second delegate’s letter of 28 June 2006 is one which is to say the least confusing. That was demonstrated in argument before me this morning and the learned Federal Magistrate at [7] of her reasons described the second paragraph of the relevant passage of the letter as “somewhat confusing”.
63. Moreover, her Honour accepted at [46] and [47] that the appellant had sought and relied on the advice of her migration agent as to the expiry date of her visa, and that she had followed the migration agent’s advice which had resulted in the lodgement of her visa application out of time.
64. It seems to me that the advice which was given and acted upon by the appellant, although for the reasons set out above not correct, was not unreasonable in light of the confusing terms of the letter.
65. In those circumstances it may be a matter in which the Minister would be prepared to revisit the question of whether to substitute a more favourable decision pursuant to s 351 of the Act.
    

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 30 November 2010